GARCIA MARTINEZ

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169
Cite as 29 I&N Dec. 169 (BIA 2025) 	Interim Decision #4114
Matter of Luis Angel GARCIA MARTINEZ, Respondent
Decided August 8, 2025
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A non-detained alien who is represented by private counsel is presumed to have the
ability to pay any requisite filing fee before the Immigration Judge and the Board.
(2) A fee waiver request from a non-detained adult alien that contains zeros in all income
blocks is presumptively invalid.
FOR THE RESPONDENT: Mario Acosta, Jr., Esquire, Santa Fe Springs, California
BEFORE: Board Panel: MALPHRUS, Chief Appellate Immigration Judge; BAIRD and
MAHTABFAR, Appellate Immigration Judges.
BAIRD, Appellate Immigration Judge:
On October 5, 2023, the respondent, through counsel, filed an untimely
motion to reconsider and reopen accompanied by a Fee Waiver Request
(Form EOIR-26A). 	Because we conclude that the respondent has not
satisfied his burden of showing that he is unable to pay the filing fee, the
motion will be rejected as improperly filed.
The respondent, a native and citizen of Mexico, was served with a Notice
to Appear on February 26, 2018, charging him with removability pursuant to
section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1182(a)(6)(A)(i) (2018). 	After hiring a private attorney in
October 2018, the respondent filed an application for cancellation of removal
under section 240A(b) of the INA, 8 U.S.C. § 1229b(b) (2018). 	An
Immigration Judge denied the respondent’s application and ordered him
removed to Mexico. The respondent filed a timely appeal, which the Board
dismissed on June 3, 2019. 	On March 8, 2022, the respondent filed an
untimely motion to reopen based, in part, on a new qualifying relative and
the approval of a visa petition filed on his behalf by his United States citizen
spouse. The Board denied the motion on August 25, 2023.
The respondent subsequently filed the present motion to reconsider
that decision. 	Accompanying the motion, the respondent submitted a
Form EOIR-26A, seeking a waiver of the fee associated with the filing of his

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current motion. 	The respondent claims in his Form EOIR-26A that he has
zero income from employment, real property, interest, or any other sources,
and 	zero 	expenses, 	including 	for 	housing, 	utilities, 	living 	expenses,
outstanding 	debts, 	medical 	expenses, 	taxes, 	and 	attorney 	fees. 	The
respondent does not claim any exception to the filing fee requirement.
Filing fees are often required in Federal and State court systems to defray
the 	cost 	of 	litigation 	and 	to 	deter 	frivolous 	petitions. 	See, 	e.g.,
In re Anderson, 511 U.S. 364, 365–66 (1994) (noting that “filing fees and
attorney’s fees . . . deter . . . litigants from filing frivolous petitions” (citation
omitted)); Williams v. Roberts, 116 F.3d 1126, 1127 (5th Cir. 1997) (holding
that filing fees are “assessed for the privilege of initiating an appeal”).
Section 286(m) of the INA, 8 U.S.C. § 1356(m) (2018), authorizes the
Attorney General to set fees by regulation in immigration proceedings for
adjudication services ‘‘at a level that will ensure recovery of the full costs of
providing all such services.’’ The Executive Office for Immigration Review
codified fees and related regulations as authorized by section 286(m) of the
INA, 8 U.S.C. § 1356(m), in 8 C.F.R. §§ 1003.8, 1003.24, and 1103.7 (2025).
See Executive Office for Immigration Review; Definitions; Fees; Powers and
Authority of DHS Officers and Employees in Removal Proceedings, 69 Fed.
Reg. 44903, 44906–07 (July 28, 2004).1
The 	regulations 	provide 	that 	the 	Board 	may 	grant 	a 	waiver 	of
the filing fee in cases where the respondent has shown that he or she
does 	not 	have 	the 	means 	to 	pay 	the 	requisite 	filing 	fee. 	See
8 	C.F.R. 	§ 	1003.8(a)(1), 	(3). 	Fee 	waivers 	must 	be 	requested
through the filing of a Form EOIR-26A, which includes a declaration
to be signed under penalty of perjury substantiating the respondent’s inability
to pay the fee.2 	8 C.F.R. § 1003.8(a)(3). 	Fee waivers are the exception
and 	should 	not 	be 	granted 	as 	a 	matter 	of 	routine. 	See 	generally
Lumbert v. Ill. Dep’t of Corr., 827 F.2d 257, 259 (7th Cir. 1987) (recognizing
that filing fees serve an important purpose within the judicial system).
An alien has a duty to complete official government forms, including fee
waiver requests, accurately. See Matter of A.J. Valdez and Z. Valdez, 27 I&N
1 	Subsequent to the filing of the motion in this case, the One Big Beautiful Bill Act, Pub.
L. No. 119-21, tit. X, subtit. A, pt. 1, 139 Stat. 72, was enacted into law. Any fees imposed
or increased by this Act are beyond the scope of this decision.
2 	The Form EOIR-26A also requires an attestation from retained counsel indicating that
counsel has reviewed the information contained in the fee waiver request and is satisfied
that the request is made in good faith.

