UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) CATHOLIC LEGAL IMMIGRATION ) NETWORK, INC. et al., ) ) Plaintiffs, ) ) v. ) Case No. 20-cv-03812 (APM) ) EXECUTIVE OFFICE FOR IMMIGRATION ) REVIEW et al., ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
In late December 2020, the Executive Office for Immigration Review (EOIR) published a
Final Rule adopting proposed increases to eight filing fees for various motions, applications, and
appeals before immigration courts and the Board of Immigration Appeals (BIA). The Final Rule
raised the fees for the first time in over 30 years by different multiples. The smallest change was
a modest $35, moving from $110 to $145. The largest was over eight times more, increasing from
$110 to $975. Before the fee increases could become final, Plaintiffs moved for emergency relief.
The court enjoined six of the eight fee increases from taking effect. The original fees for those six
therefore remain in place.
The case is now before the court on summary judgment for final resolution of a host of
substantive and procedural claims under the Administrative Procedure Act (APA). Although
Defendants urge the court to rule only on the ground upon which it stayed the six fee increases,
the court addresses all claims. For the reasons explained below, each side’s motion for summary judgment is granted in part and denied in part. The six fee increases will be vacated for the same
reason they were stayed but not on the merits of any other claim.
II. BACKGROUND
A. Factual Background
This court covered the background facts of this case in the Memorandum Opinion and
Order granting preliminary relief in part. See Cath. Legal Immigr. Network, Inc. v. EOIR
(Cath. Legal I), 513 F. Supp. 3d 154, 159–64 (D.D.C. 2021). The court presumes familiarity with
those facts and therefore sets forth only a general overview below.
EOIR is an agency within the U.S. Department of Justice that oversees and conducts
removal proceedings in immigration courts and appeals before the BIA. In February 2020, EOIR
issued a Notice of Proposed Rulemaking (NPRM) that proposed to raise the fees it charges
applicants to initiate various types of proceedings. See Executive Office for Immigration Review;
Fee Review, 85 Fed. Reg. 11866 (Feb. 28, 2020). The increases were based on a study of the costs
associated with each proceeding (“Fee Study”). See id. at 11869. The proposed fee increases were
as follows:
2 Table 1: Proposed Filing Fees Comparison
Form Description of Filing 2020 Fee 2021 Fee EOIR-40 Application for Suspension of Deportation $100 $305 EOIR-42A Application for Cancellation of Removal for Certain $100 $305 Permanent Residents EOIR-42B Application for Cancellation of Removal and Adjustment $100 $360 of Status for Certain Nonpermanent Residents N/A Motion to Reopen or Reconsider Before Immigration $110 $145 Judge EOIR-26 Notice of Appeal from a Decision of an Immigration Judge $110 $975 EOIR-29 Notice of Appeal to the BIA from a Decision of a DHS $110 $705 Officer EOIR-45 Notice of Appeal from a Decision of an Adjudicating $110 $675 Official in a Practitioner Disciplinary Case N/A Motion to Reopen or Reconsider Before BIA $110 $895
See id. at 11871, 11874.
The notice-and-comment period lasted for approximately 30 days, from February 28, 2020,
through March 30, 2020. Id. at 11866. The comment period overlapped with the start of
government shutdowns due to the COVID-19 pandemic, causing dozens of organizations to raise
concerns about its brevity. Approximately 90 interested commenters asked the agency to extend
the period from 30 days to 60 days, and 108 organizations later requested that EOIR freeze the
comment deadline given the pandemic and national emergency. See Cath. Legal I, 513 F. Supp. 3d
at 162–63. The agency did not respond to either request. Id.
EOIR received 601 comments. See Executive Office for Immigration Review; Fee Review,
85 Fed. Reg. 82750, 82752 (Dec. 18, 2020). Generally, as pertinent here, commenters raised the
following concerns: (1) the fee increases would deter noncitizens from pursuing their rights before
immigration tribunals; (2) the availability of fee waivers would not offset those deterrent effects;
(3) the agency failed to disclose data underlying the Fee Study; and (4) legal services providers
3 would have less capacity to offer representation in immigration proceedings. Id. at 82752–84.
In late 2020, EOIR adopted the Final Rule, ratifying the proposed fee amounts as set out in the
NPRM. Id. at 82784.
B. Procedural Background
Plaintiffs are four non-profit organizations offering services to noncitizens navigating the
immigration courts and BIA proceedings. Cath. Legal I, 513 F. Supp. 3d at 164. They filed this
action on December 23, 2020, challenging the Final Rule under the APA. See Compl., ECF No. 1
[hereinafter Compl.]. Seven days later, Plaintiffs filed a Motion for a Stay of Effective Dates
Under 5 U.S.C. § 705 or, in the Alternative, Preliminary Injunction, ECF No. 19. Cath. Legal I,
513 F. Supp. 3d at 159. The court enjoined all but two of the fee increases. Id. at 177–78.
Now on summary judgment, Plaintiffs limit their challenge to the six enjoined fee increases
and raise three overarching claims across four counts. See Pls.’ Mot. for Summ. J., ECF No. 56
[hereinafter Pls.’ Mot.], Mem. of P. & A. in Supp. of Pls.’ Mot., ECF No. 56-1 [hereinafter
Pls.’ Mem.], at 20 n.7. First, they contend that the Final Rule is arbitrary and capricious, an abuse
of discretion, and not in accordance with law because Defendants 1 failed to (1) respond to
significant concerns about the adverse impacts of the fee increases; (2) disclose underlying
Fee Study data; (3) provide a reasoned basis for the increases; and (4) offer a rationale for
departing from longstanding agency policy. They also allege that EOIR lacked statutory authority
to increase fees. See Compl. ¶¶ 362–371, 378–387 (Counts I and III). Second, Plaintiffs assert
two procedural violations of the APA. They maintain that (1) the 30-day comment period was too
short given the disruptions caused by the COVID-19 pandemic and (2) Defendants failed to
1 Defendants are EOIR, the Director of EOIR Daren K. Margolin, the U.S. Department of Justice, and the U.S. Attorney General Pamela Bondi. The court has substituted Margolin and Bondi as defendants, both in their official capacities, pursuant to Federal Rule of Civil Procedure 25(d).
4 disclose separate but related forthcoming rules impacting the fee increases proposed in the NPRM.
See id. ¶¶ 372–377, 378–387 (Counts II and III). Third, Plaintiffs assert that Defendants failed to
assess the Final Rule’s effects on small businesses as required by the Regulatory Flexibility Act
(RFA). Id. ¶¶ 388–405 (Count IV). As relief, Plaintiffs ask the court to declare unlawful and set
aside the Final Rule. Id. at 65–66.
Defendants dispute these contentions. They respond that EOIR examined all relevant
factors, were not required to disclose the underlying Fee Study data, provided a reasoned basis for
raising fees, did not change any policy, and properly invoked its statutory authority to set fees.
