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

Comment: Several commenters asserted that the rule does not explain how the federal statute of limitations applies to the civil penalties imposed under the IFR. One commenter suggested that the IFR's streamlined penalty procedures make it difficult for aliens to raise statute of limitations defenses, and the complexity of these defenses undermines the IFR's assumption about the readily verifiable and straightforward nature of these penalties. One commenter argued that the IFR does not require DHS to include information in the penalty decision about when the violation occurred which makes it difficult for aliens and their counsel to determine if DHS is correctly applying the statute of limitations. The commenter suggested that the 15-day appeal period, combined with the use of ordinary mail to serve decisions, could prevent aliens and their attorneys from investigating statute of limitations issues and raising the statute of limitations as a defense to these penalties. The commenter argued that eliminating BIA review is particularly problematic because DHS immigration officers do not have the legal expertise to resolve complex statute of limitations issues, and DHS does not have a mechanism to issue binding decisions on legal issues including those involving statutes of limitation.

Commenters offered their views regarding how the federal statute of limitations, 28 U.S.C. 2462, applies to the penalties covered by this rule. For the failure to depart penalties, commenters claimed that the five-year statute of limitations begins to run the moment the voluntary departure period ends or when a removal order becomes final. They stated that DHS cannot impose fines for conduct that happened more than five years ago, such as remaining in the United States after a voluntary departure order period expired or after a removal order became final, particularly when there is no caselaw or statute recognizing a “continuing violation” theory for these penalties. For the unlawful entry penalties, commenters said that the limitations period begins to run once an alien is apprehended while in the process of entering or attempting to enter the United States.

Response: The Departments disagree that the rule should be rescinded because it fails to include a statute of limitations provision. As an initial matter, the Departments emphasize the IFR's limited scope. The IFR changed only the procedures by which DHS issues and adjudicates certain civil monetary penalties and the manner in which aliens may contest them. The IFR did not change or alter the criteria for issuing these penalties, including how DHS interprets or applies the general federal statute of limitations for these penalties. Indeed, the Departments note that none of the Departments' other civil

monetary penalty regulations contain a statute of limitations provision, including 8 CFR 280, which, prior to the IFR, governed the process for assessing the penalties covered by this rule. Accordingly, the Departments believe that it was reasonable and appropriate to limit the scope of the IFR consistent with the scope of the Departments' other civil penalty regulations, especially because of the IFR's narrow purpose of streamlining the process for the failure to depart and unlawful entry penalties. Therefore, the Departments decline to amend the rule to add a statute of limitations provision. For the same reasons, the Departments do not agree with commenters' suggestion that failure to include a statute of limitations provisions renders the rule arbitrary or capricious.\54\

\54\ To the extent that any civil penalties issued under the IFR were determined to be inconsistent with the statute of limitations, addressing such fines would be outside of the scope of this final rulemaking. The preamble to a final rule exists to satisfy the APA's requirement of “a concise general statement of [the rule's] basis and purpose,” 5 U.S.C. 553(c), and addressing fines already issued under the IFR--to the extent that is even necessary--plainly falls outside of that.

The Departments also disagree that the IFR's streamlined proceedings make it too difficult for aliens to assert a statute of limitations defense. Consistent with 8 CFR 281.1(c)(1), each penalty decision lists the date when the alien became subject to a final removal or a voluntary departure order, or when the alien was apprehended entering or attempting to enter the United States unlawfully. See DHS Form 281, Notice of Violation and Order. Therefore, to the extent that an alien believes that the violation occurred outside of the statute of limitations, the penalty decision itself contains the relevant information to dispute the penalty. Further, aliens should already possess any documents needed to dispute the information contained in the penalty decision. For example, an alien who disputes the date of a final removal or voluntary departure order can simply provide a copy of his removal or departure order or any documents showing that the alien's removal order or voluntary departure period was delayed because of an appeal or a stay of removal. The same is true for aliens subject to civil penalties for unlawful entry: the relevant charging document will list the date that DHS apprehended the alien entering or attempting to enter the United States. Commenters do not explain why aliens cannot retain these important documents, and the Departments will not assume otherwise. Accordingly, the Departments believe that the penalty decision contains sufficient information to allow an alien to raise a statute of limitations defense, and the IFR's 15-day appeal period provides ample time for aliens and their attorneys, if any, to gather evidence to compliment or prepare such a defense.

Similarly, the Departments do not agree with commenters' position that BIA review is needed because legal questions regarding the statute of limitations cannot adequately be resolved by DHS immigration officers on appeal.

