Rule2026-21024
Imposition and Collection of Civil Penalties for Certain Immigration-Related Violations
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
October 14, 2026
Effective
October 14, 2026
Issuing agencies
Homeland Security DepartmentJustice DepartmentExecutive Office for Immigration Review
Abstract
On June 27, 2025, the Departments issued an interim final rule ("IFR") to streamline assessment of civil penalties under the Immigration and Nationality Act ("INA") for aliens who fail to depart during a voluntary departure period, willfully fail or refuse to depart after a final removal order and certain other proscribed activities, or are apprehended while improperly entering or attempting to enter the United States. This final rule addresses comments and finalizes the IFR with one change: it permits acceptance of a late-filed appeal based on documented mail delivery delays that ICE finds were beyond the alien's control.
Full Text
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<title>Federal Register, Volume 91 Issue 197 (Wednesday, October 14, 2026)</title>
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[Federal Register Volume 91, Number 197 (Wednesday, October 14, 2026)]
[Rules and Regulations]
[Pages 65390-65432]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21024]
[[Page 65389]]
Vol. 91
Wednesday,
No. 197
October 14, 2026
Part IV
Department of Homeland Security
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Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 281, 1003, and 1280
Imposition and Collection of Civil Penalties for Certain Immigration-
Related Violations; Final Rule
Federal Register / Vol. 91, No. 197 / Wednesday, October 14, 2026 /
Rules and Regulations
[[Page 65390]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 281
[Docket No: ICEB-2025-0034]
RIN 1653-AA96
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1280
[Dir. Order No. 11-2026]
RIN 1125-AB36
Imposition and Collection of Civil Penalties for Certain
Immigration-Related Violations
AGENCY: U.S. Immigration and Customs Enforcement (``ICE''), Department
of Homeland Security (``DHS''); Executive Office for Immigration Review
(``EOIR''), Department of Justice (``DOJ'').
ACTION: Final rule.
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SUMMARY: On June 27, 2025, the Departments issued an interim final rule
(``IFR'') to streamline assessment of civil penalties under the
Immigration and Nationality Act (``INA'') for aliens who fail to depart
during a voluntary departure period, willfully fail or refuse to depart
after a final removal order and certain other proscribed activities, or
are apprehended while improperly entering or attempting to enter the
United States. This final rule addresses comments and finalizes the IFR
with one change: it permits acceptance of a late-filed appeal based on
documented mail delivery delays that ICE finds were beyond the alien's
control.
DATES: The effective date of this final rule is October 14, 2026.
FOR FURTHER INFORMATION CONTACT:
For DHS: Office of the Principal Legal Advisor, Regulatory Affairs
Unit, U.S. Immigration and Customs Enforcement, Department of Homeland
Security, 500 12th Street SW, Washington, DC 20536; telephone (202)
732-6960.
For DOJ: Jamee E. Comans, Assistant Director, Office of Policy,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2500, Falls Church, VA 22041; telephone (703) 305-0289.
SUPPLEMENTARY INFORMATION:
I. Background
A. Basis and Purpose of the IFR
On January 20, 2025, President Trump issued Executive Order
(``E.O.'') 14159, Protecting the American People Against Invasion. E.O.
14159, 90 FR 8443 (Jan. 29, 2025). In Section 2 of that E.O., President
Trump directed that it is ``the policy of the United States to
faithfully execute the immigration laws against all inadmissible and
removable aliens'' and ``to achieve the total and efficient enforcement
of those laws, including through lawful incentives and detention
capabilities.'' 90 FR 8443. Section 8 of E.O. 14159 directs the
Secretary of Homeland Security, in coordination with the Secretary of
the Treasury, to ``take all appropriate action to ensure the assessment
and collection of all fines and penalties that the Secretary of
Homeland Security is authorized by law to assess and collect from
aliens unlawfully present in the United States, including aliens who
unlawfully entered or unlawfully attempted to enter the United
States.'' 90 FR 8444-45. Section 12 of E.O. 14159 directs the Secretary
of Homeland Security, in coordination with the Secretary of State and
the Attorney General, ``to take all appropriate action . . . to adopt
policies and procedures to encourage aliens unlawfully in the United
States to voluntarily depart as soon as possible, including through
enhanced usage of the provisions of section 240B of the INA (8 U.S.C.
1229c), international agreements or assistance, or any other measures
that encourage aliens unlawfully in the United States to depart as
promptly as possible''. 90 FR 8445. In Section 2 of E.O. 14165,
Securing Our Borders, President Trump directed the Departments to
``take all appropriate action to secure the borders of our Nation,''
including by ``[d]eterring and preventing the entry of illegal aliens
into the United States'' and by ``[o]btaining complete operational
control of the borders of the United States.'' E.O. 14165, 90 FR 8467
(Jan. 30, 2025). In Proclamation 10935, President Trump established
Project Homecoming to ``present illegal aliens with a choice: either
leave the United States voluntarily, with the support and financial
assistance of the Federal-government, or face the consequences.''
Establishing Project Homecoming, 90 FR 20357 (May 14, 2025).
On June 27, 2025, the Departments issued an IFR, effective on the
same date, to streamline how DHS assesses certain civil monetary
penalties that Congress has long authorized under the INA. See
Imposition and Collection of Civil Penalties for Certain Immigration-
Related Violations, 90 FR 27439 (June 27, 2025). The IFR applies to
three categories of illegal aliens: (1) aliens who willfully fail or
refuse to depart the United States pursuant to a final order of removal
or take certain actions to thwart their departure or removal, INA
274D(a)(1), 8 U.S.C. 1324d(a)(1); (2) aliens who voluntarily fail to
depart the United States within the time period specified pursuant to a
voluntary departure order, INA 240B(d)(1)(A)-(B), 8 U.S.C.
1229c(d)(1)(A)-(B); \1\ and (3) aliens apprehended while entering (or
attempting to enter) the United States unlawfully, INA 275(b)(1), 8
U.S.C. 1325(b)(1). See also 8 CFR 281.1(a) (scope of the IFR). The IFR
revised the Departments' civil monetary penalty procedures for these
categories of aliens so that DHS can more efficiently and effectively
promote compliance with Immigration Court orders and support border
security. See 90 FR 27442. The IFR partially implements Section 8 of
E.O. 14159 and supports DHS's efforts, as directed by the President, to
faithfully execute the immigration laws, to achieve total and efficient
enforcement of those laws, and to secure the borders of the United
States. See 90 FR 27446-47. The IFR also advances the purpose of
Proclamation 10935, Establishing Project Homecoming, by reinforcing
that aliens must either voluntarily depart the United States, with
Federal support as applicable, or face statutorily authorized
consequences for failing to comply with removal or departure orders.
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\1\ For ease of reading, this preamble in some instances uses
the phrase ``failure to depart civil monetary penalties'' to refer
collectively to both (1) the civil monetary penalties under section
274D(a)(1) of the INA, 8 U.S.C. 1324d(a)(1), for willful failure or
refusal to depart following a removal order; and (2) civil monetary
penalties under section 240B(d)(1)(A) of the INA, 8 U.S.C.
1229c(d)(1)(A), for failure to voluntarily depart within the time
period specified in a voluntary departure order.
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As the IFR explains, the revised procedures are needed to
complement DHS's efforts to address the large number of aliens who
remain in the United States despite having final removal or voluntary
departure orders. See 90 FR 27446. Prior to the issuance of the IFR,
there were approximately 1.5 million aliens on ICE's non-detained
docket with final orders of removal, including those who failed to
depart after being granted voluntary departure pursuant to INA 240B, 8
U.S.C. 1229c. For example, as discussed in the IFR, in FY 2024 alone,
EOIR issued more than 282,000 final removal orders, but DHS data
indicate that only about 10 percent of those orders were executed. 90
FR 27445. In the same year, EOIR granted approximately 8,800 voluntary
departure orders, yet only about 50 percent of those aliens confirmed
their departure. Id. Moreover, as a result of the prior
Administration's policies, including its border policies, the
[[Page 65391]]
Immigration Court caseload has dramatically increased in recent
years.\2\ In the third quarter of FY 2026, there were over 3.4 million
pending Immigration Court cases, a large percentage of which, if
consistent with previous years, will result in removal or voluntary
departure orders once adjudicated.\3\ Thus, without the IFR's
intervention, the number of aliens who remain in the United States
despite final removal and voluntary departure orders would have been
likely to increase in the coming years. Id.
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\2\ However, although EOIR's pending caseload continues to be
over 3.4 million, this number is trending downwards for the first
time since its dramatic increase between 2021 and 2024. This
downward trend has resulted from corrective action taken by the
current Administration to address the crisis at the border, supra at
Section I.A of this preamble; as well as corrective action taken by
EOIR to improve the efficiency of EOIR operations, which promoted a
record number of case completions in FY 2025; and a dramatic drop in
the number of cases before EOIR initiated by DHS in FY 2025. EOIR
Workload & Adjudication Statistics, Pending Cases, New Cases, and
Total Completions (July 24, 2026), <a href="https://www.justice.gov/eoir/media/1344791/dl?inline">https://www.justice.gov/eoir/media/1344791/dl?inline</a> [<a href="https://perma.cc/B2AW-2QYD">https://perma.cc/B2AW-2QYD</a>].
\3\ See EOIR Workload & Adjudication Statistics, Pending Cases,
New Cases, and Total Completions (July 24, 2026), <a href="https://www.justice.gov/eoir/media/1344791/dl?inline">https://www.justice.gov/eoir/media/1344791/dl?inline</a> [<a href="https://perma.cc/B2AW-2QYD">https://perma.cc/B2AW-2QYD</a>].
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An Immigration Court's order of an alien's removal, unless reversed
or vacated on appeal, is binding on all parties, including aliens. See
8 CFR 1240.1(a)(1)(i), 1240.41, 1241.1. Aliens subject to final
executable orders of removal \4\ remain legally obligated to comply
with Immigration Court orders to depart the United States, regardless
of prior DHS policies that did not prioritize all such aliens for
apprehension, detention, and removal. The large number of unexecuted
removal orders and the growth of DHS's non-detained docket demonstrate,
however, that many aliens do not comply with this obligation.\5\ This
pattern of large-scale noncompliance risks further encouraging aliens
to disregard such orders under the belief that they can remain in the
United States without consequence. See 90 FR 27446. Such noncompliance,
in turn, undermines the integrity of the immigration system, weakens
the authority of Immigration Courts, and raises fairness concerns for
aliens who do comply with removal and departure requirements. See id.
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\4\ The term ``final executable removal order'' describes a
situation where there is no legal impediment to the alien's removal.
As discussed in Section III of this preamble, DHS does not issue
failure to depart penalties to aliens for whom there is no final
executable removal order because, for example, they have a stay of
removal or other forms of protection, including Temporary Protected
Status, withholding of removal, or protection under the regulations
implementing the Convention Against Torture when no alternative
country of removal is available, or have a DHS approved reason for
remaining in the United States including an affirmative grant of
deferred action. (For aliens who have protection under the
regulations implementing the Convention Against Torture but for whom
there is an alternative country of removal, the final order of
removal may still be executable to that alternative country.) For
ease of reading in this preamble, the Departments use the term
``removal order'' to mean a ``final executable removal order'' when
discussing civil penalties for failure to depart.
\5\ Section 241(a) of the INA, 8 U.S.C. 1231(a), governs the
detention and removal of aliens who have already been ordered
removed. It directs DHS to remove an alien within a 90-day removal
period. The statute provides: during the removal period, DHS shall
detain the alien and ``[u]nder no circumstance during the removal
period shall the [Secretary] release an alien who has been found
[removable on certain criminal and national-security grounds].'' See
INA 241(a)(1), 1231(a)(1). The prior Administration did not
prioritize the apprehension, detention, and removal of all aliens
with final removal orders. See United States v. Texas, 599 U.S. 670,
715 (2023) (Alito, J. dissenting) (discussing enforcement priorities
memoranda issued by DHS and ICE in 2021). Instead, many simply
remained in the United States without consequence. Congress,
however, has not absolved such aliens of their obligation to depart
the United States if they were not removed, were never detained, or
were released during the removal period. Indeed, section 241 of the
INA, 8 U.S.C. 1231, expressly contemplates that even aliens who were
never detained during the 90-day removal period have an independent
obligation to leave the United States. See INA 241(a)(3), 8 U.S.C.
1231(a)(3) (providing that DHS may impose conditions of supervision
on the alien ``[i]f the alien does not leave or is not removed
within the removal period.'' Moreover, Congress has specifically
authorized DHS to impose civil monetary penalties on aliens who
willfully remain in the United States after a removal order which
demonstrates that aliens have an independent obligation to leave the
United States even if ICE did not take action to physically remove
the alien or the alien was released after the expiration of the
removal period. See INA 274d(a)(1), 8 U.S.C. 1324(d)(a)(1).
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Under this Administration, DHS is taking robust action, consistent
with the President's direction, to ramp up efforts to locate,
apprehend, detain, and remove aliens with final removal orders who were
released under supervision or otherwise not subject to detention in
prior years and who remain in the United States. See E.O. 14159, 90 FR
8443 (Jan. 29, 2025). Managing those removals requires a significant
expenditure of ICE resources in addition to costs to taxpayers.\6\
Although ICE is hiring Enforcement and Removal Operations (ERO)
officers and expanding detention capacity pursuant to additional
funding under the One Big Beautiful Bill Act, Public Law 119-21, 139
Stat. 72, 358-59 (2025), those efforts will take time to implement, and
ICE must continue to devote immigration enforcement resources to all
categories of illegal aliens that may or may not be subject to removal
orders, including criminal aliens, national security risks, and other
aliens unlawfully present in the United States.\7\
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\6\ See DHS, DHS Announces Historic Travel Assistance and
Stipend for Voluntary Self-Deportation (May 5, 2025) (noting that
currently the average cost to arrest, detain, and remove an illegal
alien is $17,121) <a href="https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation">https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation</a>
[<a href="https://perma.cc/8ST2-RHHP">https://perma.cc/8ST2-RHHP</a>]; see also Proclamation 10935, 90 FR
20357 (``Removal flights of illegal aliens are a necessary aspect of
immigration enforcement and upholding the rule of law, but they
require substantial resources and manpower.'').
\7\ See DHS, Finding of Mass Influx of Aliens, 90 FR 45396-98
(Sept. 22, 2025) (explaining that in September 2025, ICE was working
to fulfill a 61 percent vacancy rate for ERO officers and that the
hiring of new ICE ERO officers ``takes time and includes the hiring
onboarding and training of new officers''); DHS Finding of Mass
Influx of Aliens 91 FR 59795, 59796-97 (Sept. 21, 2026); 59796
(Sept. 21, 2026) (explaining that ICE detention facilities are at 83
percent capacity as of August, 2026).
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The IFR was also intended to complement DHS's efforts to maintain
border security. Under the prior Administration, more than 8 million
aliens were encountered along the southern border of the United States.
90 FR 8334. In FY 2024 alone, DHS estimates that approximately 1.5
million aliens entered or attempted to enter unlawfully between ports
of entry. 90 FR 27445. Although encounters have since declined in
connection with this Administration's policies, these prior high
encounter levels demonstrate the need for DHS to use all statutorily
authorized tools to maintain border security and reduce incentives for
unlawful entry. Id.
When such large numbers of aliens enter unlawfully between POEs, as
occurred under the last Administration, DHS's capacity to apprehend,
process, detain, and swiftly remove all such aliens diminishes.\8\ As a
result, under the prior Administration, millions of aliens were
released into communities nationwide, many of whom were subject to but
not processed under expedited removal as envisioned by the statutory
framework, imposing substantial costs on the States and encouraging
additional migration by unlawful aliens who believed they would likely
be released into the United States while awaiting removal proceedings
that often
[[Page 65392]]
take years to resolve.\9\ When U.S. Border Patrol (``USBP'') officers
are diverted from patrol duties to process large groups of migrants and
conduct detention-related activities, criminal organizations and
smugglers can exploit the diversion of resources to move illegal drugs,
weapons, contraband, and aliens into the United States. See E.O. 14165,
90 FR 8467 (Jan. 20, 2025). Elevated levels of unlawful border
crossings also strain ICE's detention resources and impede ICE's
ability to detain other aliens, including those with final removal
orders. See 90 FR 45397, 45397. In combination, the prior
Administration's policies and resulting incentives for unlawful entry
hindered the effective operation of immigration laws designed to
protect U.S. sovereignty and prevent the unlawful entry of illicit
contraband, criminals, and illegal aliens.
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\8\ See Proclamation 10888, Guaranteeing the States Protection
Against Invasion, 90 FR 8333 (Jan. 29, 2025) (``The sheer number of
aliens entering the United States has overwhelmed the system and
rendered many of the INA's provisions ineffective.''); see also
Securing the Border, 89 FR 48710, 48714-15 (June 7, 2024) (interim
final rule) (explaining that when large numbers of aliens cross the
border unlawfully, the ``Departments' ability to refer and process
[aliens] through expedited removal thus continues to be overwhelmed,
creating a vicious cycle in which the border security and
immigration systems cannot deliver timely decisions and consequences
to all the people who are encountered at the SWB and lack a lawful
basis to remain in the United States'').
\9\ See Proclamation 10888, 90 FR 8333, 8334 (Jan. 29, 2025)
([T]he ``influx of illegal aliens across the southern border of the
United States has placed significant costs and constraints upon the
States, which have collectively spent billions of dollars in
providing medical care and related human services, and have spent
considerable amounts on increased law enforcement costs associated
with the presence of these illegal aliens within their
boundaries''); see also Securing the Border, 89 FR 48710, 48714
(discussing incentives for irregular migration during periods of
high encounters at the U.S. southern border including possible
release into the United States and years long delays in Immigration
Court proceedings).
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Additionally, elevated border crossings can severely inhibit the
effective functioning of the Immigration Courts. Under the prior
Administration, the record numbers of aliens encountered across the
southern border overwhelmed DHS's capacity to process such aliens
through expedited removal as envisioned by the statutory framework of
the Act. 89 FR 81158. Instead, DHS was forced to place aliens into
section 240 removal proceedings at a rate that outpaced EOIR's capacity
to complete such cases in a timely manner and led to extensive delays
in Immigration Court proceedings. Id. Under this Administration, the
Departments have taken significant efforts to disrupt aliens'
expectations of lengthy Immigration Court delays, including more robust
utilization of expedited removal where available and a renewed focus on
EOIR operational efficiency. Accordingly, EOIR has seen a precipitous
drop in initial receipts of charging documents to initiate proceedings
between FY 2024 and FY 2025, and has been continually increasing the
total number of case completions.\10\ However, considering the
challenges experienced under the prior administration at the southern
border and the resulting consequences, the Departments have a need to
use all available measures to prevent such a situation from
reoccurring.
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\10\ EOIR Workload & Adjudication Statistics, Pending Cases, New
Cases, and Total Completions (July 24, 2026), <a href="https://www.justice.gov/eoir/media/1344791/dl?inline">https://www.justice.gov/eoir/media/1344791/dl?inline</a> [<a href="https://perma.cc/B2AW-2QYD">https://perma.cc/B2AW-2QYD</a>]; EOIR Workload & Adjudication Statistics, New Cases and Total
Completion (July 24, 2026), <a href="https://www.justice.gov/eoir/media/1395636/dl?inline">https://www.justice.gov/eoir/media/1395636/dl?inline</a> [<a href="https://perma.cc/49J5-JTWY">https://perma.cc/49J5-JTWY</a>].
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For these reasons, and consistent with this Administration's
policies, DHS believes that it must employ all immigration enforcement
authorities that Congress has provided in order to both maintain border
security, including to discourage large numbers of aliens from crossing
the southern border and overwhelming the Departments' abilities to
effectively process and remove such aliens as occurred under the last
administration, and to address the large number of aliens with removal
and voluntary departure orders who have violated U.S. immigration law
by remaining in the United States in contravention of such orders.