See generally Defs.’ Cross-Mot. for Summ. J., Mem. in Opp’n to Pls.’ Mot. & in Supp. of Defs.’
Cross-Mot. for Summ. J., ECF No. 57 [hereinafter Defs.’ Mem.], at 14–26. They also defend the
notice-and-comment period’s duration and disclosures, id. at 26–36, as well as the agency’s
nonperformance of an RFA assessment because the Final Rule does not directly impact small
entities, id. at 36–37.
For the reasons explained below, the court reaffirms its preliminary injunction ruling that
EOIR acted arbitrarily and capriciously by failing to consider the impact of higher fees on legal
services providers and will vacate the six fee increases on that ground. See Cath. Legal I,
513 F. Supp. 3d at 172–174. The court rules in Defendants’ favor, however, as to Plaintiffs’
remaining claims.
III. LEGAL STANDARD
When evaluating cross-motions for summary judgment under the APA, “the Rule 56
standard does not apply.” Alfa Int’l Seafood v. Ross, 264 F. Supp. 3d 23, 36 (D.D.C. 2017).
Instead, “the district judge sits as an appellate tribunal,” and “[t]he entire case on review is a
question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)
5 (internal quotation marks omitted). The court must “decid[e], as a matter of law, whether the
agency action is supported by the administrative record and otherwise consistent with the APA
standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006).
IV. DISCUSSION
This opinion is structured as follows. The court begins by reaffirming its preliminary
injunction ruling and rejecting Defendants’ arguments for why the decision was erroneous.
The court then addresses in order: the inability-to-pay and the fee-waivers issues; EOIR’s
nondisclosure of the Fee Study data; the agency’s alleged failures to engage in reasoned
decisionmaking and explain a change in policy; and EOIR’s statutory authority to increase fees.
The court then turns to the procedural challenges, followed by the RFA claim. The court concludes
with a discussion of remedies.
A. Arbitrary and Capricious and Contrary to Law
1. EOIR’s alleged failure to respond to comments
An agency’s action is arbitrary and capricious when it “entirely fail[s] to consider an
important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut.
Auto. Ins., 463 U.S. 29, 43 (1983); Michigan v. EPA, 576 U.S. 743, 753 (2015) (noting agencies
are required to “pay[] attention to the advantages and the disadvantages of agency decisions”).
An agency also must “adequately explain its result,” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197
(D.C. Cir. 1993), and respond to “relevant” and “significant” public comments, Home Box Office,
Inc. v. FCC (HBO), 567 F.2d 9, 35 & n.58 (D.C. Cir. 1977) (citations omitted). “[N]either
requirement is particularly demanding.” Pub. Citizen, 988 F.2d at 197. But, as to the latter, the
agency must respond to significant points—that is, “comments which, if true, raise points relevant
to the agency’s decision and which, if adopted, would require a change in an agency’s proposed
6 rule [and would] cast doubt on the reasonableness of a position taken by the agency.” HBO,
567 F.2d at 36 n.58.
a. Legal organizations’ ability to deliver services
The court held before—and now holds again—that EOIR acted arbitrarily and capriciously
because it largely disregarded the concerns raised by numerous legal services providers about the
proposed fee increases’ adverse impacts on them and their capacities to represent clients. As the
court previously stated, “Congress’s concern for the availability of pro bono and low-cost legal
services in removal proceedings is evident on the face of the [Immigration and Nationality Act
(INA)].” Id. “These provisions of the INA make clear that Congress was concerned not merely
about the right to counsel in removal proceedings, but with actual access to counsel for persons
who Congress anticipated might not be able to afford to hire private lawyers.” Id. at 173–74.
EOIR thus had an obligation to acknowledge legal services providers’ concerns about access to
counsel and “respond to them in a meaningful way.” Id. at 174.
The providers’ comments generally fell into four categories. “First, [they] explained that
the Final Rule would effectively reduce representation because the higher fees would force
individuals to choose ‘between paying the fee or obtaining counsel.’” Id. at 172. “Second, they
noted that ‘legal aid organizations, small firms, and attorneys providing pro bono services would
be unable to routinely pay the fees for their clients,’ as they typically had in the past.” Id. at 172–
73. “Because these organizations would be able to afford fees for fewer clients under the Final
Rule, ‘they would be forced to assist fewer aliens, especially indigent aliens and children, which
would . . . reduce the availability of pro bono counsel generally.’” Id. at 173 (omission in original).
“Third, legal service providers ‘expressed concerns that the funds used to pay their clients’ fees
would come at the expense of other programmatic elements of their budget’ and they would
7 therefore ‘be less able to provide comprehensive services to aliens.’” Id. “Fourth and finally,
commenters explained that the Final Rule would drain their resources, as ‘the higher fees and
resulting fee waivers would increase the time that an attorney spends on a case.’” Id. “This would
‘cause them to turn away clients for lack of time and resources to represent them.’” Id. EOIR did
not address any of these comments. Instead, it “blithely dismiss[ed] them as ‘outside the limited
scope of this rulemaking’” and as “‘speculative.’” Id. at 174. The court explained why neither
assertion was correct. See id. EOIR therefore failed to consider an “important aspect of the
problem” and acted arbitrarily and capriciously. Id. (quoting State Farm, 463 U.S. at 43).
Defendants argue that the court’s reasoning was flawed. Unlike before, they no longer
seriously defend the agency’s dismissal of the service providers’ concerns as “speculative.”
Compare id. at 174, with Defs.’ Mem. at 15–17. Instead, they dismiss their significance. They
note that the Final Rule imposes fee increases on individuals, not legal services providers, and thus
“[t]he first three concerns the Court identified boil down to the effects the higher fees would have
on legal service providers’ bottom lines if they chose to voluntarily pay the fee on behalf of their
indigent clients.” Defs.’ Mem. at 15. That is a mischaracterization of the three concerns. They
are not about legal services providers’ “bottom lines.” Rather, they signal alarm about the adverse
impact the fee increases will have on those organizations’ capacities to serve indigent or low-
income clients. “Congress plainly had as an objective under the INA to optimize the availability
of pro bono or low-cost counsel to persons subject to removal.” Cath. Legal I, 513 F. Supp. 3d at
171. When the very organizations that provide those services asserted that the fee increases would
8 reduce their capacity to deliver them, it was incumbent upon the agency to listen and address their
concerns. EOIR failed to do so.