ICE and CBP both apply the statute of limitations for these penalties in a straightforward way that refutes commenters' arguments that additional procedures, including BIA review, are needed due to the complexity of statute of limitations issues. First, ICE only assesses penalties under INA 240B(d), 8 U.S.C. 1229c(d), if an alien's voluntary departure period expired within five years of the order imposing the penalty.\55\ CBP only assesses penalties under INA 275(b), 8 U.S.C. 1325(b), against aliens apprehended in the last five years while entering (or attempting to enter) the United States. The Departments note these approaches are consistent with commenters' interpretation of the general statute of limitations, 28 U.S.C. 2462, applicable to these penalties. This application ensures consistency in the assessment of these penalties and provides clear direction to immigration officers on how far back to assess these penalties. Therefore, aliens do not need to prepare, and immigration officers do not need to decide, complicated statute of limitations defenses for these penalties in light of this approach. If an alien believes a penalty is contrary to this approach, the alien can appeal the civil penalty decision and provide a copy of the voluntary departure order indicating the date of the violation or, in the case of an unlawful entry penalty, the charging document listing the date and location of apprehension.

\55\ DHS acknowledges that some fines have been issued based on violations that occurred more than five years after the voluntary departure period and is taking action to ensure fines issued in the future are consistent with the statute of limitations.

With respect to penalties under INA 274D(a)(1), 8 U.S.C. 1324d(a)(1), for willful failure to comply with a removal order, immigration officers can impose these penalties regardless of the date of the post-IIRIRA final removal order, but the per diem penalty amount should be assessed only for the five-year period preceding the date that the penalty is issued. Contrary to commenters' arguments, this is consistent with the plain language of the statute and caselaw interpreting similar penalty statutes for the purposes of determining the application of the general five-year statute of limitations under 28 U.S.C. 2462. Section INA 274D(a)(1) of the INA, 8 U.S.C. 1324d(a)(1), provides that “any alien subject to a final removal order who--willfully fails or refuses to depart from the United States . . . shall pay a civil penalty of not more than $500 to [DHS] for each day the alien is in violation of this section.” (emphasis added). When a civil penalty statute imposes a per diem penalty, the “continuing violation” doctrine applies, and the Government may assess the penalty even if the first violation occurred more than five years back. See Interamericas Invs., Ltd. v. Bd. of Governors of the Fed. Rsrv. Sys., 111 F.3d 376, 382 (5th Cir. 1997) (explaining that “[w]here the civil penalty provision at hand contemplates per diem penalties for violations, then continuing violations are cognizable under the general statute of limitations.”). Similarly, when a statute contemplates “repeated violations,” each new violation restarts the statute of limitations, but penalties can be assessed only for the violations occurring within that limitations period. See Hamer v. City of Trinidad, 924 F.3d 1093, 1100 (10th Cir. 2019) (explaining the repeated violation doctrine). Under either doctrine, INA 274D(a)(1), 8 U.S.C. 1324d(a)(1), plainly indicates that Congress intended for an alien to be subject to a continuing or new penalty each day he remains in the United States in violation of a removal order regardless of when the final removal order was issued. And, as a matter of policy, ICE is applying the per diem penalty amount only for the five-year period preceding the date that the penalty is issued, consistent with the “repeated violations” doctrine.

Additionally, the Departments note that aliens can seek judicial review of final penalty decisions, after exhausting administrative remedies. See 5 U.S.C. 704. Aliens can also raise any available defense, including statute of limitations defenses, in connection with any enforcement action that DOJ brings to collect these fines.

For these reasons, individually and collectively, the Departments disagree with commenters' view that the IFR should be rescinded or revised because it does not address how the statute of limitations applies to these penalties. For the same reasons, commenters' views about the complexity of statute of limitations issues do not undermine the Departments' determination that the process for these penalties can be

streamlined because of their straightforward nature. 2. Implementation Matters and Alternatives

Comment: Implementation concerns and alternatives were also raised. One commenter expressed concern that the rule lacks adequate safeguards to prevent civil monetary penalties from being applied to aliens who currently hold, or are eligible for, lawful or protected status. The commenter stated that the rule provides no clear guidance on how DHS will avoid imposing fines on individuals who have been granted TPS, asylum, or relief under the VAWA or the T and U visa programs. These groups, the commenter explained, often have pending or approved immigration benefits that authorize their continued presence in the U.S. or excuse prior periods of unlawful presence. The commenter also noted that the IFR does not address how DHS will handle cases where aliens are beneficiaries of prosecutorial discretion, deferred action, or stays of removal. According to the commenter, the absence of explicit instructions combined with the IFR's streamlined process, risks imposing fines on aliens who are lawfully present under DHS policy or court order. The commenter stated it was critical to recognize that individuals with lawful or protected status are not obligated to depart.

