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

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

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

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,

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

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

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

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) https://www.justice.gov/ag/media/1407776/dl.

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

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 is “clearly designed” to prevent as many aliens from contesting these civil penalties as possible.

Response: The Departments disagree that the 15-day appeal deadline or the revised procedures deprive aliens of due process or create unfair barriers to contesting civil penalties. Due process requires that individuals receive notice reasonably calculated to inform them of the proposed action and a meaningful opportunity to be heard before a determination becomes final. The IFR preserves these core protections. Aliens continue to receive written notice setting out the factual and statutory basis for the penalty and providing clear instructions on how to appeal as explained in more detail in responses to comments about the appeal deadline in this Section, III.D., of the preamble.

Comment: Commenters also took issue with the lack of extensions for good cause. One commenter alleged that the lack of extensions for good cause further contributes to the erosion of procedural protections. Another commenter suggested that DHS should account for demonstrations of good faith compliance efforts.

Response: The Departments decline to modify the IFR to permit good cause extensions for late-filed appeals because the Departments do not believe that creating exceptions to the appeal deadline will meaningfully reduce the risk of error. See Bowen v. City of New York, 476 U.S. 467 (1986) (recognizing that agencies may impose deadlines for appeals, and that equitable tolling (exceptions) is only appropriate in exceptional circumstances and that routine or general exceptions are not required for due process). The Departments believe the risk of error is minimized through the robust procedures already in place, which ensure that aliens are provided with notice of the fine, an opportunity to appeal, and clear instructions on how to contest the penalty. The appeal process focuses on factual determinations, and aliens are best positioned to produce the necessary information to contest a fine within the established timeframe.

On the other hand, the Departments note that permitting good-cause extensions or excusing late filed appeals impedes DHS's ability to efficiently administer the penalty process as DHS expands its use of these penalties. DHS has a strong interest in ensuring that it can finalize penalty decisions quickly in response to the large number of aliens who have entered the United States unlawfully in recent years and the significant numbers of aliens who have failed to comply with removal and voluntary departure obligations. See 90 FR 27422-23; see also Section II of this preamble. It would be inconsistent with DHS's finality interests to allow late filed appeals. Such appeals would delay or impede DHS's ability to move forward with the collection process or would require DHS to re-open or pull back any final penalty decisions already transmitted for collection. Therefore, a strict appeal deadline allows DHS to have greater certainty in the finality of its penalty decisions and it allows DHS to more effectively achieve the IFR's objectives of incentivizing compliance with the immigration laws and imposing consequences on those who do not comply.

DHS acknowledges these finality concerns could, to some extent, be mitigated by imposing an outer deadline on late-filed appeals or by restricting the length of “good cause” extensions. The Departments decline to adopt this approach for several reasons. First, DHS believes that such an approach would undermine the Departments' goals regarding the 15-day appeal deadline. See 90 FR 27442-43. Allowing an alien to have a certain amount of time to file an untimely appeal would, as a practical matter, merely extend the appeal 15-day appeal deadline. As discussed in the IFR and in response to the other similar comments in this preamble, the Departments believe that a 15-day appeal period supports DHS's need to have an efficient and administrable process while also affording the alien meaningful appellate rights especially given the straightforward nature of these penalties. See 90 FR 27444- 45. For similar reasons, granting extensions would also unnecessarily delay the appeal process. The Departments believe that, in the vast majority of cases, aliens should have ready access to any information needed to contest these penalties and therefore do not need additional time to file an appeal. In these circumstances, allowing extensions would unnecessarily hinder DHS's ability to effectively administer the appeal process and impose civil penalties more swiftly and at scale to achieve the IFR's intended purposes.

Second, although adopting a “good cause” or “good faith” standard may reduce the number of aliens eligible to receive an extension or file an untimely appeal, these amorphous standards are likely to invite inconsistent practices among immigration officers and inconsistent results among similarly situated aliens. Although these standards are ubiquitous in law, they are hard to define, context specific, and often require a balancing of various legal issues. See Matter of L-A-B-R-, 27 I & N Dec. 405, 412 (A.G. 2018) (stating that “definitions of good cause tend to be nebulous and elusive” and noting that courts have “elaborated context-specific multifactor balancing tests, rather than bright-line rules”). The Departments believe that imposing an additional time-intensive burden on immigration officers to make such determinations would be inconsistent with the IFR's purpose of streamlining appeals for these straightforward penalties.

Comment: One commenter noted that a 15-day appeal period is much shorter than the timeframe that other agencies afford for other civil monetary penalties. The commenter cited several regulations that provide a 60-day appeal period governing civil monetary penalties for fraud, misrepresentations, and false claims in social security and health care benefits programs. The commenter claimed “[t]hese timelines reflect a broader regulatory recognition that individuals must be afforded adequate time to receive, review, and respond to significant legal determinations” which, according to the commenter, the IFR does not provide.

Response: The Departments disagree that the 15-day appeal period is

inadequate merely because other federal agencies afford longer timelines for contesting civil monetary penalties in unrelated statutory schemes. Appeal periods vary widely across federal programs,\46\ and the timelines cited by the commenter arise under distinct statutes with different penalty structures, evidentiary frameworks, and administrative adjudication procedures. The INA provisions for the straightforward civil penalties at issue here, INA 240B(d), 274D, and 275(b), 8 U.S.C. 1229c(d), 1324d, and 1325(b), do not prescribe any particular appeal period, and nothing in due process jurisprudence requires the Departments to align procedures with unrelated programs such as those governing Social Security, healthcare fraud, or false claims penalties. See Clev. Board of Educ. v. Loudermill, 470 U.S. 532 (1985) (reaffirming that the formality and procedural requisites for due process vary depending on the importance of the interests involved and the circumstances); see also Mathews, 242 U.S. at 319. The relevant question is whether the procedures established by this rule provide sufficient notice and a meaningful opportunity to be heard before the determination becomes final. The rule satisfies this standard. The appeal requires only a brief written request for review and allows for the submission of written supporting evidence or documentation. Additionally, as explained above, upon appeal, the supervisory immigration officer must conduct a de novo review of the record within 10 days and may request additional evidence or information, affording the respondent another 15 days to provide it.

\46\ For example, in February 2026, EOIR issued an IFR establishing a generally applicable 10-day deadline for filing an appeal from a decision of an Immigration Judge. Appellate Procedures for the Board of Immigration Appeals, 91 FR 5267 (Feb. 6, 2026) (partially vacated on procedural grounds by Amici Ctr. for Immigr. Rts. v. EOIR, 822 F. Supp. 3d 119, 168 (D.D.C. Mar. 8, 2026)). These processes were implemented within the context of the robust procedures afforded to the aliens before the Immigration Court prior to any administrative appeal, the availability of electronic filing, and the need for immediate efficiency reforms in light of the BIA's historic pending caseload. See 91 FR 5272. Moreover, those processes do not involve the imposition of monetary fines, or any other penalties, but rather involve legal determinations regarding an alien's removability from the United States. Further, even in other situations which do involve civil monetary penalties in an immigration context--i.e. those imposed under INA 274A and 274C, 8 U.S.C. 1324a and 1324c--the administrative appellate deadline is only 10 days. See 28 CFR 68.54(a).