Next, Defendants argue that they addressed the legal services providers’ concerns by noting
the continued availability of fee waivers. See 85 Fed. Reg. at 82775 (“Additionally, the
Department reiterates the continued availability of fee waivers available to aliens who are unable
to afford the cost of an application or appeal.”). According to Defendants, “[i]f no fee need be
paid because the respondent is eligible for a fee waiver, then there is also no harm to the legal
service providers’ budget or practice of paying the fees.” Defs.’ Mem. at 16. But again, the
argument misses the point. The commenters raised issues not about impacts on their budgets, but
on their capacity to deliver representation. Not only do fee waivers not address that problem, but
they exacerbate it, as numerous commenters observed. Here are just two. Practitioner Karenina
Wolff stated that “with fees rising as much as 800%, the number of fee waiver requests will also
increase dramatically. . . . Having to prepare applications for fee waivers would not only divert
our already limited resources from focusing on the facts of our clients’ cases, it would also make
the entire process financially burdensome for our office and our clients in general.” J.A. at 7953–
54. Another practitioner, Rebecca Rojas, said the same. She acknowledged the availability of fee
waivers but predicted that “the amount of work this adds to a case is so considerable that it will in
practice cause attorneys to refuse pro bono cases where indigent individuals, often children, are
not immediately able to come up with the large fees. . . . Fee waivers require considerable
additional work which will cause many attorneys to not take on fee waiver cases.” Id. at 7643.
Others raised similar concerns. 2
2 See, e.g., J.A. at 7707 (comment of Kentucky Refugee Ministries: “Screening for and preparing fee waiver requests presents an administrative burden for low-bono and pro-bono attorneys, which inhibits our capacity by requiring more attorney time per case. Additionally, the need for fee waivers in more cases introduces more uncertainty . . . . This
9 Yet, EOIR declined to address these predicted impacts of increased fee-waiver work. EOIR
agreed that “it is possible—and perhaps even probable—that the increased fees may lead more
aliens to seek a fee waiver than would without this rule.” 85 Fed. Reg. at 82758–59. And it even
acknowledged commenters’ concerns that increased fee-waiver work would reduce attorneys’
capacity and willingness to provide legal services. Id. at 82774. But, again, EOIR dismissed these
concerns as “speculative” and “outside the limited scope of this rulemaking.” Id. at 82774–75.
It thus was “unable to provide a response.” Id. at 82775. Once again, EOIR failed to address an
“important aspect of the problem.” State Farm, 463 U.S. at 43.
Defendants offer two additional arguments. They point to the agency’s answer that the
increase in fee waivers “‘alone will not substantially increase the burden on either the immigration
courts or the BIA’ because of the ‘extensive experience’ immigration judges and [BIA] members
have with fee waiver requests.” Defs.’ Mem. at 16 (quoting 85 Fed. Reg. at 82775). Maybe so.
But it is also beside the point. It is no answer to concerns expressed about the fee increases’
negative impacts on legal services providers.
Next, relying on the D.C. Circuit’s opinion in HBO, Defendants insist that EOIR was
entitled to dismiss as “speculative” commenters’ “concerns that preparing fee waivers is less
desirable and might lead to lower rates of pro bono participation.” Defs.’ Mem. at 17 (citing HBO,
567 F.2d at 35 n.58). They note that “[t]hose commenters had no recent—if any—experience with
how fee increases might increase workloads in individual cases.” Id. But HBO says that only
creates an additional variable in taking cases and representing clients that must be screened at the outset and can ultimately discourage some attorneys and clients from pursuing meritorious cases.”); id. at 8376 (comment of World Relief: “An increase in fee waiver filings . . . will also increase the work of immigration advocates, like World Relief, as we will now have to obtain financial evidence of fee waiver need, increasing the work to prepare an immigration appeal, limiting the total number of immigrants we can serve as immigration appeals will involve a greater time commitment.”); id. at 8380 (comment of the Migrant & Immigrant Community Action Project: “This increase in the need for fee waivers . . . would impose a huge burden on our organization. Due to our limited staff size, our organization would probably have to turn away clients . . . simply because we don’t have the human capital required to complete a fee waiver within the timeframe allotted.”).
10 “comments which themselves are purely speculative and do not disclose the factual or policy basis
on which they rest require no response. There must be some basis for thinking a position taken in
opposition to the agency is true.” HBO, 567 F.2d at 35 n.58. Here, as this court previously
explained, commenters “offered ample basis for the truth of their positions: their extensive
knowledge and experience with the immigration system.” Cath. Legal I, 513 F. Supp. 3d at 174.
“They are intimately familiar with their budgets and resources and therefore have a unique capacity
to estimate how the Final Rule’s significant increase[s] in fees would upend their normal practices
and would affect the number of clients they can serve.” Id. It may be true that the commenting
practitioners have not had recent experiences with fee increases. But a commenter did not have to
be Nostradamus to predict that fee increases of up to 800% would yield corresponding increases
in fee-waiver work—EOIR itself conceded that it would. The concerns expressed about those
increases therefore were not speculative. They deserved a reasoned response. EOIR’s failure to
deliver one was arbitrary and capricious.
b. Applicants’ inability to pay
Plaintiffs further assert that EOIR “failed to give a reasoned response to comments that the
new fee schedule would erect a financial barrier to noncitizens pursuing routine steps in an EOIR
or BIA adjudication, including making motions and applications, or filing appeals.” Pl.’s Mem. at
24. Plaintiffs claim that the agency ignored a host of comments about clients’ “limited financial
resources,” challenges associated with raising funds within the 30 days afforded to file an appeal,
and the impacts of increased fees on the integrity of administrative proceedings. Id. at 24–26.
In response to such comments, EOIR sang a common refrain: those applicants unable to afford the
increased fees could seek a fee waiver. See, e.g., 85 Fed. Reg. at 82755, 82762, 82775, 82779
(referencing the availability of fee waivers); 8 C.F.R. §§ 1003.8(a)(3), 1003.24(d), 1103.7(c)
11 (fee waiver provisions). The prospect of no-cost applications, EOIR said repeatedly, mitigated
concerns about access to immigration proceedings and their integrity. 85 Fed. Reg. at 82755,
82762, 82775, 82779; see also Defs.’ Mem. at 19 (asserting that EOIR did respond “to each of
the[] concerns by noting its disagreement and the availability of fee waivers to mitigate any
harmful effects for those who could not pay the increased fee”).
But Plaintiffs find no comfort in the possibility of fee waivers and accuse EOIR of failing
to address in a reasoned manner commenters’ views that the mere availability of fee waivers is no
cure-all. Pl.’s Mem. at 26–28. Featured prominently throughout were comments about the
“discretionary approach and the absence of metrics” guiding judges’ decisions to grant or deny the
fee waiver applications. J.A. at 7993 (discussing concerns with the discretionary nature of fee
waiver-proceedings); see also id. at 7699 (noting waivers are not granted uniformly); id. at 7643
(noting “several courts grant fee waivers as a matter of course and other courts almost never grant
fee waivers” and that fee waivers are denied for indigent “unaccompanied children on a routine
basis”); id. at 8375 (noting that fee waiver requests are subject to the discretion of immigration
judges, who are not independent judicial actors); id. at 8797 (noting the proposed rule should
provide guidance on how the immigration judges and the BIA may exercise discretionary
authority). A comment from CAIR Coalition is representative. It highlighted the “arbitrary
nature” of the fee waiver adjudication process by pointing to experiences where “individual
immigration judges have previously denied fee waiver requests of CAIR Coalition clients who
provided letters from homeless shelters as proof of income, or provided statements from family
members to substantiate their claims of economic hardship.” Id. at 8084–85.
