Appeals are getting pricier just as review gets thinner

Two separate federal actions are about to reshape the immigration appellate landscape.

The first is already in force. A January 21 Federal Register notice from EOIR adjusted immigration-related filing fees for FY 2026, effective February 1. The second is queued up behind it. On February 6, the Department of Justice published an interim final rule that would make Board of Immigration Appeals review on the merits discretionary and take effect on March 9, 2026.

Each move can be defended in bureaucratic language. One is an inflation adjustment required by statute. The other is framed as streamlining. But viewed together, they point in one direction: filing review becomes more expensive at the same moment that full merits review becomes less guaranteed.

The fee side is not abstract anymore

For practitioners and respondents, the important thing about the January notice is not that the increases are huge in percentage terms. It is that they land on already high numbers.

Filing	Through Jan. 31, 2026	Starting Feb. 1, 2026
Appeal from an Immigration Judge (EOIR-26)	$1,010	$1,030
Appeal from a DHS officer (EOIR-29)	$1,010	$1,030
Motion to reopen or reconsider before an IJ	$1,045	$1,065
Motion to reopen or reconsider before the BIA	$1,010	$1,030
Practitioner disciplinary appeal (EOIR-45)	$2,000	$2,030
Annual asylum fee	$100	$102

Those are not symbolic amounts. A family deciding whether to reopen, appeal, or seek reconsideration is now looking at four-figure tolls almost across the board. Even when an individual increase is only twenty dollars, it sits on top of a baseline that was already difficult to absorb.

The annual asylum fee is the clearest example of how the logic compounds. EOIR’s FY 2026 notice raises that fee from $100 to $102. On its own, that sounds marginal. In practice it signals that the new fee regime is designed to ratchet rather than expire.

The review side is shifting at the same time

The February 6 interim final rule matters for a different reason. It says directly that the Department is streamlining BIA review by making review on the merits discretionary, setting briefing times for cases that receive merits review, and changing other appellate procedures to avoid adding to what the rule itself calls the “already sizeable backlog at the Board.”

That is not just a docket-management tweak. It changes the posture of appeal. Under the rule’s own framing, more cases are expected to move through a narrower gate before receiving a full merits look.

The Department’s argument is functional. It says the Board needs a more efficient process and cites the weight of the backlog. But efficiency gains at the Board do not feel neutral to the people paying to get there. If the price of filing stays high while the availability of robust merits review becomes more contingent, the practical value of an appeal changes.

Why the interaction matters

Either policy on its own might be discussed as manageable. Together they change the risk profile of late-stage immigration litigation.

A respondent considering whether to appeal now faces two questions instead of one. The first is the old one: can I afford to file? The second is newer and sharper: if I do pay, how much review am I actually buying?

That is not a cynical reading of the rule. It is the practical implication of charging four-figure filing fees while also moving toward discretionary merits review.

There is a representation effect here too. Lawyers and accredited representatives have always had to be selective about which appellate matters they can staff. Higher filing costs and more uncertain review can make that triage harsher, especially for low-income clients who need help precisely because they cannot afford strategic mistakes.

The rule’s own justification deserves scrutiny

The Department repeatedly returns to backlog as justification for the February rule. That is an understandable administrative concern. But backlog management and adjudicative fairness are not identical goals. A system can reduce workload by narrowing review, and still leave the underlying accuracy and access questions unresolved.

That tension becomes harder to ignore when the same system is also extracting higher fees from the people trying to use it. Streamlining may be the official frame. From the outside, it also looks like a transfer of risk downward onto respondents and their counsel.

Why this deserves attention now

These changes sit at the exact point in the process where errors become hardest to correct. Appeals and motions are where records get tested, new facts re-enter the file, and bad first-instance outcomes sometimes get fixed. Making that stage costlier and thinner at the same time is not a small procedural refinement.

By February 2026, the fee increases are already live. By March 9, the new BIA rule is scheduled to be live too. If the Department wants the public to see these as separate housekeeping actions, it has chosen poor timing. On the ground, they will be felt as one story.