Moreover, these penalties differ from the examples cited by the commenter. The penalties addressed in this IFR implement longstanding statutory requirements tied to an individual's immigration history and do not involve the complex evidentiary or program-eligibility determinations characteristic of Social Security or health-care fraud adjudications. These penalties are straightforward in nature and turn on routine and straightforward determinations of fact that can be decided quickly on a written record. The narrow factual bases for these penalties support the reasonableness of the 15-day appeal window, in which aliens can submit written evidence or documentation for de novo review.

Comment: Commenters also raised concerns with the appeal process itself. One commenter argued that the IFR allows the appellate reviewer to conduct factfinding in the first instance. The commenter argued that fact finding should be reserved for the initial decisionmaker. Another commenter stated that permitting supervisory immigration officers to call for additional evidence on a 15-day schedule but mandating a decision no later than 45 days after the alien appeals will force officers to choose between gathering critical information and meeting the 45-day deadline.

Response: The Departments disagree that the IFR impermissibly allows supervisory immigration officers to conduct fact finding in the first instance. The initial penalty determination is made by the enforcement officer based on the available evidence. The supervisory review stage is an internal appellate review designed to ensure accuracy and procedural fairness. Allowing the reviewing officer to request supplemental evidence and information does not convert the supervisory officer into a primary factfinder. Rather, it enables the reviewer to ensure that the existing record is complete, and that the respondent has had a full opportunity to present information relevant to the determination. Nothing in the IFR authorizes the supervisory immigration officer to engage in unrestricted factfinding. The officer's role is limited to reviewing the record and evaluating any supplemental evidence or information.

The Departments also disagree that the 45-day timeline for issuing a final decision places the supervisory immigration officer in an untenable position. The IFR provides a structured sequential process that ensures adequate time for both review and supplemental filing as needed. The officer conducts a de novo review of the record within 10 days of the appeal filing. If additional information is necessary for a fair and complete adjudication, the officer may request supplemental evidence or information, and the respondent then has 15 days from receipt of that request to submit materials. The supervisory officer then retains the remaining portion of the 45-day period to complete the review and issue a decision. This framework provides sufficient time for both the respondent's submission and the officer's analysis, while promoting timely resolution, an important consideration in administering statutory civil monetary penalty schemes.

The Departments note that the 45-day timeframe balances the government's interest in prompt resolution and administrative efficiency with the respondent's interest in a meaningful opportunity to supplement the record when necessary. The structured process ensures that respondents are heard, that determinations are made based on a complete record, and that decisions are issued in a timely manner.

Accordingly, the Departments conclude that the supervisory review process, including the ability to request supplemental evidence or information and the 45-day timeline for issuing a final decision, is appropriate and reasonable. 5. Removal of In-Person Hearings

Comment: Several commenters claimed that eliminating in person hearings will deprive aliens of due process protections that ensure their appeal is thoroughly presented and fully considered. Citing Mathews v. Eldridge, one commenter said in-person hearings are critical because they allow aliens to present oral evidence and clarify misunderstandings. Another commenter stated that eliminating in-person hearings means that DHS will only review written filings, briefs, and any documentary evidence submitted which, according to the commenter, deprives aliens from a meaningful opportunity to be heard. Another commenter alleged that the limited due process rights under the new process will contribute to an “extremely high” possibility for error.

Response: The Departments disagree that eliminating in-person hearings deprives respondents of due process protections or prevents their appeals from being fully and fairly considered. As an initial matter, as discussed above in Section I of this preamble, the Departments note that only four aliens requested an in-person interview of the 450 appeals and over 12,000 civil penalties under the pre-IFR process, indicating that aliens do not place much value on the need for in-person hearings to contest civil penalties. Moreover, under the Mathews balancing test, the

question is whether the procedures established by the IFR provide notice reasonably calculated to inform the alien of the action and a meaningful opportunity to be heard before a final decision is issued. The IFR satisfies both requirements. Aliens receive written notice detailing the factual basis and statutory grounds for the penalty and are afforded the opportunity to file an appeal with the option of including a written defense or documentary evidence. The initial appeal requires only a brief written request for review, and aliens may provide additional documentation if the supervisory immigration officer requests supplemental evidence or information. The supervisory officer must conduct a de novo review, ensuring that the respondent's written submissions and any relevant evidence are fully considered.

The Departments also disagree with commenters' assertions that in- person hearings are necessary to present oral evidence or clarify misunderstandings. Civil monetary penalties under INA 240B(d), 274D, and 275(b), 8 U.S.C. 1229c(d), 1324d, and 1325(b), turn on objective factual bases such as a prior removal order or a failure to comply with terms of voluntary departure that are typically documented in DHS records. Written submissions allow respondents to contest factual inaccuracies, provide additional documentation, or explain circumstances that negate the willfulness of the alien's failure to depart. As explained in the IFR, an in-person interview would not enhance the fairness or accuracy of the civil monetary penalty process because of the straightforward issues and types of evidence involved in these cases, which do not turn on credibility determinations or require the cross-examination of witnesses. If an alien, through no fault of his or her own, did not receive notice of the removal or voluntary departure order or was prevented from complying due to circumstances beyond his or her control, the alien can provide a written explanation and simple documentary evidence to support the claim. Accordingly, a requirement for in-person hearings would not meaningfully improve the accuracy or fairness of determinations, given the narrow factual issues typically involved in these penalties. See Mathews, 424 U.S. at 343-44 (considering for due process purposes both the nature of the issues to be decided and the nature of the evidence to be presented, such as whether it consists mainly of documents or whether the resolution of the issue hinges on the need for in person testimony).

The risk of error is also mitigated by the IFR's multi-layered procedural safeguards. Aliens may file supplemental evidence if invited by the supervisory officer, and the officer must independently evaluate the record before issuing a final decision. These safeguards ensure that errors can be identified and corrected without necessitating formal, trial-type hearings. The Departments note that many administrative penalty and adjudication schemes, including certain USCIS benefit adjudications, and numerous civil penalty processes across the federal government operate without in-person hearings, and courts have recognized such frameworks as consistent with due process requirements.

For these reasons, the Departments conclude that an in-person hearing is not required and that the written, supervisory review process established by the IFR provides respondents with a fair and meaningful opportunity to present their claims.

Comment: One commenter also said that eliminating in-person hearings will put vulnerable populations at risk, such as aliens with low-income, a lack of representation, and a limited understanding of English. Citing Goldberg v. Kelly, the commenter alleged that because the respondents in this context are often low income, non-English speaking, and unrepresented by legal counsel, review of the paper file only is an insufficient means to afford due process. Another commenter also cites Goldberg v. Kelly, alleging that where DHS imposes such a toll on families and target “very means by which to live,” the private interests cannot be described as “modest.”