One such authority is civil monetary penalties. As explained in
more detail in the IFR, Congress has authorized DHS to impose civil
penalties on: (1) aliens who willfully fail or refuse to depart the
United States after a final order of removal or take other action to
thwart removal; (2) aliens who fail to comply with a voluntary
departure order; and (3) aliens who are apprehended entering or
attempting to enter the United States unlawfully (``unlawful entry
penalties''). See INA 274D(a)(1), 8 U.S.C. 1324d(a)(1); INA
240B(d)(1)(A), 8 U.S.C. 1229c(d)(1)(A); INA 275(b)(1), 8 U.S.C.
1325(b)(1). Congress has also specified the authorized range of penalty
amounts, which DHS has adjusted for inflation. For ``unlawful entry,''
the penalty amounts range from $100 to $500 per entry or attempted
entry. See INA 275(b)(1), 8 U.S.C. 1325(b)(1); 8 CFR 280.53(b)(14). For
failure to comply with voluntary departure conditions, the penalty is
set by an Immigration Judge or the Board of Immigration Appeals
(``BIA'') and may range from $1,992 to $9,970 after inflation
adjustments, but the general default amount is $3,000. See INA
240B(d)(1)(A), 8 U.S.C. 1229c(d)(1)(A); 8 CFR 280.53(b)(3), 1240.26(l).
For aliens ordered removed who remain in the United States, DHS may
impose a penalty of up to $998 for each day the alien willfully fails
to comply with the order. See INA 274D(a)(1), 8 U.S.C. 1324d(a)(1); 8
CFR 280.53(b)(14). As the IFR explains, DHS believes that robust
application of these civil penalties will deter future unlawful entries
and encourage greater compliance with removal and voluntary departure
orders, in line with Congress's intent and this Administration's focus
on securing the border and restoring integrity to the immigration
system. See 90 FR 27439-40, 27442.
Prior to the IFR, however, DHS was required to use the general
civil penalty procedures at 8 CFR part 280 to impose these penalties.
These procedures were promulgated by the former Immigration and
Naturalization Service (``INS'') decades before Congress authorized the
specific failure-to-depart and unlawful entry penalties covered by the
IFR. See 90 FR 27440-41. Those regulations were designed primarily for
penalties imposed on airlines and other carriers that violate INA
provisions governing the transport of aliens into the United States,
rather than for penalties against individual aliens for failure-to-
depart or unlawful entry. Id. Under those regulations, DHS had to
provide a written notice of intent to fine (``NIF''), served in person
or by certified mail, and then wait at least 30 days for a response.
Id. If the alien did not respond or did not contest the fine, a DHS
officer could issue a final decision imposing the penalty. Id. If the
alien contested the fine, the alien could request an in-person
interview or submit a sworn written response; a supervisory immigration
officer would then issue a written decision; the alien could seek
reconsideration within DHS; after exhausting DHS procedures, the alien
could appeal to the BIA. Id. As discussed in the IFR, these procedures
are lengthy, resource intensive, and not tailored to the failure-to-
depart and unlawful entry penalties that Congress later authorized. See
90 FR 27444-46.
The IFR streamlined and simplified the process DHS uses to impose
civil penalties for failure-to-depart and unlawful entry and eliminated
unnecessary procedures that are not required by statute. See 90 FR
27449-52. The IFR changed only the way DHS issues and adjudicates civil
monetary penalties and the way an alien may contest such penalties for
these specific fines. 90 FR 27454. The IFR did not require the
imposition of any new penalties or otherwise change the substantive
criteria for issuing civil penalties. Id.
Under the IFR, the new 8 CFR 281 allows a DHS immigration officer
to initiate the penalty process by issuing a written decision and order
imposing the civil monetary penalty. 8 CFR 281.1(b), (c). The decision
and order must identify the statutory basis for the penalty, state the
type and amount of the penalty, and provide a brief
[[Page 65393]]
explanation of the reasons for the decision. 8 CFR 281.1(c)(1). The
decision and order must also advise the alien of the right to appeal;
the process for filing an appeal; the right to be represented by
counsel at no expense to the government; and the opportunity to submit
written arguments and supporting documentation challenging the penalty.
8 CFR 281.1(c)(2). The alien may file a written defense and supporting
evidence or may simply submit a written notice of appeal. 8 CFR
281.1(c)(2), (e)(1). DHS may serve the decision and order in person or
by regular mail. 8 CFR 281.1(d).
The IFR also replaced the elaborate review process before DHS set
forth in 8 CFR part 280 and appeal process before EOIR set forth at 8
CFR 1280.1 \11\ for these three specific civil penalties with an appeal
process that takes place solely before DHS. Under the IFR, an alien
must file a notice of appeal within 15 business days of service of the
initial decision and order. 8 CFR 281.1(e)(1). If the alien does not
file a timely appeal with DHS, the initial decision and order become
final. 8 CFR 281.1(f)(3). If the alien files a timely appeal with DHS,
a supervisory immigration officer who did not issue the initial
decision and order will review the appeal. 8 CFR 281.1(e)(2). The
supervisory officer will review the appeal within 10 days of receipt
and may, in his or her discretion, request additional written briefing
or documentation, which the alien must provide within 15 days of
receiving the request. Id. At the alien's request, the supervisory
officer will generally provide copies of pertinent documents and
records relevant to the penalty. 8 CFR 281.1(e)(3). The supervisory
officer will decide the appeal on the written record; the IFR does not
provide for in-person interviews. Id. The record must include the
initial decision and order, evidence in DHS's administrative files, and
any timely written submissions, briefs, documentary evidence, or other
relevant materials submitted by the alien. Id. The supervisory officer
will review this record de novo, including the initial decision and
order and any written arguments and evidence submitted by the alien,
and will issue a final decision within 45 days. 8 CFR 281.1(e)(2). That
officer's decision constitutes the final agency action, subject only to
discretionary review by the Secretary of Homeland Security, and the
alien may not appeal the decision to the BIA. 8 CFR 281.1(e)(4),
(f)(1)-(3). However, the IFR allows DHS to reopen a decision, in its
sole discretion (i.e., sua sponte), at any time to reconsider the
decision and reduce or rescind the fine. 8 CFR 281.1(f)(1).
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\11\ Any cases appealed to the BIA would add to the BIA's
pending caseload and be subject to the same case management
framework as all other appeals. See 8 CFR 1003.1. To address an
unprecedented caseload and an urgent need to improve the efficiency
of BIA procedures, the Department has reconsidered the Board's role
as an appellate tribunal and issued an IFR to streamline BIA
procedures. See generally Appellate Procedures for the Board of
Immigration Appeals, 91 FR 5267 (Feb. 6, 2026) (partially set aside
on procedural grounds Amica Ctr. for Immigrant Rts. v. EOIR, No. CV
26-696 (RDM), 2026 WL 662494, at *34 (D.D.C. Mar. 8, 2026)).
Divesting the BIA of responsibility over DHS imposition and
enforcement of civil fines and penalties, an area where there is no
statutory requirement for EOIR review and where the BIA has no
unique adjudicatory expertise, is consistent with BIA efforts to
create operational efficiencies.
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As explained in the IFR, the Departments reasoned that these
updated procedures will allow DHS to impose these civil penalties more
swiftly on more aliens who unlawfully enter the United States and on
those who disregard removal and voluntary departure orders. See 90 FR
27442. In turn, this will help support DHS's efforts to maintain border
security and enforce immigration laws by deterring unlawful entries and
encouraging compliance with removal and departure orders. See 90 FR
27445-46. Compared to the general procedures in 8 CFR part 280, the
revised process reduces unnecessary administrative burdens and allows
DHS to reach final decisions more quickly while at the same time
reducing unnecessary burdens on the BIA's caseload. See 90 FR 27444-45.
The IFR explained that these changes are needed to ensure that DHS can
efficiently employ these statutory penalties while continuing to
prioritize, without diverting resources away from, border security and
the apprehension, detention, and removal of aliens who have violated
the Nation's immigration laws, consistent with this Administration's
policy objectives and the President's direction. See 90 FR 27444-46.
To further advance the IFR's goal of encouraging compliance with
removal and departure orders, DHS has announced that it will rescind
most failure to depart fines if an alien uses the U.S. Customs and
Border Protection (``CBP'') Home app to arrange and complete self-
departure from the United States.\12\ This policy, coupled with DHS's
expanded use of these civil penalties, is intended to provide an
additional clear incentive for aliens to comply with removal and
departure orders and avoid civil monetary penalties by doing what the
law requires: departing the United States as ordered.\13\
---------------------------------------------------------------------------
\12\ See DHS, DHS Announces It Will Forgive Failure to Depart
Fines for Illegal Aliens who Self-Deport Through the CBP Home App
(June 9, 2025), <a href="https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport">https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport</a>
[<a href="https://perma.cc/8RBN-PACA">https://perma.cc/8RBN-PACA</a>]. As discussed below in response to
comments in Section III of this preamble, DHS has recently updated
its website to make clear that all non-criminal illegal aliens may
register under CBP Home app to depart the United States and DHS will
forgive failure-to depart civil penalties once the alien departs.
\13\ See id.; see also Proclamation 10935, 90 FR 20357.
---------------------------------------------------------------------------
At the same time, the Departments determined that the revised
procedures are consistent with due process. For the reasons discussed
more fully in the IFR and in response to comments in Section III of
this preamble, the Departments have concluded that a shortened appeal
period, removal of in-person interviews, and the shift from BIA review
to internal DHS review are appropriate and consistent with due process
given that these civil penalties typically turn on routine and
straightforward factual and legal determinations and aliens have
limited grounds to contest them. 90 FR 27451-55. In addition, ICE will
now also permit acceptance of a late-filed appeal based on documented
mail delivery delays that ICE finds were beyond the alien's control.
First, INA 275(b), 8 U.S.C. 1325(b), authorizes DHS to impose a
civil penalty on any alien who is apprehended while entering or
attempting to enter the United States at an improper place or time.
Aliens apprehended while entering unlawfully have, by definition,
violated INA 275(b), 8 U.S.C. 1325(b), and the documented encounter
provides the only fact necessary to impose these penalties.
Additionally, when USBP agents apprehend an alien entering unlawfully,
the agents prepare a Form I-213, Record of Deportable/Inadmissible
Alien, which documents the apprehension and is sufficient to
demonstrate liability for these penalties. See 90 FR 27442. As a matter
of practice, USBP issues these penalties at the time that it apprehends
the alien. In these circumstances, the Departments do not believe that
a lengthy, multi-step appeal process is necessary. See id. The IFR's
appeal structure preserves an alien's meaningful ability to contest an
unlawful entry penalty if the alien believes a penalty was issued
erroneously.
Second, the nature of the failure to depart penalties also supports
the IFR's changes. Congress has authorized DHS to impose civil monetary
penalties on aliens for failure to depart, subject to the general
federal statute of limitations, 28
[[Page 65394]]
U.S.C. 2462, if two elements have been satisfied: (1) the alien is
subject to a final order of removal or was granted voluntary departure
and (2) the alien willfully fails or refuses to depart under a removal
order or voluntarily fails to comply with a voluntary departure order.
INA 274D(a)(1), 8 U.S.C. 1324d(a)(1); INA 240B(d)(1)(A), 8 U.S.C.
1229c(d)(1)(A). DHS maintains records of an alien's immigration
history, including removal and voluntary departure orders, and has
ready access to information about any pending appeals needed to verify
that the alien is subject to a final removal or departure order. 90 FR
27442-43. Before issuing a penalty, ICE guidance requires the
immigration officer to verify that there are no DHS records of the
alien's departure from the United States and reviews the alien's
immigration records for information suggesting that the alien's failure
to depart was not willful or voluntary. This includes information
about: automatic stays resulting from motions to reopen; certain
immigration benefits under the Violence Against Women Act (``VAWA'')
that stay the alien's removal; for aliens on an order of supervision,
efforts the alien has made to secure travel documents at DHS's request;
whether DHS has affirmatively approved the alien for deferred action;
whether the Immigration Courts, DHS, or a federal court has granted a
stay of removal; and whether DHS or EOIR has granted the alien
protection that excuses the alien's failure to depart while the alien
maintains that protection, including temporary protected status
(``TPS''), protection under the Convention Against Torture (``CAT''),
and withholding of removal under INA 241(b)(3), 8 U.S.C. 1231(b)(3)
when no alternative country of removal is available.
Absent evidence in records accessible to DHS showing that the alien
is permitted to remain in the United States, or that the alien has
departed, DHS believes the statutory prerequisites to issue a penalty
will have been met where an alien ordered removed or granted voluntary
departure is physically present in the United States beyond the time
frame specified by the Immigration Judge. As the IFR explains, civil
penalties for failure to depart are generally issued after completion
of section 240 removal proceedings that resulted in a final order
requiring the alien's departure from the United States immediately or
within a certain time frame specified by the Immigration Judge. See 90
FR 27440. These aliens have received due process through section 240
removal proceedings where they had an opportunity to contest the
charges against them, to seek relief, and to be informed by an
Immigration Judge of their obligation to depart and of the consequences
of failing to do so. Id. Aliens granted voluntary departure prior to
the conclusion of section 240 removal proceedings have already agreed
to forgo challenging removal or seeking relief in exchange for being
allowed to depart voluntarily. Id. In these circumstances, and when DHS
records show the removal order is executable, the Departments reasoned
that an alien's continued presence in the United States is generally
sufficient to establish liability for these civil penalties, absent the
alien providing evidence on appeal \14\ to demonstrate otherwise. See
90 FR 27442-43.
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\14\ The Departments determined that such appeal should take
place before DHS, and not the BIA, given the straightforward and
readily determinable requirements for imposing and enforcing such
penalties based on information within DHS's and the alien's
possession. 90 FR 27444.
---------------------------------------------------------------------------
In addition, Immigration Judges are required by law to inform
aliens of their departure obligations and the consequences for failing
to comply. Under INA 240(c)(5), 8 U.S.C. 1229(a)(5), when an
Immigration Judge orders removal, the Immigration Judge must inform the
alien of the consequences for failure to depart under the order of
removal, including civil penalties described at sections INA 274D, 8
U.S.C. 1324(d). See 8 CFR 1240.13(d). Likewise, for voluntary
departure, the INA requires that an Immigration Judge ``shall inform
the alien of the penalties'' that will apply if the alien voluntarily
fails to depart within the time allowed, including civil monetary
penalties and ineligibility for certain forms of relief. INA
240B(d)(3), 8 U.S.C. 1229c(d)(3). These advisals are mandatory
components of 240 removal proceedings, not discretionary steps.
These statutory and regulatory requirements are directly relevant
to the willfulness and voluntariness elements in the civil penalty
statutes. Before DHS considers imposing a failure to depart penalty,
the alien will ordinarily have been advised, on the record, that the
law requires the alien to depart the United States and that failure to
do so may result in civil fines and other adverse consequences. When an
alien remains in the United States after such clear, legally required
notice, his or her continued presence strongly supports the conclusion
that the alien has ``willfully fail[ed] or refuse[d]'' to depart under
a removal order or ``voluntarily'' failed to comply with a voluntary
departure order, as required by the failure to depart civil penalty
statutes. In making this assessment, DHS also relies on the presumption
of regularity that attaches to official acts of government officers,
including Immigration Judges. See United States Postal Serv. v.
Gregory, 534 U.S. 1, 10 (2001). Under this presumption, DHS may
reasonably assume that Immigration Judges complied with their legal
obligations under the INA and implementing regulations and provided the
required advisals concerning departure obligations and the consequences
of noncompliance, absent specific evidence to the contrary in the
record. In all cases, ICE considers the willfulness of an alien's
violation in determining whether to impose a penalty.
Taken together--(1) the procedural protections provided in section
240 removal proceedings, (2) the mandatory Immigration Judge advisals
of departure obligations and penalties, (3) the presumption of
regularity applicable to those advisals, and (4) DHS's careful review
of U.S. Government records to confirm that the alien is subject to a
final, executable order and lacks lawful permission to remain--DHS
concludes that an alien's continued presence in the United States is
generally sufficient to establish the willful or voluntary failure to
depart required to impose these civil penalties, absent evidence
provided by the alien on appeal to demonstrate that the alien is not
liable. Therefore, the Departments reasoned that streamlining the
issuance and adjudication of these civil penalties, and the associated
appeals process, aligns more closely with the nature and intent of
these straightforward civil penalties. While in most cases, DHS records
sufficiently establish the facts necessary to demonstrate that the
alien is subject to these civil penalties, the alien retains the right
to contest them on limited grounds. See 90 FR 27442-46.
To the extent an alien believes that DHS issued a penalty
erroneously--for example, because the alien is not subject to a removal
order, is legally permitted to remain in the United States, or did not
willfully or voluntarily fail to depart--the Departments determined
that the IFR provides sufficient notice and an opportunity to contest
the decision before DHS, and that further review before EOIR is
unnecessary. See 90 FR 27451-55. Under the IFR, a DHS immigration
officer must issue a written decision that sets forth the statutory and
factual basis for the penalty and informs the alien of the requirements
and deadlines for filing an appeal. See Mullane v. Cent. Hanover Bank &
Tr. Co., 339 U.S. 306, 314 (1950) (stating
[[Page 65395]]
that notice under due process must be of a sufficient nature as to
reasonably convey the required information). The revised appeal process
also preserves an alien's opportunity to contest a civil penalty. Under
the IFR's procedures, the alien has 15 business days to appeal using
the DHS-developed Form 281, Notice and Violation of Order, and a
supervisory immigration officer who did not issue the initial decision
will review the record de novo and may request additional evidence
before making a final determination. See 90 FR 27452-54.
As explained in the IFR and in response to comments in Section III
of this preamble, the Departments believe that additional procedures,
beyond those contained in the IFR, would not enhance the accuracy,
fairness, or reliability of the process given the straightforward
nature of these penalties and the limited grounds that an alien may
have to contest them. See id. Thus, for the reasons discussed in the
IFR and in response to comments in Section III of this preamble, the
Departments believe that the revised procedure preserves an alien's
ability to contest the fine while better ensuring that the BIA does not
unnecessarily expend resources in areas where DHS is better positioned
to review such determinations, and that DHS can reach final decisions
efficiently and apply these statutory penalties swiftly and at the
scale necessary to address the large number of aliens who have entered
or remain unlawfully in the United States. Accordingly, after carefully
considering comments received on the IFR, the Departments are
finalizing this rule with one change discussed in more detail below to
account for U.S. postal delays.
B. The Departments' Experience With the IFR
The IFR is working as intended. As a result of the IFR, DHS has
been able to issue a significantly greater number of civil penalties
compared to the pre-IFR process under 8 CFR part 280. From March 26,
2025, through June 26, 2025, ICE issued 12,135 civil penalties under
the pre-IFR process.\15\ From June 27, 2025, after the IFR took effect,
through September 14, 2026, ICE issued approximately 110,000 failure to
depart civil penalties, and CBP issued an additional 66,000 civil
penalties for unlawful entry. Thus, DHS increased the number of civil
penalties issued from approximately 930 per week under the pre-IFR
process to nearly 2,800 per week under the IFR process.\16\
Accordingly, the IFR has allowed DHS to impose more civil penalties
more quickly on a greater scale, while retaining procedural safeguards
designed to promote accurate penalty assessments without diverting
resources away from border security, and the apprehension, detention,
and removal of aliens who have violated our immigration laws.
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\15\ See Office of Homeland Security Statistics analysis of
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case
Outcomes (Oct. 7, 2026).
\16\ Id.
---------------------------------------------------------------------------
Second, DHS's robust use of civil penalties appears to be shifting
incentives for aliens with removal and departure orders who might
otherwise remain unlawfully in the United States. DHS data indicates
that over 82,000 aliens with removal orders and voluntary departures
orders have self-departed from the United States since DHS began
issuing civil penalties in March 2025 through September 14, 2026.\17\
In that same period, over 7,700 aliens have self-departed after
receiving a civil penalty.\18\ Further, the number of aliens with
removal orders or voluntary departure orders who have self-departed
since the IFR took effect has increased significantly, as has the
number of aliens who have departed after receiving a civil penalty. In
the pre-IFR period from March 26, 2025, through June 26, 2025,
approximately 8,600 aliens with removal or voluntary departure orders
self-departed, and approximately 540 aliens self-departed the United
States after receiving a civil penalty during this period.\19\ In the
post-IFR period from June 27, 2025, through September 14, 2026, over
74,000 aliens with removal orders or voluntary departure orders self-
departed in total, and approximately 7,180 aliens self-departed after
receiving a civil penalty during this period. This data indicates that
DHS's robust use of civil penalties, as facilitated by the IFR's
streamlined procedures, is encouraging illegally present aliens to
depart the United States on their own, consistent with the IFR's
objectives.