Another commenter suggested that DHS should implement this rule as a limited pilot program before implementing it nationwide. The commenter said that a pilot-and-evaluate model would allow DHS to collect empirical evidence to assess the impact of civil fines on compliance, family stability, and financial impact of these penalties on aliens and their families. Using this empirical evidence to guide adjustments would ensure that civil fine enforcement evolves in response to real-world outcomes rather than theoretical assumptions.

Response: As an initial matter, the Departments reiterate that the IFR did not change the categories of aliens subject to civil penalties or ICE's process for deciding whether an alien is subject to a civil penalty. Rather, the IFR was issued as a procedural rule and governs only the procedures that apply to these penalties. Therefore, DHS declines to modify the IFR in this final rule to clarify the category of aliens who are or are not subject to these penalties. Immigration officers confirm an alien's current status based on available records before assessing a civil fine by referencing multiple platforms and immigration databases. ICE's guidance to immigration officers provides that aliens with approved applications for lawful or protected status-- such as TPS, Form I-730 Refugee/Asylee Relative benefits, VAWA protections, DACA, and T-visas and U-visas--should not be issued a civil fine. ICE also accounts for any deferrals of removal triggered by the filing of certain applications before USCIS, consistent with applicable statutes and regulations. When calculating a fine under INA 274D, immigration officers account for any periods after the removal order became administratively final during which the alien was authorized to remain in the United States due to, e.g., a stay or deferral of removal. As part of the individual case review process, immigration officers review documents and supporting information across multiple immigration systems, including systems and platforms of entities such as USCIS, CBP, and DOJ/EOIR. DHS clarifies that lawful status cannot be conferred through an immigration officer's exercise of discretion and that the immigration officer cannot excuse an alien's obligation to depart pursuant to a final removal order. Rather, this measure reflects a determination not to pursue enforcement action at the time such discretion is exercised. As such, individuals who are beneficiaries of this measure remain subject to the underlying immigration laws and obligations, including potential civil penalties for violations.

Comment: One commenter asserted that the rule misinterprets and overextends the scope of the civil monetary penalty authorized by INA 275(b), 8 U.S.C. 1325(b). The commenter stated that, by statute, these penalties apply only to aliens who are “apprehended while entering (or attempting to enter)” the United States, and not to those later encountered within the interior after an unlawful entry. The commenter objected to language in the IFR suggesting that DHS may rely on Form I- 213 or other records of interior apprehension to establish liability under INA 275(b), 8 U.S.C. 1325(b). The commenter argued that such an interpretation is inconsistent with the plain language of the statute and could lead to the improper assessment of fines against aliens who were not apprehended at the time of entry. The commenter urged DHS to revise the rule to clarify that INA 275(b), 8 U.S.C. 1325(b) penalties cannot be imposed on aliens apprehended after entry or encountered away from the border. The commenter also stated that the rule should require DHS to include specific evidentiary information in any order imposing this penalty such as the date of the attempted entry and the date and location of the arrest, to ensure that the penalty is applied only in circumstances consistent with statutory authority.

Response: The Departments disagree with the commenter's characterization that the rule overextends the scope of penalties under INA 275(b)(1), 8 U.S.C. 1325(b)(1). The rule does not expand the statutory application of 275(b), 8 U.S.C. 1325(b)(1) but rather provides procedural clarity for the assessment and collection of civil monetary penalties. The Departments interpret INA 275(b), 8 U.S.C. 1325(b)(1) to apply to aliens who are apprehended while entering or attempting to enter the United States. In practice, CBP will assess an INA 275(b), 8 U.S.C. 1325(b)(1), penalty only when it apprehends an alien who has entered (or attempted to enter) the United States without inspection in the past seven days and who has not yet reached their destination, consistent with the statutory language and legislative intent of INA 275(b)(1), 8 U.S.C. 1325(b)(1). As indicated above, the applicable statute of limitations runs five years from the date of apprehension.

Comment: Commenters expressed concern that the rule does not address how civil monetary penalties would apply to aliens whose prior removal orders are later reopened, vacated, or otherwise resolved in a manner that permits adjustment of status or other immigration relief. They noted that DHS often agrees to join motions to reopen removal proceedings to allow individuals to pursue lawful status or relief. They stated that it was “critical to recognize that those with lawful status in the U.S. are under no obligation to depart,” and that “[t]heir continued presence in the U.S. is not a willful failure to depart, but a lawful consequence of the status conferred upon them. Another commenter urged DHS to clarify that civil penalties assessed must be rescinded when a removal order is reopened and will not be used as a basis to deny the alien's future attempts to regularize their immigration status. The commenter suggested, without much elaboration, that the IFR should clarify that DHS should not apply fines against aliens with in absentia removal orders.

