Reducing Taxpayer-Funded Immigration Relief 

IRLI urges fees be upped to cover agency costs 

WASHINGTON—In a strongly worded public comment filed yesterday with the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR), the Immigration Reform Law Institute (IRLI) endorsed the government’s long-delayed decision to raise the fees that aliens, who seek orders from the nation’s immigration courts that would halt their removal, must pay to cover the costs of their case proceedings. 

At the same time, the IRLI filing charged that previous EOIR administrators have unlawfully failed to conduct the biennial fee reviews authorized by Congress for 33 years, and were still choosing not to set fees at the full actual cost of adjudication. Those failures, IRLI charges, are major contributors to the choking backlogs in processing immigration benefits applications.   

EOIR operates the nation’s immigration courts and the primary immigration appeals tribunal, the Board of Immigration Appeals. EOIR judges decide hundreds of thousands of cases annually, but EOIR has a backlog that has grown into millions of pending cases. EOIR backlogs are a major roadblock to removals of illegal aliens. That roadblock causes chronic delays in final decisions for millions of qualified aliens, who must wait in a legal limbo for years.   

“For more than forty years the law and policy of this Nation has been that the full cost of processing all applications for immigration benefits, including the full costs of operating immigration courts to adjudicate applications from aliens seeking to block or appeal their deportation, is to be funded by user fees—not taxpayer subsidies,” stated IRLI Executive Director Dale L. Wilcox. “Congress has mandated that every government agency that imposes user fees must review the fees and costs every other year.” 

“We are appalled to discover that the U.S. Department of Justice has failed to conduct fee reviews for EOIR user fees for 33 years, said IRLI Senior Counsel Mike Hethmon, who prepared the filing. “For sixteen review cycles dating back to the 1980s, the government has defied the law and knowingly underfunded immigration court operations. Underfunding is the major reason that America’s immigration system has a choking backlog of millions of pending cases, where illegal aliens run wild while bona fide immigrants remain in limbo for years or even decades.” 

“IRLI is encouraged that the current administration is taking belated steps to restore the rule of law and restore the hundreds of millions of dollars of operational resources that have been squandered for three decades,” Wilcox explained. “But we remain concerned that the agency has chosen not to recover the full actual costs, as defined by OMB and FASB federal accounting standards and by federal law. Their justification is the misleading mantra that ‘protecting access’ to the immigration courts is the primary national interest. In fact, beginning in the 1980s Congress made user fees the required method for funding the federal response to the surge in alien immigration benefits claims. EOIR must serve that paramount national interest. Refusal to set user fees at the full-cost recovery level means that the agency will continue to operate in triage mode, without vital resources that could be available to end the backlog.”    

The IRLI public comment was filed in response to EOIR Notice of Public Rulemaking No. 8-0101, EOIR Fee Review, published at 85 Fed. Reg. 11866 (February 28, 2020).