Response: The Departments disagree that eliminating in-person hearings fails to protect vulnerable populations or violates due process principles, including those discussed in Goldberg v. Kelly, 397 U.S. 254 (1970). The Supreme Court has long recognized that procedural due process generally requires notice and an opportunity to be heard before the Government deprives an individual of a protected property interest, while also emphasizing that due process “has never been a term of fixed and invariable content,” FCC v. WJR, U.S. 265, 275 (1949), as its “exact boundaries are undefinable, and its content varies according to specific factual contexts,” Hannah v. Larche, 363 U.S. 420, 442 (1960). The circumstances presented here differ materially from those at issue in Goldberg. In Goldberg, the Court considered the termination of ongoing public assistance benefits that were essential to recipients' subsistence and daily living expenses. The Court considered the deprivation at issue to be immediate and uniquely harmful, distinguishing it from “virtually anyone else whose governmental entitlements are ended.” Goldberg, 397 U.S. at 263-64. The Court therefore concluded that a pre-termination evidentiary hearing was required to minimize risk of an erroneous deprivation. Id.

By contrast, the IFR concerns not the deprivation of a constitutional property interest but the imposition of civil monetary penalties authorized by statute for violations of INA 274D(a)(1), 8 U.S.C. 1324d(a)(1); INA 240B(d)(1)(A)-(B), 8 U.S.C. 1229c(d)(1)(A)-(B); and INA 275(b)(1), 8 U.S.C. 1325(b)(1). These penalties do not involve the termination of subsistence benefits or other government benefits. Nor do such determinations typically turn on complex credibility assessments; rather, they generally involve documentary evidence and objective statutory criteria. Therefore, the risk of government error is minimal, and the appeal process provides an adequate opportunity for error correction. Accordingly, the procedural concerns present in Goldberg are not implicated to the same degree here. Generally, civil fines are issued after aliens have received sufficient due process to challenge the findings against them and after the aliens have been adequately warned, by ICE and the immigration judge, of the consequences of failing to abide by the terms of the final order.

Under the Mathews framework, due process requires procedures that are reasonably designed to ensure fairness in light of the private interest affected, the risk of erroneous deprivation, and the Government's interest. Applying those factors here confirms that an in- person hearing is not required. The private interests at stake, while important, are financial in nature, not subsistence-level. The risk of error is mitigated by the IFR's multi-layered procedural safeguards, including written notice, an initial appeal requiring only a brief written request and explanation, mandatory de novo review by a supervisory immigration officer, and the ability of that officer to request supplemental evidence, giving aliens an additional 15 days to provide evidence or explanation. These safeguards provide aliens, including those that are recent arrivals, low-income, or limited- English proficient,

with meaningful opportunities to be heard.

The Departments also disagree that vulnerable populations require an in-person hearing to ensure adequate participation. Aliens may seek assistance from legal service providers or community organizations. Because the initial appeal filing is minimal and does not require complex filing, aliens are not required to navigate technical evidentiary matters within the initial 15-day period. The ability to supplement the record during supervisory review further ensures that aliens can clarify misunderstandings, correct errors, or provide additional information without the need for a formal oral hearing. 6. Removal of BIA Review

Comment: Several commenters took issue with the IFR's justification for moving appellate review from the BIA to DHS, suggesting that it was insufficient. These commenters broadly suggested that the Departments erroneously discounted the legal complexity of these penalties, asserting that DHS immigration officers do not have the legal training and experience necessary to adjudicate complex legal challenges. One commenter also challenged the IFR's statement that the BIA lacks experience adjudicating these civil penalties, noting that the IFR itself relied on a BIA precedent decision to explain the scope of the voluntary departure penalty. Additionally, commenters also said that the BIA's backlog of cases is not a valid reason to eliminate BIA review. One commenter said that the backlog is a self-created problem attributable to the Attorney General's recent decision to reduce the size of the BIA. Another commenter argued that the BIA's backlog is a result of Congressional funding decisions, and the Departments should not try to solve this funding problem by eliminating the BIA's jurisdiction over certain categories of cases.

Response: As an initial matter, the Departments disagree with the commenters' suggestion that the Departments' explanations for removing the BIA's jurisdiction over these penalties are insufficient. The IFR fully explains the Departments' reasons for eliminating BIA review. These reasons include: (1) the straightforward nature of these penalties and the lack of an operational need, such as an established subject-matter expertise, for the BIA to adjudicate such appeals; (2) the fact that the BIA has a large backlog of cases and appeals take a long time to resolve; (3) the need to prevent these cases from exacerbating the BIA's backlog; and (4) the need to focus EOIR's resources on its statutorily prescribed functions under the INA, which do not include civil penalty appeals. See 90 FR 27441, 27444-47. The Departments believe that these reasons are sound and refer readers to the IFR for further discussion.

The Departments disagree that these penalties involve complicated legal issues that warrant BIA review. The Departments are not persuaded by commenter arguments related to the constitutionality of the IFR's streamlined procedures, civil penalty amounts, statute of limitations issues, and the scope of the unlawful entry penalty, which have been addressed below at Parts III.D.8, and E. Therefore, the commenters' examples are inconsequential to the Departments' conclusions that BIA review is (1) unnecessary because these civil penalties typically turn on straightforward issues of fact that supervisory immigration officers are prepared to adequately review and (2) inadvisable because the BIA's limited, specialized resources are better used to address its unprecedented pending caseload rather than to review decisions that can be adequately reviewed by supervisory immigration officers. See 90 FR 27453. Further, the Departments note that if an alien believes that a supervisory immigration officer's penalty decision was legally erroneous, the alien may, after exhausting administrative remedies, seek judicial review under the APA or may challenge the decision in connection with any enforcement action brought to collect the penalty.

Regarding one commenter's claim that the value of BIA review is demonstrated by the fact that the IFR's preamble relied on a BIA precedent decision to explain the scope of the voluntary departure penalty, the Departments note that the IFR cited that decision only to show that aliens generally will have limited defenses to these penalties. See 90 FR 27443. As a preliminary matter, the cited decision, Matter of Zmijewska, did not involve a civil penalty issue but instead addressed an alien's ineligibility for immigration relief because of the alien's failure to comply with a voluntary departure order. 24 I&N Dec. 87, 93-95 (BIA 2007).

Even still, Matter of Zmijewska clarifies that the sole exception to an alien being penalized for failure to depart after being granted voluntary departure is narrowly “limited to situations in which an alien, through no fault of his or her own, is unaware of the voluntary departure order or is physically unable to depart”--which turns not on complicated issues of law but on issues of fact that can easily be demonstrated by the alien and adjudicated by a supervisory immigration officer. Id. at 945. Therefore, this BIA decision does not undermine the Departments' decision to remove BIA review but instead actively supports it.