Response: ICE's guidance to immigration officers provides that aliens whose removal order is stayed should not be issued an INA 274D, 8 U.S.C. 1324d, failure to depart penalty. ICE confers with DHS's Office of the Principal Legal Advisor before issuing a

failure to depart penalty in any case in which a Motion to Reopen (“MTR”) has been adjudicated for review of the reasons for reopening asserted by the alien and any circuit-specific case law that may affect the viability of the penalty. ICE confirms an alien's current case status before assessing or collecting any fine by referencing its internal systems. DHS disagrees that fines should not apply to any alien with an in absentia removal order but notes that, where an alien files an MTR and claims that the alien did not receive notice, their removal order is stayed. INA 240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C). DHS emphasizes that the assessment of civil penalties is tied to the existence of a valid removal order and the alien's willful failure or refusal to depart as required by law. If a removal order is reopened, vacated, or dismissed, DHS will review the circumstances to determine whether the assessed civil penalties remain appropriate.

1. Administrative Procedure Act i. Procedural Rule Exception

Comment: Several commenters generally asserted that Departments lacked authority to issue the IFR without first publishing a notice of proposed rulemaking and providing a pre-promulgation comment period in accordance with the APA, 5 U.S.C. 553. First, commenters argued that the Departments cannot properly characterize the IFR as a procedural rule under 5 U.S.C. 553(b)(A). Commenters identified changes such as eliminating the NIF before issuing a final penalty, reducing the time to respond from 30 days to 15 days, allowing service by regular mail instead of certified or personal service, and moving appeals from the BIA to DHS. They asserted that these changes remove or weaken existing protections, implicate due process, change rights and obligations of affected individuals, and therefore render the rule substantive, which would require compliance with the APA's notice and comment requirements.

Response: The Departments disagree. This rule was properly issued without prior notice and comment under 5 U.S.C. 553(b)(A), which exempts from those requirements “rules of agency organization, procedure, or practice.” Under the APA, notice and comment is required for substantive rules. By contrast, agency rules that prescribe agency organization, procedure, or practice are exempt from the notice-and- comment requirement. See 5 U.S.C. 553(b)(A). The “critical feature of the procedural rule exception is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.” JEM Broadcasting Co., Inc. v. FCC, 22 F.3d 320, 328 (D.C. Cir. 1994) (cleaned up). In JEM Broadcasting, the D.C. Circuit upheld a rule that changed the timing and processing of applications, not the substantive criteria for deciding them, and treated the rule as procedural and exempt from notice and comment. Id.

As explained in the IFR, this rule fits within that procedural rule exemption. See 90 27454. This rule merely prescribes how the Departments conduct internal penalty proceedings and administrative reviews. The IFR does not alter the statutory obligations under INA 240B(d), 274D(a)(1), and 275(b); 8 U.S.C. 1229c(d), 1324d(a), and 1325(b), that authorize civil monetary penalties against aliens who fail to depart voluntarily, who willfully refuse to depart after a final order of removal, or who are apprehended while unlawfully entering or attempting to enter. It does not change the amount of these penalties or create new categories of violators or new statutory rights. The substantive legal liability remains as defined by statute.

Rather, the IFR merely revised the process by which the Departments impose these civil monetary penalties. For example, allowing DHS to serve penalty notices by regular mail (and no longer only by certified mail or personal service); shortening the period within which a respondent must contest the fine or exercise appeal rights from 30 to 15 days, moving the appeals process from the BIA to DHS, and other procedural streamlining merely alters the manner in which parties present themselves or their viewpoints to the Departments. Under the IFR, aliens continue to receive written notice of the penalty by regular mail and a meaningful opportunity to present a written response with supporting evidence before any final determination is made. Likewise, replacing BIA review with review by a DHS supervisory official who was not involved in the initial decision preserves neutral, independent oversight while streamlining the adjudication process. Accordingly, this rule is properly classified as a procedural rule and exempt from prior notice and comment procedures under the APA.

Moreover, though not required to do so, the Departments nonetheless solicited post-promulgation comments following publication of the IFR on June 27, 2025, and accepted comments through July 28, 2025. The Departments have carefully reviewed and considered all comment submissions received at the docket in developing this final rule. ii. Foreign Affairs Exemption

Comment: Commenters also asserted that the Departments' reliance on the foreign affairs exemption under 5 U.S.C. 553(a)(1) is legally unsupported. They argued that the rule's subject matter--imposing fines on aliens--is purely domestic enforcement activity that neither regulates nor directly impacts foreign affairs. Additionally, these commenters challenged the Departments' assertion that the rule supports U.S. foreign policy negotiations as vague, too attenuated, and overbroad. One commenter said that under the Departments' reasoning, nearly any domestic policy that “comes up in negotiations with a foreign country” could be exempt from notice and comment. The other commenter claimed that the Departments invoked the exception in bad faith, arguing that traditional examples of rules meeting the foreign affairs exemption involve rules relating to international trade and visa issuance.