---------------------------------------------------------------------------
\17\ Id. For the purpose of this analysis, the term self-
departure includes the sum of confirmed departures without
involvement of DHS enforcement or without DHS expense including ICE-
assisted repatriations at the alien's own expense and OFO
repatriations. It also includes observed departures of aliens who
have voluntarily departed with financial support from the U.S.
Government through the CBP Home program. See Proclamation 10935, 90
FR 20357 (establishing Project Homecoming and directing DHS to
establish a seamless process for illegal aliens to depart the United
States including through the CBP Home program); see also DHS Fact
Sheet, CBP Home: Assistance to Voluntarily Self-Deport (Sept. 1,
2026), <a href="https://www.dhs.gov/cbphome">https://www.dhs.gov/cbphome</a> [<a href="https://perma.cc/PWQ2-W6ZJ">https://perma.cc/PWQ2-W6ZJ</a>]
(explaining CBP Home app and departure incentives available to
aliens who use the app to voluntarily self-depart). The count of
departures without DHS assistance may be under-inclusive because, as
explained in the IFR, DHS does not maintain comprehensive departure
records for all aliens, particularly those who depart across the
southern or northern land border without informing DHS. See 90 FR
27443, n.17.
\18\ Id.
\19\ Id.
---------------------------------------------------------------------------
Finally, DHS's experience implementing the civil penalties covered
by this rule since March 26, 2025, confirms that many pre-IFR
procedures were unnecessary and that the IFR's procedures provide a
meaningful opportunity to contest penalties believed to be erroneous
without unnecessarily diverting BIA resources away from adjudicating
its existing pending caseload to conduct review better addressed by
DHS. As discussed above, the IFR shortens the appeal period, eliminates
in-person interviews, and shifts appeals from the BIA to DHS. DHS data
support these changes:
<bullet> Under the pre-IFR process, aliens filed written answers
pursuant to 8 CFR 280.12 contesting failure to depart penalties for
only 222 of the 12,135 notices of intent to fine that ICE issued, a
less than 2 percent appeal rate. Under the post-IFR process through
September 10, 2026, aliens appealed failure to depart civil penalties
in 3,072 cases of the approximately 110,000 penalties that ICE issued
between June 27, 2025, through September 14, 2026, a nearly 3 percent
appeal rate. The appeal rate has therefore increased under the post-IFR
process.\20\
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\20\ Prior to the IFR, CBP did not issue any penalties for
unlawful entry under INA 275(b), 8 U.S.C. 1325(b). Thus, the
comparison between pre-IFR and post-IFR appeals is limited to the
failure to depart penalties under INA 240B(d), 8 U.S.C. 1229c(d) and
INA 274D, 8 U.S.C. 1324d. Further, as discussed throughout this
preamble, the Departments believe that very few aliens have grounds
to appeal unlawful entry penalties issued under INA 275(b), 8 U.S.C.
1325(b), given the even more straightforward nature of those
penalties.
---------------------------------------------------------------------------
<bullet> Only 4 aliens requested an in-person interview out of the
222 penalty notices that aliens contested under the pre-IFR process,
indicating that in-person interviews are generally unnecessary and that
aliens can adequately contest these decisions through written
submissions based on information in the alien's possession.
<bullet> Under the pre-IFR process, only 44 aliens appealed DHS's
penalty decision to the BIA under 8 CFR part 1003, further supporting
the Departments' assessment that the legal issues associated with these
penalties are relatively straightforward and appeals can be handled by
DHS. As of September 10, 2026, the BIA has issued only two decisions in
these appeals, including a published decision which
[[Page 65396]]
upheld the civil penalty.\21\ This further supports the Departments'
decision to eliminate BIA review in favor of an internal DHS appeal
process given the lengthy BIA adjudication timeframes.
---------------------------------------------------------------------------
\21\ See Matter of R-P-L-, 29 I&N Dec. 859 (BIA 2026).
---------------------------------------------------------------------------
<bullet> Aliens have successfully contested penalty decisions under
the post-IFR processes. Of the appeals that DHS has adjudicated under
the post-IFR process, aliens prevailed in 25 percent of the cases. This
clearly demonstrates that the IFR's appeal process is meaningful, and
DHS can adjudicate these penalties fairly without the need for the
BIA's review.
These results support the Departments' conclusion that the IFR's
streamlined procedures provide appropriate protections while allowing
DHS to apply statutory penalties efficiently and at scale. DHS believes
there have been fewer appeals to fines issued under 8 CFR part 281, as
compared to 8 CFR part 280, because of the straightforward
determinations of fact associated with fines under part 281.
Additionally, the appeal process under 8 CFR part 281 discourages
frivolous or non-meritorious appeals, focusing resources on cases with
substantive claims.
II. Statutory Authority
The Attorney General and Secretary of Homeland Security issue this
joint final rule pursuant to their respective authorities. The Homeland
Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat. 2135, as
amended, transferred to the Secretary many functions previously
exercised by the former INS in implementing and enforcing Federal
immigration law. The INA, as amended, charges the Secretary ``with the
administration and enforcement of this chapter and all other laws
relating to the immigration and naturalization of aliens.'' INA
103(a)(1); 8 U.S.C. 1103(a)(1). It authorizes the Secretary to take
actions ``necessary for carrying out'' that responsibility. INA
103(a)(3); 8 U.S.C. 1103(a)(3). As relevant here, the INA and HSA now
authorize the Secretary to impose most civil monetary penalties under
the INA, including those set forth in INA 240B(d), 274D(a), and 275(b);
8 U.S.C. 1229c(d), 1324d(a), and 1325(b). See INA 103(a)(1); 8 U.S.C.
1103(a)(1) (reposing in the Secretary the authority to administer and
enforce the immigration laws except as expressly reserved to the
President, Attorney General, or Secretary of State) and HSA 402(3), 6
U.S.C. 202(3) (charging the Secretary with carrying out the immigration
enforcement functions vested by statute in, or performed by, the
Commissioner of the former INS).
Within DHS, the HSA allocated immigration functions and
responsibilities to CBP, ICE, and U.S. Citizenship and Immigration
Services (``USCIS''). See HSA 411, 6 U.S.C. 211 (CBP); HSA 442, 6
U.S.C. 252 (ICE); HSA 451, 6 U.S.C. 271 (USCIS). ICE is generally
responsible for interior immigration enforcement, and CBP is generally
responsible for immigration enforcement at ports of entry and along the
United States border. Both components have authority to administer
civil monetary penalties relating to certain violations of immigration
law and Immigration Court orders, including penalties authorized under
INA 240B(d), 274(D)(a), and 275(b). See, e.g., 8 CFR part 280.
The Secretary may delegate or re-delegate any authority vested in
DHS under the immigration laws to any DHS officer, official, or
employee, including by successive delegations. See INA 103(a)(4), 8
U.S.C. 1103(a)(4); 8 CFR 2.1; Authority of the Secretary of Homeland
Security; Immigration Laws, 68 FR 10922 (Mar. 6, 2003). The Secretary
may delegate his authority in any manner he chooses, including by
regulation, memorandum, directive, or other method. 8 CFR 2.1. In
addition, HSA 102(a)(3), 6 U.S.C. 112(a)(3), vests all functions of DHS
officers, employees, and organizational units in the Secretary.
The HSA retains in DOJ, under the direction of the Attorney
General, the functions of EOIR. See HSA 1101, 6 U.S.C. 521, INA
103(g)(1), 8 U.S.C. 1103(g)(1). Immigration Judges within EOIR conduct
section 240 removal proceedings and have authority to issue removal
orders or grant voluntary departure. See INA 240, 240B, 8 U.S.C. 1229a,
1229b. The INA further provides that the Attorney General's
determinations on questions of law ``shall be controlling.'' INA
103(a)(1), 8 U.S.C. 1103(a)(1). Nothing in this final rule alters
EOIR's or the Attorney General's authority to conduct or review section
240 removal proceedings, including the issuance of removal orders or
grants of voluntary departure.
DOJ participates in this rulemaking because, prior to the IFR,
DOJ's regulations established BIA appellate jurisdiction over certain
DHS-issued civil monetary penalties authorized under the INA, including
those covered by this rulemaking. The IFR removed that appellate
authority, which is finalized without further change in this rule. See
90 FR 27439, 27459. The INA does not require the BIA to review civil
penalties, and nothing in the statute precludes the Attorney General
from removing the BIA's appellate jurisdiction over civil monetary
penalties imposed by another agency. To the contrary, INA 103(g)(1) and
(g)(2), 8 U.S.C. 1103(g)(1)-(2), authorize the Attorney General to
issue regulations necessary for carrying out EOIR's responsibilities
and governing its adjudicatory structure. Consistent with that
authority, through the IFR, DOJ amended its regulations to eliminate
the BIA's appellate authority over these DHS-imposed penalties in order
to focus EOIR's resources on its statutory functions.
This final rule addresses DHS procedures for imposing civil
monetary penalties under INA 240B(d), 274D(a)(1), and 275(b), 8 U.S.C.
1229c(d), 1324d(a), and 1325(b). Those statutory provisions define the
categories of aliens subject to civil penalties, establish penalty
amounts, and authorize DHS to impose such penalties, but they do not
prescribe procedures DHS must follow or require DOJ review of those
penalties. Similarly, INA 280, 8 U.S.C. 1330, addresses the collection
of civil monetary penalties but does not specify assessment procedures.
Accordingly, the INA affords DHS discretion to adopt reasonable
procedures for assessing and issuing civil monetary penalties. 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 methods of inquiry
capable of permitting them to discharge their multitudinous duties.'')
(cleaned up).
III. Response to Public Comments on the IFR
The Departments received a total of 28 public comment submissions
in response to the IFR. The Departments reviewed all the public
comments received and have addressed relevant comments in this final
rule, grouped by subject matter. While some commenters wrote that they
supported the IFR, the vast majority of commenters opposed all or part
of it.
A. General Support
Comment: Several commenters expressed overall support for the IFR.
These commenters agreed with the use of civil monetary penalties to
promote compliance with immigration laws. One commenter considered such
civil penalties necessary to deter unlawful presence, encourage self-
departure, and help offset the costs associated with
[[Page 65397]]
enforcing immigration laws and carrying out removals. Another commenter
recognized the government's interest in recovering some of the costs
associated with removing aliens. A third commenter expressed general
support for imposing civil monetary fines to strengthen overall
immigration enforcement. Collectively, these comments broadly endorsed
the IFR's underlying policy objective of streamlining the process for
imposing civil monetary penalties on aliens subject to the violations
addressed in this rule.
Response: The Departments agree that promoting compliance with the
Nation's immigration laws and maintaining border security is critical,
and this rule is a key part of DHS's efforts to use all statutorily
available tools to help achieve those objectives consistent with the
Administration's policies and priorities while also allowing EOIR to
focus time and resources on completing cases that are more aligned with
its statutory authorities. See 90 FR 8445-55. Specifically, the
unprecedented number of aliens entering and remaining in the country
illegally, in recent years necessitates this rule. See 90 FR 27442
(quoting 90 FR 8443). Congress has authorized DHS to impose civil
monetary penalties on aliens who unlawfully enter the United States and
those who remain after a final removal or voluntary departure order.
See 90 FR 27439-41. As explained in the IFR, this rule allows DHS to
preserve due process while more efficiently imposing a greater number
of these civil penalties on the aliens subject to them. 90 FR 27442.
The Departments believe that this effort will, in turn, encourage
greater compliance with removal and voluntary departure orders and
discourage future unlawful entries. Id.
B. General Opposition
1. Impacts on Aliens, Families, Businesses, and Communities
Comment: Many commenters opposed the IFR, asserting that it will
negatively impact aliens and their families. One commenter stated that
the aliens impacted by this rule could face steep civil monetary fines
in excess of $1,000,000, causing significant financial distress for
them and their families. Other commenters echoed this point, stating
that the rule creates a substantial financial burden on aliens, and
specifically viewed as particularly egregious the fine of $998-per-day
for willful failure or refusal to depart after a final removal order
and certain other proscribed activities. One commenter said the IFR
directly harms U.S. citizens and lawful permanent residents because
many aliens subject to these civil monetary fines are parents and
spouses of U.S. citizens and permanent residents. They characterized
these fines as ``economically catastrophic for the entire household''
resulting in ``eviction, bankruptcy, or forced separation.'' This
commenter also noted that aliens who fail to pay the assessed penalties
may be subject to additional consequences including garnished wages,
seizure of assets including homes and vehicles, and long-term financial
ruin.
Another commenter reiterated this point and additionally noted the
potential confiscation of savings and vehicles and imposed additional
financial planning burden and financial uncertainty. This commenter
claimed that the Departments' conclusion that the IFR aligns with due
process was arbitrary and capricious. The commenter said that the IFR
arbitrarily characterized these penalties as ``modest,'' and claimed
the Departments overlooked case law recognizing heightened due process
interests when the government seizes homes, confiscates savings, and
imposes fines that result in significant economic impacts on families.
Given the substantial penalty amounts and the collateral consequences
that can result if an alien fails to pay, the commenter argued that the
IFR's procedures are constitutionally inadequate.
Response: As an initial point, Congress, not the Departments, has
defined both the types of violations and the monetary range for the
civil penalties covered by the IFR and this rule. These penalties and
their amounts reflect Congress's judgment that the conduct involved--an
alien's unlawful entry and failure to depart after a removal or
voluntary departure order--is serious, and in some cases substantial
civil fines are necessary to encourage aliens to comply with the
immigration laws. See 90 FR 27439-40. This rule does not expand the
scope of these penalties, nor their minimum or maximum dollar amounts.
Furthermore, the immigration consequences for failing to depart or
unlawful entry flow from the underlying immigration violation, not from
the failure to pay the assessed civil monetary penalties. This rule
merely streamlines the process that DHS applies when imposing civil
penalties that Congress has already authorized DHS to impose.
Therefore, to the extent that commenters are objecting to these civil
monetary penalties and the amounts authorized by Congress, such
concerns are outside of the scope of this rulemaking.
DHS often assesses the maximum penalty amount to fulfill the
enforcement and deterrent objectives of the statute, as intended by
Congress. These amounts are also consistent with the enforcement
priorities of the Administration, as reflected in recent Executive
Orders. See 90 FR 8443, 8443-45; 90 FR 8467, 8467. However, the
Departments note that, in the voluntary departure context, immigration
officers follow the civil penalty amounts that will continue to be set
by EOIR. See 8 CFR 1240.26(l).
The Departments disagree with commenters' arguments that DHS should
not streamline the process for imposing these civil penalties because
of the burdens the penalties create for aliens and their families. The
Departments acknowledge these concerns but note that financial,
emotional, and family burdens are also an inherent consequence of
removal based on an alien's violation of the Nation's immigration laws.
See e.g., Moctezuma-Reyes v. Garland, 124 F.4th 416, 423 (6th Cir.
2024) (``[F]inancial and emotional strains are the typical results of
removal; they aren't rare''); see also Matter of Pilch, 21 I&N Dec.
627, 631 (BIA 1996) (``[E]motional hardship caused by severing family
and community ties is a common result of deportation''). The most
substantial civil fines apply only to aliens who have been ordered
removed or granted voluntary departure after the conclusion of
immigration proceedings. These aliens have been warned of the
consequences for failing to comply with the removal or departure order
but have willfully ignored their departure obligations. In these
circumstances, the Departments do not believe that it is unfair to
impose substantial civil penalties that Congress has authorized for
these violations even though it may cause additional burdens and
hardships on aliens and their families.
To help alleviate the financial burden of civil penalties and
incentivize compliance, DHS has announced it will reopen and rescind
most outstanding civil penalties when an alien uses the CBP Home app to
voluntarily self-depart the United States.\22\ This option allows
aliens to avoid the civil penalties and attendant consequences that
commenters have noted. The
[[Page 65398]]
Departments recognize that an alien's choice to exercise this option
may still impose significant personal and family hardships, including
to U.S. citizen or lawful permanent family members, but the Departments
note that these hardships are an inherent consequence of a removal
order and are compounded by the alien's willful failure to depart when
that order became final and executable. See Morales-Izquierdo v. DHS,
600 F.3d 1076, 1091 (9th Cir. 2010) (rejecting argument that ``an
illegal alien with United States citizen family members cannot be
removed'' because such a proposition ``would radically alter the status
quo of our immigration law''). Additionally, the Departments believe
that permitting removable aliens to remain in the United States would
undermine immigration enforcement, the integrity of the Nation's
immigration laws, American communities, and public safety.\23\
---------------------------------------------------------------------------
\22\ DHS, DHS Announces It Will Forgive Failure to Depart Fines
for Illegal Aliens who Self-Deport Through the CBP Home App (June 9,
2025), <a href="https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport">https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport</a> [<a href="https://perma.cc/8RBN-PACA">https://perma.cc/8RBN-PACA</a>]. See Presidential Proclamation 10935,
Establishing Project Homecoming, 90 FR 20357 (May 9, 2025); 90 FR
27442.
\23\ See 90 FR 47445-46 (discussing how an alien's failure to
depart has serious consequences for immigration enforcement and the
adjudication of immigration cases); see also E.O. 14159, 90 FR 8443,
8444-45 (Jan. 20, 2025). (``enforcing our Nation's immigration laws
is critically important to the national security and public safety
of the United States''); Presidential Proclamation 10935, 90 FR
20357 (May 9, 2025) (``The continued presence of illegal aliens in
our Nation forces American taxpayers to bear a tremendous fiscal
burden to support them, including through costs related to
healthcare, food stamps, public housing, emergency services,
education, and shelter, as well as the costs of crimes committed by
illegal aliens.'').
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Regarding commenters' concerns that aliens may face collateral
consequences if they fail to take advantage of this off-ramp and
further fail to pay these civil fines, the Departments note that the
IFR and this final rule do not authorize the confiscation of savings,
garnished wages, or the seizure of assets. Rather, separate statutes
and regulations govern the U.S. Government's debt collection activities
and remedies, which are outside the scope of this rule. However, the
Departments note that only DOJ's Civil Division or another authorized
litigating component of DOJ, not EOIR and DHS, have authority to obtain
a judgment on a debt owed to the United States. See 31 CFR 904.1-904.4.
DOJ's Civil Division or another authorized litigating component must
bring an action in federal court to obtain a judgment and pursue any
lien against assets or confiscation of savings, and the alien has an
opportunity to request a federal court hearing on the enforceability of
the debt. See, e.g., 28 U.S.C. 3002(3)(B), 3101(d)(1), (d)(2). This
provides due process before the U.S. Government seeks to obtain a
judgment on an uncollected debt and before it can confiscate an alien's
property or savings. Accordingly, nothing in this rule deprives an
alien of the ability to challenge the imposition of particular civil
penalty assessments or collection methods that the alien regards as
disproportionate, excessive, or in violation of due process during a
federal court hearing.
Finally, the Departments disagree that the IFR's due process
analysis fails to consider the full magnitude of the departure
penalties and the collateral consequences that could result, should an
alien remain in the United States and fail to pay the civil monetary
penalty. As an initial matter, contrary to one commenter's claim, the
Departments did not characterize the penalties covered by this rule as
``modest.'' Rather, the IFR used that term to contrast the penalty
amounts associated with the unlawful entry and voluntary departure
order penalties and the per diem fines Congress has authorized DHS to
impose on aliens who willfully remain in the United States for many
years after a removal order. See 90 FR 27541.