Further, while the BIA is certainly qualified to adjudicate cases as straightforward as these civil penalties cases, it has not developed specialized expertise through historical practice, as it has only ever reviewed civil penalties cases, not adjudicated the factual findings they involve in the first instance. Moreover, as the IFR correctly points out, the BIA has little specialized expertise even in reviewing appeals of these civil penalties. See 90 FR 27450 (noting that only a handful of appeals resulted from civil penalties issued under President Trump's first term); see also Section I of this preamble (discussing the small number of BIA appeals in proportion to the number of civil penalties issued in the months leading up to the IFR). Because of this, there is effectively no operational necessity to this review being performed by the BIA instead of by a supervisory immigration officer within DHS, the administrative body that has the historical practical experience of adjudicating these penalties and providing internal DHS review over such determinations, even under a framework where the BIA had appellate authority. Thus, the Departments reaffirm that the BIA's lack of experience adjudicating these penalties in the first instance and lack of meaningful expertise even in reviewing them are valid bases (but not the sole bases) for removing BIA appellate review.

Finally, the Departments disagree that the BIA's backlog is not a valid reason to remove BIA review of these penalty decisions. As discussed above, the BIA's backlog has prompted a need for reconsideration of the BIA's role as an appellate tribunal and renewed focus on implementing streamlining case processing measures. As such, in February 2026, the BIA issued an IFR establishing, among other efficiency measures, that the BIA will generally summarily dismiss appeals unless it votes en banc to consider the appeal on the merits. 91 FR 5267, 5270.\47\ Divesting the BIA 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, creates operational efficiencies, as the BIA need not devote resources to adjudicate such appeals, which may fluctuate over time and with the IFR's streamlined processes aimed at issuing such penalties at scale.

\47\ See Amica Ctr. for Immigrant Rts. v. EOIR, No. CV 26-696 (RDM), 2026 WL 662494, at *34 (D.D.C. Mar. 8, 2026) (partially vacating the rule).

Additionally, the Attorney General's recent decision to reduce the number of permanent Appellate Immigration Judges who sit on the BIA does not undermine the Departments' concerns that preserving BIA review could unnecessarily delay the penalty process and exacerbate the BIA's backlog. Rather, as EOIR explained in a recent rule, “increasing the size of the BIA has not necessarily equated to a corresponding increase in the number of cases adjudicated or a reduction in the pending caseload.” \48\ Reducing the Size of the Board of Immigration Appeals, 90 FR 15525, 15526 (Apr. 14, 2025). EOIR also noted that the size of the BIA has had “significant institutional costs, including effects on the cohesiveness of the Board's decision-making process and the collegiality among Board members, a loss of uniformity in its non- precedent decisions, increased difficulty providing effective leadership, as well as an administrative and supervisory strain on the Board's limited legal staff.” Id. None of these reasons for reducing the size of the BIA contradict the Departments' stated justification for removing the BIA's jurisdiction over these penalties, including concerns about BIA adjudication timelines and its backlog. For similar reasons, the Departments do not agree that they must wait for Congress to provide additional funding for the BIA, rather than removing BIA jurisdiction over certain categories of cases. As discussed in the IFR, Congress has not required EOIR or the BIA to review these civil penalty decisions, and nothing in the INA precludes the Attorney General from exercising his authority to remove the BIA's regulatory appellate authority over these penalties. 90 FR 27448.

\48\ As EOIR noted in another recent rule, between fiscal year 2015 and the end of fiscal year 2025, as the number of permanent Appellate Immigration Judges increased, the BIA's pending case load increased more than five-fold--from 37,285 pending appeals to 202,946 pending appeals. Appellate Procedures for the Board of Immigration Appeals, 91 FR 5267, 5270 (Feb. 6, 2026) (citing EOIR, Adjudication Statistics: All Appeals Filed, Completed, and Pending (Nov. 18, 2025), https://www.justice.gov/eoir/media/1344986/dl?inline [https://perma.cc/88C5-MU4N]).

Comment: Several commenters argued that replacing BIA appellate review with DHS appellate review impermissibly consolidates enforcement and adjudication powers within one agency. They further argued that the IFR's appeal structure creates an inherent conflict of interest because DHS cannot be impartial when reviewing its own actions. One commenter argued that this consolidation of enforcement and adjudication functions violates due process. The commenter explained that the Supreme Court has long recognized that due process requires impartiality from adjudicators, and that any arrangement that gives rise to even a “possible temptation” to act in a biased way that benefits the decisionmaker violates due process. See Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972). The commenter asserted that DHS assessing these penalties and reviewing appeals raises at least a possibility of temptation to impermissibly affirm the determinations, noting that the IFR itself was issued to allow DHS to impose these penalties more swiftly and at scale. Another commenter noted that these civil penalties are deposited into a DHS account that directly funds immigration detention, removal operations, and border wall construction. They suggested that this creates a powerful institutional incentive for DHS to maximize fine revenue, and, therefore, BIA review is needed to mitigate this potential conflict of interest. To address these concerns, this commenter urged the Departments to restore BIA review or to create an independent review board, separate from ICE and CBP, to review civil penalty appeals. They also suggested that if the IFR's structure is preserved, the rule should, at minimum, sever the financial interest DHS has in imposing these fines by redirecting civil penalty revenue to the Department of the Treasury's general fund rather than retaining it in DHS's enforcement accounts.

Response: DHS strongly rejects commenters' speculative suggestion that DHS immigration officers cannot be impartial and neutral when adjudicating civil penalty appeals. DHS has designed the appeal process to ensure that an alien's appeal is fairly and fully considered on the merits alone. Indeed, the IFR makes clear that any appeal of a penalty decision must be reviewed by a separate supervisory immigration officer who was not involved in the initial civil monetary penalty decision. Additionally, the IFR instructs the supervisory officer to review the appeal record de novo, which ensures that officers decide each appeal solely on the law and facts presented without providing any weight in favor of the initial decision. There is a presumption of regularity that attaches to the actions of government agencies, see U.S. Postal Serv., 534 U.S. at 10, and commenters have offered no support for their claim that immigration officers will deny otherwise meritorious challenges to civil penalties simply because they are employed by the same agency that issues and enforces these penalties.

Moreover, the Supreme Court has long held that it does not violate due process to combine enforcement and adjudication functions within a single agency. See Withrow v. Larkin, 421 U.S. 35, 56-58 (1975) (holding that the fact that the initial charge in an administrative proceeding is brought by the same agency that later adjudicates the matter is not, in and of itself, violative of due process); see also Marcello v. Bonds, 349 U.S. 302 (1955) (rejecting the argument that the former INS's comingled prosecutorial and adjudicative functions, under a prior version of the INA, deprived aliens of due process in deportation proceedings). Thus, the Departments disagree with commenters' suggestion that the consolidation of enforcement and adjudication functions within the same agency violates due process or inherently increases the risk of biased decision-making.

The caselaw cited by one commenter does not undermine the Departments' conclusion that the IFR's appeal procedures comport with due process. At most, the cited cases stand for the principle that an agency's adjudicatory procedures could violate due process if the adjudicator has a direct financial or pecuniary interest in the outcome of the case, has prejudged the case, or has some other concrete conflict of interest. These cases, however, do not support the commenter's broad argument that DHS immigration officers cannot be neutral and unbiased merely because they are part of DHS. Rather the caselaw is clear: there is a presumption of honesty and integrity in administrative officials exercising adjudicative functions, even where there is a combination of investigative and adjudicative functions, and some evidence of actual bias must be presented to overcome this presumption. See Marcello, 349 U.S. at 311; Withrow, 421 U.S. at 47; see also Baran v. Port of Beaumont Navigation District, 57 F.3d 436, 446 (5th Cir. 1995). The commenter has not offered any actual and non- speculative reason to think that DHS officers cannot be neutral but will instead be “tempted” to impermissibly affirm penalty decisions issued by other DHS officers.