EOIR did acknowledge such comments. See 85 Fed. Reg. at 82758–59. The agency wrote
that “commenters alleged that the fee waiver process is an insufficient remedy for low-income
12 individuals because determinations are inconsistent,” and opposed fee waivers because of the
“discretionary nature of fee waiver determinations.” Id. at 82758. It further noted that
“[c]ommenters [had] explained that, in their experience, some immigration courts granted fee
waivers as a matter of course, while other immigration courts rarely granted fee waivers at all,”
and that, in their view, uniformity and predictability would be better achieved with defined
eligibility criteria. Id.
Plaintiffs no doubt found the agency’s response to these comments unsatisfying. But it
passes APA muster. EOIR explained that “differences in adjudicatory outcomes are inherent in
any system rooted in adjudicator discretion, [but] there is no evidence that [BIA] members or
immigration judges would be unable or unwilling to adjudicate fee waiver requests consistent with
applicable law and their respective independent judgment and discretion.” Id. at 82759. EOIR
also reasoned that, “[d]espite commenters’ allegations that fee waivers are inconsistent around the
country, the Department has no evidence or data, and none was provided by commenters, regarding
the specific adjudication of fee waivers that would support such statements.” Id. at 82760. The
agency therefore did not ignore commenters’ views about the arbitrariness of the fee waiver
process—they simply disagreed with them. That result, without more, is not an APA violation.
This conclusion is consistent with the decisions in Ayuda, Inc. v. Attorney General
(Ayuda I), a case concerning EOIR’s last fees increase in 1986. See 661 F. Supp. 33 (D.D.C. 1987),
aff’d, 848 F.2d 1297 (Ayuda II) (D.C. Cir. 1988). There, as here, the plaintiffs complained that
higher fees would “significantly deter aliens from pursuing their rights.” Ayuda I, 661 F. Supp. at
35. The District Court held otherwise. It relied on the fee waiver provision and the absence of
any “suggestion in the papers that the Attorney General intends in any way to withhold liberal
exercise of this waiver provision.” Id. Then, on appeal, the plaintiffs again argued “that the waiver
13 provision does not in fact mitigate the deterrent effect of the increased fees because the Attorney
General retains discretion to decline to waive the fees even after an applicant has demonstrated his
or her inability to pay.” Ayuda II, 848 F.2d at 1299 n.4 (internal citation omitted). The D.C. Circuit
affirmed. It held that “[w]e have been directed to no evidence . . . that the Attorney General has
in fact exercised his discretion in this manner. We thus find no error in the District Court’s
reasoning in this respect.” Id. To be fair, this is not a “no evidence” case. It differs from Ayuda
in that commenters did offer evidence, based their own experiences, of inconsistent rulings on
waiver requests and perhaps some erroneous denials. EOIR acknowledged such outcomes were
possible in a “system rooted in adjudicator discretion.” 85 Fed. Reg. at 82759; see also id. at
82760. A discretionary waiver process, without more, however, is not arbitrary and capricious.
See Ayuda II, 848 F.2d at 1299 n.4. And, in the absence of compelling evidence to the contrary, it
was not unreasonable for the agency to conclude that immigration judges and the BIA would
continue to adjudicate fee waiver requests in a fair and evenhanded manner. See Withrow v. Larkin,
421 U.S. 35, 47 (1975) (recognizing “a presumption of honesty and integrity in those serving as
adjudicators”).
Plaintiffs also complain that EOIR’s heavy reliance on fee waivers was unreasonable
because the agency lacked data to prove their efficacy. Pls.’ Mem. at 26–27. They point out that
EOIR “stated that its failure to track and evaluate financial information in fee waiver requests—
that is, an absence of evidence—left it unable to predict whether higher fees would lead to a greater
number of fee waiver requests” and that it “had no evidence or data” about inconsistent fee waiver
adjudication. Id. That contention is unpersuasive for two reasons. For one, “[t]he APA imposes
no general obligation on agencies to produce empirical evidence. Rather, an agency has to justify
its rule with a reasoned explanation.” Stilwell v. Off. of Thrift Supervision, 569 F.3d 514, 519
14 (D.C. Cir. 2009). And for another, EOIR in fact did rely on some empirical proof to sustain its
view that waivers would mitigate the effects of the fee increases. See 85 Fed. Reg. at 82779.
It cited BIA data from FY 2019 showing that of the 19,874 case appeals or motions decided, the
BIA “granted, either tacitly or explicitly, approximately 5,499 fee waivers and recorded no fee
waiver requested for approximately 14,322 cases.” Id. That data “suggest that, at most, the [BIA]
denied 53 fee waiver requests in FY 2019.” Id. To be sure, those are high-level figures (and
denials are not separately tracked). And the agency does not keep data about “fee waiver grants
and denials at the immigration court level,” so the BIA numbers may not represent what happens
before individual adjudicators. Id. at 82779 n.45. Still, the limited data before EOIR ran counter
to the experiences of certain commenters, and it was not arbitrary and capricious to rely on it.
Finally, it is useful to contrast this case with Northwest Immigrant Rights Project v. USCIS,
496 F. Supp. 3d 31 (D.D.C. 2020). That matter concerned rule changes by the U.S. Citizenship
and Immigration Services that both resulted in increased fees and “curtail[ed] the availability of
fee waivers.” Id. at 43. During the comment period, interested parties directed the agency’s
attention to multiple studies suggesting that higher application fees would lead to a reduction in
naturalization applications filed by low-income individuals. See id. at 72–73. Still, the agency
found otherwise. It concluded, based on their “belie[f]” that “the price elasticity for immigration
services is inelastic and increases in price will have no impact on the demand for these services.”
Id. at 74. The court found this response inadequate. The agency undertook “no analysis or
response to the cited studies” and “offer[ed] nothing of substance to rebut or to ‘grapple with’ the
evidence that an 83% price hike, accompanied with the abandonment of fee waivers and reduced
fees for low-income applicants, will dissuade a significant number of low-income applicants from
applying to naturalize.” Id. at 74–75. This was arbitrary and capricious decisionmaking.
15 By contrast, no commenter in this case “backed up their concerns with empirics.” Id. at
72. EOIR therefore did not ignore any data that conflicted with its position. Rather, it
acknowledged commenters’ experiences of unpredictable and uneven adjudication of fee waivers.
Ultimately, though, it disagreed with those concerns, relying on limited statistical evidence
showing that the BIA routinely granted fee waivers requests and the presumed good faith of its
judges. That response may not satisfy commenters, but it is enough to satisfy the APA.
2. EOIR failed to disclose Fee Study data, but the error does not merit relief
EOIR undertook an activity-based costing study to determine the new fee structure.
