Proposed Rule2026-10082
Increasing the Fee for Certain Aliens Ordered Removed in Absentia as Established by the HR-1 Reconciliation Bill
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 20, 2026
Issuing agencies
Homeland Security DepartmentU.S. Immigration and Customs Enforcement
Abstract
DHS is proposing to update the fee required by section 100016 of the Budget Reconciliation Act (known as the HR-1). This fee applies to certain aliens ordered removed in absentia who fail to depart the United States and are subsequently arrested by ICE. DHS is proposing to increase the fee from $5,130 to $18,000. This rule also makes clear that DHS will adjust this fee for inflation each year.
Full Text
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<title>Federal Register, Volume 91 Issue 97 (Wednesday, May 20, 2026)</title>
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[Federal Register Volume 91, Number 97 (Wednesday, May 20, 2026)]
[Proposed Rules]
[Pages 29380-29389]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-10082]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 91, No. 97 / Wednesday, May 20, 2026 /
Proposed Rules
[[Page 29380]]
DEPARTMENT OF HOMELAND SECURITY
U.S. Immigration and Customs Enforcement
8 CFR Part 103
[Docket No: ICEB-2026-0034]
RIN 1653-AA98
Increasing the Fee for Certain Aliens Ordered Removed in Absentia
as Established by the HR-1 Reconciliation Bill
AGENCY: U.S. Immigration and Customs Enforcement (``ICE''), Department
of Homeland Security (``DHS'').
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: DHS is proposing to update the fee required by section 100016
of the Budget Reconciliation Act (known as the HR-1). This fee applies
to certain aliens ordered removed in absentia who fail to depart the
United States and are subsequently arrested by ICE. DHS is proposing to
increase the fee from $5,130 to $18,000. This rule also makes clear
that DHS will adjust this fee for inflation each year.
DATES: Comments must be received on or before June 22, 2026.
ADDRESSES: You may submit comments on this NPRM, identified by DHS
Docket Number ICEB-2026-0034, through the Federal eRulemaking Portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. All comments must be submitted in English,
or an English translation must be provided. Follow the website
instructions for submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS officials, will not be
considered comments on the rule and may not receive a response from
DHS. DHS cannot accept any comments that are hand-delivered or
couriered. In addition, DHS cannot accept comments contained on any
form of digital media storage devices, such as CDs, DVDs, or USB
drives. DHS is not accepting mailed comments at this time. If you
cannot submit your comment using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, please
see the FOR FURTHER INFORMATION CONTACT section of this document.
FOR FURTHER INFORMATION CONTACT: The Office of the Principal Legal
Advisor, U.S. Immigration and Customs Enforcement, Department of
Homeland Security, 500 12th Street SW, Washington, DC 20536-5901;
telephone (202) 732-6960 (not a toll-free call) (for questions only--no
comments will be accepted at this phone number).
SUPPLEMENTARY INFORMATION:
I. Public Participation
DHS encourages all interested parties to participate in this
rulemaking by submitting data, views, comments, and arguments on all
aspects of this notice of proposed rulemaking. Comments providing the
most assistance to DHS will reference a specific portion of this
proposed rule, explain the reason for any recommended change and
include the data, information, or authority that supports the
recommended change. See the ADDRESSES section above for information on
where to submit comments.
A. Submitting Comments
All comments must be submitted in English, or an English
translation must be provided. If you submit comments, you must include
the DHS docket number for this rulemaking (ICEB-2026-0034), indicate
the specific section of this document to which each comment applies,
and provide a reason for each suggestion or recommendation. Include
data, information, or authority that supports the comment. Your
comments must be submitted online by 11:59 p.m. EST on the last day of
the comment period.
Instructions: To submit your comments online, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and insert ``ICEB-2026-0034'' in the ``Search''
box. Click on the rule that appears in the ``Search Results.'' Click on
the ``Comment'' box under the name of the rule and input your comments
in the text box provided. When you are satisfied with your comments,
follow the prompts, and then click ``Submit Comment.''
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
insert ``ICEB-2026-0034'' in the ``Search'' box. Click on the ``Open
Docket Folder,'' then click on ``View Comment'' or ``View All'' under
the ``Comments'' section of the page. Individuals without internet
access can make alternate arrangements for viewing comments and
documents related to this rulemaking by contacting the office listed in
the FOR FURTHER INFORMATION CONTACT section above. You may also sign up
for email alerts on the online docket to be notified when comments are
posted, or a final rule is published.
II. Background and Purpose
A. Legal Authority
The authority of the Secretary of Homeland Security (the Secretary)
to implement the proposed regulatory amendments in this rule can be
found in various provisions of the immigration laws. The Secretary
derives the authority to promulgate regulations primarily from the
Immigration and Nationality Act (INA), as amended. See 8 U.S.C. 1101 et
seq. Section 102 of the Homeland Security Act of 2002, Public Law 107-
296, 116 Stat. 2135, 6 U.S.C. 112, and section 103(a)(1) and (3) of the
INA, 8 U.S.C. 1103(a)(1), (3), charge the Secretary with the
administration and enforcement of the immigration and naturalization
laws of the United States. Section 103(a)(3) of the INA, 8 U.S.C.
1103(a)(3), grants the Secretary the power to take actions ``necessary
for carrying out'' the Secretary's authority under the provisions of
the INA. DHS also has broad discretion to employ the procedures it
reasonably concludes are appropriate to enforce immigration laws,
including the assessment and collection of authorized fees.\1\ See Vt.
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S.
519, 543 (1978) (``Absent constitutional constraints or extremely
compelling circumstances the administrative agencies should be free to
fashion their own rules of procedure and to pursue
[[Page 29381]]
methods of inquiry capable of permitting them to discharge their
multitudinous duties.'' (quotation marks omitted) (quoting FCC v.
Schreiber, 381 U.S. 279, 290 (1965)).\2\
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\1\ Furthermore, ICE has delegated authority from the Secretary
to impose fees. See DHS Delegation No.7030.2(2)(H), Delegation of
Authority to the Assistant Secretary for U.S. Immigration and
Customs Enforcement (Nov. 13, 2004).
\2\ See also Arizona v. United States, 567 U.S. 387, 394 (2012)
(noting that the Supreme Court has long recognized that the federal
government has broad and undoubted power over the subject of
immigration and the status of aliens).
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8 U.S.C. 1814 requires a fee for aliens ordered removed in
absentia, unless the alien's order is rescinded pursuant to section
240(b)(5)(C) (8 U.S.C. 1229a(b)(5)(C)).\3\ This unwaivable fee applies
to any alien who is ordered removed in absentia pursuant to section
240(b)(5)(A) (8 U.S.C. 1229a(b)(5)(A)) and is subsequently arrested by
U.S. Immigration and Customs Enforcement (ICE). The fee serves as
partial reimbursement to the government for the cost of the arrests.\4\
HR-1 requires this new fee to be a minimum of $5,130 per alien for
Fiscal Year (FY) 2026. However, 8 U.S.C. 1814 authorizes the Secretary
to adjust the fee through rulemaking and requires the fee to be
adjusted annually based on the Consumer Price Index for All Urban
Consumers (CPI-U).\5\
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\3\ The One Big Beautiful Bill Act, Public Law 119-21, 139 Stat.