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Dec. 496, 500 (BIA 2018) (“[I]t is reasonable to expect that aliens will take
steps to ascertain the accuracy of documents they sign . . . .”); see also
Matter of Gomez-Beltran, 26 I&N Dec. 765, 768 (BIA 2016) (“Truthful
testimony and disclosures are critical to the effective operation of the
immigration court system.”), aff’d, 792 F. App’x 498 (9th Cir. 2020). 	The
submission of fraudulent forms can have negative discretionary implications.
See Matter of Gonzalez Jimenez, 29 I&N Dec. 129, 131–32 (BIA 2025).
After declaring under penalty of perjury that the information contained in
his Form EOIR-26A was true and correct to the best of his knowledge, the
respondent stated that he had zero income from any sources and zero
expenses. The respondent’s attorney attested that the fee waiver request was
made in good faith. 	No additional information or documentation was
provided explaining how the respondent—who is not detained—could
provide basic necessities for himself, including food and clothing, and pay
for the services of an attorney for many years, despite claiming to have no
income.
A respondent’s ability to pay the legal fees of an attorney to represent him
or her in removal proceedings is evidence that the respondent can afford to
pay 	the 	fees 	associated 	with 	litigation. 	See 	generally 	In 	re 	Nuttall,
334 B.R. 921, 925 (Bankr. W.D. Mo. 2005) (recognizing in a bankruptcy
case that a party “who can afford to pay his attorney may very well be able
to pay the filing fee as well”). In Medrano-Dominguez v. INS, 73 F.3d 369
(9th 	Cir. 	1995) 	(table), 	the 	United 	States 	Court 	of 	Appeals 	for 	the
Ninth Circuit upheld, in an unpublished decision, the Board’s determination
that the respondent failed to demonstrate an inability to pay the filing fee for
his appeal based in part on his payment of legal fees to his attorney and his
prior testimony of employment. A non-detained alien who is represented by
private counsel is presumed to have the ability to pay any requisite filing fee
before the Immigration Judge and the Board. 	To warrant a fee waiver, an
alien will need to explain how he or she is able to pay legal fees but cannot
pay a filing fee.
We further conclude that a fee waiver request from a non-detained adult
alien that contains zeros in all income blocks is presumptively invalid. 	A
Form EOIR-26A with all zeros from an adult respondent, particularly if the
respondent is not pro se and detained, should be rejected when it is not
accompanied by evidence to explain why the respondent has no income or
otherwise cannot pay the applicable fees. 	The Fifth Circuit has previously
held in an unpublished decision that an alien seeking a fee waiver must
disclose sufficient details so that the Board may properly assess the claim of

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poverty. 	See Popoola v. INS, 995 F.2d 222 (5th Cir. 1993) (unpublished)
(affirming the Board’s rejection of a request for a fee waiver and agreeing
that the alien’s conclusory statement that he did not have the money to pay
the appeal fee was insufficient).
The respondent has not met his burden to show that he is unable to pay
the filing fee for his motion. The respondent has been in the United States
for over 24 years, has sought and continues to seek discretionary relief based
in part on the support he provides to his United States citizen spouse and two
United States citizen children, and has retained private counsel to represent
him before the Immigration Judge and the Board since 2018. 	Despite this,
he averred under oath that he has no income and no expenses without
providing any supporting documentation or otherwise explaining how he
supports himself and his family and how he has been paying his attorneys for
the last several years.
Based on the foregoing, the respondent’s fee waiver request is denied. As
the respondent has neither paid the requisite filing fee nor demonstrated that
he is unable to pay that fee, we deem the respondent’s motion to reconsider
improperly filed. 	As provided by regulation, the respondent will be
permitted a period of 15 days to refile his motion with the appropriate filing
fee 	or 	a 	new 	fee 	waiver 	request 	that 	is 	accompanied 	by 	supporting
documentation. See 8 C.F.R. § 1003.8(a)(3).
ORDER: 	The 	respondent’s 	motion 	to 	reconsider 	is 	rejected 	as
improperly filed.
FURTHER ORDER: 	The respondent is permitted 15 days to refile
his motion with the appropriate filing fee or a new fee waiver request.
NOTICE: 	If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the Department of Homeland
Security, or conspires to or takes any action designed to prevent or hamper
the respondent’s departure pursuant to the order of removal, the respondent
shall be subject to a civil monetary penalty of up to $998 for each day the
respondent is in violation. 	See INA § 274D, 8 U.S.C. § 1324d (2018);
8 C.F.R. § 280.53(b)(14) (2025).