85 Fed. Reg. at 11868–70. The agency estimated the processing cost for each proceeding based
on the direct salary costs of involved personnel but excluded the costs of non-salary benefits and
overhead. Id. at 11869–70. To determine the final fee schedule, EOIR “allocated the salary costs
. . . data to each step in the process, based on the time the step takes, the average salary of the
responsible staff, and the percentage of total cases in which the step occurs.” Id. at 11869.
Plaintiffs contend that EOIR acted arbitrarily and capriciously by not disclosing the data
underlying the Fee Study. Pls.’ Mem. at 28–30. This withholding meant that “the public had no
opportunity to see and comment on that critical purported support for the fee hikes.” Id. at 29.
The court agrees that EOIR had an obligation to disclose the data underlying the Fee Study.
An agency must disclose data critical to its decisionmaking process to provide the public
an opportunity to meaningfully comment on the agency’s rulemaking rationale. See, e.g., Conn.
Light & Power Co. v. Nuclear Regul. Comm’n, 673 F.2d 525, 530 (D.C. Cir. 1982); Engine Mfrs.
Ass’n v. EPA, 20 F.3d 1177, 1181 (D.C. Cir. 1994). The D.C. Circuit has consistently maintained
that, “[i]n order to allow for useful criticism, it is especially important for the agency to identify
and make available technical studies and data that it has employed in reaching the decisions to
16 propose particular rules.” Conn. Light & Power Co., 673 F.2d at 530 (emphasis
added); see also Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 (D.C. Cir.
2008) (“It would appear to be a fairly obvious proposition that studies upon which an agency relies
in promulgating a rule must be made available during the rulemaking in order to afford interested
persons meaningful notice and an opportunity for comment.”).
Relying on the D.C. Circuit’s decision in American Radio Relay League, Defendants insist
that EOIR did not violate the APA “by not disclosing each bit of underlying granular data
underpinning its fee study.” Defs.’ Mem. at 31. They point to the following principle from that
case: APA “notice is sufficient if it affords interested parties a reasonable opportunity to participate
in the rulemaking process, and if the parties have not been deprived of the opportunity to present
relevant information by lack of notice that the issue was there.” Id. (quoting Am. Radio Relay
League, 524 F.3d at 236 (cleaned up)). But American Radio Relay League also unequivocally
states: “Under APA notice and comment requirements, among the information that must be
revealed for public evaluation are the technical studies and data upon which the agency relies in
its rulemaking.” 524 F.3d at 236 (cleaned up). EOIR thus had an obligation to publicly disclose
the data underlying the Fee Study.
But that is not the end of the analysis. Plaintiffs must demonstrate prejudice to secure
relief. See id. at 237 (citing 5 U.S.C. § 706). To do so, “[i]t is sufficient for a [plaintiff] to show
that an opportunity to comment regarding an agency’s important information created ‘enough
uncertainty’ as to its possible affect on the agency’s disposition.” Allina Health Servs. v. Sebelius,
746 F.3d 1102, 1110 (D.C. Cir. 2014). Plaintiff “need not prove that its comment would have
persuaded the [agency] to reach a different outcome,” Chamber of Com. of the U.S. v. SEC,
443 F.3d 890, 905 (D.C. Cir. 2006); it is sufficient to “show[] that it ha[d] something useful to say
17 . . . that may allow it to mount a credible challenge if given the opportunity to comment,”
Am. Radio Relay League, 524 F.3d at 237–38 (internal quotation marks and citation omitted).
Plaintiffs argue they would have had “something useful to say” about two aspects of the
undisclosed data. To start, they assert that “the data may have been incomplete.” Pls.’ Mem. at
29. Specifically, they posit, “it seems that the study at least did not consider the costs associated
with processing an appeal filed by the government, which under 8 C.F.R. § 1003.8(a)(2)(v), may
be filed without any fee.” Id. “That omission is significant,” Plaintiffs contend, “because it
prevented [them] from confirming what several commenters suspected to be true—that the study
failed to offset the costs associated with processing an appeal filed by the government.” Pls.’ Mem.
of P. & A. in Further Supp. of Pls.’ Mot. & in Opp’n to Defs.’ Mot., ECF No. 61 [hereinafter Pls.’
Reply], at 13.
But that contention fails to show prejudice for two reasons. First, some commenters
advanced the very same critique, and EOIR responded to it. See 85 Fed. Reg. at 82756. Plaintiffs
have not suggested how that comment might have been different with the benefit of the underlying
data. Second, as EOIR explained in the Final Rule, the asserted criticism misconstrues how it
determined the processing costs of an appeal to the BIA. EOIR did not aggregate the salary costs
of processing of all appeals—regardless of who filed it—and then divide it by the number of
appeals filed only by noncitizens. A calculation using that approach would have unfairly resulted
in a higher cost per appeal—and therefore a higher fee—because the denominator (the number of
filings) would not have included government-initiated appeals. EOIR instead calculated the fee
based on the estimated processing costs “by allocating [the] average direct salary costs to each step
in an average process map for how the fee, application, or motion works through the adjudicatory
process.” Id. “The processing costs identified by the fee study . . . are, as a result, not tied to the
18 volume of the forms or motions filed, either in total or by DHS.” Id. In other words, the agency
calculated the new appeals fee based on the average direct salary cost to resolve any appeal,
regardless of who filed it. Accordingly, Plaintiffs’ proffered criticism of the data underlying the
fee calculation for appeals would not have presented a credible challenge to the final decision to
adopt the proposed fee.
Plaintiffs also object to lacking access to the “process step times” used to estimate the total
cost of adjudicating a motion, application, or appeal. Pls.’ Mem. at 29. Plaintiffs say that these
times were “validated” by unidentified personnel, and although “the EOIR Fee Study presents
results of this ‘validation’ process in tables,” such tables “are no substitute for providing the data
itself.” Id. But Plaintiffs say no more. They do not identify what “useful” comment they would
have submitted had they had access to the process step times.
Notably, EOIR released the data underlying the Fee Study with the Final Rule. 85 Fed.
Reg. at 82771. That Plaintiffs have not cited, let alone challenged, any of that data in their briefing
underscores the absence of any prejudice from the earlier nondisclosure.
3. The Final Rule provides a reasoned basis for increasing fees
Plaintiffs next assert that EOIR failed to explain why, “after three decades,” it suddenly
needed to update the fee schedule. Pls.’ Mem. at 32–33. Plaintiffs argue primarily that EOIR is a
congressionally appropriated agency, “and there is no evidence in the [administrative record] of
any shortfalls in appropriations” to justify a fee increase. Id. at 32. Further, they say, the Final
Rule does not show that “it is necessary to recoup EOIR’s costs through fees.” Id. at 33.
But EOIR did explain why it deemed it appropriate to update the fee schedule: to comply
the Independent Offices Appropriations Act of 1952 (IOAA), 31 U.S.C. § 9701, and other statutes,
as well as Office of Budget and Management Circular A-25 Revised. 85 Fed. Reg. at 82750–51.