The Departments do, however, acknowledge that the per diem civil
penalties can result in substantial fines, including sums of over one
million dollars in certain cases, and that these amounts could impose
significant economic and emotional burdens on aliens and their
families. The Departments also note that DHS will cancel most
outstanding penalties when an alien uses the CBP Home app to depart the
United States, as discussed above. Similarly, the Departments
acknowledge the collateral consequences that could result if an alien
fails to pay a civil penalty or depart the United States, but the
Departments reiterate that this rule does not authorize DHS or EOIR to
seize an alien's property, garnish wages, or confiscate savings. That
authority rests with DOJ's Civil Division or another litigating
component, and the alien would be able to challenge any action in court
before any deprivation occurs.
The Departments, however, also have a weighty interest in ensuring
that DHS can impose statutorily authorized civil monetary penalties
efficiently and at scale to create greater incentives for aliens to
comply with final removal orders and to impose timely consequences on
those who do not. As the Departments explained in the IFR and Section
II of this preamble, the need for this rule is demonstrated by the
sheer number of aliens in the United States with final removal orders
and the risk that, without additional action, a significant number of
the millions of aliens currently in Immigration Court proceedings may
be encouraged to simply ignore final decisions ordering their removal.
See 90 FR 27445. An alien's failure to comply with a removal order
risks undermining the overall integrity of the immigration laws and
processes and imposes significant enforcement costs on DHS. Id; see
also Section II of this preamble.
On balance, the Departments believe that the IFR's streamlined
civil monetary penalty procedures strike an appropriate balance
between: (1) increasing DHS's ability to impose statutorily authorized
civil penalties quickly against aliens who have willfully failed to
comply with removal orders and (2) protecting an alien's interest in
ensuring that he or she has a meaningful opportunity to contest any
civil penalty that DHS may have issued erroneously. Based on its
experience, DHS believes that the risk of imposing these civil fines in
error is low given the straightforward nature of these civil penalty
determinations, and that the IFR's procedures provide sufficient due
process to aliens who contest these penalties. See 90 FR 27451-54.
Comment: Commenters claimed that these penalties will harm
businesses and communities. One commenter stated that many aliens
targeted by this IFR pay taxes and work in ``essential'' sectors such
as agriculture, healthcare, and construction. Another commenter claimed
that the threat of high civil penalties will increase fear in
communities and push people into hiding. The commenter claimed that the
high penalties would reduce enrollment in schools and healthcare, and
deter victims and witnesses from reporting crimes, thereby harming
public safety and communities. Given these claimed impacts, commenters
argued that the Departments should rescind the IFR.
Response: The Departments do not dispute the contributions of
lawful immigrants to United States businesses and communities. The
purpose of the IFR and this rule, however, is not to harm businesses or
communities but to allow DHS to more efficiently impose these
statutorily authorized civil monetary penalties on the large number of
aliens who violate the Nation's immigration laws by entering or
remaining in the country unlawfully. Congress has authorized DHS to
impose civil penalties for these violations and did not create
exceptions for aliens who pay taxes, work in ``essential sectors'', or
otherwise ``contribute'' to communities. An alien's engagement in these
activities does not absolve him or her from complying with the
immigration laws. Moreover, the Departments note that, with limited
exceptions, Congress has not authorized
[[Page 65399]]
aliens with final executable removal and voluntary departure orders to
work in the United States. INA 241(a)(7), 8 U.S.C. 1231(a)(7).
Therefore, the Departments decline to rescind the IFR based on
commenters' speculation that its procedures for imposing penalties on
aliens will indirectly ``harm'' businesses or essential sectors.
Further, the Departments believe that any such indirect impact that the
penalties themselves may have on businesses would be outweighed by
their benefits, including benefits to border security, public safety,
immigration enforcement, and the integrity of the immigration laws. See
90 FR 27445-46; Section II of this preamble; see also 90 FR 8444-45.
Regarding comments related to the IFR's potential effects on the
willingness of aliens to report crimes, while DHS does not dispute that
illegal aliens might be less willing to report a crime, DHS cannot
reliably estimate this rule's speculative impact on local policing,
especially considering that this rule merely provides procedures for
issuing civil fines that are authorized by statute. For similar
reasons, the Departments decline to rescind the IFR based on other
speculative community-level effects described by some commenters.
Commenters provided no support for their belief that the revised civil
penalty procedures will discourage eligible individuals from accessing
education, healthcare, or other community services, or otherwise
disengaging from their communities. The Departments believe that any
such indirect impacts are also outweighed by this rule's potential
benefits, including benefits to border security, public safety,
immigration enforcement, and the integrity of the immigration laws.
2. Impacts on Specific Populations
Comment: Commenters broadly suggested that the IFR will have a
disproportionate impact on vulnerable groups such as minors, aliens
with limited English proficiency, and aliens fleeing hardships and
lacking sufficient funds for legal representation. Commenters asserted
that such aliens may face barriers in understanding or responding to
civil monetary penalties within the prescribed timeframes and that the
imposition of fines could create additional hardship or deter some from
challenging these penalties altogether. One commenter expressed
particular concern about aliens subject to domestic violence and human
trafficking. The commenter explained that these aliens may be eligible
for immigration relief based on this harm, but large civil fines may
impose a barrier to escaping these situations and obtaining such
relief. Collectively, these commenters suggested that the IFR's
streamlined penalty process, including its deadlines, should not apply
to these groups.
Response: The procedures established by the IFR are designed to
ensure efficiency in assessing civil penalties authorized by the INA,
while maintaining the due process protections required by law. See 90
FR 27451-53. The rule does not alter eligibility for immigration
benefits or relief available under other provisions of the INA,
including protection for victims of trafficking or domestic violence,
nor does it limit the Departments' existing discretion to consider
individual circumstances consistent with applicable statutes and
regulations. Moreover, ICE's guidance to immigration officers instructs
that aliens with approved (or in some cases tentatively approved)
applications for VAWA protections, T-visas, and U-visas for aliens who
are victims of human trafficking or certain crimes should not be issued
a civil fine. DHS also notes that nothing in this rule prevents
immigration officers from exercising discretion in individual cases to
not issue a civil monetary penalty if DHS is aware of such
circumstances.
Moreover, the Departments reject commenters arguments that the
IFR's procedures would have a singular impact on non-English speakers
or aliens who are unrepresented, low-income, or unfamiliar with the
law. First, the Departments note that all immigration documents issued
to aliens by DHS, and all orders, decisions, and notices issued by
EOIR--including written removal and voluntary departure orders--are in
English.\24\ Therefore, the Departments do not believe that civil
penalty decisions issued in English raise any inherent fairness
concerns for non-English speakers, as a reasonable recipient would be
on notice that further inquiry is required. See, e.g., Lopez v.
Garland, 990 F.3d 1000, 1003 (6th Cir. 2021) (recognizing that English
language notice typically satisfies due process because it alerts the
alien to make further inquiry and seek help with any language barrier);
see also Ojeda-Calderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013)
(citing Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999)) (explaining
due process does not require notices to be in a language the alien can
understand).
---------------------------------------------------------------------------
\24\ All EOIR forms are written in English with instructions for
select forms available in other languages. See EOIR, Forms & Fees
(last visited Oct. 6, 2026), <a href="https://www.justice.gov/eoir/eoir-forms">https://www.justice.gov/eoir/eoir-forms</a>
[<a href="https://perma.cc/G5PY-WDY">https://perma.cc/G5PY-WDY</a>]; USCIS, All Forms (last visited May 29,
2026), <a href="https://www.uscis.gov/forms/all-forms">https://www.uscis.gov/forms/all-forms</a> [<a href="https://perma.cc/J8A6-UASE">https://perma.cc/J8A6-UASE</a>]. Regulations require that all documents filed with the EOIR
Immigration Courts must also be in the English language or
accompanied by a certified English translation. See 8 CFR 1003.33,
1003.23(b)(1)(i). DHS regulations also contain English-language
requirements. E.g., 8 CFR 103.2(b)(3), 204.1(f)(2).
---------------------------------------------------------------------------
Second, the IFR's procedures provide all aliens with a fair
opportunity to contest civil penalties. The penalty decision itself
provides aliens with notice, in plain language about why the alien is
subject to a civil penalty, see 90 FR 27449, and the Departments
reiterate that Immigration Judges have already warned aliens subject to
the failure to depart penalties about the consequences of failing to
comply with removal and departure orders. See Section II of this
preamble. The penalty decision also explains, in plain language, what
an alien must do to contest the penalty. See 90 FR 27449. Indeed, the
penalty decision, DHS Form 281, Notice of Violation and Order, contains
a textbox that the alien can use to indicate that he or she is
contesting the penalty decision and to provide a brief statement of
reasons for the appeal. Moreover, the IFR simplifies regulatory
requirements to trigger an appeal compared to the former process at 8
CFR part 280 that applies when an alien responds to a NIF. See 8 CFR
280.12 (requiring written answers responding to civil penalties to be
filed under oath and in triplicate). Finally, under the IFR, an alien's
appeal suffices to trigger mandatory de novo supervisory review. See 8
CFR 281.1(e)(2). In these circumstances, the Departments disagree with
commenters' speculative concerns that the IFR's procedures unfairly
disadvantage non-English speakers and unrepresented aliens with limited
financial means. With regard to commenters' concerns about minors, DHS
notes that ICE guidance to immigration officers is that such penalties
should not be issued to minors without exceptions.
Comment: One commenter claimed that the IFR is particularly harmful
to aliens seeking asylum or protection at the border. The commenter
stated that, as a result of this IFR, these aliens will now be charged
a civil fine, which the commenter characterizes as an erosion of their
right to seek asylum, particularly when paired with other policies
limiting asylum at the border.
Response: This rule does not alter or limit any statutory or
regulatory right to apply for asylum or related protections under the
INA or the regulations implementing U.S. obligations under the CAT. It
does not create new grounds of inadmissibility, deportability, or
ineligibility for relief or protection, and
[[Page 65400]]
it does not authorize the imposition of penalties based solely on the
act of seeking asylum or protection. Rather, the IFR streamlines the
process for assessing statutorily authorized civil penalties against
aliens who violate immigration laws by entering the United States
unlawfully, irrespective of their purpose for doing so. The statute
does not create an exception for those who enter the United States
unlawfully for the purpose of seeking asylum or related protection.
Aliens who present themselves at a port of entry to seek asylum or
other related protection are not subject to civil penalties under this
rule.
3. Discrimination and Value-Based Considerations
Comment: Several commenters characterized the IFR as inconsistent
with U.S. values and traditions, describing the IFR as ``un-American,''
``unjust,'' and ``contrary to national values.'' One commenter
characterized the IFR as designed to ``punish'' people trying to
navigate the ``labyrinthian immigration system.'' One commenter
suggested that the IFR was promulgated for a pretextual political
purpose rather than a legitimate administrative one. The commenter
argued that the IFR punishes aliens rather than deterring violations
and improving compliance with removal obligations or upholding
statutory requirements. Commenters generally suggested that the
Administration should pursue policies that focus on humane and fair
immigration policies, rather than punitive ones.
Response: The Departments categorically reject commenters'
characterization of this rule as inhumane, ``un-American,'' ``unjust,''
or ``contrary to national values.'' The United States is a nation of
immigrants and a nation of laws. DHS is charged with administering and
enforcing those laws, but the number of illegal aliens in the United
States who are subject to final removal orders has outpaced DHS's
enforcement resources. See 90 FR 27445; see also Section II of this
preamble. Further, EOIR statistics indicate that there are over 3.4
million pending Immigration Court proceedings as of the third quarter
of FY 2026.\25\ When completed, these cases may result in a substantial
number of additional removal orders against aliens, and without
additional action there is a risk that many of these aliens may remain
in the United States unlawfully. Further, although this Administration
has made great strides to secure the southern border, DHS is committed
to maintaining operational control of the border to ensure that DHS has
sufficient resources to address the public safety and national security
threats that arise constantly at the border.\26\
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\25\ See EOIR Workload & Adjudication Statistics, Pending Cases,
New Cases, and Total Completions (July 31, 2026), <a href="https://www.justice.gov/eoir/media/1344791/dl?inline">https://www.justice.gov/eoir/media/1344791/dl?inline</a> [<a href="https://perma.cc/B2AW-2QYD">https://perma.cc/B2AW-2QYD</a>]. EOIR statistics reported 3,469, 569 pending cases as of FY
2026 (Third Quarter). The term ``pending cases'' includes all
uncompleted cases in removal, deportation, exclusion, asylum-only,
and withholding-only proceedings.
\26\ See Finding of Mass Influx, 90 FR 45396 (Sept. 22, 2025)
(explaining the impact on DHS resources and the public safety and
national security concerns that result when there is an influx of
aliens arriving at the border and entering or attempting to enter
illegally).
---------------------------------------------------------------------------
The Departments believe that these circumstances warrant additional
action consistent with this Administration's direction to use all
available statutory immigration enforcement tools including civil
penalties. See 90 FR 27445-46 and Section II of this preamble; see also
90 FR 8444-45. Congress has authorized DHS to apply these penalties
against aliens who are entering or attempting to enter the United
States unlawfully and against aliens who have failed to comply with
removal and departure orders. See 90 FR 27439-41. The enforcement of
these statutory penalties is a legitimate and integral component of
ensuring compliance with the Nation's immigration laws and maintaining
the integrity of the immigration system. See 90 FR 27444-46. Indeed,
the IFR is achieving this objective, as DHS has issued over 176,000
civil penalties under the IFR (compared to approximately 12,000
penalties issued under 8 CFR part 280). These penalties have encouraged
greater compliance with removal and voluntary departure orders as
evidenced by the nearly 82,000 aliens with removal orders and voluntary
departure orders who have self-departed the United States after DHS
began issuing civil penalties in March 2025, and the nearly 7,200
aliens who self-departed from the United States after receiving notice
of a civil penalty issued under the IFR.\27\
---------------------------------------------------------------------------
\27\ See Office of Homeland Security Statistics analysis of
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case
Outcomes (Oct. 7, 2026).
---------------------------------------------------------------------------
Similarly, the Departments reject the claim that this rule is
intended to dehumanize or punish people navigating the immigration
system. DHS notes that these penalties generally are not imposed until
after the aliens have completed immigration proceedings and received a
determination that they are not authorized to remain in the United
States. The IFR did not create new categories of violative conduct or
expand the scope of existing penalties. Instead, it updated the
procedural framework that applies to these statutorily authorized
penalties to ensure that DHS can assess them efficiently against aliens
who have failed to comply with the Nation's immigration laws. This
framework allows DHS to avoid unnecessarily diverting resources from
ICE's and CBP's missions to apprehend, detain, and remove aliens who
have illegally entered and are unlawfully present. See 90 FR 27447. DHS
remains committed to administering these authorities in a manner
consistent with principles of due process, other statutory and
regulatory requirements, and the Nation's longstanding values of
fairness and respect for the rule of law.
Comment: One commenter claimed that the IFR is discriminatory
because its streamlined penalty process applies only to aliens, while
the Departments' regulations continue to provide additional procedural
protections to companies that violate the immigration laws when they
are faced with a fine. The commenter characterized the IFR as saying
that the Departments cannot provide aliens with the same due process
protections that they can afford companies like airline carriers
because of the large number of fines that ICE has issued against
aliens. The commenter claimed that this is a crisis of DHS's own making
rather than a rational reason for distinguishing between aliens and
companies when designing civil penalty procedures. The commenter
further argues that the IFR is discriminatory because other regulations
require the Departments to consider mitigating circumstances when
imposing penalties on employers and companies that violate immigration
laws, but the IFR does not afford aliens the same treatment or allow
them to seek mitigation.
Response: The Departments disagree with the commenter's assertion
that the IFR is discriminatory because it establishes a streamlined
penalty process for aliens but not for carriers. The IFR is not
intended to favor carriers over aliens. It addresses an immediate
enforcement need: deterring large numbers of aliens from entering the
United States unlawfully and encouraging compliance with removal and
departure orders.
As an initial matter, the Departments note that aliens and carriers
are not similarly situated under the INA. Aliens are the direct
subjects of removal and departure orders and are personally responsible
for complying with those
[[Page 65401]]
orders, if not removed by ICE. They receive an opportunity for a full
and fair hearing during section 240 removal proceedings, including an
opportunity to contest removability and seek relief.\28\ When an alien
fails to comply with a removal or departure order after such
proceedings, that violation directly undermines the orderly
administration of the immigration system and the integrity of the
immigration laws. By contrast, carriers are regulated third parties
that frequently transport passengers, including aliens, into the United
States, but are not directly responsible for an alien's independent
decision to violate the Nation's immigration laws. Rather, their
obligations are tailored to their role as carriers, arising from
statutory and regulatory requirements to verify the travel documents of
passengers seeking to travel to the United States, such as those in INA
273(a), 8 U.S.C. 1323(a). Noncompliance by carriers is addressed
through a separate statutory provision, INA 273, 8 U.S.C. 1323, through
a long-standing regime of inspections, penalties, and cooperative
compliance measures with CBP tailored to entities engaged in
international transportation.
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\28\ As noted in the IFR, under the INA, certain aliens can also
be ordered removed by DHS with limited or no review by EOIR. See 90
FR 27740, n. 3 (discussing removal process outside of section 240
removal proceedings including expedited removal under INA 235(b)(1),
8 U.S.C. 1225(b)(1), reinstatement of a prior removal order under
INA 241(a)(5), 8 U.S.C. 1231(a)(5), and administrative removal
orders for certain non-permanent residents aliens who are aggravated
felons under INA 238(b), 8 U.S.C. 1228(b)). As the IFR explained,
however, aliens ordered removed through these processes generally
must be detained, which reduces the likelihood of the alien's
failure to depart. Id. Therefore, while applicable to all
administratively final removal orders, the failure to depart civil
monetary penalties are most relevant to aliens ordered removed
through section 240 removal proceedings. Id.
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The IFR focused on streamlining the process for collection of
penalties against aliens because DHS identified an urgent need to
increase the scale of such penalties and facilitate more timely
processing, as well as to reduce incentives to unlawfully enter the
United States and to ignore removal and departure orders. 90 FR 27447-
48; see also Section II of this preamble. The streamlined process is
intended to allow DHS to issue penalties more quickly and at a volume
necessary to promote compliance and deterrence. DHS did not identify a
comparable, immediate need to revise the penalty process for carrier
violations. 90 FR 27447.
For years, CBP has assessed civil monetary penalties against
carriers for violations of their obligations under the immigration laws
\29\ and has routinely worked with carriers to improve compliance.\30\
Carriers that operate regular transportation services into the United
States already have strong incentives to verify passengers' travel
documents to avoid substantial and repeated fines, as well as the costs
of securing and returning inadmissible passengers.\31\ These incentives
are further reinforced by CBP programs and arrangements with carriers
designed to strengthen document screening and compliance, including
CBP's voluntary document validation program and memoranda of
understanding under which civil penalties may be reduced if carriers
submit to CBP review of their screening processes and demonstrate
successful screening procedures, as described in INA section 273, 8
U.S.C. 1323 violations.\32\
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\29\ As discussed in the IFR, between October 1, 2022, and May
5, 2025, CBP initiated 1,428 carrier fines. 90 FR 27447; see also
Advanced Passenger Information System: Electronic Validation of
Travel Documents, 88 FR 7016, 7027 (Feb. 2, 2023) (noting that ``the
average number of penalties issued annually between 2015 and 2019
was 415 and explaining that the number of civil penalties for the
years 2020-2022 was affected by the COVID-19 global pandemic
consistent with a decrease in arrivals).
\30\ For example, CBP's carrier liaison program enhances border
security by providing standardized training and assistance to
international air carriers related to admissibility and fraudulent
document detection. See CBP Carrier Liaison Program, <a href="https://www.help.cbp.gov/s/article/Article-1664?language=en_US">https://www.help.cbp.gov/s/article/Article-1664?language=en_US</a> [<a href="https://perma.cc/F3NW-MFU6">https://perma.cc/F3NW-MFU6</a>] (Nov. 4, 2025). Additionally, CBP has
established a process, first created by the legacy INS, for carriers
to enter into a Memorandum of Understanding with CBP that results in
automatic mitigation of carrier fines if the carrier agrees to
certain conditions and the carrier demonstrates successful screening
procedures by achieving satisfactory performance levels measured by
the number of violations under INA 273, 8 U.S.C. 1323. See
Mitigation of Carrier Fines for Transporting Aliens Without Proper
Documents; Modification of Memorandum of Understanding and
Recalculation of Performance Levels To Measure Carrier Performance;
CBP Dec. 09-06, 75 FR 7616 (Feb. 22, 2010).
