AILA Comments on Fee Increases for MTRs and Appeals
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918 F Street, N.W.
Washington, D.C. 20004
(202) 216-2400
Director, Regulatory Management Division
U.S. Citizenship and Immigration Services
Department of Homeland Security
111 Massachusetts Avenue, NW., 3rd FloorM
Washington, DC 20529
Via email: rfs.regs@dhs.gov
RE: Docket No: DHSA-2004-0021
Dear Sir/Madam:
AILA is a voluntary bar association of more than 9,200 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA's mission includes the advancement of the law pertaining to immigration and naturalization and the facilitation of justice in the field. AILA's members are well acquainted with the administrative appeals process, having significant experience representing and educating business and family clients who must appeal adverse erroneous decisions from Service Centers and District Offices. The members of our association represent large and small businesses, academic institutions, research facilities and governmental entities that employ foreign nationals as well as U.S. workers and family members. AILA is thus uniquely qualified to comment on this proposed rule.
AILA commends the USCIS, and particularly the AAO, on its commitment to backlog reduction. AILA fully supports that goal, as timely adjudication of appeals should benefit those whose applications and petitions have been wrongly denied, and provide certainty even in those instances where the appealed USCIS action was proper.
The fee increases proposed for Motions to Reopen/Reconsider and for appeals to the Administrative Appeals Office seem, on initial review, excessive. However, AILA recognizes that there has not been a fee increase for these matters since approximately 1989. AILA also recognizes with dismay the tremendous backlog of appeals, and the lengthy time projections from date of appeal to date of disposition.
Therefore, the proposed fee increase for administrative appeals is supportable only if it actually produces resources for the Administrative Appeals Office. Indeed, the AAO needs to be included in the U.S. Citizenship and Immigration Services backlog reduction plan and its progress measured and reported to Congress along with the progress of the other units of USCIS. More than trebling the fee, while failing to make this one unit a part of the backlog reduction plan for which USCIS is answerable to Congress and the public, is unconscionable.
This record fee increase applies to Motions to Reopen or Reconsider as well as administrative appeals. The fee increase for Motions is even more troubling than the fee increase for administrative appeals, due to the issuance on May 4, 2004, of a memorandum encouraging adjudicators to deny petitions and applications instead of issuing Requests for Evidence, and offering no encouragement to directly approve approvable cases. The result of this memo has been a marked increase in inappropriate denials without opportunity to see what the adjudicator is thinking and respond to it. The further result has been that the only recourse in these cases has been to file a Motion to Reopen or Reconsider. Therefore, AILA strongly opposes an increase in the fee for Motions-much less an increase of this magnitude-unless and until the USCIS withdraws this recently announced policy. Further, AILA opposes this fee increase unless and until USCIS provides a mechanism to waive fees or to refund fees where appeal or Motion is required to correct an obvious error by the U.S. Citizenship and Immigration Services examiner.
AILA welcomes the opportunity to work with USCIS to improve adjudications and reduce backlogs, while maintaining fairness in the system.
Sincerely,
AMERICAN IMMIGRATION LAWYERS ASSOCIATION