72, 8 U.S.C. 1814 (HR-1) was signed into law on July 4, 2025.
\4\ 8 U.S.C. 1814(a); see Arizona, 567 U.S. at 394; see
generally U.S. Immigration and Customs Enforcement, The Department
of Homeland Security U.S. Immigration and Customs Enforcement Budget
Overview Fiscal Year 2026, June 13, 2025, available at <a href="https://www.dhs.gov/sites/default/files/2025-06/25_0613_ice_fy26-congressional-budget-justificatin.pdf">https://www.dhs.gov/sites/default/files/2025-06/25_0613_ice_fy26-congressional-budget-justificatin.pdf</a>. The new HR-1 immigration fee
is imposed in addition to any other fees authorized by law and by
the heads of relevant departments.
\5\ 8 U.S.C 1814(b), see 90 FR 52425 (Nov. 20, 2025) for the FY
2026 adjusted fee based on the Consumer Price Index for All Urban
Consumers (CPI-U).
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1. ICE Immigration Enforcement Authority
DHS immigration officers have broad authority to arrest and detain
aliens pending immigration proceedings and for removal from the United
States, who have not established a legal right to remain, pursuant to a
warrant issued by the Department of Homeland Security, or without a
warrant.\6\ Both arrest and detention come at great expense to the U.S.
taxpayer. Those expenses exponentially increase when removable aliens,
including those with final orders of removal issued in absentia, fail
to depart, which results in ICE being forced to take further
enforcement action.
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\6\ See generally INA secs. 235, 236, 241, 287, and 8 U.S.C.
1225, 1226, 1231, and 1357.
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Pursuant to section 287(a)(1)-(2) of the INA, 8 U.S.C. 1357(a)(1)-
(2), DHS immigration officers have the authority to interrogate and to
arrest aliens for whom there is probable cause to believe are removable
from the United States.\7\ Arrests made without a warrant must be
accompanied by a determination that the alien would be likely to escape
before a warrant could be obtained.\8\ Certain aliens arrested and
placed in removal proceedings may be detained pending a decision on
whether they should be removed from the United States.\9\ Detention is
mandatory for all applicants for admission pending removal proceedings
under section 240 of the INA, 8 U.S.C. 1229a.\10\ The regulatory
standards for enforcement activities are set forth in 8 CFR 287.8, and
they include the authority and procedures for the conduct of
arrests.\11\
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\7\ See 8 CFR 287.8(c)(2)(i).
\8\ INA sec. 287(a)(2), 8 U.S.C. 1357(a)(2); 8 CFR
287.8(c)(2)(ii).
\9\ INA sec. 236, 8 U.S.C. 1226. See also Demore v. Kim, 538
U.S. 510, 523 (2003) (``[T]he court recognizes detention during
removal as a constitutionally valid aspect of removal
proceedings.'') and Wong Wing v. U.S., 163 U.S. 228, 235 (1896)
(stating that detention is a constitutionally valid aspect of the
removal process).
\10\ INA sec. 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A).
\11\ 8 CFR 287.8(c).
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In addition to these authorities, INA 241, 8 U.S.C. 1231, provides
DHS with the authority to detain aliens to effectuate a removal order,
including a removal order entered in absentia.\12\ When an immigration
judge orders an alien removed in the alien's absence, the order of
removal becomes final upon entry of the order, requiring the alien to
immediately depart the United States.\13\ If the alien fails to comply
with a final order of removal,\14\ the alien will be arrested and taken
into custody by ICE, generally pursuant to a warrant of removal, and
will be removed from the United States.\15\
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\12\ See generally Zadvydas v. Davis, 533 U.S. 678 (2001).
\13\ See 8 CFR 1241.1(e).
\14\ Aliens with a final order of removal in absentia have
already had the opportunity to participate in their removal
proceedings under INA sec. 240, 8 U.S.C. 1229a. and have lost the
right to contest removal, absent scenarios such as those outlined in
INA sec. 240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C).
\15\ See 8 CFR 241.3.
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2. In Absentia Removal Orders and Subsequent Arrest by ICE
Under INA sec. 240, 8 U.S.C. 1229a, an alien receives notice of the
removal proceedings and hearing date when DHS serves the alien with a
Notice to Appear (NTA).\16\ The NTA advises the alien of the nature of
the proceedings, the charges against the alien, the time and place at
which the proceedings will be held, and the requirements that the alien
provide DHS with an address and telephone number (if any) and any
changes of address or telephone number thereafter.\17\ Notably, the NTA
also states the consequences for failing to provide an updated address
and telephone number,\18\ and for failing to appear at the
proceedings.\19\ Once the NTA is filed with the Immigration Court, the
Immigration Court issues notices of future hearings (hearing notice)
dates and/or changes in dates or location.\20\
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\16\ INA 239(a)(1)(G), 8 U.S.C. 1229(a)(1)(G).
\17\ INA 239(a)(1), 8 U.S.C. 1229(a)(1).
\18\ INA 239(a)(1)(F)(iii), 8 U.S.C. 1229(a)(1)(F)(iii). Failure
to provide address information means that written notice is no
longer required. INA 240(b)(5)(B), 8 U.S.C. 1229a(b)(5)(B).
\19\ INA 239(a)(1)(G)(ii), 8 U.S.C. 1229(a)(1)(G)(ii). An alien
who fails to appear will be ordered removed in absentia if DHS meets
its burden of proof to establish that written notice was provided
and that the alien is removable. INA 240(b)(5)(A), 8 U.S.C.
1229a(b)(5)(A).
\20\ INA 239(a)(2), 8 U.S.C. 1229(a)(2).
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The NTA and hearing notices are served in person to the alien or,
if personal service is not practicable, through service by mail to the
alien or the alien's counsel of record.\21\ When an alien fails to
appear in court and DHS establishes by ``clear, unequivocal, and
convincing evidence'' that the alien is removable and that the alien or
the alien's counsel of record was provided the NTA or hearing notice
(i.e., the written notice of the time and place of the proceedings and
the consequences of failing to appear), an immigration judge shall
order the alien removed in absentia.\22\ Where the alien has failed to
provide the address and telephone number (if any) as required under INA
239(a)(1)(F), or has failed to update such information in accordance
with INA 239(a)(1)(F), written notice is not required, and DHS is not
obligated to provide further notice of the proceeding. Any notice
issued after the NTA has been received is sufficient if it is given at
the most recent address provided by the alien. If the alien fails to
provide an address pursuant to INA 239(a)(1)(F), ``no written notice
shall be required.'' \23\
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\21\ INA 239(a)(1), (2), 8 U.S.C. 1229(a)(1), (2).
\22\ INA 240(b)(5), 8 U.S.C. 1229a(b)(5); 8 CFR 1003.26(c).
\23\ INA 239(a)(2)(B), 8 U.S.C. 1229(a)(2)(B); 8 CFR
1003.23(b)(4)(ii), 1003.26(d). DHS acknowledges that, in Jones v.