\31\ See INA 273(c)-(e), 8 U.S.C. 1323(c)-(e). See also Advanced
Passenger Information System: Electronic Validation of Travel
Documents, 88 FR 7016, 7027 (Feb. 2, 2023) (noting that the cost of
a penalty under INA 273, 8 U.S.C. 1323, and the cost of securing and
transporting the passenger out of the United States, which amounts
to about $10,000 for a single passenger).
\32\ See, e.g., 88 FR 7018, 7026 (discussing CBP's voluntary
Document Validation Program, which allows CBP to vet travel document
information submitted by carriers for passengers on international
flights arriving in the United States prior to departure, and noting
that, as a result of carrier participating in the program, 67
percent of commercial air passengers were covered by document
validation as of FY 2021); see also CBP Dec. 09-06, 75 FR 7616 (Feb.
22, 2010).
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As explained in the IFR, carrier fines also raise distinct
considerations, including different grounds for violations and issues
related to statutorily authorized mitigation procedures, that are not
present for the alien-focused civil penalties covered by this rule. See
90 FR 27447-48. These factors can in some cases make carrier penalty
processes more complex and less suitable for the streamlined procedures
adopted in the IFR. In addition, the existing regulations in 8 CFR part
280 were designed initially for carrier fines, not for the alien-
focused civil penalties covered by this rule. See 90 FR 27440-41; see
also National Fines Office, 54 FR 18648 (May 2, 1989) (describing 8 CFR
part 280 procedures as applying to ``violations of the [INA] by
transportation companies''). The Departments concluded that addressing
these carrier-specific issues in the IFR could have delayed action on
the more pressing need to streamline penalties for aliens.
Quite simply, the IFR leaves the existing penalty framework for
carriers intact while addressing a separate enforcement challenge
related to aliens who unlawfully enter or remain in the United States
in violation of the immigration laws. The Departments agree that it
remains important to ensure that carriers comply with their obligations
under immigration laws and that CBP can administer carrier penalties
efficiently and effectively. Focusing this rulemaking on alien
penalties does not preclude future consideration of whether changes to
carrier penalty procedures may be warranted. The decision to address
alien penalties first reflects prioritization based on pressing
enforcement needs, not discrimination against aliens in favor of
carriers. See Ctr. for Biological Diversity v. EPA, 722 F.3d 401, 409-
10 (D.C. Cir. 2013) (quoting City of Las Vegas v. Lujan, 891 F.2d 927,
935 (D.C. Cir. 1989) (agencies may address problems in stages and
``treat a problem partially'' or regulate ``in a piecemeal fashion.'').
The Departments therefore reject the claim that it is irrational or
discriminatory to focus this rule on civil penalties against aliens
without amending the procedures that apply to carriers.
For similar reasons, the Departments disagree with the commenter's
claim that the need for streamlined procedures is a ``problem of DHS's
own making,'' which, according to the commenter, was created by DHS's
decision to issue large numbers of penalties against aliens. The
Departments acknowledge that ICE rarely issued such fines prior to this
Administration. As explained in the IFR, however, the Departments have
determined that DHS must now use these penalties more robustly in light
of the significant number of aliens who
[[Page 65402]]
have violated removal and departure orders and have unlawfully entered
the country in recent years. 90 FR 27446-47. The increased use of
penalties is intended to deter continued violations of the immigration
laws and is consistent with this Administration's enforcement policies.
Simply put, the IFR addresses the widespread failure by certain aliens
to comply with the immigration laws and with removal or departure
orders. The streamlined procedures in the IFR reflect a legitimate and
rational interest in promoting timely and efficient enforcement against
aliens who violate these laws. Congress provided these penalties and
related authority in the INA; this rule merely modifies DHS's
administration of collecting those penalties to implement that existing
statutory authority more efficiently.
Finally, the streamlined procedures preserve the essential elements
of due process for aliens. Aliens subject to these penalties continue
to receive notice of the proposed penalty and an opportunity to seek
review. Agencies may design procedures that take account of enforcement
realities and deterrent effect, provided that the procedures preserve
the core protections of meaningful notice and opportunity for a
hearing. This rule maintains those protections while allowing DHS to
more effectively enforce existing statutory penalties.
The Departments also disagree with the commenter's claims that the
IFR discriminates against aliens in favor of companies because the IFR
does not allow aliens to seek mitigation of civil penalties. The
commenter's assertion overlooks that Congress established distinct
statutory frameworks governing civil penalties imposed on employers and
carriers, on the one hand, and the civil penalties at issue in this
rule, on the other.
First, the commenter's reference to certain mitigating
considerations for employer-related penalties under INA 274A, 8 U.S.C.
1324a, is misplaced. Congress has explicitly directed EOIR
Administrative Law Judges (``ALJs'') to consider the ``mitigating''
factors cited by the commenter when imposing a civil penalty against an
employer under INA 274A, 8 U.S.C. 1324a. See INA 274A(e)(5), 8 U.S.C.
1324a(e)(5). By contrast, the INA civil penalty provisions underlying
this rule contain no comparable statutory requirement to consider
mitigating factors. Compare INA 274A(e)(5), 8 U.S.C. 1324a(e)(5), with
INA 240B(d)(1)(A), 274D(a)(1), and 275(b)(1), 8 U.S.C. 1229c(d)(1)(A),
1324d(a)(1), 1325(b)(1). The differing procedures therefore reflect
differences Congress itself intended in these statutory schemes, not
disparate treatment by the Departments, and the rule properly
implements the procedures authorized for these distinct violations.
Second, the Departments disagree with the commenter's statement
that ``an [alien's] right to seek mitigation'' has been curtailed under
the IFR. The prior penalty process at 8 CFR part 280 did not provide
all aliens subject to the civil penalties covered by this rule with a
right to seek mitigation. Rather, 8 CFR 280.5 clarifies that an
individual subject to a civil penalty covered by 8 CFR part 280 may
only seek mitigation if it ``is authorized by the [INA].'' By statute,
only certain individuals and entities subject to civil penalties
covered by 8 CFR 280 are eligible to seek mitigation. For example, INA
273(e), 8 U.S.C. 1323(e), directs DHS to reduce, refund, or waive
certain carrier penalties upon a showing of circumstances that would
justify reduction, refund, or waiver. However, for the reasons
discussed more fully in Section III.D.7 of this preamble, the INA does
not authorize aliens to seek mitigation of the failure to depart and
unlawful entry civil penalties. Accordingly, the Departments disagree
that the aliens had a right to seek mitigation under 8 CFR part 280 and
that this IFR denies them that right. For this reason, the Departments
also disagree with the commenter that the IFR is facially
discriminatory because it does not allow aliens to seek mitigation but
preserves companies and corporations' ability to do so. Rather, the IFR
merely implements Congress's choice. It is Congress, not the
Departments, that has authorized carriers, companies, and employers to
seek mitigation of certain immigration-related civil penalties, while
not extending the same opportunity to aliens.
C. Justification and Need for the Rule
1. Nature of the Civil Fines
Comment: Several commenters took issue with the IFR's claim that
the straightforward and readily verifiable nature of the failure to
depart penalties supports the Departments' decision to streamline the
underlying penalty process. 90 FR 27441-46. Commenters claimed that DHS
has erroneously issued many civil fines over the past year under the
prior penalty process, including to aliens with temporary or permanent
immigration status and with an approved visa petition and related
waiver request. A commenter also claimed that DHS has issued fines to
aliens with pending motions seeking to reopen or rescind removal
orders. One commenter claimed that their client received a NIF that
incorrectly stated a voluntary departure order had been issued several
years prior to the date of actual issuance. Another alleged that, based
on their clients' experiences, DHS frequently does not use or seek out
the relevant information to determine whether aliens are willfully
evading a removal order, thus frequently making incorrect assessments
of such civil monetary penalties. One commenter stated that DHS appears
to be issuing these fines in bulk through an automated system, often
based on incomplete or inaccurate records and without considering
aliens' individual circumstances. Collectively, these commenters argued
that the number of alleged errors seen in these fines contradict the
IFR's assertion that these penalties are straightforward and readily
verifiable and raise concerns that the number of errors will be even
higher under the IFR's streamlined process.
Response: Civil penalties are issued based on the facts of an
alien's case; an alien who chooses to appeal to DHS may present
evidence relevant to their specific circumstances. Prior to issuing a
failure to depart civil penalty, immigration officers verify there are
no applications or actions pending litigation--including appeals,
motions, and petitions for review (``PFRs'')--that would affect the
finality of a removal order or allow the alien to lawfully remain in
the United States. In the jurisdictions in which the filing of a PFR
results in an automatic stay of removal, ICE generally will not issue
the civil fine until there are no legal impediments to removal.
Additionally, when calculating a fine under INA 274D, 8 U.S.C. 1324d,
immigration officers account for any periods after the removal order
became administratively final during which the alien was authorized to
remain in the United States due to, for example, a stay of removal
issued by EOIR, DHS, or a federal circuit court of appeals.
DHS rejects the claim that it is issuing these penalties in bulk
through ``an automated system'' without a human verifying that there is
a final executable removal order, and there are no legal impediments to
removal. DHS further notes that aliens assessed a failure to depart
civil penalty may raise on appeal any issues that purportedly affect
the finality of the removal order, dates of issuance, or the alien's
willfulness in failing to depart.
Finally, ICE acknowledges that, in some limited number of cases, it
mistakenly issued penalties under the pre-IFR procedures in 8 CFR part
280.
[[Page 65403]]
However, ICE does not agree that the risk of such errors will increase
under the more streamlined IFR procedures that this rule finalizes. The
IFR was designed to simplify and speed up the process of issuing and
finalizing ICE civil penalty decisions. It does not change ICE's
process for deciding in the first place whether an alien is subject to
a civil penalty. Moreover, as discussed above in Section II of this
preamble, aliens have appealed civil penalties under both the pre-IFR
and post-IFR procedures, albeit to different agencies, and have
succeeded in having penalties set aside when issued in error at similar
rates under both procedures. For these reasons, DHS continues to
believe that the IFR provides aliens with sufficient opportunity to
challenge a penalty they believe was issued in error and to have those
penalties rescinded. The commenters' examples of errors in a limited
number of individual cases under the pre-IFR process do not, on their
face, call into question the adequacy of the IFR's process for error-
correction. See Mathews v. Eldridge, 424 U.S. 319, 344 (1976) (finding
that ``procedural due process rules are shaped by the risk of error
inherent in the truth-finding process as applied to the generality of
cases.'').
2. Compliance With Removal Orders
Comment: One commenter disagreed with the IFR's premise that
increased use of civil penalties will deter immigration violations.
Another commenter disagreed that the IFR would encourage individuals to
comply with removal and departure orders through self-departure. The
commenter stated that the IFR fails to account for the practical
realities faced by many aliens who are unable to depart the United
States, including aliens who cannot obtain travel documents because of
the lack of U.S. consular relations with their home government and
those who face dangers returning over land. According to the commenter,
fining aliens who genuinely cannot depart is unjust and inconsistent
with encouraging compliance with removal orders.
Response: The Departments disagree with commenters' claims that
this rule will not encourage compliance with removal and departure
orders through self-departure. In fact, since March 26, 2025, when DHS
began issuing civil penalties, over 82,000 aliens with removal orders
or voluntary departure orders have self-departed. DHS's ability to
impose statutorily authorized civil penalties swiftly and in proportion
to the large number of aliens with removal and departure orders is a
critical part of DHS's efforts to encourage such aliens to depart the
United States. Indeed, the IFR is achieving this objective, as DHS has
issued approximately 176,000 fines under the IFR (compared to
approximately 12,100 fines issued under 8 CFR part 280). These fines
have encouraged greater compliance with removal and voluntary departure
orders as evidenced by the over 7,700 illegal aliens who self-departed
from the United States after receiving notice of a civil fine issued
under the IFR. Moreover, DHS believes that these civil penalties are
likely having a broader effect on encouraging compliance with removal
orders as indicated by the total number of aliens with removal or
voluntary departure orders who have self-departed the United States
since DHS began issuing these penalties.
DHS disagrees that it failed to consider that certain aliens may
face impediments to departing the United States, including aliens who
cannot obtain travel documents through U.S. consular relations with
their country of citizenship or nationality. When an alien remains in
DHS custody, immigration officers help them obtain and complete the
necessary paperwork, including assisting where possible with consulate
interaction.\33\ When an alien has been released on supervision, the
alien must sign ICE Form 220B, attesting that he or she will assist DHS
in obtaining necessary travel documents in the event that a final order
of removal is issued.
---------------------------------------------------------------------------
\33\ ICE notes that aliens in this situation could be subject to
a range of options, including further detention, orders of
supervision, removal to a third country, or in some cases, parole.
These options do not grant the alien status in the United States and
aliens remain subject to their final order of removal. 8 CFR 241.13.
---------------------------------------------------------------------------
DHS notes that aliens subject to a final order of removal who fail
to timely depart the United States will be subject to civil penalties.
Evidence that an alien has made a good faith attempt to obtain travel
documents needed to timely depart is held by only aliens and DHS is not
privy to this evidence until an alien presents it to DHS. During the
appellate process, the alien or counsel may present evidence of the
alien's inability to obtain travel documents due to no fault of his or
her own. DHS officers retain the discretion to rescind civil penalties
depending on the circumstances, such as a good-faith attempt to obtain
travel documents. In addition, an alien need not depart to their
country of citizenship or nationality; they need only depart the United
States.
Moreover, as directed by the President, DHS has removed many
impediments to an alien's ability to self-depart the United States. See
90 FR 8443. For example, DHS in partnership with the State Department
is offering aliens free flights and providing travel document
assistance to any non-criminal alien who uses the CBP Home app to
indicate their intent to depart whether to their home country or a
third country other than the United States. See DHS Press Release, DHS
Announces Historic Travel Assistance and Stipend for Voluntary Self-
Deportation (May 5, 2025), <a href="https://dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation">https://dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation</a> [<a href="https://perma.cc/8ST2-RHHP">https://perma.cc/8ST2-RHHP</a>]. Indeed, DHS data indicates
that over 104,000 aliens have voluntarily departed the United States
through this program since the IFR took effect on June 27, 2025 through
September 14, 2026.\34\
---------------------------------------------------------------------------
\34\ See Office of Homeland Security Statistics analysis of
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case
Outcomes (Oct. 7, 2026).
---------------------------------------------------------------------------
Comment: Another commenter explained that pressuring aliens to
depart the United States to avoid civil fines undermines their existing
rights and forecloses eligibility for immigration relief. One commenter
said that leaving during removal proceedings can result in the loss of
the statutory right to a fair hearing before an Immigration Judge.
These commenters argued that departing interrupts the continuous
presence requirement for cancellation of removal, thereby depriving
qualifying aliens of this form of relief. Similarly, a commenter stated
that departing terminates an alien's pending application for adjustment
of status, impacting eligibility for lawful permanent resident status.
Commenters also noted that departure can trigger statutory re-entry
bars, creating barriers to lawful return and future immigration
benefits. In this regard, one commenter characterized the IFR's goal of
incentivizing aliens to self-depart as a ``legal trap'' that deprives
aliens of due process and access to immigration benefits while barring
their reentry.
Response: The Departments acknowledge that an illegal alien's
departure from the United States can trigger various immigration
consequences. However, the Departments disagree with the claim that
this rule, which uses civil penalties and the CBP Home application to
encourage aliens to leave the United States, unfairly denies them
access to Immigration Court proceedings or immigration relief. Rather,
the penalties covered by this rule primarily apply to
[[Page 65404]]
aliens who have already gone through Immigration Court proceedings,
which have resulted in an order of removal or grant of voluntary
departure, and have failed to depart as required after the conclusion
of such proceedings. Thus, commenter concerns about the implications of
an alien's departure on the outcome of removal proceedings are
unfounded. Relatedly, concerns about impacts to continuous physical
presence are equally unfounded. The alien would stop accruing
continuous physical presence, at the latest, on the date that they were
served with the Notice to Appear to implement the removal proceedings
that resulted in a final order of removal or grant of voluntary
departure, not the date that they departed after being notified that
they are subject to civil fines and penalties. INA 240A, 8 U.S.C.
1229b(d)(1). Departures for reasons other than the imposition of civil
fines and penalties that may take place prior to the commencement of,
or during, an alien's removal proceedings are beyond the scope of this
rulemaking.
Moreover, aliens who are subject to removal orders or have failed
to comply with voluntary departure orders are generally not eligible
for, or face significant barriers to obtaining, the forms of relief
mentioned by commenters. Under INA 240B(d)(1)(B), 8 U.S.C.
1229(d)(1)(B), aliens who fail to comply with voluntary departure
orders are generally ineligible, for a period of 10 years to seek
cancellation of removal, adjustment of status, and other forms of
relief. Furthermore, aliens under removal orders generally must reopen
their removal proceedings to seek such immigration relief. However, the
BIA has held that reopening is generally not justified for relief based
on eligibility that arose after the removal order. See Matter of H-Y-Z-
, 28 I&N Dec. 156, 161 (BIA 2020) (``[E]quities that were acquired
while [an alien] remained illegally in the United States after being
ordered removed . . . generally do not . . . warrant discretionary
reopening''); see also Matter of Yauri, 25 I&N Dec. 103, 105 (BIA 2009)
(``[U]ntimely motions to reopen to pursue . . . adjustment of status .
. . will ordinarily be denied''). More broadly, aliens subject to final
executable removal orders do not have a right to remain in the United
States to apply for motions to reopen or potential immigration benefits
and, in many instances, they do not even have a right to remain to
pursue pending applications for immigration benefits or motions to
reopen.\35\ There may be limited circumstances where penalizable aliens
can obtain the relief that the commenters mention. The number of cases
in which an alien could obtain such relief in these circumstances is
small, and civil penalties do not actually prevent aliens from applying
for such relief. At most, it has an incidental deterrent impact on the
alien, which is justified by the policies that the rule promotes.
Therefore, the Departments disagree with commenters' claims that the
IFR's goal of encouraging self-departure impermissibly deprives an
alien of potential eligibility for immigration benefits or relief.
---------------------------------------------------------------------------
\35\ See, e.g. Dada v. Mukasey, 554 U.S. 1, 21 (2008)
(explaining that an alien subject to a removal order ``may be
removed by the DHS . . . even if the motion to reopen has yet to be
adjudicated''); Dada Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264
(7th Cir. 1985) (``Congress has not given deportable aliens a right
to the reopening of deportation proceedings.''); see also Riasati v.
I.N.S., 738 F.2d 1115, 1118 (10th Cir. 1984) (``[a] pending visa
application does not entitle an alien to a stay of deportation'')
(citations and quotations omitted). The Departments acknowledge that
certain aliens may be entitled to a stay of removal after filing for
certain immigration benefits or certain motions to reopen. See,
e.g., 8 CFR 214.205(g) (T-visas with a positive bona fide
determination); INA 240(c)(7)(C)(iv), 8 U.S.C. 1229a(c)(7)(C)(iv)
(VAWA self-petitioners); INA 240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C)
(motions to reopen an in-absentia order based on lack of notice). As
explained in Section III.E.2 of this preamble, DHS does not issue
civil fines in these circumstances.
---------------------------------------------------------------------------
For similar reasons, the Departments also disagree with the claim
that the IFR's goal of encouraging self-departure creates a ``legal
trap'' for aliens who may become subject to reentry bars if they leave
the United States. The Departments acknowledge that aliens who are
subject to final removal orders or have accrued unlawful presence may
be barred from re-admission to the United States for a certain number
of years after departing. INA 212(a)(9), 8 U.S.C. 1182(a)(9). However,
Congress did not intend for such consequences to excuse an illegal
alien's continued presence in the United States. Enactment of these
reentry bars plainly demonstrates that Congress intended immigration
violations to carry significant consequences and did not view the
possibility of future inadmissibility as a reason to excuse compliance
with departure obligations. Accordingly, it is important for the
Departments to faithfully carry out Congress's intent in a streamlined
manner within the bounds of the law.
