Imposition and Collection of Civil Penalties for Certain Immigration-Related Violations

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.

\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.

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

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.

\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), https://www.justice.gov/eoir/media/1344791/dl?inline [https://perma.cc/B2AW-2QYD].

\3\ See EOIR Workload & Adjudication Statistics, Pending Cases, New Cases, and Total Completions (July 24, 2026), https://www.justice.gov/eoir/media/1344791/dl?inline [https://perma.cc/B2AW-2QYD].

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.

\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).

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\

\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) https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation [https://perma.cc/8ST2-RHHP]; 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).

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

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.

\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).

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.

\10\ EOIR Workload & Adjudication Statistics, Pending Cases, New Cases, and Total Completions (July 24, 2026), https://www.justice.gov/eoir/media/1344791/dl?inline [https://perma.cc/B2AW-2QYD]; EOIR Workload & Adjudication Statistics, New Cases and Total Completion (July 24, 2026), https://www.justice.gov/eoir/media/1395636/dl?inline [https://perma.cc/49J5-JTWY].

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

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).

\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.

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), https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport [https://perma.cc/8RBN-PACA]. 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

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.

\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

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.