[Federal Register Volume 61, Number 171 (Tuesday, September 3, 1996)]
[Rules and Regulations]
[Pages 46373-46374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22335]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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Federal Register / Vol. 61, No. 171 / Tuesday, September 3, 1996 /
Rules and Regulations
[[Page 46373]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3, 103, and 242
[EOIR No. 114I; A.G. Order No. 2051-96]
RIN 1125-AA15
Fees for Motions To Reopen or Reconsider
AGENCY: Department of Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule clarifies when and how fees must be paid
when a motion to reopen or reconsider is filed concurrently with any
application for relief under the immigration laws for which a fee is
chargeable. This interim rule applies to motions to reopen or
reconsider that are filed in all types of immigration proceedings,
including those over which the Immigration and Naturalization Service
(the ``Service'') and the Board of Immigration Appeals (the ``Board'')
have appellate jurisdiction, respectively.
DATES: This interim rule is effective September 3, 1996. Written
comments must be received on or before November 4, 1996.
ADDRESSES: Please submit written comments to Margaret M. Philbin,
General Counsel, Executive Office for Immigration Review, Suite 2400,
5107 Leesburg Pike, Falls Church, Virginia 22041, and Ernest B. Duarte,
Branch Chief, Immigration and Naturalization Service, 425 I Street NW.,
Suite 3214, Washington, DC 20536.
FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel,
Executive Office for Immigration Review, Suite 2400, 5107 Leesburg
Pike, Falls Church, Virginia 22041, telephone (703) 305-0470, or Ernest
B. Duarte, Branch Chief, Immigration and Naturalization Service, 425 I
Street NW., Suite 3214, Washington, DC 20536, telephone (202) 307-3587.
SUPPLEMENTARY INFORMATION: This interim rule amends 8 CFR parts 3, 103,
and 242 by clarifying when the required fees must be paid when a motion
to reopen or reconsider is filed concurrently with any application for
relief under the immigration laws for which a fee is chargeable. This
interim rule applies to motions to reopen or reconsider that are filed
in all types of immigration proceedings, including those over which the
Service and the Board of Immigration Appeals have appellate
jurisdiction, respectively.
This interim rule is necessary to eliminate questions that have
arisen regarding the payment of fees for applications for relief that
require their own separate fees when filed concurrently with motions to
reopen or reconsider. For example, if an individual files a motion to
reopen his or her deportation case in order to apply for suspension of
deportation, is the individual required to pay only one fee for the
motion to reopen, or one fee for the motion, and a second fee for the
application?
Prior to April 4, 1989, the provision at 8 CFR 103.7(b) regarding
motions to reopen or reconsider contained a sentence that specified
that ``[w]hen the motion to reopen or reconsider is made concurrently
with any application under the immigration laws, the application will
be considered an integral part of the motion and only for the fee for
filing the motion or the fee for filing the application, whichever is
greater, is payable.'' When this provision was amended in April 1989,
see 54 FR 13515, this sentence was deleted without explanation. During
the ensuing years, confusion mounted as to the meaning, if any, of this
deletion from the regulation and its effect on the fee requirements.
The Executive Office for Immigration Review (``EOIR'') and the Service
are prepared to eliminate this confusion by amending the fee
requirement for motions to reopen or reconsider as follows:
If a motion to reopen or reconsider is filed by an individual
concurrently with any application for relief under the immigration laws
for which a fee is chargeable (e.g., an application for suspension of
deportation, adjustment of status, or registry), the individual
initially must pay only the fee required for the motion (currently,
$110), unless a fee waiver has been granted pursuant to 8 CFR
103.7(c)(1). If the motion to reopen or reconsider is granted, the
individual then will have to pay the fee set forth in 8 CFR 103.7(b)
required for the underlying application for relief in order to complete
the application. Fee remittance for the underlying application for
relief should be made payable to the ``Immigration and Naturalization
Service''. Unless a fee waiver has been granted pursuant to 8 CFR
103.7(c)(1), failure to pay the subsequent fee for the underlying
application for relief will result in the denial of the application. If
the motion to reopen or reconsider is denied, no further fee will be
required because the underlying application for relief, in effect, will
be moot. This procedure provides a fair and equitable fee structure for
motions and their underlying applications by requiring payment of a fee
for the underlying application only if the motion to reopen or
reconsider is granted. This will prevent imposing undue financial
burdens on those individuals filing such motions.