Moreover, the Departments note that relief may be available to
certain aliens who are barred under these inadmissibility grounds if
they later have a valid basis to re-enter the United States. See INA
212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) (exception to re-entry
bar for certain aliens ordered removed who seek permission to re-
enter); see also INA 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (waiver
to unlawful presence bars for certain aliens).
Finally, to the extent that commenters are concerned about the
impact of the unlawful entry civil monetary penalties, the Departments
believe that concerns about aliens leaving the United States and
abandoning removal hearings or benefits applications to avoid these
specific penalties are speculative. The Departments do not believe that
it is reasonable to assume that such aliens would abandon viable claims
for relief or ongoing Immigration Court hearings given the more modest
amount of these penalties.\36\ See DHS, Press Release DHS Announces It
Will Forgive Failure to Depart Fines for Illegal Aliens who Self-Deport
Through the CBP Home App (June 9, 2025). Furthermore, Congress has made
clear that aliens who enter unlawfully are subject to such penalties
notwithstanding the initiation or pendency of removal proceedings. See
INA 275(b)(1), 8 U.S.C. 1325(b)(1).
---------------------------------------------------------------------------
\36\ Indeed, the Departments note that the fees for filing many
immigration benefits applications, including cancellation of removal
and adjustment of status, are higher than the civil penalty for
unlawful entry.
---------------------------------------------------------------------------
Comment: One commenter questioned DHS's reliance on the CBP Home
application as an available mechanism for compliance incentives. The
commenter asserted that the application is not broadly accessible to
all aliens subject to civil monetary penalties under the IFR but is
limited to aliens who entered at or between a port of entry, those who
arrived under a parole program, and those whose Temporary Protected
Status had been terminated. The commenter stated that the application
therefore excludes many aliens who could be fined under this rule and
does not provide meaningful relief from fines or available incentive
programs.
Response: All non-criminal aliens who schedule their self-departure
through the CBP Home App and depart will receive forgiveness of any
civil penalties issued by DHS for failing to depart the United States.
DHS has updated its website to reflect the full scope of the DHS
policy.\37\ Thus, the departure incentives announced by DHS are not
limited to the category of aliens identified by commenters, and DHS
encourages all aliens subject to removal
[[Page 65405]]
or departure orders to take advantage of this opportunity and receive
forgiveness for any civil penalty.
---------------------------------------------------------------------------
\37\ See, DHS Press Release, CBP HOME: Assistance to Voluntarily
Self-Deport, <a href="https://www.dhs.gov/cbphome">https://www.dhs.gov/cbphome</a> [<a href="https://perma.cc/PWQ2-W6ZJ">https://perma.cc/PWQ2-W6ZJ</a>] (Sept. 1, 2026).
---------------------------------------------------------------------------
Comment: Several commenters questioned the IFR's empirical basis
for the assertion that civil monetary penalties will deter immigration
violations and promote compliance with removal and departure orders.
One stated that the IFR lacks evidence-based support for this
justification and pointed to ICE's prior use of fines and subsequent
recission of that policy as demonstrating that these fines are
ineffective at achieving these purposes. One commenter stated that
previous rules understood this and resultingly did not enforce these
penalties, due to the cost of administering them far outweighing any
fines collected. Collectively, these commenters viewed the IFR as
lacking an empirical foundation, unlikely to alter behavior, and
ineffective in achieving its compliance and enforcement goals.
One commenter claimed that behavioral research on sanctions and
procedural justice shows that fines do not deter unlawful behavior or
encourage compliance with the law if the process for imposing them is
unfair. The commenter cited to a ``policy briefing'' \38\ discussing
research suggesting that people are more likely to comply with court
orders when they believe that the underlying process is respectful,
neutral, accessible, and provides an opportunity for them to
participate before a decision is rendered.
---------------------------------------------------------------------------
\38\ Emily Gold LaGratta, Criminal Justice Alliance, To Be Fair:
Procedural Fairness in Courts (Oct. 2014), <a href="https://justiceinnovation.org/publications/be-fair-procedural-fairness-courts">https://justiceinnovation.org/publications/be-fair-procedural-fairness-courts</a> [<a href="https://perma.cc/YL4F-UVU9">https://perma.cc/YL4F-UVU9</a>].
---------------------------------------------------------------------------
Response: The Departments disagree with the assertion that this
rule lacks an empirical basis or relies on unsupported assumptions
regarding deterrence. Congress has expressly authorized civil monetary
penalties for the violations addressed in this rule and has long
identified such penalties as a tool that may promote compliance with
these statutory obligations. See 90 FR 27439-40. The Departments' role
in this rulemaking is to ensure that DHS can efficiently utilize these
statutory penalties consistent with Congress's objective in enacting
them, not to reconsider the policy judgement underlying those statutory
authorities or to undertake a new empirical assessment of their
effectiveness. Moreover, as explained in Section I of this preamble,
the IFR is achieving its intended incentive and deterrence
objectives.\39\
---------------------------------------------------------------------------
\39\ See Office of Homeland Security Statistics analysis of
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case
Outcomes (Oct. 7, 2026).
---------------------------------------------------------------------------
As explained in the IFR, DHS does not believe that its prior
limited experience assessing these penalties in 2019 demonstrates that
these penalties are ineffective. When ICE rescinded the prior penalty
policy in 2021, there were only 26 active cases,\40\ which DHS
concluded was an insufficient sample size to judge the effectiveness of
these civil penalties. DHS explained its belief that these civil
penalties would be more effective at achieving their deterrence and
compliance objectives if applied quickly and at scale. In addition, the
IFR was designed to address many of those administrative challenges
that ICE faced when issuing civil penalties in 2019, by streamlining
the procedures for these civil monetary penalties, thereby reducing
operational burden and costs. Finally, the Departments noted that DHS's
decision to stop issuing civil penalties under the prior Administration
was based on that Administration's findings that there is no indication
that these penalties promoted compliance with the alien's departure
obligations. On January 20, 2025, President Trump directed DHS to focus
enforcement resources on carrying out final orders of removal and
enforcing laws related to illegal entry and unlawful presence. E.O.
14159 also directed DHS to assess and collect all fines and penalties
authorized by law. This rule is needed to help DHS meet these
directives. See 90 FR 27447-48.
---------------------------------------------------------------------------
\40\ See ICE Memorandum for Tae D. Johnson, Acting Dir., ICE,
from Corey A. Price, Acting Exec. Assoc. Dir., Enforcement and
Removal Operations, ICE, Re: Recission of Civil Penalties for
Failure to Depart (Aug. 6, 2021).
---------------------------------------------------------------------------
With respect to comments on sanctions and ``procedural justice,''
the Departments note that the rule preserves the core procedural
protections necessary to ensure fairness and meaningful participation,
including written notice of the proposed penalty, information about the
factual basis for it, an opportunity to present a written response with
supporting evidence, and independent supervisory review by an official
who was not involved in the initial determination. These protections
reflect the principles of neutrality, respect, accessibility, and
meaningful opportunity to be heard that the cited research suggests may
support voluntary compliance.
Finally, while commenters questioned whether civil penalties would
deter unlawful behavior, Congress has already determined that these
penalties may serve an enforcement and compliance function, and the
Departments' procedural refinements help ensure these penalties can be
administered efficiently and fairly in accordance with due process
principles required by law. In any event, the Departments believe that
DHS's robust use of these penalties is helping to achieve their
compliance function as demonstrated by the over 82,000 aliens with
removal and voluntary departure orders who self-departed after DHS
began issuing these penalties, and as demonstrated by the fact that
nearly 7,200 aliens self-departed after receiving a civil fine under
the IFR.\41\ Accordingly, the Departments conclude that the rule has a
sufficient basis.
---------------------------------------------------------------------------
\41\ See Office of Homeland Security Statistics analysis of
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case
Outcomes (Oct. 7, 2026).
---------------------------------------------------------------------------
3. Use of Government Resources
Comment: Commenters said that a large-scale penalty process will
waste government time and resources. One claimed that issuing fines on
a large scale would be an inefficient use of DHS resources because few
aliens will pay them. Commenters discussed several factors that make
collection improbable and administrative enforcement costly. They noted
that many aliens have limited financial resources to pay these fines
and the amounts are so high that aliens will not take them seriously.
One commenter also said that the IFR will only further confuse many
aliens as they do not understand the immigration system and many will
not pay if they will be deported anyway. Another commenter said that
sending a large number of fines to the Treasury Department for
collection is wasteful because DHS itself cannot verify that aliens
subject to these fines are actually in the United States, citing the
IFR's statement that DHS records do not always reliably indicate which
aliens actually remain in the United States after a removal or
departure order. Another commenter also pointed to DHS's prior
conclusion that the resources needed to impose these penalties
outweighed the potential collections from a transient alien population
that generally lacks the means to pay. Accordingly, commenters claimed
that DHS should not expend substantial time and resources pursuing
these penalties.
Response: The Departments do not agree that this rule's goal of
streamlining the civil penalty process is wasteful or an improper use
of Government
[[Page 65406]]
resources. As an initial matter, the IFR and this rule 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. This includes issuance of civil monetary penalties to
encourage aliens to comply with removal and voluntary departure orders
and to deter unlawful entries. The purpose of the rule is to streamline
the civil penalty process to ensure that DHS can use these statutorily
authorized penalties swiftly and at the scale needed to respond to the
large number of aliens who have entered the United States or remain
unlawfully. See 90 FR 27442; see also Section I of this preamble. Quite
simply, this rulemaking is intended to help ensure that DHS has a
workable process for issuing civil monetary penalties against aliens
who unlawfully entered or failed to depart the United States as part of
ICE's and CBP's missions to apprehend, detain, and remove aliens who
have illegally entered the United States and are unlawfully present.
More fundamentally, the Departments do not agree that civil
penalties are an ineffective solution to the problem that many aliens
remain in the United States in contravention of removal and departure
orders. To the contrary, Congress has authorized DHS to impose these
civil penalties on such aliens as a means to encourage them to comply
with removal and departure orders and to impose consequences on those
who fail to comply. 90 FR 27446. Indeed, DHS's use of these statutorily
authorized tools is working to achieve the objective as discussed above
in Section I of this preamble.
Similarly, the Departments disagree with one commenter's claims
that attempting to collect failure to depart penalties is wasteful
because DHS cannot verify that aliens issued fines remain in the United
States. As discussed in the IFR, DHS acknowledges that it does not
maintain comprehensive departure records for all aliens, particularly
for aliens who cross land borders, and, therefore, DHS may have issued
a certain number of penalties to aliens who have already departed. 90
FR 27445. ICE believes however, based on its experience, that it is
reasonable to assume that a large number of aliens with final removal
and departure orders remain in the United States.\42\ Id. Therefore,
consistent with the President's direction in section 8 of E.O. 14159,
90 FR 8444-45, DHS believes that the IFR's goal of quickly imposing
penalties to encourage compliance with removal and departure orders
justifies the resource expenditure, even if some number of penalties
are not collected because the alien departed.
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\42\ According to data in DHS's ENFORCE Alien Removal Module,
there are 1.9 million aliens with final executable orders of removal
out of a total of 2.1 million final orders of removal (last visited
Sep. 10, 2026).
---------------------------------------------------------------------------
Finally, the IFR fully explains why the Departments believe that
this rule is needed notwithstanding ICE's prior determination in 2021
that the resource burdens outweigh the amount that can be collected
from a transient population of aliens that lacks the means to pay. 90
FR 27446-47. In the IFR, DHS first noted that its limited experience
implementing these civil monetary penalties in prior years does not
demonstrate that these penalties are innately ineffective. 90 FR 27447.
Moreover, DHS explained that the IFR is intended to reduce potential
resource burdens that DHS previously experienced when issuing these
penalties by streamlining the underlying civil penalty process. Id.
Additionally, DHS noted that the collection of civil penalties was not
the only or even the primary goal; rather, DHS believes that maximizing
the use of these civil penalties will encourage illegal aliens who are
subject to them to voluntarily depart the United States. Id. As
discussed above, DHS's use of these civil penalties is achieving this
objective, and the use of the CBP Home app to self-deport is a cost-
effective means of achieving this objective.
Comment: At least one commenter suggested that pursuing fines on a
large scale would merely divert limited agency resources away from
higher priority enforcement objectives, such as apprehending aliens who
pose threats to public safety or national security. The commenter
concluded that the IFR's approach would ultimately increase costs for
the Departments without meaningfully advancing enforcement goals.
Similarly, one commenter claimed that the IFR would not promote public
safety but would have the opposite effect by heightening fear and
discouraging engagement with law enforcement amongst immigrant
communities. According to the commenter, imposing high civil fines on
aliens, including those without criminal histories, would lead to fewer
reports of crime, diminishing public safety for all. Another commenter
suggested that a more effective and resource-efficient approach would
be to focus enforcement on employers who hire unauthorized workers,
suggesting that such entities can be expected to understand and comply
with employment verification laws and will be better motivated by civil
penalties, or the threat of civil penalties, to follow those laws.
Response: The Departments disagree that implementing the civil
penalty process described in the IFR will divert resources away from
higher priority enforcement objectives or fail to advance statutory
enforcement goals. Congress has expressly authorized the imposition and
collection of civil penalties under INA 240B(d), 8 U.S.C. 1229c; INA
274D, 8 U.S.C. 1324d; and INA 275(b), 8 U.S.C. 1325. The Departments
therefore have a responsibility to maintain procedures that enable the
effective administration of these statutory authorities. Implementing a
clear, streamlined penalty process does not diminish the Departments'
ability to prioritize cases involving threats to public safety or
national security, including cases where the alien fails to depart or
illegally enters the United States. Rather, the IFR promotes
administrative efficiency by updating and consolidating procedural
steps.
Additionally, the concerns about the imposition of civil penalties
heightening fear and discouraging engagement with law enforcement by
the immigrant community is speculative. The commenter failed to provide
information or evidence to support the concern that civil penalties
will discourage aliens from reporting crime or engaging with law
enforcement. Even if there is a disincentive to report crime or engage
with law enforcement, the commenter failed to provide a basis to
conclude that these disincentives stem from making the process of
imposing civil penalties more efficient, rather than from the existence
of civil penalties or immigration enforcement more generally.
The Departments also disagree that the penalty process undermines
public safety by discouraging aliens from reporting crime or engaging
with law enforcement. The penalties addressed in the IFR apply only in
limited circumstances specified by statute and do not alter DHS's
longstanding policies and efforts aimed at encouraging victims,
witnesses, and other individuals to cooperate with law enforcement
regardless of immigration status. Nothing in the IFR changes
protections for victims of crime, humanitarian programs, or DHS's
ability to exercise discretion on a case-by-case basis. The
Departments, therefore, do not expect the procedural updates in the IFR
to meaningfully affect crime reporting or relationships between
immigrant communities and law enforcement.
[[Page 65407]]
The Departments further disagree that focusing enforcement
resources on employers who hire unauthorized workers would be a more
effective or statutorily appropriate approach. Employer sanctions and
worker-related civil penalties are governed by distinct provisions of
the INA, and the IFR did not amend or affect those frameworks. While
the Departments enforce employer compliance laws through separate
authorities, those efforts do not displace the need to implement civil
monetary penalties against aliens where Congress has authorized their
use and vested DHS with authority to enforce them. The IFR ensures
streamlined procedures for carrying out the statutory provisions for
civil monetary penalties applicable to aliens for failure to depart,
failure to voluntarily depart, and improper entry, while employer-
related enforcement continues under its own statutory framework.
For these reasons, the Departments conclude that the IFR's civil
penalty procedures are an appropriate use of agency resources. The
procedures promote efficient administration of existing statutory
penalty authorities to meet immigration enforcement priorities and
challenges.
D. Comments on Specific Provisions
1. Removal of Notice of Intent To Fine
Comment: Several commenters asserted that eliminating the notice of
intent to fine (NIF) erodes procedural protections by transforming what
was once a preliminary document signaling DHS's intent to issue a fine
into a final agency decision. Commenters stated that this change
reduces the time that aliens have to understand and respond to fines,
seek legal advice, and submit an appeal. Additionally, one commenter
suggested that eliminating the NIF process--which the commenter
characterizes as being designed to notify aliens of potential penalties
and allowing them to rectify the violation--is inconsistent with the
goal of incentivizing aliens to comply with removal and departure
orders.
Response: The Departments disagree with commenters'
characterization of the rule. Although the IFR eliminated the NIF
process for these penalties, it continues to require written notice of
penalties that identify the factual and legal basis for liability, see
8 CFR 281.1(c), and provides aliens with an opportunity to submit a
written response with supporting evidence before a final determination
is made, see 8 CFR 281.1(e). Indeed, the differences between the NIF
process prior to the IFR under 8 CFR part 280 and the process
established by the IFR under 8 CFR part 281 are less substantial than
commenters suggest. Under both regulations, if an alien fails to
respond to the NIF or the penalty decision, as applicable, the alien
will be liable for the penalty. See generally 90 FR 27449-54 (comparing
8 CFR 280 and 8 CFR 281). The only difference is that, under the part
280 process, a supervisory officer must convert a NIF into a final
unappealable decision; under the IFR, the penalty decision
automatically becomes final if the alien does not appeal. Compare 8 CFR
280.13(a)(2), with 8 CFR 281.1(f)(3). Under both regulations, an alien
who timely appeals a penalty decision is entitled to additional process
before a final decision is issued. Compare 8 CFR 280.13(b), with 8 CFR
281.1(e). Therefore, the IFR merely converts the prior two-stage NIF
process under 8 CFR part 280 into a single process that eliminates
duplicate administrative steps and paperwork if an alien does not
appeal, but the fundamental safeguards of notice and an opportunity to
be heard remain unchanged. Id.
The Departments acknowledge that the IFR reduces the amount of time
that an alien has to contest a penalty and to submit supporting
evidence compared to the NIF process. Prior to the IFR an alien
generally was required to answer a NIF within 30 calendar days and
could submit supporting evidence at an in-person hearing, if requested.
8 CFR 280.12. Under the IFR, an alien must file an appeal postmarked
within 15 business days of the date of service of the civil penalty
decision and the alien is generally required to submit all evidence in
support of the appeal at the time of filing. 8 CFR 281.1(e)(1).
However, as explained in the IFR and in response to related comments in
this preamble, the Departments believe that shortening the timeline for
appeals and evidentiary submissions is appropriate for the failure to
depart and unlawful entry penalties due to the straightforward and
readily determinable nature of these penalties.
Moreover, the Departments note that in some respects the IFR
simplified the process for aliens to contest civil penalties compared
to the procedures under 8 CFR part 280. An alien may trigger an appeal
under the 8 CFR 281.1 process by simply filing a notice of written
appeal indicating that the alien is contesting the penalty. Indeed, DHS
uses the Form 281, Notice of Violation and Order, which includes a
field for aliens to use to appeal a penalty. The alien may, but is not
required to, submit written argument or documentary evidence contesting
the penalty. Id. In contrast, under the NIF process, the alien must
provide a written defense, in duplicate, under oath setting forth the
reasons why a fine should not be imposed. See 8 CFR 280.12.
In addition, this final rule amends 8 CFR 281.1(e) to permit aliens
to file an appeal that is postmarked after the 15-business-day deadline
where the alien asserts, and ICE determines after considering on a
case-by-case basis all the evidence presented with the appeal, that
there was a mail delay in receiving the immigration officer's decision
and order issued under 8 CFR 281.1(c)(1). Additionally, to help ensure
timely processing and avoid administrative delays by postal carriers on
the backend, DHS encourages aliens to obtain contemporaneous, time-
stamped evidence of deposit of their mailed appeal directly from the
U.S. Postal Service (``USPS'') or their chosen commercial carrier
because merely depositing an appeal in a standard mail collection box
does not guarantee an immediate postmark or proof of the date of
dispatch. This amendment, which provides an exception to the 15-
business-day deadline to appeal, addresses commenters' concerns
relating to the reduced time for aliens to submit an appeal under 8 CFR
part 281. Even assuming that the IFR's streamlined process makes it
more challenging for aliens to appeal and submit supporting evidence in
some cases, the Departments believe that this risk is outweighed by
DHS's strong interest in the revised civil penalty process as discussed
further in the IFR and this preamble.