The other concerns cited by commenters do not support their

contention that civil penalty appeals must be adjudicated by the BIA or an agency outside of DHS. The Departments acknowledge that INA 280(b), 8 U.S.C. 1330(b), provides that any civil monetary penalties collected from aliens shall be deposited into a DHS account that funds immigration detention, removal operations, and border wall construction. DHS disagrees, however, with one commenter's view that DHS officers adjudicating civil penalty appeals will be encouraged to maximize fine revenue for this DHS fund. DHS officers adjudicating civil penalty appeals are bound by strict legal and procedural standards to ensure impartiality and fairness in their decision-making processes.\49\ These officers are tasked with applying the law and evaluating the facts of each case independently, without regard to the financial implications of their decisions.\50\ DHS has robust supervisory review mechanisms in place to ensure that adjudications are conducted in compliance with applicable laws, regulations, and ethical standards. The fine amounts are governed by statute and regulations and, once an immigration officer determines that a civil penalty should be issued, the officer's discretion in choosing the fine amount is bound by those statutory and regulatory limits, and this rule does not alter the penalty amounts themselves authorized by statute. Furthermore, the primary purpose of civil monetary penalties under the INA is to enforce compliance with immigration laws, not to generate revenue. DHS remains committed to upholding the integrity of the adjudication process and ensuring that decisions are made based solely on the merits of each case, rather than any external considerations related to funding.

\49\ E.g., Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (recognizing that government decisionmakers adjudicating matters involving property must be impartial).

\50\ Id.

Similarly, DHS disagrees that officers will have an incentive to affirm penalty decisions on appeal because the IFR's preamble emphasizes DHS's desire to maximize the use of these penalties. The Departments agree that the IFR was designed to maximize DHS's ability to impose civil penalties in proportion to the scale of illegal aliens in the United States--not the total amount of the penalties. The IFR achieves this purpose by streamlining the penalty process, but it does not dictate the outcome of any penalty appeal or otherwise pressure immigration officers to affirm initial penalty decisions. Rather, as discussed above, the IFR makes clear that a supervisory officer must review appeals de novo based solely on DHS records and any evidence or argument submitted by the alien. Moreover, the IFR provides officers with a 45-day period to adjudicate appeals, which will ensure that they have ample time to consider all of the evidence and arguments provided by the alien. Accordingly, DHS believes that statements in the IFR's preamble will not cause immigration officers to prejudge appeals or impermissibly affirm penalty decisions. DHS clarifies that it expects each supervisory immigration officer to decide individual appeals based solely on the law and the facts presented.

Finally, the Departments note that BIA review is not needed to ensure that immigration officers comply with these regulatory requirements and decide each appeal on the basis of its own facts and circumstances. If an alien believes that an immigration officer's decision was erroneous and not based on the applicable law and the facts of the case, then after exhausting administrative remedies, the alien may seek judicial review under the APA or may challenge the decision in connection with any enforcement action brought by DOJ to collect the penalty.

For all of these reasons, individually and collectively, the Departments decline to modify the IFR to restore BIA review. Similarly, DHS declines to create an independent body, separate from ICE and CBP, to adjudicate civil penalty appeals because DHS believes that ICE and CBP supervisory officers are fully capable of deciding each appeal on the basis of its individual facts and circumstances without bias or prejudgment. Additionally, creating an independent board or body would conflict with the purpose of the IFR to streamline the civil penalty process, including the appeal process, because it could take additional time to create and to put in place processes that would ensure that the board receives filings and records in a timely manner. Finally, with respect to one commenter's claim that, in order to remove any conflict of interest, DHS should redirect penalty revenue to a general Treasury fund rather than retaining it in DHS accounts, DHS notes that it cannot redirect funds in contravention of INA 280(b), 8 U.S.C. 1330(b).

Comment: Several commenters characterized the IFR's appeal process as lacking transparency and accountability. They noted that the BIA makes its decisions publicly available and has a well-established process for publishing decisions on emerging legal issues. In contrast, commenters noted that the IFR does not require DHS to make its civil fine decisions public or treat them as precedential in cases raising similar issues. Commenters argued that this will contribute to arbitrary and inconsistent decisions and a lack of accountability.

Response: As discussed in the IFR and above, the civil penalties covered by this rule typically turn on straightforward issues of fact, rather than complicated questions of law. See 90 FR 27453. Accordingly, the Departments disagree with commenters that there is a need for DHS to establish a process for publishing decisions on emerging legal issues involving these penalties. DHS also notes that ICE and CBP have issued guidance to immigration officers regarding these penalties, including guidance on the various legal issues that commenters have identified and that are discussed throughout this preamble. Finally, nothing in this rule prevents an alien from bringing a federal court challenge to a penalty decision or from raising any legal defense that may be available to the alien in connection with a DOJ enforcement action to collect the penalty. DHS will comply with any adverse court ruling and will apply any legal precedent applicable to these penalties that results from such a challenge.

To the extent that commenters are suggesting that DHS must publish civil penalty decisions to provide transparency, accountability, and consistency in the penalty amounts being assessed, ICE and CBP are applying a uniform practice of assessing the maximum statutorily authorized penalty amount in each case, consistent with the statute of limitations. DHS has an interest in issuing these penalties quickly and at the maximum authorized amount to encourage aliens to comply with removal and voluntary departure orders. To achieve these dual objectives, DHS has determined that ICE and CBP should assess the maximum penalties authorized by law. 7. Mitigation Factors; Motions To Reopen

Comment: Commenters argued that the rule should allow aliens to seek mitigation, and it should clarify that DHS should consider mitigating factors when assessing penalties. One commenter recommended a tiered penalty system based on severity and good faith compliance efforts. Another commenter recommended that the agencies adopt a means- tested fine structure that considers the recipient's

financial capacity. Another commenter points out that the government considers mitigating factors for employers subject to penalties. They state that in assessing fines against employers of aliens under the Immigration Reform and Control Act, the government considers factors such as the size of their business, their good faith, the seriousness of the violations, whether the employee is an alien, and the employer's history of previous violations. Finally, one commenter argues that the rule undermines procedural fairness by eliminating any right for aliens to request reopening while preserving reopening authority for DHS.