19 The IOAA expresses “the sense of Congress that each service or thing of value provided by an
agency . . . to a person . . . is to be self-sustaining to the extent possible.” 31 U.S.C. § 9701(a).
To that end, the IOAA authorizes heads of agencies to establish charges for a “service or thing of
value.” Id. § 9701(b). Such a fee must be “fair” and based on “the costs to the Government,” “the
value of the service of thing to the recipient,” “public policy or interest served,” and “other relevant
facts.” Id. § 9701(b)(1)–(2). Circular A-25 in turn directs the agencies to review user charges
every two years. 3 Coming into compliance with a statute and OMB guidance is unquestionably a
reasonable explanation for revisiting and revising the fee schedule. The agency did not need
additional justification.
4. EOIR did not depart from longstanding agency policy and practice
Plaintiffs next argue that EOIR changed longstanding policies underlying the fee schedule
that had “remained unchanged for the past 34 years.” Pls.’ Mem. at 34. “Agencies are free to
change their existing policies as long as they provide a reasoned explanation for the change.”
Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016). A reasoned explanation is one that
“‘display[s] awareness that [the agency] is changing position’ and ‘show[s] that there are good
reasons for the new policy.’” Gentiva Health Servs., Inc. v. Becerra, 31 F.4th 766, 780 (D.C. Cir.
2022) (quoting Encino Motorcars, 579 U.S. at 221).
Plaintiffs claim that the Final Rule changed three policies: (1) “keeping fees stable and
within the realm of affordability to respondents,” (2) “permitting respondents to have access to
protections of the Immigration Court system guaranteed by due process,” and (3) “eschewing a
‘cost recovery’ model by setting fees ‘at less than full cost recovery recognizing long-standing
public policy.’” Pls.’ Reply at 20–21. Plaintiffs cite as the source of these policies the final rule
3 Circular No. A-25 Revised, § 8(e), https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf [https://perma.cc/4FNE-KM4S] (last visited Mar. 30, 2026).
20 promulgating the last fees increase in 1986. See id. (citing Powers and Duties of Service Officers;
Availability of Service Records, 51 Fed. Reg. 39993, 39993 (Nov. 4, 1986)).
The 1986 rulemaking did not, however, establish the policies that Plaintiffs claim. To the
contrary, a comparison makes clear that the Final Rule did not mark a shift in fee-setting policy.
Back then, the agency explained that fee increases were “necessary to place the financial burden
of providing special services and benefits, which do not accrue to the public at large, on the
recipients.” 51 Fed. Reg. at 39993. The agency cited the same requirements that it would 34 years
later—§ 9701 and OMB Circular A-25—as the legal basis for its action. Id. Those authorities,
EOIR said, “require 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. EOIR rejected contrary
views, explaining that “[f]ees are 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. A policy of setting fees on any basis other than cost would violate this
principle.” Id.
That approach to fee-setting mirrors the one that EOIR took in the Final Rule, that is,
“roughly match[ing] the new fees amounts with the processing costs that were identified by” the
Fee Study. 85 Fed. Reg. at 82751. And just as in 1986, the Final Rule did not “recoup the full
costs of adjudications in assessing fees.” Compare id. at 82771, with 51 Fed. Reg. at 39993
(“[S]everal fees for administrative appeal processes and for filing naturalization petitions are at
less than full cost recovery recognizing long-standing public policy and the interest served by these
processes.”). Plaintiffs have not made the case that the Final Rule represents an unexplained
change in policy.
21 5. EOIR has authority to increase fees
In publishing the Final Rule, Defendants cited both § 286(m) of the INA, 8 U.S.C.
§ 1356(m), and title V of the IOAA, 31 U.S.C. § 9701, as the sources of their legal authority to
increase fees. 85 Fed. Reg. at 82750. Plaintiffs challenge Defendants’ reading of the first and their
compliance with the second. Pls.’ Mem. at 35–38. The court need only address the latter.
The “IOAA provides the requisite authority for imposition of the fees” at issue. Ayuda II,
848 F.2d at 1299. It sets forth the criteria that should guide an agency in setting fees. See 31 U.S.C.
§ 9701(b). “Each charge shall be (1) fair; and (2) based on—(A) the costs to the Government;
(B) the value of the service or thing to the recipient; (C) public policy or interest served; and
(D) other relevant facts.” 31 U.S.C. § 9701(b). Plaintiffs contend that EOIR “improperly
calculated fees by focusing only on the government’s personnel costs for covered processes” and
ignoring the public interest. Pls.’ Mem. at 37–38. The agency, they continue, neglected to consider
the impacts on legal services providers and noncitizens, evincing an “abject failure to consider
public interest concerns.” Id. at 38.
But Plaintiffs demand more than what is required to satisfy the IOAA. A “user fee will be
justified under the IOAA if there is a sufficient nexus between the agency service for which the
fee is charged and the individuals who are assessed.” Seafarers Int’l Union of N. Am. v. U.S. Coast
Guard, 81 F.3d 179, 182–83 (D.C. Cir. 1996). User fees “are valid so long as the agency levies
‘specific charges for specific services to specific individuals or companies,’” regardless of whether
the “ultimate purpose of the [statutory] scheme giving rise to the . . . user fee[] is to benefit the
public.” Id. at 183 (quoting Fed. Power Comm’n v. New England Power Co., 415 U.S. 345, 349
(1974)). Put another way, “[t]o justify a fee under the Act, then, an agency must show (i) that it
provides some kind of service in exchange for the fee, (ii) that the service yields a specific benefit,
22 and (iii) that the benefit is conferred upon identifiable individuals.” Montrois v. United States,
916 F.3d 1056, 1062–63 (D.C. Cir. 2019). The “weighing [of] ‘public’ versus ‘private’ benefits”
is not appropriate. Seafarers Int’l Union of N. Am., 81 F.3d at 184.
These requirements are easily satisfied here. EOIR provides a service in exchange for the
fee—it operates the process for resolving disputes regarding immigration matters. The service
yields a specific benefit in the form of such adjudications. And a benefit is conferred upon
identifiable individuals, namely, noncitizens who pursue relief before the immigration tribunals.
The Final Rule therefore satisfies the IOAA. See 85 Fed. Reg at 82772 (explaining why EOIR
believed the new fees were “fair” and reflected the public interest in ensuring immigration courts
are accessible and taxpayers are not disproportionately burdened in funding their operations).
B. Notice and Comment
The court now turns to Plaintiffs’ procedural challenges to the notice-and-comment
process. First, Plaintiffs argue that an abbreviated 31-day comment period that coincided with the
onset of the COIVD-19 pandemic was unreasonable. Pls.’ Mem. at 39–41. Second, they contend
that EOIR failed to give notice of additional rules that had a bearing on the effects of the fee
increases. Id. at 42–43.