Finally, regarding one commenter's claim that eliminating the NIF
is inconsistent with the IFR's goal of incentivizing compliance with
removal and departure orders, the Departments note that the IFR was
designed to achieve several goals. As explained in the IFR preamble,
one goal of this rule was to ensure that DHS has a workable process for
issuing civil penalties against aliens without diverting resources away
from ICE's and CBP's missions to apprehend, detain, and remove illegal
aliens. 90 FR 27447; see also Section I of this preamble. Eliminating
the NIF serves this goal by removing a duplicative step (i.e., the
requirement to issue a separate final decision) in cases where an alien
does not appeal the civil penalty decision. The Departments note that
aliens continue to have an avenue to rectify any fines resulting from
these immigration violations. As the IFR explains, DHS will rescind
outstanding civil penalties in cases where a qualifying alien uses the
CBP Home app
[[Page 65408]]
to depart the United States. See 90 FR 27444.
Comment: One commenter claimed that eliminating the preliminary NIF
makes notice and the opportunity to be heard occur only after DHS
imposes a civil monetary penalty, violating due process. Citing Mathews
v. Eldridge, 424 U.S. 319 (1976), the commenter argues that similar to
how the government must give a disability benefits recipient notice and
an opportunity to submit information prior to terminating benefits, DHS
must give aliens notice of the fine and an opportunity to challenge the
accuracy of DHS's information and its conclusions before DHS imposes
the fine. The commenter contends that the IFR violates due process
because aliens are given no opportunity to submit information or
contest the penalty prior to the final decision.
Response: The Departments disagree with the commenter's
characterization of the IFR. The IFR provides aliens with notice and an
opportunity to contest civil penalties before they become final. As
explained in the IFR, a decision imposing a civil monetary penalty
becomes final only if the alien does not timely file an appeal, not at
the time of issuance of the civil penalty.\43\ See 8 CFR 281.1(f)(3);
see also 90 FR 27450. If the alien timely appeals, the initial penalty
decision will remain inoperative during the pendency of the appeal. 8
CFR 281.1(e)(1), (f)(3). At the end of the appeal process, and after
considering any arguments and evidence submitted by the alien, a
supervisory immigration officer who did not issue the initial penalty
decision issues a final decision in writing affirming the initial
penalty decision or withdrawing the decision and serves it on the
alien. See 8 CFR 281.1(e). Therefore, contrary to the commenter's
claim, the IFR provides an alien with both notice and an opportunity to
challenge the penalty decision prior to the alien becoming liable for
the penalty, in accordance with the pre-deprivation process upheld in
Mathews v. Eldridge. 424 U.S. at 319.
---------------------------------------------------------------------------
\43\ As a practical matter, the same is true of the NIF process;
if an alien does not timely answer the NIF, DHS may issue a final
decision imposing the penalty which the alien cannot appeal. See 8
CFR 280.13(a)(2).
---------------------------------------------------------------------------
Comment: Citing 5 U.S.C. 554(b), a commenter claimed that
``eliminating the NIF also violates the [Administrative Procedure Act]
because there is no notice of the matters of fact and law asserted,
including what constitutes willfulness under these circumstances, and
what factors are relevant to defenses or challenges to the penalty.''
More broadly, the commenter claims that the removal of the NIF violates
``a foundational principle of administrative law: meaningful notice
must precede the imposition of civil penalties to satisfy due process
requirements.'' The commenter notes that federal statutes, including
immigration statutes, consistently underscore the importance of notice
in administrative proceedings, and discusses 8 U.S.C. 1182(n)(2)(C),
which governs the civil penalty process for employers who violate
certain labor conditions under the H1-B visa program as an example.
Response: As an initial matter, the Departments note that, although
the IFR eliminates the NIF process for these penalties, it continues to
require DHS to issue a written notice that sufficiently identifies the
basis for liability and provides aliens with an opportunity to contest
such penalties before they become final. Under 8 CFR 281.1(c)(1), the
initial penalty decision must include the statutory basis for the
penalty, the amount and type of the penalty being imposed, and a brief
statement of the reasons for the decision. DHS implements this
requirement through Form 281, Notice of Violation and Order, which
provides aliens with all of the required information, including
information about the date that the alien became subject to a final
removal or departure order or when the alien was apprehended entering
the United States unlawfully. For the failure to depart penalties under
section 274D(a)(1) of the INA, 8 U.S.C. 1324d(a)(1), the Form 281 also
identifies the particular violation--e.g., willful failure or refusal
to depart pursuant to a removal order; willful failure or refusal to
make timely application in good faith for travel documents; willful
failure or refusal to present for removal as required by DHS.
This information ensures that aliens understand the basis for the
penalty and have the requisite information in the event they seek to
challenge it. See 90 FR 27449. Indeed, DHS notes that the NIF process
does not require DHS to provide the alien with any additional
information about the basis for a civil penalty beyond what the IFR and
this rule require. See 8 CFR 280.1, 280.11. Moreover, as discussed in
response to the comment immediately above, under the IFR an alien
retains an opportunity to challenge a civil penalty decision issued
pursuant to the IFR before it becomes final. Therefore, the Departments
disagree that by eliminating the NIF this rule violates any
``principles of administrative law'' related to notice in the civil
penalty context.
The Departments also note that the IFR's procedures are not subject
to the requirements in 5 U.S.C. 554(a) because they are not
adjudications ``required by statute to be determined on the record
after opportunity for an agency hearing.'' Moreover, unlike the H1-B
civil penalty statute cited by the commenter, the civil penalty
statutes relevant to this rule do not specify the procedures that DHS
must follow to impose these penalties. 90 FR 27448. As discussed in the
IFR, Congress has set forth detailed procedures that the Government
must follow when imposing certain immigration-related civil penalties,
but Congress's omission of similar procedures for the penalties covered
by this rule indicates that Congress intended to give DHS discretion to
employ procedures that DHS reasonably believes are appropriate for such
penalties. See id.; see also Vt. Yankee Nuclear Power Corp., 435 U.S.
at 543 (concluding that ``[a]bsent constitutional constraints or
extremely compelling circumstances the administrative agencies should
be free to fashion their own rules of procedure and to pursue methods
of inquiry capable of permitting them to discharge their multitudinous
duties'') (cleaned up). For the reasons discussed further in the IFR
and throughout this preamble, the Departments believe that the IFR's
streamlined process, including the removal of the NIF, is reasonable
and appropriate for these penalties given their typically
straightforward nature and DHS's need to ensure that it has an
efficient process for issuing these penalties more quickly and at scale
to deter unlawful entries and to encourage compliance with removal and
departure orders, while also providing aliens with sufficient notice of
the basis for the penalty decision and opportunity to contest it before
it becomes final.
2. Notice of Grounds for the Penalty
Comment: Commenters objected to adequacy of the notice of the
grounds for issuing the civil monetary penalties. One commenter said
that the IFR's requirement that DHS must include a ``brief statement of
the reasons'' for imposing a penalty is inconsistent with DHS's burden
of proving by ``clear and convincing, and unequivocal evidence'' that
an alien is liable. Commenters suggested that aliens cannot defend
against fines without additional information or explanation in the
penalty decision. One commenter said that the IFR violates the
Administrative Procedure Act (``APA''), citing 5 U.S.C. 556, and due
process principles requiring notice to reasonably apprise parties of
the action and provide an
[[Page 65409]]
opportunity to present objections, because DHS is not required to
provide a complete record supporting the penalty.
Response: The Departments disagree that the penalty decision
contains insufficient information for an alien to understand the basis
for the penalty or to challenge it or that the IFR deprives aliens of
their due process notice and hearing rights through lack of a record.
There is no such requirement in statute for a hearing to be on the
record in the civil penalties context or any indication that Congress
intended the APA's procedures governing adjudications to apply.
Therefore, DHS was not required to adopt the adjudication procedures in
5 U.S.C. 554 and the follow-on procedures in 5 U.S.C. 556 that apply to
adjudications governed by 5 U.S.C. 554. Regardless, new section 8 CFR
281.1(e)(3) provides the materials that compose the record supporting a
particular civil penalty.
As an initial matter, DHS reiterates that the legal and factual
predicates for these penalties are relatively straightforward and
readily determinable based on information within DHS's and the alien's
possession. 90 FR 27442; see also Section II of this preamble. For
example, the INA authorizes DHS to impose a civil monetary penalty for
failure to depart if two conditions are met: (1) the alien was granted
voluntary departure or is subject to a final executable order of
removal; and (2) the alien voluntarily failed to depart in the allotted
time set forth in the voluntary departure order or willfully failed to
depart under a final removal order. See INA 240B(d)(1), 274D(a)(1)(A),
8 U.S.C. 1229c(d)(1), 1324d(a)(1)(A).\44\ The penalty decision provides
aliens with sufficient information as to each of these elements.
---------------------------------------------------------------------------
\44\ The Departments focus on the failure to depart penalties
consistent with the scope of commenters' concerns. To the extent
that commenters are raising similar concerns about the unlawful
entry penalties, commenters' concerns are addressed in Section
III.E.2 of this preamble.
---------------------------------------------------------------------------
With respect to the first element (the removal or departure order),
the civil penalty decision, i.e., DHS Form 281, Notice of Violation and
Order, explicitly lists whether the alien is being fined on the basis
of a voluntary departure order or a removal order, and it provides the
date that such an order was issued. DHS does not agree with commenters
that DHS can only prove the existence of a removal or voluntary
departure order by attaching the order to the penalty decision. The
information contained in the penalty decision reflects that the
immigration officer issuing the penalty has reviewed relevant DHS
records and the alien's immigration files as required by ICE guidance
and has determined based on those records that the alien is subject to
a final executable removal order or voluntary departure order. See 90
FR 27442-43; see also Section I of this preamble. To the extent that an
alien believes that DHS records are mistaken, the alien can appeal the
penalty decision and provide documentary evidence needed to dispute the
decision. DHS assumes that aliens retain important documents, including
legal documents demonstrating, for example, that the alien has been
granted a stay of removal or has a pending appeal, or other documents
reflecting that the alien is not subject to a final executable removal
or departure order. Commenters have provided only speculative reasons
to believe otherwise. Moreover, under the IFR's process, if an alien
requests a copy of the relevant documents in connection with an appeal,
the IFR requires DHS to provide such documents. 8 CFR 281.1(e)(3).
Commenters have not provided any concrete evidence demonstrating that
requiring DHS to provide a copy of the alien's removal or voluntary
departure order would allow aliens to more effectively challenge a
penalty decision. Indeed, ICE notes that the prior process under 8 CFR
part 280 did not require DHS to provide a copy of an alien's removal or
voluntary departure order when issuing a NIF and the DHS sees no reason
for requiring it now. See 8 CFR 280.11.
With respect to the second (willfulness or voluntariness) element,
the penalty decision lists whether the alien is being issued a civil
penalty for willfully failing or refusing to depart the United States,
or for instead, voluntarily failing to comply with a voluntary
departure order. DHS does not believe that any additional information
is required. As the Departments explained in the IFR and in Section II
of this preamble, statutory and regulatory requirements impose a duty
on Immigration Judges to inform aliens of their obligation to depart
and of the consequences of failing to do so, including that they could
be liable for civil penalties. See 90 FR 27440-41. Absent contrary
evidence, the presumption of regularity satisfies DHS's burden to
demonstrate that an Immigration Judge provided notice of these
obligations and consequences, see U.S. Postal Serv. v. Gregory, 534
U.S. 1, 10 (2001), and an alien's failure to comply with the order
after receiving notice of the consequences satisfies DHS's burden to
demonstrate that the alien is liable for the penalty. See Section I of
this preamble. To the extent that an alien contests the voluntary or
willful nature of his or her failure to depart due to circumstances
beyond the alien's control (e.g., hospitalization, incarceration,
inability to obtain travel documents, lack of notice of a removal or
voluntary departure order), the Departments note that the alien, not
DHS, is in the best position to produce such evidence and may do so
during the available appeals process before DHS. See Zenith Elec. Corp.
v. United States, 988 F.2d 1573, 1583 (Fed. Cir. 1993) (``The burden of
production should belong to the party in possession of the necessary
information.'').
For these reasons, the Departments conclude that the information
provided in the penalty decision is facially consistent with DHS's
burden of proof to demonstrate an alien's liability for a civil penalty
covered by this rule. Commenters argue that DHS must meet the ``clear
and convincing evidence standard'' described in Woodby v. INS, 385 U.S.
276, 277 (1964). However, this standard applies to the burden of proof
for deportable aliens in removal proceedings, not in the civil
penalties' context. See 8 CFR 1240.8(a). Even assuming that DHS must
meet the same ``clear and convincing evidence standard'' here, any
challenge that DHS did not meet its burden of proof must be raised by
an alien during the appeal process and based on the facts in his or her
individual case.
Finally, with respect to commenters' claim that the IFR violates 5
U.S.C. 556 because it does not require DHS to provide a complete record
supporting the penalty, DHS notes that 5 U.S.C. 556 applies only to
hearings required by 5 U.S.C. 553 or 554. To the extent that the
commenter is suggesting that civil penalty ``adjudications'' fall
within the ambit of 5 U.S.C. 554(a) and therefore require DHS to follow
the procedures in both 5 U.S.C. 554 and 556, DHS disagrees. There is no
requirement in statute for a hearing to be on the record in the civil
penalties context, let alone to comply with the procedures in 5 U.S.C.
554 and the follow-on procedures under 5 U.S.C. 556 that also apply to
adjudications governed by 5 U.S.C. 554. See Marathon Oil Co. v. E.P.A.,
564 F.2d 1253, 1263 (9th Cir. 1977) (stating that ``[t]he failure of
Congress to provide for any hearing whatsoever within an administrative
process may well be a valid indication that Congress either did not
feel that it was providing for an ` ``adjudication'' ' in the
traditional sense of the word or did not intend the APA procedures to
apply''); see also City of West Chicago, Ill. v. NCR, 701 F.2d 632,
[[Page 65410]]
641 (7th Cir. 1983) (``Congress must clearly indicate its intent to
trigger the formal on-the-record hearing provisions of the APA.'').
Regardless, 8 CFR 281.1(e)(3) provides the materials that compose the
record supporting a particular civil penalty and as explained in
response to other comments in this preamble, the IFR's other procedures
satisfy due process.
Comment: One commenter claimed that the IFR should require DHS to
attach a copy of the underlying voluntary departure order when imposing
a fine for failure to depart under INA 240B(d), 8 U.S.C. 1229b(d). The
commenter also states that many voluntary departure orders do not
comply with INA 240B(d)(3), 8 U.S.C. 1229c(d)(3), which, according to
the commenter, requires orders to include written warnings about
potential fines for failure to depart. Accordingly, the commenter
suggests that DHS can only meet its burden of proof to impose a fine if
DHS provides a copy of the order containing the required warning.
Response: As an initial matter, the Departments disagree that
Immigration Judges and the BIA regularly do not provide statutorily
required civil monetary penalty warnings when granting voluntary
departure. Absent information to the contrary, the presumption of
regularity applies as both Immigration Judges and the BIA are legally
required to provide these warnings. See Gregory, 534 U.S. at 10; 8 CFR
1240.26(k)(3). The commenter's general assertion--in ``many'' cases
Immigration Judges and the BIA do not comply with this obligation--
without any factual basis is speculative and insufficient to overcome
the presumption of regularity. To the extent an alien's voluntary
departure order does not contain the required warning, the alien can
file a timely appeal of the penalty decision and submit a copy of the
allegedly deficient order. Moreover, for the reasons discussed in the
IFR and in the comment response above, the Departments believe that,
given the straightforward nature of these penalties, the penalty
decision provides sufficient notice to the alien of the basis for the
penalty and how to contest it. See also 90 FR 27443-44, 27452.
3. Service by First Class Mail
Comment: Several commenters claimed that the change in service of
process raises due process concerns. One commenter observed that the
rule permits DHS to unilaterally send fines by ordinary mail despite
previously issuing NIFs by personal service or certified mail. Another
commenter states that previous rules required that communications be
sent by certified mail or served in person, guaranteeing receipt, and
that the IFR removing this provision to instead allow service by
ordinary mail will dramatically increase the likelihood that intended
recipients will not receive information about their fine, miss their
appeal window, and unknowingly accrue large amounts in civil monetary
penalties. Another commenter suggests that these risks are amplified in
this context given the highly transient nature of the population
subject to these fines. One commenter explained that service by regular
mail will not reasonably apprise aliens of the fine because regular
mail makes it significantly less likely that the alien will receive the
decision in a timely manner if at all. This commenter also points out
that in the removal proceedings context in which DHS uses service by
regular mail a significant amount of the information provided in
mailings is also available online unlike in this civil penalty context.
They state that here, in this context, aliens have no other way to
access the information or be on notice that they have penalties brought
against them. They also note that this is particularly an issue for
those who have been fined incorrectly and explain that since the
beginning of 2025 they have heard from permanent residents who have
been in the United States for decades and would have no reason to
believe there are pending proceedings against them who received NIFs.
Other commenters also raised that authorizing service by regular mail
increases the likelihood of delay or non-receipt, one noting that
regular mail cannot be tracked.
Another commenter claimed that the IFR fails to explain how
ordinary mail saves money and staff time compared to personal service
or certified mail. The commenter also noted that the IFR does not
explain why ICE cannot use personal service for aliens with removal
orders because, as the IFR notes, these aliens are required to attend
in-person check-ins with ICE.
Response: The Departments disagree that permitting service of civil
monetary penalty determinations by regular mail raises due process
concerns or fails to provide constitutionally adequate notice. Due
process does not require use of any particular method of service or
guarantee of actual receipt. Rather, it requires that the chosen method
be ``reasonably calculated, under all the circumstances,'' to inform
interested parties of the action and to permit them an opportunity to
respond. Mullane, 339 U.S. at 314 (stating that notice under due
process must be of a sufficient nature as to reasonably convey the
required information). Service by regular mail has long been recognized
as a constitutionally sufficient method of notice in civil,
administrative, and immigration contexts, including in removal
proceedings, and other DHS communications. See e.g., Gardner v. City of
Columbus, Ohio, 841 F.2d 1272, 1279 (6th Cir. 1988) (recognizing that
service by regular mail satisfied due process notice requirements,
while among other factors, noting government's observation that service
by certified mail would be more costly); Urbina-Osejo v. INS, 124 F.3d
1314, 1317 (9th Cir.1997) (stating that ``notice of a deportation
hearing sent by regular mail to the last address provided by the alien
to the INS satisfies the requirements of constitutional due process'');
Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995) (holding that notice sent
by regular mail is presumed sufficient if it is properly addressed and
mailed according to established procedures and that the presumption of
delivery may be rebutted with evidence of non-receipt). The IFR adopted
this established practice.
Penalty determinations are sent to the address the alien has
provided to DHS or that otherwise appears on file. As the IFR explains,
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.
In general, aliens in the United States are under specific statutory
and regulatory obligations to register their presence, see INA 261-264,
8 U.S.C. 1301-1304; 8 CFR part 264, and to keep the U.S. Government
apprised of their current address while in the country, see INA 265, 8
U.S.C. 1305; 8 CFR 265.1. Most aliens subject to the monetary penalties
covered by this rule are warned of their address obligations upon
initiation of section 240 removal proceedings, 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. Additionally, DHS provides convenient and reliable ways for
aliens to update their addresses including through online portals, and
immigration officers have access to current address data maintained in
DHS and EOIR databases.
Although some commenters expressed concern that personal service or
certified mail had previously been used for NIFs, the governing
statutory provisions do not require the use of those methods for civil
monetary penalty notices, and neither do due process principles impose
such a
[[Page 65411]]
requirement. INA 240B(d)(1)(A), 8 U.S.C. 1229c(d)(1)(A); INA
274D(a)(1), 8 U.S.C. 1324d(a)(1); & INA 275(b)(1), 8 U.S.C. 1325(b)(1).