Flowers, 547 U.S. 220 (2006), the Supreme Court held that ``failure
to comply with a statutory obligation to keep [ones'] address
updated'' does not mean the party ``forfeits his right to
constitutionally sufficient notice'' and that the state was required
to ``take additional reasonable steps to provide notice.'' Id. at
232. The Court explained, however, that ``assessing the adequacy of
a particular form of notice requires balancing the interest of the
[Government] against the individual interest sought to be protected
by [the due process clause]'' Id. at 229 (citations and quotations
omitted). Here, DHS has ample procedures in place to warn the alien
of the consequences of failing to provide updated contact
information, including a potential order of removal in absentia.
However, this NPRM involves a fee established by legislation, not
the Government's exercise of ``extraordinary power.'' Aliens are
warned of their address obligations upon initiation of section 240
removal proceedings, see INA 239(a)(1)(F), 8 U.S.C. 1229(a)(1)(F),
and DHS is taking steps to ensure that all aliens are aware of, and
comply with, registration and address requirements consistent with
this Administration's policies. DHS has a reasonable expectation
that aliens will take these requirements seriously because failure
to do so can result in a range of consequences including criminal
penalties. INA 266, 8 U.S.C. 1306. Additionally, DHS provides
convenient and reliable ways for aliens to update their addresses
including through online portals.
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[[Page 29382]]
HR-1 provides an exception from the immigration enforcement fee
authorized in section 1814, 8 U.S.C. 1814, in certain circumstances
when the removal order in absentia is rescinded pursuant to INA
240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C).\24\ The immigration judge may
rescind an order of removal in absentia if the alien files a motion to
reopen: (1) within 180 days of the order if the alien demonstrates that
the failure to appear was due to ``exceptional circumstances''; or (2)
at any time if the alien can demonstrate that the alien did not receive
the requisite notice or the alien was in Federal or State custody and
the failure to appear was through no fault of the alien.\25\ The INA
provides examples of ``exceptional circumstances'' such as ``battery or
extreme cruelty to the alien or any child or parent of the alien,
serious illness of the alien, or serious illness or death of the
spouse, child, or parent of the alien, but not including less
compelling circumstances,'' which are ``beyond the control of the
alien.'' \26\ An alien must provide adequate evidence to support a
claim of exceptional circumstances which corroborates the reason for
the alien's failure to appear.\27\ During the pendency of a motion to
reopen to rescind an in absentia order premised on lack of notice, the
removal of the alien is automatically stayed pending the disposition of
the motion by the immigration judge.\28\
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\24\ 8 U.S.C. 1814(c).
\25\ INA 240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C); 8 CFR
1003.23(b)(4)(ii).
\26\ INA 240(e)(1), 8 U.S.C. 1229a(e)(1); 8 CFR
1003.23(b)(4)(ii).
\27\ See, e.g., Matter of B-A-S-, 22 I&N Dec. 57, 58-59 (BIA
1998) (``[w]here an alien argues that his failure to appear resulted
from a `serious illness,' [the court] normally would expect
specific, detailed medical evidence to corroborate the alien's
claim''); Matter of S-A-, 21 I&N Dec. 1050, 1051 (BIA 1997) (holding
that an alien's general assertion that he was prevented from
reaching his hearing on time by heavy traffic did not constitute
reasonable cause that would warrant reopening of his proceedings).
\28\ INA 240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C); 8 CFR
1003.23(b)(4)(ii).
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B. Background
Effective September 8, 2025, ICE began issuing the FY 2025 fee of
$5,000 from any alien who falls under 8 U.S.C. 1814. See 90 FR 43223
(Sept. 8, 2025). The triggering event for issuance of the fee is the
date the alien was subsequently arrested by ICE, regardless of the date
the final removal order in absentia was issued. Id. On November 20,
2025, ICE adjusted the fee for inflation from $5,000 to $5,130 for FY
2026, effective December 1, 2025. 90 FR 52425 (Nov. 20, 2025). As
mandated by statute, 50 percent of the funds collected from the fee are
deposited into ICE's Detention and Removal Office Fee Account to be
expended by ICE, and the remaining amounts are deposited into the
General Fund of the U.S. Treasury.\29\
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\29\ See 8 U.S.C. 1814(d). Fifty percent of the fees collected
pursuant to 8 U.S.C. 1814(d) shall be deposited into the Detention
and Removal Office Fee Account and credited to ICE. ICE may use
these funds without further appropriation, with the remaining 50
percent of the fee collections deposited into the general fund of
the U.S. Treasury.
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An alien subject to the fee under 8 U.S.C. 1814 receives written
notice of the fee. This notice of the fee assessment provides the alien
with a list of determinations made by the arresting officer, including
the date the alien was ordered removed in absentia, the fact that the
alien was subsequently arrested, and the fee amount. The written notice
of the fee assessment makes clear that failure to promptly pay the fee
results in consequences such as the accrual of interest, administrative
costs, and a late payment penalty charge pursuant to 31 U.S.C. 3717, 6
CFR 11.10, and 31 CFR 901.9. An alien may dispute the written fee
notice within 30 days of issuance of the notice.\30\
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\30\ The notice of the fee assessment provides that an alien may
request to inspect and copy records and to enter into a reasonable
written repayment agreement that is acceptable to the agency to pay
this debt in installments.
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C. Need for the Rulemaking
1. Costs for Immigration Enforcement Actions and Partial Reimbursement
to the Government
ICE has reviewed the data on the cost of ICE immigration
enforcement actions and determined that the partial reimbursement fee
of $5,130 is too low to sufficiently reimburse ICE for the cost of
arresting an alien who has been ordered removed in absentia.
The total cost of arresting an alien ordered removed in absentia
requires consideration of the broader costs of identifying, detaining,
processing, and removing such alien, in addition to the direct cost of
the arrest subsequent to the in absentia removal order. ICE also incurs
a variety of indirect and overhead costs, including, but not limited
to, training, vehicles, and support staff. These costs are subsumed in
the cost of arresting an alien. Just as the act of arresting an alien
directly imposes costs to detain, process, and remove that alien.
ICE's immigration enforcement lifecycle (IEL) cost framework,
produced by ICE's Office of Budget and Program Performance (OBPP)
Performance Analysis and Evaluation (PA&E) Unit, provides information
on the cost of each stage of the IEL, including direct costs, indirect
costs, and overhead costs. On average, the total cost of the IEL for an
alien is $18,042, justifying the DHS Secretary's exercise of authority
to increase the $5,130 fee amount required by 8 U.S.C. 1814.
The table below details each phase of the IEL and reflects the
direct and indirect costs involved in an arrest, ending with
removal.\31\ These costs reflect the average cost of each stage of the
IEL across all ICE enforcement activities, not just those specific to
aliens with final orders of removal.\32\
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\31\ The Secretary's determination to raise the fee to $18,000
is not only authorized by Congressional statute but also reflects
the agency's considered examination of relevant data and
``articulate[s] a satisfactory explanation for its action including
a ``rational connection between the facts found and the choice
made.'' '' Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile
Ins. Co., 463 U.S. 29 (1983) (citing Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962)).