Response: The Departments disagree that the IFR should authorize aliens to seek mitigation of penalty amounts, create a tiered penalty structure, or adopt a means-tested framework for assessing penalties. The civil monetary penalties addressed in this rule arise under INA 240B(d), 274D, and 275(b), 8 U.S.C. 1229c(d), 1324d, and 1325(b). These statutory provisions do not require DHS or DOJ to adjust penalty amounts based on mitigating circumstances, financial capacity, or subjective good-faith factors, nor do they provide a means for aliens to request discretionary mitigation. In contrast, several of the statutes cited by commenters, including those governing certain employer sanctions under the IRCA, explicitly establish mitigating factors that DHS or DOJ must consider when assessing penalties. Congress included no such language in the statutory provisions at issue here. Additionally, President Trump's Executive orders direct DHS to “ensure the assessment and collection of all fines and penalties [DHS] is authorized by law to assess and collect from aliens unlawfully present in the United States” \51\ and to “take all appropriate action to secure the borders of our Nation . . . [including by] deterring and preventing the entry of illegal aliens into the United States.” \52\

\51\ E.O. 14159, Protecting the American People Against Invasion. E.O. 14159, 90 FR 8443 (Jan. 20, 2025).

\52\ E.O. 14165, Securing Our Borders, 90 FR 8467 (Jan. 20, 2025).

At the same time, the IFR does not foreclose DHS from rescinding or reopening decisions on its own initiative, where doing so is necessary to ensure administrative accuracy, correct an error, or address other considerations relevant to sound enforcement. This internal authority is procedural in nature and serves the agency's interest in consistency, fairness, and error correction. Allowing aliens to file motions to reopen before DHS for the purpose of seeking mitigation, particularly after the supervisory review process, would undermine the Department's legitimate interests in finality, administrative efficiency, and the timely initiation of the collection process, which are essential to administering a nationwide penalty scheme. The civil monetary penalties addressed in this rule arising under INA 240B(d), 274(D), and 275(b), 8 U.S.C. 1229c(d), 1324d, and 1325(b), do not confer a statutory right on aliens to request reopening of a final civil monetary penalty determination. The Departments therefore decline to create a new regulatory mechanism that would effectively grant aliens a right to reopen final decisions or seek mitigation after supervisory review has concluded.

The Departments also disagree with commenters who argued that fairness requires adopting mitigation factors analogous to those applicable to employers sanctioned under the IRCA. That comparison is misplaced. IRCA explicitly directs the government to consider certain mitigating factors when assessing employer penalties. By contrast, the penalties at issue here are based on statutory conditions, such as failure to comply with voluntary departure or the presence of a prior removal order, that turn on objective, records-based facts. These provisions do not require a discretionary, multi-factor penalty assessment. The Departments are not required to import into these statutes mitigation frameworks that Congress has chosen to include elsewhere but omitted here.

For these reasons, the Departments conclude that the IFR appropriately reflects the statutory framework governing civil penalties under INA 240B(d), 274D, and 275(b), 8 U.S.C. 1229c(d), 1324d, and 1325(b), and that adopting a mitigation regime, a tiered fine system, a means-tested structure, or respondent-initiated motions to reopen is not required by the governing statutes, and is administratively impractical and beyond the scope of this rulemaking. 8. Civil Penalty Amounts; 8 CFR 281.1(g)

Comment: Some commenters argued that the fines imposed by the IFR implicate the Eighth Amendment's Excessive Fines Clause. They contend that, under U.S. Supreme Court precedent, even if a penalty is deemed “civil,” it constitutes punishment for purposes of the Excessive Fines Clause if it serves retributive or deterrent purposes, rather than remedial ones. They broadly claimed that the IFR authorizes DHS to issue fines that serve no remedial purpose, and the IFR's self- expressed intent--to deter future unlawful entries and encourage greater compliance with removal and voluntary departure orders-- reflects a punitive purpose. Commenters broadly stated that these penalties are excessive under the Eighth Amendment because they can result in sums “disproportionate” to the underlying immigration violations.

One commenter noted that there is a wide range of circumstances surrounding an alien's decision to come to the United States or remain in the country after a removal order or voluntary departure order and suggested that the Departments' failure to consider these circumstances violates the Excessive Fines Clause. The commenter listed examples, including aliens fleeing persecution or seeking a better life for their children, aliens who were unable to depart due to illness, financial problems, aliens with pending challenges to a removal order, and aliens who were removed in absentia and were unaware of the order. One commenter suggested that DHS should cap fines at levels that reflect the nature of the violation and an alien's ability to pay.

Response: As an initial matter, the Departments note that the IFR did not change the scope or amount of the civil monetary penalties that Congress has established. It only changed the procedures for issuing and adjudicating these civil monetary penalties and for allowing an alien to contest them. See 90 FR 27454. DHS has imposed the maximum statutory penalties under both the IFR's streamlined penalty process and the prior penalty process in 8 CFR part 280. This indicates that commenters' Eighth Amendment concerns are directed primarily at the penalty amounts authorized by Congress, not at the IFR's procedures, and are therefore outside of the scope of this rule. Nevertheless, in so far as commenters are suggesting the IFR is unlawful because it does not require DHS immigration officers to assess proportionality or consider mitigating factors before imposing the maximum penalty amount, the Departments respond as follows: (1) these civil monetary penalties do not fall within the Eighth Amendments Excessive Fines Clause, and (2) even if treated as “fines,” they are not excessive under the factors in United States v. Bajakajian, 524 U.S. 321 (1998).

The Supreme Court has never held that civil monetary penalties for immigration violations are “fines” for purposes of the Excessive Fines Clause.

The Court's cases in this area have either involved sanctions ordered as penalties for criminal conduct, or civil forfeiture actions imposed after a criminal conviction, where the property was used in the commission of the crime. See Alexander v. United States, 509 U.S. 544, 558 (1993) (criminal forfeiture of property); Bajakajian, 524 U.S. at 328 (criminal forfeiture of currency); Austin v. United States, 509 U.S. 602, 619-22 (1993) (civil forfeiture of property used to commit drug crimes). By contrast, the penalties covered by this rule are not imposed in connection with criminal offenses. They are civil measures designed to promote compliance with the immigration laws and support DHS's enforcement efforts. The Supreme Court has long recognized that Congress may impose civil monetary penalties for violations of the Nation's immigration laws, and that such penalties are not criminal in nature. See, e.g., Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 337 (1909). Moreover, the fact that these penalties are intended to serve a deterrence purpose does not render them subject to the Excessive Fines Clause because “deterrence may serve civil as well as criminal goals.” Hudson v. United States, 522 U.S. 93 105, (1997) (internal quotation marks omitted); see also Garner v. U.S. Dep't of Labor, 221 F.3d 822, 827 (5th Cir. 2000) (“That a statute serves to deter future conduct does not automatically render it punitive.”). In addition, Congress clearly intended these penalties to serve a remedial purpose. As explained in Section II of this preamble, apprehending, detaining, and removing removable aliens, and conducting section 240 removal proceedings imposes significant costs on the Departments, and a large number of unlawful entries strain resources at the border. Congress recognized these harms and authorized civil penalties to both encourage compliance with the immigration laws and to help fund DHS's border security and removal efforts. See INA 280(b)(3), 8 U.S.C. 1330(b)(3) (providing that the Immigration Enforcement Account is available for removal of criminal aliens and structures along certain portions of the United States border); see also H. Rep. No. 104-469 pt. 1 at 155 (1996).

