Supporting Statement EOIR26 (OMB1125-0002) 2019

SUPPORTING STATEMENT
Notice of Appeal from a Decision of an Immigration Judge
Form EOIR- 26
Extension Without Change of a Currently Approved Collection
OMB No. 1125-0002
______________________________________________________________________________
Part A. Justification
1. Necessity of Information Collection - A party (either the U.S. Immigration and
Customs Enforcement (ICE) of the Department of Homeland Security or the
respondent/applicant) affected by a decision of an Immigration Judge may appeal that
decision to the Board of Immigration Appeals (Board), provided the Board has
jurisdiction pursuant to 8 C.F.R. 1003.1(b). An appeal from an Immigration Judge’s
decision is taken by completing the Form EOIR-26 and submitting it to the Board.
The form requests information, such as name, alien identification number, mailing
addresses for respondent/applicant and attorney or representative, and basis of appeal,
necessary for the Board to process the appeal of the decision of the Immigration
Judge. The Executive Office for Immigration Review (EOIR) seeks to make the
following changes to the form’s instructions; EOIR has no proposed changes to the
information collected.

The Board continues to receive appeals for Immigration Judge determinations related
to reasonable fear, credible fear and claimed status review. These types of
determinations are not appealable to the Board. As such, the Board has included
information in the instructions informing applicants not to use the Form EOIR-26 for
appeals of those decision types.

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The Board intends to use Treasury’s OTCnet scanners to process checks for payment
of fees for forms and applications submitted before the Board. Notice to the public is
required by the Treasury Department. As such, the Board intends to post a notice of
this change at the filing window and on the Board’s website, in addition to making
changes to its Form EOIR-26, Notice of Appeal from a Decision of an Immigration
Judge. The following language in red font will be added to the form to notify the
public of this change:

A. Paying for the Appeal:
Attach a check or money order to the Notice of Appeal for exactly one hundred
and ten dollars (U.S. $110) made payable to “United States Department of Justice.”
All checks or money orders must be drawn on a bank located in the United States
and must be payable in U.S. currency. If there are not sufficient funds in your
account, your appeal may be dismissed.
•

Notice to Those Making Payment by Check. If you send us a check, the
Board will convert it into an electronic funds transfer (EFT). This means
we will photocopy your check and use the account information on it to
electronically debit your account for the amount of the check. The debit
from your account usually occurs within 24 hours of the deposit and your
bank will show it on your regular account statement. You will not receive
your original check back. We will destroy your original check, but will
keep a copy of it. If the Board cannot process the EFT for technical
reasons, you authorize us to process the copy in place of your original
check. If your check is returned as unpayable, the appeal will be dismissed
as improperly filed.

L. Privacy Act Notice:
•

The information on this form is authorized by 8 C.F.R. §§ 1003.3, 1003.38 in order
to appeal a decision of an Immigration Judge to the Board of Immigration Appeals.
The information you provide is required to appeal the decision and failure to provide
the requested information may result in denial of your request. EOIR may share this
information with others in accordance with approved routine uses described in EOIR
systems of records notice (SORN) Department of Justice/EOIR-001, Records and
Management Information System, 69 FR 26179 (May 11, 2004) and 82 FR 24147
(May 25, 2017).

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•

If you are paying by check, our authority to collect such information is authorized
by 5 U.S.C. § 552a(e)(3). EOIR and OTCNet may share this information with
others in accordance with approved routine uses described in OTCNet systems of
records notices.

•

The information on this form is authorized by 8 C.F.R. §§ 1003.3, 1003.38 in
order to appeal a decision of an Immigration Judge to the Board of Immigration
Appeals. The information you provide is required to appeal the decision and
failure to provide the requested information may result in denial of your request.
EOIR may share this information with others in accordance with approved routine
uses described in EOIR systems of records notices.

2. Needs and Uses - The form is filed and considered in the context of an immigration
proceeding. Accordingly, information contained in the form is considered only to the
extent necessary to process the appeal. The form is inserted into the official file for the
respondent/applicant and certain information on the form is entered into EOIR’s internal
use only database. The form is reviewed by the Board in order to determine the
sufficiency and merit of a party’s appeal.

3. Use of Technology - The use of this form provides the most efficient means for
collecting and processing the required data. The Form EOIR-26 is available on EOIR’s
website for printing. An individual may either type the requested information into the
fillable form online and then print the completed form for submission to the agency, or
print the blank form in its entirety and complete it by typing or printing legibly.
Currently, EOIR only has limited automated capabilities in place to accept the electronic
submission of certain forms. However, EOIR is exploring a number of electronic
document initiatives, including electronic submission of additional EOIR forms.
Electronic submission of the Form EOIR-26 through EOIR’s eRegistry system, which is
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part of a long-term agency initiative to create an electronic case access and filing system
for the Immigration Court and the Board of Immigration Appeals, is part EOIR’s longterm electronic filing initiative.