1. The 31-day comment period was inadequate but does not merit relief
The APA does not mandate a specific number of days for which an agency must give the
public an opportunity to comment on a proposed rule, but 30 days is “generally the shortest time
period sufficient for interested persons to meaningfully review a proposed rule and provide
informed comment.” See Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, 1117 (D.C. Cir. 2019).
But there is nothing “talismanic about that particular length of time.” Petry v. Block, 737 F.2d
1193, 1201 (D.C. Cir. 1984). Indeed, a 30-day period might be inadequate “to allow people to
23 respond to proposals that are complex or based on scientific or technical data.” Id. (internal
quotation marks omitted). On the other hand, a 30-day comment period has been deemed
reasonable where the agency had been “exploring” the issue with “members of the industry” for a
years-long period. See Conn. Light & Power Co., 673 F.2d at 534 (“While the technical complexity
of the regulations is such that a somewhat longer comment period might have been helpful, the
NRC had been exploring without complete success the problem of fire protection at nuclear plants
with members of the industry for over five years.”).
Here, the court finds that the 31-day comment period—from February 28 to March 30,
2020—was unreasonable. The comment period overlapped squarely with the start of the
lockdowns in the United States due to the COVID-19 pandemic. The President declared a national
state of emergency dating back to March 1, 2020. See Proclamation No. 9994 of March 13, 2020,
85 Fed. Reg. 15337, 15337 (Mar. 18, 2020). Commenters made it clear to EOIR that interested
parties would have a difficult time fully responding within the proposed period given the evolving
nature of the public health emergency. For instance, on March 5, 2020, Plaintiffs and over 87 other
interested parties signed a request to extend the comment period from 30 to 60 days. J.A. at 9566–
70. EOIR did not respond. Pls.’ Mem. at 7. On March 20, 2020, congressional representatives
wrote to EOIR requesting an extension. J.A. at 9571–73. They, too, received no response.
Pls.’ Mem. at 7. Plaintiff organization CLINIC wrote to EOIR on March 23, 2020, detailing how
the evolving public health emergency was impacting their organization and partner organizations’
ability to comment fully. J.A. at 9576. They could not “access hard copies of resources or
background materials . . . to fully comment on the proposed rule.” Id. And they explained that
they were having a difficult time connecting with clients and otherwise navigating the early days
of the pandemic. Id. EOIR did not respond. Pls.’ Mem. at 7. Yet, in the Final Rule, EOIR said
24 that it “believe[d] that the COVID-19 pandemic ha[d] no effect on the sufficiency of the 30-day
comment period.” 85 Fed. Reg. at 82771. EOIR’s conclusory, after-the-fact response was wholly
out of touch and did not grapple with the concerns raised regarding the inability to connect with
clients and gather necessary materials. The 31-day comment period was unreasonable given the
evolving public health emergency.
That said, the failure to set a longer comment period was harmless error. See Sprint Corp.
v. FCC, 315 F.3d 369, 376 (D.C. Cir. 2003). “Neither a showing of actual prejudice nor proof that
the agency would have reached a different result is required to establish prejudicial error.” AFL-
CIO v. Chao, 496 F. Supp. 2d 76, 90 (D.D.C. 2007). But the challenging party “must indicate with
reasonable specificity what portions of the [rule] it objects to and how it might have responded if
given the opportunity.” Gerber v. Norton, 294 F.3d 173, 182 (D.C. Cir. 2002) (cleaned up).
Plaintiffs have not established prejudice. They note generally that they were “unable to
provide fulsome comments” or “make any comments at all” and point out the large delta in the
number of comments submitted compared to similar past proposed rules. Pls.’ Mem. at 40–41.
But Plaintiffs have not articulated “with reasonable specificity” the comments that they, or anyone
else, would have made if only the comment period had been longer. For that reason, the court
finds the error harmless.
2. The lack of notice of the subsequent rules was not prejudicial
Plaintiffs argue that Defendants violated the APA’s notice-and-comment requirements by
closing the comment period “before the agency informed commenters of the substance of three
forthcoming rules . . . that would exacerbate the harms of the Final Rule.” Pls.’ Mem. at 42.
But even if this was error, it was harmless. One of the proposed rules was rescinded by later
agency rulemaking. See Mot. for Voluntary Dismissal, Cath. Legal Immigr. Network, Inc. v. EOIR,
25 No. 21-cv-00094-RJL (D.D.C.), ECF No. 75, at 2. A second has been preliminarily enjoined for
over five years and is subject to ongoing rulemaking that may revise and rescind the rule at issue.
Status Report (Jan. 30, 2026), Nat’l Immigr. Just. Ctr. v. EOIR, No. 21-5063 (D.C. Cir.); Order,
Nat’l Immigr. Just. Ctr. v. EOIR, No. 21-cv-0056-RBW (D.D.C.), ECF No. 11. And the same is
true of the third. Order, Pangea Legal Servs. v. DHS, No. 20-17490 (9th Cir.), ECF No. 42;
Pangea Legal Servs. v. DHS, 512 F. Supp. 3d 966 (N.D. Cal. 2021).
Plaintiffs therefore have not demonstrated prejudice from the failure to notice these other
rules in connection with the Final Rule.
C. Regulatory Flexibility Act
Plaintiffs’ last challenge concerns the Regulatory Flexibility Act. Pls.’ Mem. at 43–44.
That statute requires “agencies issuing rules under the [APA]” to “publish a final regulatory
flexibility analysis.” Nat’l Tel. Co-op. Ass’n v. FCC, 563 F.3d 536, 540 (D.C. Cir. 2009) (citing
5 U.S.C. § 604). The analysis must detail the final rule’s impact on “small entities.” See 5 U.S.C.
§ 604. Agencies are exempt from this requirement if they certify that “the rule will not, if
promulgated, have a significant economic impact on a substantial number of small entities.” Id.
§ 605(b); accord Transmission Access Pol’y Study Grp. v. FERC, 225 F.3d 667, 737 (D.C. Cir.
2000) (per curiam). An agency is also “under no obligation to conduct a small entity impact
analysis of effects on entities which it does not regulate.” Motor & Equip. Mfrs. Ass’n v. Nichols,
142 F.3d 449, 467 (D.C. Cir. 1998) (internal quotation marks omitted). A small entity is regulated
by the rule only if it is “subject to the proposed regulation”—that is, those “small entities to which
the proposed rule will apply.” Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 342 (D.C. Cir.
1985) (quoting 5 U.S.C. § 603(b)). Here, EOIR did not conduct a regulatory flexibility analysis
because it concluded that “[t]he rule would not regulate ‘small entities.’” 85 Fed. Reg. at 82785.
26 It reasoned that “[o]nly individuals, rather than entities, are responsible for paying the fees affected
by this proposed rule.” Id.