\32\ ICE's cost model allocates direct, indirect, and overhead
costs across shared enforcement activities and does not produce
separate nationwide unit cost estimates for aliens ordered removed
in absentia. These aliens are typically located and arrested after
failing to comply with a final order of removal and then follow the
same detention, processing, and removal path as other aliens with
final orders, so DHS uses the IEL average cost per alien as the best
available estimate of the costs this fee is intended to partially
reimburse. In addition, locating and arresting aliens who have
failed to comply with a final order of removal can involve
additional time and operational steps. The actual costs for these
cases may exceed the IEL average.
[[Page 29383]]
ICE Managerial Cost Accounting Model
[FY 2024 Immigration Enforcement Lifecycle Costs,\33\ FY 2026$ \34\]
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Direct cost Indirect Overhead cost
Immigration enforcement ($k) cost ($k) ($k) (mission Total cost Number of Cost per
lifecycle (IEL) phase (program) (program) support) ($k) events alien ($)
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Identify...................... $279,407 $94,414 $71,162 $444,982 690,407 $645
Arrest........................ 136,960 39,117 33,530 209,607 117,950 1,777
Detain........................ 2,640,499 704,039 566,016 3,910,555 362,056 10,801
Process....................... 679,540 526,314 245,967 1,451,820 2,406,280 603
Remove........................ 252,683 664,393 227,505 1,144,582 271,484 4,216
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Total..................... 3,989,090 2,028,276 1,144,180 7,161,546 ........... 18,042
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Moreover, during the last several years the number of aliens
ordered removed in absentia has drastically increased. Specifically,
data from the Executive Office for Immigration Review (EOIR) indicates
that between 2022 and 2024 there was a 257 percent increase in the
number of in absentia removal orders issued--62,510 in 2022 and 222,920
in 2024.\35\ Data for 2025 show an additional increase of 39 percent
occurred between 2024 and 2025 for a total of 309,700 in absentia
removal orders issued.\36\
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\33\ Amounts are rounded to the nearest dollar; as a result,
subtotals and totals may differ from the sum of components.
Lifecycle costs are shown in thousands of dollars, indicated as ($k)
in the table.
\34\ Lifecycle cost data from FY 2024. To adjust costs in 2024
dollars to 2025 dollars, DHS multiplies 2024-dollar costs by the
percentage change in the Consumer Price Index for All Urban
Consumers (CPI-U) from July of 2024 (314.540) to July of 2025
(323.048), a 2.705 percent increase. To adjust costs from 2025
dollars to 2026 dollars in the absence of CPI-U data for 2026, DHS
multiplies in 2025 dollars costs by the Sept 2025 Federal Open
Market Committee median projected change in 2026 Personal
Consumption Expenditure (PCE) inflation, a 2.6 percent increase. As
a result, DHS calculates 2026-dollar costs to be 5.4 percent higher
than 2024-dollar costs. DHS is using this in lieu of available CPI
data. DHS will harmonize future inflation adjustments in accordance
with HR-1 Sec. 100016(b)(2)(B) as CPI data becomes available.
\35\ Office of Homeland Security Statistics analysis of EOIR
data as of October 2025. Dep't of Justice, Executive Office for
Immigration Review, In Absentia Removal Orders, available at <a href="https://www.justice.gov/eoir/media/1344881/dl?inline">https://www.justice.gov/eoir/media/1344881/dl?inline</a> (last visited Oct.
2025).
\36\ Id.
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The $18,000 fee proposed in this NPRM constitutes a partial
reimbursement of ICE's total costs in accordance with 8 U.S.C. 1814(a).
ICE data on the IEL indicates that the average cost accrued by ICE to
identify, arrest, detain, process, and remove a single alien in 2025 is
$18,040. The meaningful increase in the number of aliens ordered
removed in absentia combined with the overall cost of the IEL continues
to put a significant strain on ICE's already stretched enforcement
resources and diverts those essential resources from other immigration
enforcement priorities. To alleviate the strain on resources and reduce
the amount paid by U.S. taxpayers for these enforcement activities,\37\
Congress created the fee at 8 U.S.C. 1814 to partially reimburse ICE
for the cost of arresting aliens ordered removed in absentia,\38\ which
necessarily involves identifying such alien fugitives prior to arrest.
For aliens with a final removal order--including an in absentia removal
order--the arrest is a first step in effectuating the removal order,
and detention, processing, and removal flow from the arrest consistent
with the agency's authorities and mission to repatriate aliens with
final orders of removal. Notably, the proposed fee assessment does not
include immigration enforcement costs incurred by DHS prior to an alien
being ordered removed in absentia. Furthermore, 8 U.S.C. 1814,
authorizes a ``partial reimbursement for the cost of arresting an alien
. . . who is ordered removed in absentia pursuant to section
1229a(b)(5) of this title; and is subsequently arrested by U.S.
Immigration and Customs Enforcement.'' DHS interprets this to refer to
the costs of the arrest incurred by ICE subsequent to the in absentia
final order of removal.
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\37\ E.O. 14218, Ending Taxpayer Subsidization of Open Borders,
90 FR 10581 (Feb. 25, 2025) (``To prevent taxpayer resources from
acting as a magnet and fueling illegal immigration to the United
States, and to ensure, to the maximum extent permitted by law, that
no taxpayer-funded benefits go to unqualified aliens'').
\38\ Public Law 119-21 sec. 100016(a).
---------------------------------------------------------------------------
Additionally, because 8 U.S.C. 1814 provides that 50 percent of the
fee shall be deposited into the General Fund of the U.S. Treasury, a
$18,000 fee ensures actual and meaningful partial reimbursement to ICE.
DHS believes rulemaking is needed to ensure that DHS collects a more
appropriate partial reimbursement fee that properly reflects the
enormous amount of resources expended on aliens ordered removed in
absentia who fail to depart and are subsequently arrested by ICE.\39\
---------------------------------------------------------------------------
\39\ See E.O. 14159, Protecting the American People Against
Invasion, 90 FR 8443 (Jan. 20, 2025).
---------------------------------------------------------------------------
2. Protecting the Integrity of Immigration Enforcement Authority and
Public Safety
The changes proposed in this NPRM also protect the integrity of
immigration enforcement and help promote public safety. An alien who
fails to depart the United States upon issuance of a final order of
removal in absentia has already violated U.S. immigration laws and
processes.\40\ Once an alien fails to comply with the final order of
removal in absentia, ICE must expend additional time and resources to
arrest the alien to effectuate the removal order.\41\ Arrest of aliens
ordered removed in absentia involves identifying, locating, and
removing them from the United States. This population of aliens have
absconded from law enforcement and are violating an immigration court
order by remaining unlawfully in the United States. Aliens who evade
final removal orders undermine the orderly administration of the
immigration system and rule of law, create uncertainty regarding their
whereabouts, and increase the likelihood of enforcement encounters
occurring in uncontrollable settings, which then heightens risks to DHS
personnel and the public. Accordingly, DHS considers these aliens
fugitives and a high priority for removal from the United States.
---------------------------------------------------------------------------
\40\ See INA 240(b)(5), 8 U.S.C. 1229a(b)(5); 8 CFR 1003.26(c).