Even if these penalties were considered fines under the Excessive Fines Clause, DHS's decision to impose the maximum amount authorized by Congress without considering each alien's individual reasons for unlawful entry or failure to depart after a removal or departure order is neither excessive nor unconstitutional. Courts of appeals generally apply the following factors from Bajakajian, 524 U.S. at 337-40, to determine whether a fine is “grossly disproportional” to the gravity of an offense: (1) the amount of the penalty authorized by Congress and the nature of the harm that results from a violation; (2) the class of persons to whom the statute principally applies; and (3) a comparison with potential criminal penalties. Taken together, these factors support the conclusion that the IFR need not be amended to limit DHS's authority to impose the maximum statutory penalties or to require a proportionality analysis before issuing a civil penalty or otherwise consider mitigating factors.

With respect to the first factor, judgments about the appropriate penalty amount for a violation “belong in the first instance to the legislature.” Bajakajian, 524 U.S. at 322. The civil monetary penalties covered by this rule reflect Congress's considered judgment that the conduct involved--an alien's unlawful entry or failure to depart after a removal or departure order--is particularly serious and warrants substantial fines to promote compliance with immigration laws. See 90 FR 27454. Consistent with Congress's judgment and current enforcement priorities, DHS has determined that imposing the maximum authorized penalties is an appropriate response to the large number of aliens who have unlawfully entered the United States or have violated removal and departure orders in recent years. See Section II of this preamble. Courts have held that an agency's civil penalty decision is not excessive under the Eighth Amendment when it does not exceed the statutory maximum. See Newell Recycling Co. v. EPA, 231 F.3d 204, 210 (5th Cir. 2000) (“No matter how excessive (in lay terms) an administrative fine may appear, if the fine does not exceed the limits prescribed by the statute authorizing it, the fine does not violate the Eighth Amendment”); see also Pharaon v. Bd. of Governors of the Fed. Res. Sys, 135 F.3d 148, 155-57 (D.C. Cir. 1998).

The specific statutorily authorized penalty amounts are also proportionate to the underlying immigration law violations. For the unlawful entry penalty, the maximum penalty (adjusted for inflation) is $500 for each entry. See 8 CFR 280.53(b)(15). That amount is not disproportionate to unlawful entries, including repeated unlawful entries, in violation of the immigration laws in light of Congress's concerns when enacting this penalty. See H. Rep. No. 104-469 at 155 (1996) (noting that unlawful entry “with no consequences undermines the credibility of our efforts to secure the border”).

For voluntary departure civil penalties, Congress has authorized Immigration Judges to set penalties between $1,992 and $9,970 (as adjusted for inflation). See 8 CFR 280.53(b)(3). Under longstanding regulations, Immigration Judges or the BIA must select an amount within that range that reflects the likelihood that the alien will comply with voluntary departure or may apply a presumptive amount of $3,000. See 8 CFR 1240.26(l); 73 FR 76927, 76936 (Dec. 18, 2008). DHS adheres to the amount set by EOIR. That amount is not excessive because it reflects both the adjudicator's assessment of the incentive needed to secure compliance and Congress's desire to ensure consequences for violating departure orders. See H. Rep. No. 104-469, at 122 (noting how aliens with voluntary departure and had “very little incentive” to actually depart the United States prior to IIRIRA).

For failure to depart after a removal order, Congress has authorized DHS to impose a penalty of $998 per day (as adjusted for inflation) for each day an alien willfully fails to depart. Commenters argue that these penalties are excessive because the cumulative total may, in some cases, exceed $1,000,000. The Departments disagree. Congress designed this provision so that each day of willful failure to depart constitutes a separate, repeating violation. See Section III.E. of this preamble. In this context, proportionality is assessed by looking at each per day penalty, not the cumulative amount. See e.g. United States v. Schwarzbaum, 127 F.4th 259, 276 (11th Cir. 2025). A $998 per diem penalty is not excessive compared to other immigration- related civil penalties. It reflects Congress's judgment as to the seriousness of the harm that flows from each day an alien remains in the United States in willful violation of a removal order and how these willful violations undermine the credibility of the immigration laws and warrant a separate penalty.

Even when viewed cumulatively, the per diem failure to depart penalty is not excessive. Congress added this authority in IIRIRA to strengthen immigration enforcement and to increase the consequences for ignoring removal orders, in response to the problem of aliens remaining in the United States--sometimes for years--after final deportation orders. See H.R. Rep. No. 104-469, pt. 1, at 160 (1996) (explaining when enacting IIRIRA that “aliens who have final orders of deportation [often]

remain in the United States indefinitely” and noting that “[a]s a result, the resources expended to identify, apprehend, and provide a hearing to a deportable alien are all too often wasted”). Against this backdrop, Congress expressly authorized DHS to impose per-day penalties that may reach substantial sums when an alien willfully remains in the United States for extended periods in violation of a removal order. In these circumstances, imposing the maximum daily amount, even where it results in a large total, is not excessive because the total directly reflects a long-running, repeated violation. See Schwarzbaum, 127 F.4th at 284 (“when a cumulative fine is made up of constitutionally proportionate penalties, the cumulative fine “is, literally, directly proportionate to the offense”) (citation and internal quotations omitted).

Taken together, the three penalties covered by this rule reflect Congress's calibrated assessment of the harm associated with each type of violation. Lower penalties for unlawful entry generally apply to aliens apprehended while entering and who are often subject to prompt return or expedited removal, thereby conserving resources associated with section 240 removal proceedings. Higher penalties for failure to depart reflect Congress's judgment that remaining in the United States after a departure or removal order both seriously undermines the integrity of the immigration system and results in wasted enforcement and adjudicative resources. See H. Rep. No. 104 469, pt. 1, at 160. Accordingly, the Departments believe that imposing the maximum statutorily authorized amount of these penalties is both consistent with Congress's purpose in enacting these penalties and not excessive given those amounts reflect the value of the harm Congress placed on such violations. See United States v. Chaplin's, Inc., 646 F.3d 846, 852 (11th Cir. 2011) (“Congress, as a representative body, can distill the monetary value society places on harmful conduct”).

The second Bajakajian factor--whether the penalties apply to the class of persons for whom the statute was principally designed--also supports the Departments' position. Aliens subject to these penalties fall squarely within the class Congress targeted. For unlawful entry penalties, an alien's apprehension while attempting to enter the United States unlawfully is sufficient to support the penalty. For failure to depart penalties, ICE guidance instructs officers to confirm that the alien is subject to a final removal or voluntary departure order, that there is no DHS record of the alien's departure, and that, based on available records, there are no legal impediments or other circumstances that would negate a willful or voluntary failure to depart. For per diem penalties, ICE guidance further requires officers to exclude periods when the alien was lawfully permitted to remain in the United States, such as during the pendency of a stay of removal. This is all Congress has required. Congress has clearly provided that any alien who engages in the proscribed conduct--unlawfully entering the United States or willfully or voluntarily failing to depart after a removal or departure order--is subject to a civil penalty up to the statutory maximum. By contrast to other immigration-related civil penalties \53\ and contrary to commenters' suggestion, Congress has not required DHS to adjust the penalty based on proportionality or to consider specific mitigating circumstances. To the extent that commenters are suggesting that DHS must consider factors such as an alien's inability to obtain travel documents, hospitalization, or other circumstances beyond the alien's control, such factors could negate the “willfulness” or “voluntariness” of an alien's conduct and, if the alien demonstrates them on appeal, the alien may not be subject to the penalty at all. However, the alien is best positioned to raise these considerations on appeal because DHS would generally not have knowledge of such circumstances. The second Bajakajian factor therefore supports DHS's decision to assess these penalties up to the maximum statutorily authorized amount without first conducting a proportionality analysis or considering mitigating circumstances.