The implementation of this rule as an interim rule, with provisions
for post-promulgation public comment, is based upon the ``good cause''
exceptions found at 5 U.S.C. 553 (b)(B) and (d)(3). The reasons and the
necessity for immediate implementation of this interim rule without
prior notice and comment are as follows: Immediate implementation of
this rule will ensure that fees for motions to reopen or reconsider,
and their underlying applications for relief, are acceptable in a
consistent manner by all immigration courts and the Board. Immediate
implementation of this rule also will eliminate any existing confusion
with regard to the payment of such fees at the earliest possible time,
while still affording the agencies the opportunity to solicit and
consider all public comments that are timely submitted. Finally, this
interim rule provides a benefit to individuals who wish to file motions
to reopen or reconsider. Hence, immediate implementation will make this
benefit available without any further delay, which would be contrary to
the public interest.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule affects only individuals filing
[[Page 46374]]
motions to reopen or reconsider concurrently with applications for the
relief from deportation. Therefore, this rule does not have a
significant economic impact on a substantial number of small entities.
The Attorney General has determined that this rule is not a significant
regulatory action under Executive Order No. 12866, and accordingly this
rule has not been reviewed by the Office of Management and Budget. This
rule has no federalism implications warranting the preparation of a
Federalism Assessment in accordance with Executive Order No. 12612. The
rule meets the applicable standards provided in sections 3(a) and
3(b)(2) of Executive Order No. 12988.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Lawyers,
Organizations and functions (Government agencies), Reporting and
recordkeeping requirements.
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 242
Administrative practice and procedure, Aliens.
Accordingly, chapter I of Title 8 of the Code of Federal
Regulations is amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Subpart C--Rules of Procedure for Immigration Judge Proceedings
1. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b,
1362, 1362; 28 U.S.C. 509, 1746; sec. 2, Reorg. Plan No. 2 of 1950,
3 CFR 1949-1953 Comp., p. 1002.
2. In Sec. 3.31, paragraph (b) is amended by revising the first
sentence to read as follows:
Sec. 3.31 Filing documents and applications.
* * * * *
(b) Except as provided in 8 CFR 242.17(e), all documents or
applications requiring the payment of a fee must be accompanied by a
fee receipt from the Service or by an application for a waiver of fees
pursuant to 8 CFR 3.24. * * *
* * * * *
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
3. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701, E.O. 12356, 47 FR 14874;
15557; 3 CFR, 1982, Comp., p. 166; 8 CFR part 2.
4. In Sec. 103.7, paragraph (b)(1) is amended by revising the two
entries for ``Motion'', respectively, to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Motion. For filing a motion to reopen or reconsider any decision
under the immigration laws in any type of proceeding over which the
Board of Immigration Appeals has appellate jurisdiction. No fee shall
be charged for a motion to reopen or reconsider a decision on an
application for relief for which no fee is chargeable. (The fee of $110
shall be charged whenever an appeal or motion is filed by or on behalf
of two or more aliens and all such aliens are covered by one decision.
When a motion to reopen or reconsider is made concurrently with any
application for relief under the immigration laws for which a fee is
chargeable, the fee of $110 will be charged when the motion is filed
and, if the motion is granted, the requisite fee for filing the
application for relief will be charged and must be paid within the time
specified in order to complete the application.)--$110.
Motion. For filing a motion to reopen or reconsider any decision
under the immigration laws in any type of proceeding over which the
Board of Immigration Appeals does not have appellate jurisdiction. No
fee shall be charged for a motion to reopen or reconsider a decision on
an application for relief for which no fee is chargeable. (The fee of
$110 shall be charged whenever an appeal or motion is filed by on or
behalf of two or more aliens and all such aliens are covered by one
decision. When a motion to reopen or reconsider is made concurrently
with any application for relief under the immigration laws for which a
fee is chargeable, the fee of $110 will be charged when the motion is
filed and, if the motion is granted, the requisite fee for filing the
application for relief will be charged and must be paid within the time
specified in order to complete the application.)--$110.
* * * * *
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
5. The authority citation for part 242 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252a, 1252b, 1524, 1362; 8 CFR , part 2.
6. In Sec. 242.17, paragraph (e) is amended by adding two new
sentences after the 4th sentence, to read as follows:
Sec. 242.17 Ancillary matters, applications.
* * * * *
(e) * * * When a motion to reopen or reconsider is made
concurrently with an application for relief seeking one of the
immigration benefits set forth in paragraphs (a) and (c) of this
section, only the fee set forth in Sec. 103.7(b)(1) of this chapter for
the motion must accompany the motion and application for relief. If
such a motion is granted, the appropriate fee for the application for
relief, if any, set forth in 8 CFR 103.7(b)(1), must be paid within the
time specified in order to complete the application.* * *
Dated: August 26, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-22335 Filed 8-30-96; 8:45 am]
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