\41\ See U.S. Immigration and Customs Enforcement, Fact Sheet:
ICE Fugitive Operations Program, available at <a href="https://www.ice.gov/doclib/news/library/factsheets/pdf/fugops.pdf">https://www.ice.gov/doclib/news/library/factsheets/pdf/fugops.pdf</a> (last visited Jan. 14,
2025).
---------------------------------------------------------------------------
Furthermore, an in absentia removal order can only be rescinded if
the alien files a motion to reopen with the immigration judge, see
Matter of Guzman, 22 I&N Dec. 722 (BIA 1999).When an Immigration Judge
[[Page 29384]]
enters an in absentia order of removal, the order becomes final and
enforceable, and the alien is determined to be removable as charged,
forfeits the opportunity to contest removability or seek relief in
those proceedings, and is subject to all regulatory and statutory
consequences flowing from a final order. In addition, the alien becomes
ineligible for certain forms of discretionary relief, including
ineligibility for a period of ten (10) years from the date of the in
absentia order to receive cancellation of removal, adjustment of
status, change of status, registry,\42\ or voluntary departure.\43\ If
an alien fails to or refuses to attend a removal proceeding without
reasonable cause, the alien is inadmissible for five years after their
departure or removal.\44\
---------------------------------------------------------------------------
\42\ See INA 249, 8 U.S.C. 1259.
\43\ See INA 240(b)(7), 8 U.S.C. 1229a(b)(7); INA 240A, 240B,
245, 248, 249; 8 U.S.C. 1229b, 1229c, 1255, 1258, 1259; see also
E.O. 14159, Protecting the American People Against Invasion, 90 FR
8443 (Jan. 20, 2025).
\44\ INA 212(a)(6)(B); 8 U.S.C. 1182(a)(6)(B).
---------------------------------------------------------------------------
An alien's failure to depart creates additional enforcement costs
that could otherwise be spent on DHS' and the administration's vast
immigration enforcement priorities.\45\ Instead, DHS must spend finite
resources locating, arresting, and removing these aliens from the
United States. These costs are in addition to the costs already
expended to prosecute and adjudicate an alien's removal proceedings to
completion in the first instance. Inefficient use of ICE resources
risks undermining the overall integrity of the immigration system, and
risks further incentivizing aliens to simply ignore removal orders.
---------------------------------------------------------------------------
\45\ See, e.g., E.O. 14161, Protecting the United States From
Foreign Terrorists and Other National Security and Public Safety
Threats, 90 FR 8451 (Jan. 30, 2025).
---------------------------------------------------------------------------
3. Effective Implementation
Codifying the fee at 8 U.S.C. 1814 into regulation provides clarity
to the public and easy access to the law. Additionally, codification
assists with a more effective implementation of the law and
disincentivizes aliens from engaging in violations of immigration law.
III. Discussion of Changes
Congress established a minimum fee at 8 U.S.C. 1814 and afforded
the Secretary the ability to increase that fee in her discretion.\46\
DHS proposes to codify the provisions of 8 U.S.C. 1814 into regulations
and to exercise its discretion to increase the fee from $5,130 to
$18,000 due to the significant costs that the agency incurs in
arresting aliens ordered removed in absentia. By seeking a partial
reimbursement of the enforcement activities associated with arresting
aliens ordered removed in absentia, the proposed changes are a critical
part of DHS's efforts to use all statutorily available tools to achieve
the Administration's immigration enforcement and border security
objectives.
---------------------------------------------------------------------------
\46\ See Loper Bright Enterprises v. Ramando, 603 US 269 (2024)
(finding that Congress may have in some cases, by statute, delegated
authority to an agency to exercise a degree of discretion).
---------------------------------------------------------------------------
Under this proposal, the new fee of $18,000 is a partial
reimbursement to the agency for its costs associated with arresting
aliens ordered removed in absentia. The new fee will apply to all
aliens who are ordered removed in absentia pursuant to section
240(b)(5)(A) (8 U.S.C. 1229a(b)(5)(A)) and are subsequently arrested by
ICE on or after the effective date of the final rule.\47\ The fee will
be issued to the alien notifying the alien of how the fee was assessed
and how to pay the fee. Consistent with 8 U.S.C. 1814, this $18,000 fee
will be adjusted annually based on the CPI-U and will be announced in
the Federal Register. The fee will not apply to any alien who was
ordered removed in absentia if the order was rescinded pursuant to
section 240(b)(5)(C) (8 U.S.C. 1229a(b)(5)(C)).
---------------------------------------------------------------------------
\47\ DHS does not believe that Congress intended for collection
of the fee proposed under this NPRM to be retroactively applied to
aliens who have been arrested or removed in absentia prior to the
enactment of HR-1. An agency generally may not implement a rule with
retroactive effect. There is a presumption against retroactivity
such that ``we read laws as prospective in application unless
Congress has unambiguously instructed'' otherwise. See Cox v.
Kijakazi, 77 F.4th 983, 991 (D.C. Cir. 2023) (quoting Vartelas v.
Holder, 566 U.S. 257, 266 (2012)).
---------------------------------------------------------------------------
As described in the background above, the notice of the fee
assessment provides the alien with a list of determinations made by the
arresting officer, including the date the alien was ordered removed in
absentia, the fact that the alien was subsequently arrested, and the
fee amount. The notice of fees also makes clear that failure to
promptly pay the fee has consequences, including the accrual of
interest, administrative costs, and a late payment penalty charge
pursuant to 31 U.S.C. 3717, 6 CFR 11.10, and 31 CFR 901.9. An alien may
dispute the notice within 30 days of issuance.\48\
---------------------------------------------------------------------------
\48\ The notice of fees provides that an alien may request to
inspect and copy records and to enter into a reasonable written
repayment agreement that is acceptable to the agency to pay this
debt in installments.
---------------------------------------------------------------------------
DHS has proposed these amendments at 8 CFR 103.7(d). 8 CFR 103.7(d)
describes fees related to immigration enforcement, including but not
limited to fees assessed and collected by the Department of Justice
(DOJ), U.S. Customs and Border Protection (CBP), U.S. Citizenship and
Immigration Services (USCIS), and ICE. Therefore, DHS is proposing to
amend this section of the CFR to add this statutorily required fee and
allow for the continued application of this fee in subsequent fiscal
years, with annual adjustments for inflation as authorized by statute.
IV. Statutory and Regulatory Requirements
A. Executive Orders 12866, 13563 and 14192
Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Executive Order 14192 (Unleashing
Prosperity Through Deregulation) directs agencies to significantly
reduce the private expenditures required to comply with Federal
regulations and provides that ``any new incremental costs associated
with new regulations shall, to the extent permitted by law, be offset
by the elimination of existing costs associated with at least 10 prior
regulations.''
The Office of Management and Budget (OMB) has designated this rule
a ``significant regulatory action'' as defined under section 3(f)(1) of
E.O. 12866 because its annual effects on the economy exceed $100
million annually. Accordingly, the rule has been reviewed by OMB.