Plaintiffs CLINIC, CLSEPA, and CHIRLA maintain this conclusion was wrong. They
assert that they are “each ‘small entities’ within the meaning of the RFA” because they are “not-
for-profit organizations that are independently owned and operated and are not dominant in their
field of operation.” Pls.’ Mem. at 43. They argue the proposed increases would economically
impact them because, for instance, practitioners “do pay filing fees for indigent clients, and the fee
hikes would adversely impact that practice.” Id. at 44. But case law is clear. Plaintiffs are not the
type of small entities that trigger the RFA’s requirements.
The D.C. Circuit has “consistently rejected the contention that the RFA applies to small
businesses indirectly affected by the regulation of other entities.” Cement Kiln Recycling Coal. v.
EPA, 255 F.3d 855, 869 (D.C. Cir. 2001). While a rule need not be specifically addressed to a
party in order for the party to be considered regulated, the rule must “impose[] responsibilities
directly on the [party]” claiming to be regulated. See Aeronautical Repair Station Ass’n, Inc. v.
FAA, 494 F.3d 161, 177 (D.C. Cir. 2007) (finding parties were regulated despite the rule being
directed at different parties because the “regulations expressly require that the employees . . . be
tested”). In other words, as outlined above, the RFA requires agencies to consider only regulatory
burdens on small entities that are “subject to the proposed regulation” and among the group of
entities “to which the [regulation] will apply.” Cement Kiln, 255 F.3d at 869 (internal quotation
marks omitted).
In no ordinary sense are Plaintiffs “directly affected and regulated by” the Final Rule.
Aeronautical Repair Station, 494 F.3d at 176. While Plaintiffs detail how they will be impacted
by the Final Rule, at most they have made the case that they and other legal services providers will
27 experience indirect effects of the fee increases. See Pls.’ Reply at 29–31. The Final Rule does not
“impose[] responsibilities directly” onto them. Aeronautical Repair Station, 494 F.3d at 177.
EOIR therefore was correct not to undertake an RFA analysis.
Plaintiffs rely on Centro Legal de la Raza v. EOIR, 524 F. Supp. 3d 919 (N.D. Cal. 2021),
but that case is inapposite. See Pls.’ Reply at 31–32. Centro Legal involved a rule that changed
procedures and regulations governing immigration courts, such as reducing time limits for briefing
appeals and placing limits on the authorities of immigration judges and the BIA. Centro Legal de
la Raza, 524 F. Supp. 3d at 937–47. The court found that the legal services providers in that case
had raised “serious questions going to the merits of their RFA challenge,” because they “must
comply with the changes implemented by the Rule, such as the changes to the briefing schedule.”
See id. at 973. The Final Rule here, by contrast, requires no similar direct compliance by legal
services providers. Unlike new court-ordered deadlines, lawyers here are under no legal or ethical
obligation to pay a client’s increased fee to initiate proceedings. The fact that they do so voluntarily
does not make them “subject to the regulation.”
V. RELIEF
Finally, the court addresses the appropriate remedy. Plaintiffs ask the court to grant
summary judgment in their favor, vacate the Final Rule as to the challenged fees, and permanently
enjoin Defendants from applying the challenged fees. Pls.’ Mem. at 44. Defendants, on the other
hand, request remand without vacatur and argue a permanent injunction is not warranted.
See Defs.’ Mem. at 37–40.
The APA commands that when the reviewing court finds “arbitrary” agency action, the
court “shall . . . set aside that agency action.” 5 U.S.C. § 706(2). Vacatur therefore is the norm.
See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1050 (D.C. Cir. 2021).
28 The D.C. Circuit, however, has permitted the “exceptional remedy of remand without vacatur in
limited circumstances, and only if an agency’s error is curable.” Cigar Ass’n of Am. v. FDA,
132 F.4th 535, 541 (D.C. Cir. 2025) (internal quotation marks and citation omitted). “[T]he
decision to vacate turns on two factors: ‘the seriousness of the [agency action’s] deficiencies’ and
the ‘disruptive consequences’ of vacatur.” Id.
As to the first factor, the agency committed a serious error by not addressing the Final
Rule’s impact on legal services providers’ ability to provide representation for indigent and low-
income clients. As the court has explained, “Congress’s concern for the availability of pro bono
and low-cost legal services in removal proceedings is evident on the face of the INA.”
Cath. Legal I, 513 F. Supp. 3d at 173. “Congress was concerned not merely about the right to
counsel in removal proceedings, but with actual access to counsel for persons who Congress
anticipated might not be able to afford to hire private lawyers.” Id. at 173–74. The agency,
however, “blithely dismiss[ed]” the concerns of legal services providers that “increased filing fees
would adversely impact their organizations and would depress their capacities to provide pro bono
and low-cost legal services.” Id. at 174. EOIR ignored an “important aspect of the problem,”
which warrants vacatur. See id. (quoting State Farm, 463 U.S. at 43); see also Cigar Ass’n,
132 F.4th at 541.
As to the second factor, considering that relevant portions of the Final Rule have been
enjoined for the past five years, the disruptive consequences of vacatur will be minimal. This is
not a case, for example, where the agency already was collecting fees and vacatur would require
it to refund them. See Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 151
(D.C. Cir. 1993) (finding vacatur would be “quite disruptive” because the “Commission would
need to refund all 1990 OBRA fees collected”). Here, remand without vacatur would be the far
29 more disruptive course. Entry of final judgment will cause the preliminary injunction to dissolve,
and absent vacatur, the steep fee increases would go into effect immediately. See Defs.’ Reply at
21–22 (leaving open that the agency could immediately begin charging the higher fees without
further notice). And those increases could remain for an unknown period as EOIR decides how to
proceed on remand. In such circumstances, vacatur is the appropriate remedy.
Plaintiffs also seek to “permanently enjoin Defendants from enacting [the Final Rule] as to
the Challenged Fees.” Pls.’ Mem. at 45. But Plaintiffs make no effort to show why permanent
injunctive relief is warranted. See id. at 44–45 (arguing only for vacatur). It is therefore denied.
VI. CONCLUSION
For the reasons set forth in this opinion, the court grants in part and denies in part the
parties’ respective motions for summary judgment, ECF Nos. 56 & 57. The court vacates the Final
Rule insofar as it would have imposed the following fee increases:
(1) The $975 fee attached to Form EOIR-26 for filing an appeal from a decision of an immigration judge; (2) The $705 fee attached to Form EOIR-29 for filing an appeal from a decision of an officer of DHS; (3) The $895 fee for filing a motion to reopen or to reconsider before the BIA; (4) The $305 fee attached to Form EOIR-40 for an application for suspension of deportation; (5) The $305 fee attached to Form EOIR-42A for an application for cancellation of removal for certain permanent residents; and (6) The $360 fee attached to Form EOIR-42B for an application for cancellation of removal and adjustment of status for certain nonpermanent residents.
30 A final, appealable order accompanies this Memorandum Opinion. 4
Dated: March 30, 2026 Amit P. Mehta United States District Judge
4 The court is grateful to the parties for their patience during the extended time their motions were pending.