513 F.Supp.3d 154
CATHOLIC LEGAL IMMIGRATION NETWORK, INC. et al., Plaintiffs,
v.
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW et al., Defendants.
Case No. 20-cv-03812 (APM)
United States District Court, District of Columbia.
Signed January 18, 2021
Joseph Evall, Pro Hac Vice, Richard Mark, Pro Hac Vice, Alexandra Perloff-Giles, Pro Hac Vice, Julianne Lee Duran, Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, New York, NY, Anthony J. Moreno, Pro Hac Vice, Gibson Dunn & Crutcher LLP, San Francisco, CA, Emma Winger, Pro Hac Vice, Katherine E. Melloy Goettel, American Immigration Council, Vladimir J. Semendyai, Gibson, Dunn & Crutcher LLP, Washington, DC, Michelle LaPointe, Pro Hac Vice, National Immigration Law Center, Decatur, GA, Robin Goldfaden, National Immigration Law Center, Los Angeles, CA, for Plaintiffs.
Julie Straus Harris, James R. Powers, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION AND ORDER
Amit P. Mehta, United States District Court Judge
I. INTRODUCTION
The Executive Office for Immigration Review ("EOIR") is an agency within the
U.S. Department of Justice that oversees and conducts immigration court proceedings, administrative hearings, and appellate reviews before the Board of Immigration Appeals ("BIA") as part of the country's system of immigration adjudications. EOIR charges fees for various types of motions, applications, and appeals filed in these adjudications. Since 1986, the maximum fee for any such filing has been $110. EOIR now intends to raise those fees. On December 18, 2020, EOIR promulgated a final rule that increases filing fees by between 32 and 886 percent ("Final Rule"). Most dramatically, the filing fee for a notice of appeal of an immigration judge's decision to the BIA will increase from $110 to $975. These fee increases are set to go into effect on January 19, 2021.
Plaintiffs are non-profit organizations that provide legal and other assistance for immigrants. They seek to stay the effective date of the Final Rule or, alternatively, to enjoin it from going into effect. They raise a host of challenges to the Final Rule under the Administrative Procedure Act.
For the reasons that follow, the court grants in part and denies in part Plaintiffs’ motion to stay the effective date of the Final Rule or, in the alternative, for a preliminary injunction. The court holds that EOIR acted arbitrarily and capriciously by disregarding the Final Rule's impact on legal service providers and their capacity to provide legal services to persons subject to removal proceedings. EOIR was obligated to address these concerns as part of the notice-and-comment process but it failed to do so. In short, EOIR "entirely failed to consider an important aspect of the problem." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. (State Farm) , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The court also finds that, absent equitable relief, Plaintiffs will suffer irreparable harm, and that the balance of the equities and the public interest favor staying the effective date of a portion of the Final Rule.
Accordingly, the court will stay the effective date of the Final Rule, and enjoin its implementation, insofar as it imposes increased fees for (1) Form EOIR-26 for filing an appeal from a decision of an immigration judge; (2) Form EOIR-29 for filing an appeal from a decision of an officer of the Department of Homeland Security ("DHS"); (3) filing a motion to reopen or to reconsider before the BIA; (4) Form EOIR-40 for an application for suspension of deportation; (5) Form EOIR-42A for an application for cancellation of removal for certain permanent residents; and (6) Form EOIR-42B for an application for cancellation of removal and adjustment of status for certain nonpermanent residents. The fee increases for (1) Form EOIR-45 for filing an appeal from a decision of an adjudicating official in a practitioner disciplinary case and (2) a motion to reopen or reconsider in the Office of the Chief Immigration Judge may go into effect.
II. BACKGROUND
A. Factual Background
1. Current Fee Structure
Many of the filing fees that are the subject of the challenged rule were last updated in 1986 (the "1986 Rule"). See Powers and Duties of Service Officers; Availability of Services Records, 51 Fed. Reg. 39,993 (Nov. 4, 1986). The Immigration and Naturalization Service ("INS") and EOIR jointly promulgated the 1986 Rule, citing a statutory mandate for "Federal agencies to establish a fee system in which a benefit or service provided to or for any person be self-sustaining to the fullest extent." Id. at 39,993 (citing 31 U.S.C. § 9701 and OMB Circular A-25).
As the agencies explained, the fees were "neither intended to replace nor to be influenced by the budgetary process and related considerations, but instead, to be governed by the total cost to the agency to provide the service." Id. In determining the appropriate fee amounts, the agencies considered the availability of fee waivers for applicants who would be unable to pay the fees and set "several fees for administrative appeal processes and for filing naturalization petitions ... at less than full cost recovery recognizing long-standing public policy and the interest served by these processes." Id. The 1986 Rule was challenged as exceeding the statutory authority of INS and EOIR but ultimately was upheld by the D.C. Circuit as a valid exercise of power under the Independent Offices Appropriations Act, 31 U.S.C. § 9701. See Ayuda, Inc. v. Att'y Gen. , 848 F.2d 1297, 1298 (D.C. Cir. 1988).
The fees from the 1986 Rule and other fees that are currently in place for EOIR filings are as follows:
Table 1: Filing Fees Before 2021 Final Rule
| Form | Description of Filing | 2020 Fee |
| EOIR-40 | Suspension of Deportation | $100 |
| EOIR-42A | Application for Cancellation of Removal for Certain Permanent Residents | $100 |
| EOIR-42B | Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents | $100 |
| N/A | Motion to Reopen or Reconsider Before Immigration Judge | $110 |
| EOIR-26 | Notice of Appeal from a Decision of an Immigration Judge | $110 |
| EOIR-29 | Notice of Appeal to the BIA from a Decision of a DHS Officer | $110 |
| EOIR-45 | Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case | $110 |
| N/A | Motion to Reopen or Reconsider Before BIA | $110 |
See Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 11,866, 11,867 –68 (Feb. 28, 2020).
2. Notice of Proposed Rulemaking
The foregoing fees remained unchanged for over thirty years. Then, on February 28, 2020, EOIR announced that it intended to increase the filing fees, in some cases quite dramatically. EOIR issued a Notice of Proposed Rulemaking that proposed to "increase the fees for [certain] EOIR applications, appeals, and motions that are subject to an EOIR-determined fee, based on a fee review conducted by EOIR." Id. at 11,866. EOIR explained that, as the agency "ha[d] rarely taken any actions related to its fees in the intervening 33 years" since the 1986 Rule, it "determined that it was necessary to conduct an updated assessment of the costs for processing
the forms and motions for which EOIR sets the applicable fees." Id. at 11,868.
To do so, "[i]n the spring of 2018, EOIR conducted a comprehensive study using activity-based costing to determine the cost to EOIR for each type of application, appeal, and motion for which EOIR levies a fee." Id. at 11,869. The 2018 study proceeded in three stages. In stage one, EOIR collected survey data and discussed with staff in both the Office of the Chief Immigration Judge ("OCIJ") and the BIA the staffing levels and "time required to process and...