See also Mullane, 339 U.S. at 314 (``Personal service has not in all
circumstances been regarded as indispensable to the process due to
residents, and it has more often been held unnecessary as to
nonresidents. We disturb none of the established rules on these
subjects.''); Dusenbery v. United States, 534 U.S. 161, 161-62 (2002)
(upholding notice sent by certified mail to a prison, even though
inmate claimed he never received it, demonstrating that due process
does not require proof of actual receipt, and explaining that Mennonite
Board of Missions v. Adams, 462 U.S. 791, 797 n.3 (1983) did ``not say
that the State must provide actual notice, but that it must attempt to
provide actual notice'') (emphasis in original).\45\ Furthermore, even
a Notice to Appear (NTA), which initiates section 240 removal
proceedings and thus carries greater legal consequences, may be served
by regular mail. INA 239(a)(1), 8 U.S.C. 1229(a)(1). Although the
statute previously required certified mail, Congress removed that
requirement in IIRIRA, expressly permitting service by other forms of
mail. See INA 239(a)(1)-(2), as amended by IIRIRA, Public Law 104-208,
div. C, tit. III, 304(a)(3), 308(b)(6), 110 Stat. 3009-546, 3009-587-
88, 3009-615. The INA now provides that service by mail ``shall be
sufficient if there is proof of attempted delivery to the last address
provided by the alien.'' INA 239(c), 8 U.S.C. 1229(c). By contrast, the
INA is silent as to the method of service for civil monetary penalties
under INA 240B(d), 274D(a), 275(b), 8 U.S.C. 1229c(d), 1324d(a),
1325(b). Accordingly, this final rule will allow DHS to use routine
service, including regular mail which in turn will lessen DHS's
administrative burdens, such as the time and resources needed for
personal service and the additional costs and increased processing
times associated with certified mail. Routine service also provides an
alien appropriate notice of the imposition of a civil monetary penalty.
---------------------------------------------------------------------------
\45\ The agency acknowledges that in Jones v. Flowers, 547 U.S.
220 at 232 (2006), the Supreme Court held that a person's failure to
comply with a statutory address update requirement does not forfeit
the right to constitutionally sufficient notice, and that additional
reasonable steps may be required before the government takes certain
actions. The Court emphasized, however, that due process adequacy
requires balancing the government's interests against the individual
interests at stake. Id. at 229. For the reasons discussed in the
IFR, the Departments believe that the Supreme Court's decision is
distinguishable. See 90 FR 27452 n.44.
---------------------------------------------------------------------------
The Departments also disagree that service by regular mail
increases the likelihood that aliens will unknowingly accrue penalties
or be deprived of an opportunity to appeal. First, the rule's
procedures are reasonably designed to prevent aliens from unknowingly
accruing civil monetary penalties. Under INA 262, 8 U.S.C. 1302, most
aliens present in the United States for 30 days or more are required to
apply for registration and fingerprinting. As a result, most aliens are
subject to the address update requirement in INA 265, 8 U.S.C. 1305.
Moreover, most aliens subject to the penalties addressed in this rule
are specifically advised of these obligations upon initiation of
section 240 removal proceedings. INA 239(a)(1)(F), 8 U.S.C.
1229(a)(1)(F). DHS provides convenient and reliable ways for aliens to
update their addresses, including use of online portals, and
immigration officers have access to current address data maintained in
DHS and EOIR databases. 90 FR 27452.
Against that backdrop and as noted in the IFR, the Supreme Court
has recognized that service by regular mail may, in some circumstances,
provide better notice than certified mail or other methods. Jones, 547
U.S. at 234-35. This rule adopts that approach. 90 FR 27453. Based on
ICE's experience, service by ordinary mail is often more likely to
reach aliens, including those who may be attempting to evade detection
or who have moved without updating their address. Id. Such aliens, or
members of their household, may be less likely to answer the door for
personal service or to accept certified mail, whereas regular mail is
delivered directly to their mailbox. Id. Even when an alien has moved,
regular mail may still result in the current occupant forwarding
address information or otherwise alerting the intended recipient. Id.
(citing Jones, 547 U.S. at 235). Moreover, the rule does not mandate
use of regular mail in all cases. DHS retains discretion to use other
methods of service where appropriate. 90 FR 27453 (citing 8 CFR
281.1(d)). Accordingly, DHS reasonably believes that notices sent to
the most recent address provided by the alien satisfy due process
requirements.
Secondly, the rule includes sufficient procedural protections that
mitigate the effects of any variation in mail delivery times and afford
a meaningful opportunity for appeal. Consistent with 8 CFR 281.1(e), an
alien shall file a written notice of appeal with the Department
postmarked within 15 business days of the date of service of the
decision. Although service of the immigration officer's decision is
complete upon mailing, the rule mitigates the effects of variability in
mail delivery times at the appeal stage by defining timeliness based on
the postmark date of the appeal rather than the date of receipt. As
explained in the IFR, ``DHS will calculate the timeliness of an appeal
based on the date that the alien's appeal is postmarked.'' 90 FR 27450
(citing 8 CFR 281.1(e)). Under this framework, an alien who mails an
appeal within the 15-business-day period is not penalized for postal
delays occurring after the appeal is sent. This approach allocates the
risk of mail delay at the filing stage to the Government and helps
ensure that ordinary variations in mail delivery do not result in
forfeiture of appeal rights.
Along with the notice of appeal, an alien may, but is not required
to, provide a written defense or documentary evidence, or both, setting
forth the reasons why a penalty should not be imposed. Id. After the
appeal is filed, a supervisory immigration officer who did not review
the initial decision and order must conduct a de novo review and may
request supplemental evidence or information, in which case aliens
receive an additional 15 days to provide supporting material. 90 FR
27450 (citing 8 CFR 281.1(e)(2)). The officer may, in their discretion,
call for additional briefing or written filings from the alien, and the
alien will have 15 days from the receipt of that request to provide the
information. Id. The officer will also provide the alien with copies of
pertinent documents and records relevant to the penalty, if the alien
requests, unless they are law enforcement sensitive, or disclosure is
prohibited by law. 90 FR 27450 (citing 8 CFR 281.1(e)(3)). Moreover, if
the alien files a notice of appeal, the initial civil penalty decision
will remain inoperative during the appeal. 90 FR 27450 (citing 8 CFR
281.1(e)(1)).
In addition, the Departments recognize that aliens may, in limited
circumstances, experience delayed or untimely delivery of notices
served by mail that is outside aliens' control. To address this concern
while preserving the integrity and administrability of the appeals
process, this rule provides a narrow, case-by-case mechanism for
accepting appeals filed after the 15-day filing period when the alien
demonstrates that the delay resulted from mail delivery issues. Under
the rule, an alien who files an appeal after the applicable deadline
and asserts that the delay was caused by untimely or delayed mail
delivery must submit a written explanation and any available
[[Page 65412]]
documentary evidence supporting that assertion. If, based on the
information submitted, ICE determines that the appeal was filed late
due to mail delay beyond the alien's control, ICE will accept the
appeal as timely filed and consider it on the merits. By requiring
aliens to affirmatively raise mail delay and provide supporting
evidence, the rule ensures that aliens are not prejudiced by mail
delivery delays beyond their control, while maintaining finality and
administrative efficiency.
The Departments acknowledge commenters' concerns that certain
populations may be more mobile or may have limited access to online
resources. However, DHS's service method here is identical to the
method used for numerous other immigration-related notices, including
those in removal proceedings where similar concerns may exist. Even if
mobile, aliens have a statutory duty to register their presence and
keep the U.S. Government apprised of their current address, and DHS has
a reasonable expectation that aliens will comply with such
requirements. INA 266, 8 U.S.C. 1306. While the information in penalty
notices is not available online like it is for removal proceedings
notices, the constitutionally relevant question is whether the method
of service is reasonably calculated to inform, not whether parallel
avenues for accessing the same information exist. See Mullane, 339 U.S.
at 315 (``The reasonableness and hence the constitutional validity of
any chosen method may be defended on the ground that it is in itself
reasonably certain to inform those affected.''). The penalty notice
itself contains the relevant information: the statutory basis for the
penalty, the factual allegations, the amount sought, and clear
instructions on how to appeal. See 8 CFR 281.1(c)(1); 90 FR 27449. Due
process does not require DHS to maintain a public online portal for
civil monetary penalty notices, nor does the lack of such a portal make
regular mail constitutionally insufficient. See Mullane, 339 U.S. at
315.
The Departments also disagree with commenters' suggestion that ICE
must use personal service for individuals who attend in-person check-
ins. Not all aliens subject to civil penalties are enrolled in programs
involving in-person reporting, and requiring personal service in every
case would impose significant operational burdens without materially
improving notice. Regular mail ensures efficient and consistent
delivery of notices for geographically dispersed aliens.
Finally, while one commenter questioned whether ordinary mail saves
time or resources, the IFR explains that allowing service by regular
mail promotes efficiency. As discussed in the IFR, personal delivery
often may require burdensome manual efforts to locate the alien. It may
further require the use of multiple DHS agents or officers to appear on
location to ensure officer safety, and multiple attempts at personal
service if not effectuated on the first attempt, thereby diverting
officers from their other duties. 90 FR 27444-45. Service by certified
mail involves preparation of individual mailings in each case,
including handwriting envelopes, which has proven to be costly and
resource intensive and would become even more so as DHS expands its use
of these civil penalties. Indeed, ICE estimates that the certified mail
requirement costs the agency $23.53 for each civil monetary penalty,
which includes certified mail fees, materials, and labor. 90 FR 27444.
Consequently, personal service or certified mail imposes higher costs
and increases processing times and is unnecessary to satisfy
constitutional or statutory notice requirements. See Mullane, 339 U.S.
at 306. The Departments also recognize commenters' concerns that some
individuals, including lawful permanent residents, may have reported
receiving penalty-related notices in error. The IFR's service
provisions do not increase the likelihood of incorrect notices.
Instead, the procedural framework contains safeguards and corrective
mechanisms, including written notice and a mandatory de novo
supervisory review over any appeal. The initial civil penalty decision
remains inoperative while a timely administrative appeal is pending.
This provides structured mechanisms to correct any errors promptly. Any
alien who believes a notice was issued in error may file a simple
written appeal explaining as much, triggering the supervisory review
process. These procedures ensure that aliens have meaningful
opportunities to contest errors.
Accordingly, the Departments conclude that service by regular mail,
coupled with the exception to the 15-business-day deadline to appeal
when ICE determines that there was a mail delay under 8 CFR
281.1(e)(2), is a reasonable, appropriate, and constitutionally
sufficient method of providing notice of civil monetary penalty
determinations under the INA, particularly given the IFR's procedural
safeguards that ensure aliens retain meaningful opportunity to contest
penalties. See Mathews v. Eldridge, 424 U.S. at 335.
4. 15-Day Appeal Deadline and Process
Comment: Commenters argued that a 15-business-day appeal deadline
will prevent aliens from being able to contest these civil fines.
Commenters listed several barriers they claim will prevent aliens from
meeting the appeal deadline. One commenter asserted that a significant
number of aliens that receive these fines speak a language other than
English, but the IFR lacks any language accommodation, creating a
barrier to responding within 15 days. Another commenter also noted that
some may struggle to understand fine-related communications not
delivered in their primary language. They noted that they expect this
to be a common occurrence given that DOJ's July 14, 2025, memorandum
regarding implementation of Executive Order 14224, Designating English
as the Official Language of the United States, 90 FR 11363 (Mar. 6,
2025), directed a reduction in multilingual services at federal
agencies. This commenter also asserted that a 15-day appeal period is
unrealistic and unfair because aliens will lack sufficient time to
understand the fines and their applicability and legal nuances and the
related processes and will be unfamiliar with the IFR's new provisions.
Another commenter stated that the 15-business-day period would make
obtaining legal representation difficult and expensive and asserted
that the IFR minimized the complexity of proving and imposing civil
penalties. Another commenter stated that the 15-business-day period
does not account for the time needed to access the necessary
information required to contest a penalty decision. They note that some
medical records are accessible online but that many health networks
cite a 7-to-14-business-day turn around to provide medical records and
that federal law requires medical records to be processed in 30 days.
They also explained that state and local incarceration, court records,
and travel documents are difficult to access and involve waiting times
in excess of 15 business days. The commenter also claimed that
obtaining travel documents takes significant time because many
countries' embassies are located in Washington, DC and require aliens
to appear in person. The commenter also noted that aliens whose
citizenship is not recognized by a country may have difficulty securing
an appointment.
Response: The Departments disagree that the 15-day deadline for
submitting an administrative appeal will prevent aliens from contesting
civil penalties. The revised process continues to provide aliens with
written notice of the
[[Page 65413]]
proposed penalty that identifies the factual and legal basis for the
determination and explains the steps to request the review. The
Departments also disagree that the lack of language accommodation in
the IFR, such as a requirement to translate penalty determinations and
appeal instructions into each respondent's native language, prevents
aliens from meeting the 15-day appeal deadline. As with other
immigration notices and charging documents, including NTAs, removal
orders, voluntary departure orders, and USCIS decision notices, civil
monetary determinations are issued in English, and neither the INA nor
the Constitution obligates DHS to translate such documents into every
alien's native language. See Ojeda-Calderon v. Holder, 726 F.3d 669,
675 (5th Cir. 2013) (citing Nazarova v. INS, 171 F.3d 478, 483 (7th
Cir. 1999) (explaining that due process does not require immigration
notices to be in a language the alien can understand). Civil penalty
decisions issued under this final rule will continue to include written
instructions explaining how to file an appeal. Aliens may also seek
assistance from legal representatives, community organizations, or
interpreters. Aliens may provide additional documentation if the
supervisory officer requests supplemental briefing during de novo
review. Accordingly, the Departments conclude that the English language
format of penalty notices is consistent with longstanding immigration
practice and constitutional requirements as well as DOJ's memorandum
implementing Executive Order 14224 by minimizing non-essential
multilingual services, redirecting resources toward English-language
education and assimilation, and ensuring compliance with legal
obligations through targeted measures where necessary. Memorandum for
all Federal Agencies, from Pamela Bondi, Attorney General, Re:
Implementation of Executive Order No. 14,224: Designating English as
the Official Language of the United States of America at 2, 7 (July 14,
2025) <a href="https://www.justice.gov/ag/media/1407776/dl">https://www.justice.gov/ag/media/1407776/dl</a>.
Aliens also remain free to seek legal representation at any point
in the process, including after filing the initial written appeal
request. Nothing in the IFR limits a respondent's ability to obtain
counsel or work with legal service providers. The IFR merely
standardizes the timeframe for the initial appeal filing while
preserving a meaningful opportunity, through mandatory de novo review
and a potential supplemental briefing period, to submit evidence or
legal argument. Considering these procedural safeguards, the
Departments conclude that the 15-day appeal period is a reasonable and
appropriate procedural requirement.
In addition, the IFR also only requires that the alien submit a
written appeal explaining the basis for contesting the civil penalty,
as the grounds on which an alien may contest a civil penalty are
limited and generally involve facts uniquely within the alien's
knowledge. As the IFR noted, aliens will ordinarily possess the
necessary information to contest these fines. 90 FR 27450. If an alien
submits an appeal with assertions that are unsupported by documentary
evidence because there was no time for the alien to obtain these
documents, then the supervisory immigration officer reviewing the
appeal can request the documents during the course of the appeal to
verify the validity of the alien's assertions. See 8 CFR 281.1(e)(3).
Additionally, the fact that it takes an alien longer than 15 days to
obtain travel documents is irrelevant because the fines are issued
after the time period aliens have been given to obtain travel documents
and depart has elapsed. The streamlined procedures are designed to
ensure timely resolution of cases and maintain the integrity of
enforcement actions. DHS believes the 15-day appeal period, coupled
with ICE's discretion to equitably toll the appeal deadline when ICE
determines that there was a mail delay under 8 CFR 281.1(e)(2), strikes
an appropriate balance between efficiency and fairness, providing
adequate opportunity for aliens to contest violations and demonstrate
lawful status or other circumstances that may preclude liability.
Comment: Commenters also expressed concern with the interaction
between the 15-day appeal deadline and the IFR's provisions allowing
DHS to serve fines by regular mail. One commenter pointed out that,
according to the U.S. Postal Service, ordinary mail takes 1-5 business
days to reach its destination. The commenter noted that this leaves an
alien with only 10 days to appeal a fine once received and, if sent in
advance of a weekend, an alien only has 8 days. Another commenter
reiterated that this 15-day appeal period is not enough time to
meaningfully respond and noted that other federal regulations governing
civil penalties include a 5-day mail presumption. They also stated they
``were aware of many people who have received notices that were dated
several days before they were mailed out.''
Response: The Departments disagree that the interaction between the
15-business-day appeal deadline and the IFR's service provisions
prevents aliens from having a meaningful opportunity to appeal. The
Departments recognize that aliens may, in limited circumstances,
experience delayed or untimely delivery of notices served by mail that
is outside the alien's control. To address this concern while
preserving the integrity and administrability of the appeals process,
this final rule amends 8 CFR 281.1(e) to provide a case-by-case
mechanism for accepting appeals filed after the 15-day filing period
when the alien demonstrates that the delay resulted from mail delivery
issues. Under the rule, an alien who files an appeal after the
applicable deadline and asserts that the delay was caused by untimely
or delayed mail delivery must submit a written explanation and any
available documentary evidence supporting that assertion. If, based on
the information submitted, ICE determines that the appeal was filed
late due to mail delay beyond the alien's control, ICE will accept the
appeal as timely filed and consider it on the merits. By requiring
aliens to affirmatively raise mail delay and provide supporting
evidence, the rule ensures that aliens are not prejudiced by mail
delivery delays beyond their control, while maintaining finality and
administrative efficiency. In addition, although one commenter merely
referenced anecdotal reports to assert some notices may have been
mailed after the date listed on the document, this new exception to the
15-day filing period will provide aliens more time file their appeal
for mail delays that occur while the notice is in transit and for
processing delays from the time date the notice is signed until it is
placed in the mail.
Moreover, due process principles require that notice be reasonably
calculated to inform the respondent of the action and provide a
meaningful opportunity to respond. See Mullane, 339 U.S. at 314. The
combination of written notice, the exception to the 15-business day
deadline to appeal when ICE determines that there was a mail delay
under 8 CFR 281.1(e)(2), mandatory de novo review, and a potential 15-
day period for supplemental briefing satisfies these constitutional
requirements and provides aliens with a realistic and fair opportunity
to contest civil fines. DHS believes that the nature of the failure to
depart and unlawful entry penalties typically turn on routine and
straightforward determinations of fact, meaning that an appeal period
greater than 15-days is unnecessary. In fact, there has been a higher
appeal rate of
[[Page 65414]]
civil penalties for failure to depart issued under 8 CFR part 281, as
compared to 8 CFR part 280, which suggests that aliens are able to
meaningfully file appeals within the shortened timeline. DHS believes
this is because of the straightforward factual issues associated with
these penalties. Additionally, the appeal process under 8 CFR part 281
discourages frivolous or non-meritorious appeals, focusing resources on
cases with substantive claims.
Comment: Commenters raised general due process and fairness
concerns with the 15-day appeal deadline and process. One commenter
asserted that shortening the appeal deadline from 30- to 15-days
eliminates a key due process safeguard. Commenters also claimed that
DHS's interest in reducing the appeal period to avoid a backlog of
penalties is outweighed by the alien's interest in having enough time
to meaningfully respond to these penalties, especially given the
amounts. One commenter stated that shortening the appeal period
increases the chance that an alien could face serious penalties without
even realizing what they are accused of. As an example, one commenter
claimed that many aliens, including those who were brought to the
United States as children, may not even be aware that they are subject
to a removal order. A commenter claimed that, in light of the many
barriers that aliens face responding to these penalties, the appeal
period
[…truncated; see source link]Indexed from Federal Register on October 14, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.