This rule is not an Executive Order 14192 regulatory action because
it is being issued with respect to an immigration-related function of
the United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
INA sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function
performed by the U.S. Federal Government with respect to aliens. See
OMB Memorandum M-25-20, ``Guidance Implementing Section 3 of Executive
Order 14192, titled `Unleashing Prosperity Through Deregulation'''
(Mar. 26, 2025). This NPRM proposes to increase fees on aliens who have
remained in the United States in violation of a final order of removal
issued in absentia. DHS believes that this effort will achieve
[[Page 29385]]
Congress's purpose of partially reimbursing ICE for the costs
associated with arresting and removing these aliens.
Summary of the Proposed Rule
DHS proposes raising the fee for aliens who have been ordered
removed in absentia and subsequently arrested by ICE from $5,130 to
$18,000, which serves as a partial reimbursement for the total cost of
arresting such an alien. This increase is due to the significant costs
that ICE incurs for the arrest of aliens ordered removed in absentia.
In FY 2024, ICE incurred an average of $18,042 per alien (in 2026
dollars), a significant cost and use of crucial immigration resources
that could have been applied to other immigration enforcement
priorities.
Need for the Rule
ICE has reviewed the data on the cost of ICE immigration
enforcement actions and determined that the partial reimbursement fee
of $5,000 is too low to sufficiently reimburse ICE for the cost of
arresting an alien who has been ordered removed in absentia.
In addition to the actual cost of arresting an alien, ICE also
incurs a variety of indirect and overhead costs, including, but not
limited to, training, vehicles, and support staff. These costs are
inseparable from the cost of the arrest of an alien, just as the arrest
of an alien is inseparable from that alien's removal. The proposed fee
increase, from $5,130 to $18,000, serves as a partial reimbursement to
DHS for the significant enforcement expenses incurred, which have risen
due to a surge in in absentia removal orders. This proposed rule aims
to protect the integrity of immigration enforcement, discourage
noncompliance with removal orders, and alleviate the strain on ICE's
essential and limited resources.
Affected Population
The proposed rule would impact aliens who are ordered removed in
absentia and subsequently arrested by ICE. To identify the impacted
population, DHS reviewed data from the Office of Homeland Security
Statistics on the number of aliens ordered removed in absentia and how
many arrests of this population are made each year by ICE. Table 1
shows the number of removal orders issued in absentia between fiscal
years 2016 and 2025 from EOIR.
Table 1--EOIR Removal Orders Issued in Absentia by Decision: Fiscal
Years 2016 to 2025
------------------------------------------------------------------------
Decision FY Total
------------------------------------------------------------------------
2016.................................................... 34,480
2017.................................................... 42,270
2018.................................................... 46,670
2019.................................................... 90,900
2020.................................................... 87,150
2021.................................................... 8,660
2022.................................................... 62,510
2023.................................................... 159,900
2024.................................................... 222,920
2025.................................................... 309,700
---------------
Total............................................... 1,065,160
------------------------------------------------------------------------
Note: In absentia removal orders issued in removal, deportation, and
exclusion cases. Source: OHSS analysis of EOIR data as of October
2025.
The total number of in absentia removal orders issued each year
represents a maximum estimate of the affected population, as an alien
having been issued an in absentia removal order is only the first of
two conditions required for the fee to be applied. Some aliens issued
removal orders in absentia may depart the country voluntarily, evade
arrest, or have their in absentia removal order rescinded prior to ICE
arrest. To further analyze the affected population, DHS reviewed arrest
data from ICE Enforcement and Removal Operations (ERO) as shown in
Table 2. In fiscal year 2025, there were 23,670 arrests of aliens with
removal orders issued in absentia.
Table 2--ERO Administrative Arrests With Removal Orders Iissued in
Absentia Fiscal Years 2016 to 2025 YTD
------------------------------------------------------------------------
Arrests with removal orders
FY issued in absentia \1\
------------------------------------------------------------------------
2016.................................... 6,540
2017.................................... 9,140
2018.................................... 10,740
2019.................................... 10,390
2020.................................... 8,220
2021.................................... 3,160
2022.................................... 3,220
2023.................................... 6,330
2024.................................... 7,990
2025.................................... 23,670
-------------------------------
Total............................... 89,400
------------------------------------------------------------------------
Note: The same individual may have multiple arrests. Due to rounding,
the sum of individual cells may not exactly match the reported total.
\1\ Number of ICE Admin arrests of aliens who have ever previously been
issued an absentia order.
Source: OHSS analysis of ICE, CBP, and EOIR data as of October 2025.
[[Page 29386]]
DHS faces challenges forecasting the affected population because of
data quality issues and several other factors impacting population
size. The Covid-19 pandemic appears to have dramatically lowered the
number of removal orders issued and arrests made in 2021 affecting what
would be a trendline in the future without a pandemic. The announcement
of the fee will likely change the behavior of the affected alien
population. Aliens may be more likely to appear in immigration court,
decreasing the number of removal orders issued in absentia.
Additionally, aliens issued removal orders in absentia are more likely
to leave the country on their own accord than risk the prospect of
arrest and a fee. Significant funding from HR-1 for immigration
enforcement, including the hiring of 10,000 ICE officers, will likely
lead to more arrests being made. As a result of these countervailing
forces, DHS presumes the number of arrests will remain at the same
levels as FY 2025, 23,670 for FY 2026 and FY 2027.
Transfers
Transfer payments are monetary payments from one group to another
that do not affect the total resources available to society. Transfers
such as insurance payments, fees, direct subsidies, and indirect
subsidies can have significant efficiency effects in addition to
distributional effects and are not included in the estimates of the
benefits and costs of a regulation. Transfers are analyzed in this
proposed rule because the proposed fee is a transfer from the affected
alien population to ICE and the U.S. Treasury.
DHS assumes there will be 23,670 arrests in FY 2026 and 2027. The
maximum possible amount of transfers then would be equal to the number
of arrests (23,670) times the fee ($18,000) resulting in $426,060,000
transferred annually. The net transfer resulting from this rule would
be equal to the number of arrests (23,670) multiplied by the change in
fee ($18,000-$5,130 = $12,870). DHS found the net transfers resulting
from the rule to range between $15,231,645 and $304,632,900 with a
midpoint estimate of $159,932,273.
ICE began issuing this fee once the fee became effective on
September 8, 2025. Since then, DHS has experienced uncertainty in
estimating collection rates due to the short time frame this fee has
been in effect and the current operational realities. The current
operational pace has introduced a specific challenge in the fee
collection process, as the removal of aliens is not being postponed due
to unpaid fees. Because of these factors, DHS anticipates that the
collection of this fee and its impacts may not be realized until aliens
seek future admission to the United States. For example, aliens who
were previously removed due to an in absentia removal order, and have
outstanding fees, may seek lawful admission to the United States or an
immigration benefit at a later point. In addition to considering prior
unlawful presence, the prior removal order, and the prior failure to
appear for proceedings,\49\ the adjudicator may consider the
outstanding debt to affect the alien's admissibility.\50\ The
adjudicator may flag the outstanding debt such that collection would be
further pursued upon readmission. DHS believes the true collection rate
may not be known until more time has passed to allow for situations
such as the aforementioned example to occur.
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\49\ See INA 212(a)(6)(B), (9)(A)-(B), 8 U.S.C. 1182(a)(6)(B),
(9)(A)-(B).