\53\ See e.g., INA 274A(e)(5), 8 U.S.C. 1324a(e)(5) (listing various factors that must be considered when determining the appropriate amount of the penalty for certain employment-related immigration violations); INA 273(e), 8 U.S.C. 1323(e) (directing DHS to prescribe regulations for reducing carrier penalties for transporting undocumented aliens in appropriate circumstances).

The third Bajakajian factor--comparison to potential criminal sanctions--likewise weighs against a finding of excessiveness. In IIRIRA, Congress not only created the civil failure to depart penalty but also amended INA 243, 8 U.S.C. 1253, to make it a criminal offense for an alien to willfully fail or refuse to depart within 90 days of a final removal order. Congress authorized imprisonment of up to four years, a fine, or both, with enhanced penalties for certain criminal aliens. See INA 243(a)(1), 8 U.S.C. 1253(a)(1). Congress has also authorized criminal penalties for unlawful entry, including up to six months' imprisonment, a fine, or both, with increased penalties for repeat offenses. See INA 275(a), 8 U.S.C. 1325(a). These criminal penalties are significantly more severe than the civil penalties at issue, and Congress specifically provided that the maximum civil penalties may be imposed in addition to any criminal sanctions. See INA 274D(b), 275(b), 8 U.S.C. 1324d(b), 1325(b). In light of this statutory framework, all three Bajakajian factors weigh strongly against commenters' arguments that imposing the maximum statutory civil penalties violates the Excessive Fines Clause.

For these reasons, the Departments decline to amend the rule to limit the discretion of DHS immigration officers to impose the maximum statutory penalty amounts or require that they apply proportionality factors before doing so. Finally, regarding one commenter's concern about “ability to pay,” the Departments note that Congress has not required DHS to consider an alien's ability to pay in assessing these penalties, and the Supreme Court has not held this factor must be analyzed under the Excessive Fines Clause. Absent a legal requirement for DHS to consider an alien's ability to pay, DHS believes that adjusting a fine amount lower based on an alien's ability to pay would diminish the rule's deterrent effect.

Comment: One commenter alleged that 8 CFR 281.1(g) is inconsistent with 8 CFR 1240.26(l) mandating that the Immigration Judge or BIA advise the alien of the civil penalty amount at the time of granting voluntary departure or a presumptive amount of $3,000 will be set. Another commenter noted that DHS has increased the penalty amounts in 8 CFR 280.53 for failure to depart violations incrementally over time from $500 per diem penalty in 2011, to a $998 per diem penalty in 2025, with DHS making incremental adjustments each year in between. The commenter claims that “the amount of fines that allegedly accrued on any given day should have been limited to the amount authorized by the regulation in effect on that day.” The commenter acknowledges that the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015 allows DHS to adjust civil penalty amounts for inflation each year and to apply adjustments retroactively, but the commenter argues that “charging a lump sum without itemizing the exact amounts that DHS alleges to have accrued on any specific dates nor any explanation for why DHS believes fines accrued during this particular timeframe

deprives respondents of critical information necessary to contest such charges.” The commenter argues the IFR is defective because it does not require DHS to itemize penalties that “DHS alleges to have accrued on any specific dates nor [provides] any explanation for why DHS believes fines accrued during this particular timeframe.”

Response: First, DHS notes that the IFR does not direct immigration officers to apply the penalty amounts listed in 8 CFR 280.53. Rather, 8 CFR 281.1(g) merely refers them to that provision so that they have access to information concerning the current inflation adjusted amount for each penalty. Immigration officers must determine how to apply those inflation adjusted rates in the context of each individual case, or whether to apply those rates at all, consistent with ICE and CBP guidance. Indeed, contrary to one commenter's claim, ICE guidance directs immigration officers to apply the penalty amount set by an Immigration Judge or the BIA or a $3,000 amount if no penalty amount is included in the voluntary departure order when assessing voluntary departure civil penalties. Accordingly, DHS is assessing voluntary departure penalties consistent with 8 CFR 1240.26(l).

Further, the Departments do not agree that DHS should itemize penalty amounts in penalty decisions imposing fines for willful failure to depart under INA 274D(a)(1), 8 U.S.C. 1324d(a)(1). The commenter's suggestion that “the amount of fines that allegedly accrued on any given day should [be] limited to the amount authorized by the regulation in effect on that day” is inconsistent with the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, Public Law 114-74 (Nov. 2, 2015), 28 U.S.C. 2461 note. The 2015 Amendments amended section 6 of the Inflation Adjustment Act to provide that “[a]ny increase under this Act in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.” Congress's specific reference to applying the adjustments to civil monetary penalties “whose associated violation predated” the effective date of the adjustment clearly contemplates that inflation adjustments after 2015 can be applied to violations occurring prior to the effective date of the increased civil penalty amounts--but only if the civil penalties are “assessed after the date the increase takes effect.” That is precisely how DHS applies the failure to depart penalties under INA 274D(a)(1), 8 U.S.C. 1324d(a)(1). Specifically, DHS applies the inflation adjusted amount that is in effect on the day that the penalty is “assessed”--i.e., when DHS issues the penalty decision--regardless of the date of the removal order or the amount that was authorized on any one day in the period for which the penalty applies--i.e., any day that the alien willfully failed to depart the United States after the final removal order.

To the extent that the commenter is concerned about DHS applying the current inflation adjusted rate to violations that occurred prior to the Inflation Adjustment Improvements Act of 2015, DHS notes that the commenter's concern is misplaced. As discussed above in this preamble, an alien is liable for a per diem penalty for each day he willfully remains in the United States after a final removal order regardless of when the removal order first became final. However, DHS is applying the failure to depart penalty for only five years back from the date of the penalty decision. Therefore, DHS would only assess the per diem penalty at the adjusted rate in place at the time of the penalty decision for a total of five years back from the date of the decision, even if the alien's removal order became final prior to 2015.

Regarding commenters' suggestion that DHS needs to itemize penalty decisions because the alien may not be liable for a per diem penalty for some portion of the period that the alien remained in the United States, ICE guidance directs 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 (e.g., a stay of removal, a later approved immigration benefit). See Section III.E.2 of this preamble. To the extent that an alien's individual circumstances excused an alien's willful or voluntary failure to depart for some period of time (e.g., the alien was hospitalized or incarcerated or otherwise was unable to depart due to circumstances beyond the alien's control), the alien is best positioned to raise these issues on appeal. DHS cannot be expected to know about an alien's individual circumstances that prevented the alien from departing.