4. Efforts to Identify Duplication - The only method for appealing an Immigration
Judge’s decision to the Board is to file a Form EOIR-26. A review of EOIR’s existing
forms revealed no duplication of effort, and there is no similar information currently
available which can be used for this purpose.

5. Impact on Small Businesses - This collection does not have an impact on small
businesses or other small entities.

6. Consequences of Less Frequent Collection - Failure to collect and present the
information regarding a party’s reasons for appeal would deprive the party of a
mechanism through which to preserve and exercise the regulatory right to appeal from a
decision of an Immigration Judge to the Board.

7. Special Circumstances Influencing Collection - A party affected by an Immigration
Judge’s decision who wishes to appeal the decision must file the Form EOIR-26 within
30 calendar days of the Immigration Judge’s oral decision or the mailing date of the
Immigration Judge’s written decision. 8 C.F.R. 1003.38(b). None of the other eight
special circumstances identified in OMB instruction number 7 apply to this collection.

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8. Federal Register Publication and Consultation- A 60-day notice covering this
collection has been published in the Federal Register. See 84 FR 18586 (May 1, 2019).
A 30-day notice has gone out for publication in the Federal Register. No comments have
been received.

9. Payment or Gift to Claimants - EOIR does not provide any payment or gifts to parties
in immigration proceedings.

10. Assurance of Confidentiality - The original Notice of Appeal from a Decision of an
Immigration Judge is maintained by EOIR in the official court record of proceeding
(ROP) and is accessed by those EOIR employees processing the ROP. The
confidentiality of the contents of a party’s Notice of Appeal from a Decision of an
Immigration Judge is protected by EOIR, as are all the documents in the ROP, to the
extent permitted by the law, including the Privacy Act and the Freedom of Information
Act.

11. Justification for Sensitive Questions - There are no questions of a sensitive nature in
the Form EOIR-26.

12. Estimate of Hour Burden
a. Number of Respondents

26,536

b. Number of Responses per Respondent

1

c. Total Annual responses

26,536
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d. Hours per response

.5

e. Total annual hourly reporting burden

13,268

The total annual reporting burden is derived by multiplying the number of respondents
(26,536) by the frequency of response (1) by the number of hours per response (.5):
26,536 respondents x 1 response per respondent x .5 hour per respondent = 13,268
burden hours. It is estimated that the total time to read and complete the form and gather
all materials is no more than 30 minutes.

13. Estimate of Cost Burden - There are no capital or start-up costs associated with this
information collection. The estimated public cost is zero.

For informational purposes, there may be additional costs to respondents. As noted
above, this form is used by both respondents in immigration proceedings and attorneys
who represent ICE in those proceedings. The costs referenced in this paragraph apply
only to respondents in immigration proceedings, and not to the attorneys who represent
ICE. Respondents may incur a cost if they hire a private practitioner to assist them with
completing the Form EOIR-26. The Bureau of Labor Statistics reports that the median
hourly wage for lawyers is $58.13. For respondents who proceed without a practitioner,
there is an estimated cost of $10 per hour for completing the form (the individuals’ time
and supplies) in lieu of the practitioner cost. Respondents may also incur a cost of $110,
which is the amount of the filing fee for this form. However, they may seek to have the
filing fee waived by requesting a waiver by submitting Form EOIR 26-A.

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14. Estimated Cost to Federal Government – EOIR estimates that the annual government
cost for printing, distributing, stocking, processing and maintaining the Form EOIR-26 is
$100,973.02. This amount includes printing costs of $15,921.60, which was derived by
multiplying the 6 pages of the form by an estimated $.10 per copy by the estimated
26,536 respondents per year. This amount also includes stocking, processing and
maintenance costs of $85,051.42, which was derived by calculating the personnel and
overhead costs to EOIR for processing the form.

15. Reason for Change in Burden - The difference in burden is due to an agency
adjustment, specifically an increase in the number of respondents. Previously, EOIR
estimated 17,627 respondents annually. At present, there are approximately 26,536
respondents annually. As the number of hours per response remained the same (30
minutes), the total burden hours increased from 8,813.5 to 13,268 burden hours, for a
difference of 4,454.5 additional burden hours. Because of the higher number of
respondents, the cost burden similarly increased.

16. Plans for Publication - EOIR does not intend to employ the use of statistics or the
publication thereof for this collection of information.

17. Exceptions to Certification Statement - EOIR does not request an exception to the
certification of this information collection.
Section B. Collection of Information Employing Statistical Methods
Not applicable.
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PAPERWORK CERTIFICATION

In submitting this request for OMB approval, I certify that the requirements of the
Privacy Act and OMB directives have been complied with, including paperwork regulations, any
applicable statistical standards or directives, and any other information policy directives
promulgated under 5 C.F.R. 1320.

signed by
CHRISTINA Digitally
CHRISTINA BAPTISTA
Date: 2019.07.16
BAPTISTA
10:50:18 -04'00'
_____________________

7/16/19
Date

Christina Baptista
Senior Counsel for Immigration
Executive Office for Immigration Review

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