\50\ See, e.g., INA 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
To address the uncertainty regarding collection rates, DHS has
modeled high, midpoint, and low collection rate estimates. DHS assumes
a 100 percent collection rate as an upper bound estimate of the dollar
amount of transfers from aliens to ICE and the U.S. Treasury to assess
the maximum potential impact on the alien population. DHS also modeled
a low estimate, assuming a 5 percent collection rate and the midpoint
of the two other estimates at 52.5 percent. DHS uses the midpoint
estimate as the primary estimate in Table 4.
Table 3--High, Midpoint, and Low Collection Rate Estimates and Transfers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fee Collection Total Net transfers
Estimate Arrests Fee increase rate transfers from rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
High............................................................... 23,670 $18,000 $12,870 1 $426,060,000 $304,632,900
Midpoint (Primary)................................................. 23,670 18,000 12,870 0.525 223,681,500 159,932,273
Low................................................................ 23,670 18,000 12,870 0.05 21,303,000 15,231,645
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits
The proposed fee would serve as a partial reimbursement for the
lifecycle costs incurred by DHS from the arrest of aliens ordered
removed in absentia. This reimbursement will allow DHS to apply its
limited immigration resources to other immigration enforcement
priorities.
Costs
The proposed fee would likely result in more aliens attending court
appearances which may extend legal proceedings and require additional
resources. Additionally, DHS recognizes that a fee of $18,000 could be
costly for aliens to pay, but as explained above, this fee amount is
justified by Congress's intent to provide ICE with partial
reimbursement of the total IEL costs of arresting aliens ordered
removed in absentia.
Alternatives
DHS considered the alternative of the fee remaining at $5,130 and
increasing the fee to amounts less than $18,000. These alternatives
were deemed unacceptable as such amounts would not result in actual and
meaningful partial reimbursements for the total IEL costs incurred by
ICE during the arrest of an alien ordered removed in absentia.
DHS also considered the alternative of increasing the fee to
$36,000 to account for the fact that 50 percent of the fee is deposited
into the U.S. Treasury General Fund. A fee of $36,000 would ensure that
ICE receives $18,000 in partial reimbursement from each fee it assesses
and collects, which is closer to the actual IEL costs compared to 50
percent of an $18,000 fee. However, after reviewing the limited
legislative history of HR-1 \51\, DHS believes that the $18,000 fee is
more closely aligned with congressional intent, which is for the fee to
provide a partial reimbursement to the United States Government as a
whole, not a partial reimbursement to ICE and a partial reimbursement
to the U.S. Treasury. Ultimately, this alternative was not adopted
because it
[[Page 29387]]
does not align with the congressional intent for this fee.
---------------------------------------------------------------------------
\51\ See <a href="http://Congress.gov">Congress.gov</a>, H.R.1--An act to provide for
reconciliation pursuant to title II of H. Con. Res. 14, available at
<a href="https://www.congress.gov/bill/119th-congress/house-bill/1/all-actions?s=2&r=1&hl=One+big+beautiful+bill">https://www.congress.gov/bill/119th-congress/house-bill/1/all-actions?s=2&r=1&hl=One+big+beautiful+bill</a> (last visited Apr. 30,
2026).
---------------------------------------------------------------------------
Accounting Statement
Table 4 presents the accounting statement as required by Circular
A-4 for the total impacts of the rule. The proposed rule would result
in annualized net transfers of $304,632,900 (discounted at 3 percent
and 7 percent) from aliens to ICE and the U.S. Treasury for FY 2026 and
FY 2027.
Table 4--Accounting Statement for FY 2026-FY 2027
(in millions, 2026 dollars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category 3 Percent discount rate 7 Percent discount rate Source citation (RIA, preamble, etc.)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
Annualized monetized ($k)..... None. Preamble, E.O. 12866 analysis.
---------------------------------------------------------------------------------------------------------------------
Annualized quantified......... None. Preamble, E.O. 12866 analysis
---------------------------------------------------------------------------------------------------------------------
Qualitative................... Partial reimbursement of costs to DHS. Reduced strain on ICE resources. Preamble, E.O. 12866 analysis
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
Annualized monetized ($k)..... None. Preamble, E.O. 12866 analysis.
---------------------------------------------------------------------------------------------------------------------
Annualized quantified......... None. Preamble, E.O. 12866 analysis.
---------------------------------------------------------------------------------------------------------------------
Qualitative................... Immigration Courts may incur additional costs from more aliens appearing in Preamble, E.O. 12866 analysis.
court and extending legal proceedings.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers:
Annualized monetized Primary Estimate: $159.9.............. Primary Estimate: $159.9............. Preamble, E.O. 12866 analysis.
($millions). High Estimate: $304.6................. High Estimate: $304.6................
Low Estimate: $15.2................... Low Estimate: $15.2..................
---------------------------------------------------------------------------------------------------------------------
From/To....................... Aliens to ICE and U.S. Treasury. .....................................
---------------------------------------------------------------------------------------------------------------------
Effects on State, Local, and/ None. .....................................
or Tribal Government.
---------------------------------------------------------------------------------------------------------------------
Effects on small businesses... None. The fee paid by individuals who are not, for purposes of the RFA, RFA.
within the definition of small entities established.
---------------------------------------------------------------------------------------------------------------------
Wages......................... None. .....................................
Growth........................ None. .....................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act
DHS has reviewed this proposed regulation in accordance with the
Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601-612), as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996,
Public Law 104-121, tit. II, 110 Stat. 847, and has determined that
this rule would not have a significant economic impact on a substantial
number of small entities. The rule would not regulate ``small
entities'' as the term is defined in 5 U.S.C. 601(6). The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000 people.
By codifying the 8 U.S.C. 1814 fee into regulations, this proposed
rule would increase transfers to the government. The fee at 8 U.S.C.
1814 is paid by individuals who are not, for purposes of the RFA,
within the definition of small entities established by 5 U.S.C. 601(6).
While it is possible that some aliens may pay the fee through a
representative, ultimately the alien is responsible for the fee, not
the representative. Therefore, DHS certifies this proposed rulemaking
would not have a significant economic impact on a substantial number of
small entities.
C. Small Business Regulatory Enforcement Fairness Act of 1996
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, Public Law 104-121, 110 Stat. 847, 858-59, 5 U.S.C. 601 et seq.,
requires the Department to comply with small entity requests for
information and advice about compliance with statutes and regulations
within the Department's jurisdiction. Any small entity that has a
question regarding this document may contact the person listed in FOR
FURTHER INFORMATION CONTACT paragraph, above. Persons can obtain
further information regarding SBREFA on the Small Business
Administration's web page at <a href="https://www.sba.gov/advocacy">https://www.sba.gov/advocacy</a>.
D. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector in any one year of $100 million
or more in 1995 dollars, updated annually for inflation. That threshold
is currently approximately $213 million in 2026 dollars based on the
CPI-U.\52\ Though
[[Page 29388]]
this proposed rule would not result in monetized costs or benefits, DHS
does discuss the effects of this rule in the RIA section of this
preamble.
---------------------------------------------------------------------------
\52\ See BLS, ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month,'' <a href="https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202601.xlsx">https://www.bls.gov/cpi/tables/supplemental-files/historical-cpi-u-202601.xlsx</a> (last visited March. 11, 2026). Calculation of
inflation: (1) Calculate the average monthly CPI-U for the reference
year (1995) and the current year (2026); (2) Subtract reference year
CPI-U from current year CPI-U; (3) Divide the difference of the
reference year CPI-U and current year CPI-U by the reference year
CPI-U; (4) Multiply by 100 = [(Average monthly CPI-U for 2026 -
Average monthly CPI-U for 1995) / (Average monthly CPI-U for 1995)]
x 100 = [(325.252 - 152.383) / 152.383] = (171.671/152.383) = 1.134
x 100=113.443 percent = 113 percent (rounded). Calculation of
inflation-adjusted value: $100 million in 1995 dollars x 2.13 = $213
million in 2026 dollars.
---------------------------------------------------------------------------
E. Paperwork Reduction Act
All Departments are required to submit to OMB for review and
approval any reporting or recordkeeping requirements inherent in a rule
under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 109
Stat. 163 (codified at 44 U.S.C. 3501 et seq.). Under the PRA, an
agency may not conduct or sponsor, and a person is not required to
respond to a collection of information unless the agency obtains
approval from OMB for the collection and the collection displays a
valid OMB control number. See 44 U.S.C. 3506, 3507.
This proposed rule does not propose a new ``collection[s] of
information'' as that term is defined under the PRA. There would be no
changes to the reporting burden for any existing collections of
information.
F. Executive Order 13132: Federalism
This proposed rule would not have substantial direct effects on the
states, on the relationship between the federal government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of E.O. 13132, DHS determined that this rule would not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
G. Executive Order 12988: Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to
minimize litigation, eliminate ambiguity, and reduce burden.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
DHS has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. DHS has determined that it is not a ``significant
energy action'' under that order because it is a ``significant
regulatory action'' under E.O. 12866 but is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
I. National Environmental Policy Act
DHS and its components analyze final actions to determine whether
the National Environmental Policy Act of 1969 (``NEPA''), 42 U.S.C.
4321 et seq., applies to them and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 \53\ and Instruction Manual 023-
01-001-01 Rev. 01 (``Instruction Manual'') \54\ establish the policies
and procedures that DHS and its components use to comply with NEPA.
---------------------------------------------------------------------------
\53\ DHS, Implementation of the National Environmental Policy
Act, Directive 023-01, Revision 01 (Oct. 31, 2014).
\54\ DHS, Implementation of the National Environmental Policy
Act (NEPA), Instruction Manual 023-01-001-01, Revision 01 (Nov. 6,
2014).
---------------------------------------------------------------------------
NEPA allows Federal agencies to establish categories of actions
(``categorical exclusions'') that experience has shown do not,
individually or cumulatively, have a significant effect on the human
environment and, therefore, do not require an environmental assessment
(``EA'') or environmental impact statement (``EIS''). An agency is not
required to prepare an EA or EIS for a proposed action ``if the
proposed agency action is excluded pursuant to one of the agency's
categorical exclusions.'' 42 U.S.C. 4336(a)(2). The Instruction Manual,
Appendix A, lists the DHS Categorical Exclusions. For an action to be
categorically excluded under DHS's Instruction Manual, the action must
satisfy each of the following three conditions: (1) the entire action
clearly fits within one or more of the categorical exclusions; (2) the
action is not a piece of a larger action; and (3) no extraordinary
circumstances exist that create the potential for a significant
environmental effect.\55\
---------------------------------------------------------------------------
\55\ Instruction Manual 023-01-001-01 at V.B(2)(a) through (c)
and Appendix A at A-1 and A-2.
---------------------------------------------------------------------------
This NPRM is categorically excluded from DHS's NEPA implementing
procedures, because it satisfies all three relevant conditions. First,
the Departments have determined that the NPRM fits clearly within
categorical exclusions A3(a) of DHS's Instruction Manual, Appendix A,
for the promulgation of rules of a ``strictly administrative or
procedural nature.'' This NPRM increases a fee that was established and
authorized by 8 U.S.C. 1814. The fee increase proposed in this NRPM
does not result in a change in the fee's environmental impact. Second,
this NPRM is a standalone rule and is not part of any larger action.
Third, the Department is not aware of any extraordinary circumstances
that would cause a significant environmental impact. Therefore, this
NPRM is categorically excluded, and no further NEPA analysis or
documentation is required.
J. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed rule does not have tribal implications under E.O.
13175, Consultation and Coordination with Indian Tribal Governments,
because it would not have a substantial direct effect on one or more
Indian tribes, on the relationship between the federal government and
Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes.
K. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule would not cause the taking of private property
or otherwise have taking implications under E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
L. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks, requires agencies to consider the impacts of
environmental health risks or safety risks that may disproportionately
affect children. DHS has reviewed this proposed rule and determined
that this rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children. Therefore, DHS has not prepared a
statement under this E.O.
M. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the OMB, with an explanation of why using these standards would
be inconsistent with applicable law or otherwise impracticable.
Voluntary consensus standards are technical standards (e.g.,
specifications of materials, performance, design, or operation; test
methods; sampling procedures; and related management systems practices)
that are
[[Page 29389]]
developed or adopted by voluntary consensus standards bodies. This
proposed rule does not use technical standards. Therefore, DHS did not
consider the use of voluntary consensus standards.
N. Family Assessment
DHS has determined that this proposed action would not affect
family well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act of 1999
(Pub. L. 105-277, 112 Stat. 2681).
List of Subjects in 8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Freedom of information, Immigration,
Privacy, Reporting and recordkeeping requirements, Surety bonds
Regulatory Amendments
Accordingly, DHS proposes amending part 103 of chapter I,
subchapter B of title 8 of the Code of Federal Regulations as follows:
PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS;
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 is amended to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 1365b, 1372, 1814; 31 U.S.C. 9701; 48 U.S.C. 1806; Public Law
107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR
14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2, Pub. L. 112-
54, 125 Stat 550; 31 CFR part 223.
0
2. Section 103.7 is amended by adding paragraph (d)(17) to read as
follows:
Sec. 103.7 Fees.
* * * * *
(d) * * *
(17) Fee for aliens ordered removed in absentia. Any alien who is
ordered removed in absentia pursuant to 8 U.S.C. 1229a(b)(5) and is
subsequently arrested by U.S. Immigration and Customs Enforcement, is
subject to the fee under 8 U.S.C 1814, which is $18,000 as of
[EFFECTIVE DATE OF FINAL THE RULE]. This fee will be adjusted for
inflation each subsequent fiscal year in accordance with 8 U.S.C.
1814(b)(2) and announced in the Federal Register. This fee does not
apply if the alien's in absentia removal order was rescinded pursuant
to 8 U.S.C. 1229a(b)(5)(C).
Markwayne Mullin,
Secretary of Homeland Security.
[FR Doc. 2026-10082 Filed 5-19-26; 8:45 am]
BILLING CODE 9111-CB-P
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</html>Indexed from Federal Register on May 20, 2026.
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