One commenter suggested that the Departments did not demonstrate an immediate foreign affairs need to bypass the APA's notice and comment and delayed-effective-date requirements, noting that the fines covered by the IFR have been codified in law for years but only rarely used by DHS. The commenter also took issue with the Departments' assertion that immediate action is needed to address the shared problem of irregular migration to the southern border. The commenter asserted that the IFR will not have an appreciable impact on border operations because the Administration has already “shutdown asylum process at the Southern border” and the IFR is primarily targeted at aliens who are already illegally present within the United States.

Response: The IFR is excepted from the APA's notice-and-comment and delayed-effective-date requirements because it involves a “foreign affairs function of the United States.” 5 U.S.C. 553(a)(1). As an initial matter, contrary to one commenter's claim, the foreign affairs exception is not limited to rules relating to international trade and visa issuance. The Supreme Court has never determined what constitutes a “foreign affairs function of the United States.” Lower federal courts have held that this exception applies when the rule in question is “clearly and directly

involve[d]” in “a foreign affairs function.” E.B. v. U.S. Dep't of State, 583 F. Supp. 3d 58, 63 (D.D.C. 2022) (cleaned up). In addition, although the text of the APA does not require an agency invoking this exception to show that such procedures may result in “definitely undesirable international consequences,” some courts have required such a showing. See, e.g., Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008) (quotation marks omitted). The IFR satisfies both standards. Even though the Departments issued an IFR, an opportunity for public comment after issuing the IFR was provided and this final rule responds to those comments. See Little Sisters of the Poor Saints Peter and Paul Home, 591 U.S. 657, 683-84 (2020).

The Departments disagree with commenters' assertions that the IFR involves only domestic immigration enforcement and thus does not directly impact foreign affairs. First, as discussed in the IFR, the rule is directly and clearly connected to a foreign affairs function of the United States because it supports this Administration's efforts to address the shared international challenge of border security and illegal migration. The Secretary of State has made clear that “securing America's borders and protecting its citizens from external threats is the first priority foreign affairs function of the United States,” In this regard, the United States continues to work closely with foreign partner countries to address migration in the Western Hemisphere region to secure America's borders and protect its citizens, and this rule is clearly and directly related to, and responsive to, the United States efforts in this regard. Specifically, the IFR and this rule are intended to allow DHS to streamline and maximize its use of civil penalties against aliens who are apprehended entering or enter unlawfully at the southern border. DHS believes that this additional tool will allow it to discourage, prepare for, and respond to unlawful migration by increasing the consequences on aliens who make the dangerous journey to the United States and enter unlawfully. Therefore, measures like the IFR advance the United States' foreign policy objectives by demonstrating to partner countries that the United States is serious about the shared problem of irregular migration and border security and that the Administration is doing its part to address these challenges by using all available tools even if they originate from U.S. law. Further, the Departments disagree with one commenter's suggestion that the Departments invoked the exemption in “bad faith.” To the contrary, the Departments have relied on the foreign affairs exception, under several Administrations, when issuing rules designed to help address the shared international challenge of migration to the United States southern border.\56\

\56\ See e.g., Securing the Border, 89 FR 48710, 48759-62 (June 7, 2024); see also Asylum Eligibility and Procedural Modifications, 84 FR 33829, 33842 (June 16, 2019).

The Departments acknowledge that this rule also applies to aliens in the interior of the United States who have violated the immigration laws by failing to depart after a removal or voluntary departure. The Departments disagree, however, that the problem that the IFR seeks to address is purely a domestic one. Rather, as explained in the IFR, the United States' ability to address the challenge of aliens remaining in the country unlawfully after removal and departure orders depends in part on the willingness of other nations to accept the return and repatriation of their citizens from the United States. Contrary to commenters' claims, the Departments have provided concrete examples of the United States' foreign negotiations and efforts aimed at encouraging other countries to support the return of their citizens, including those with outstanding removal and voluntary departure orders. See 90 FR 27455. These efforts include encouraging other countries to promptly issue travels documents that allow their residents to return home, and more broadly to cooperate with DHS's efforts to successfully implement Presidential Proclamation 10935, Establishing Project Homecoming, 90 FR 20357 (May 9, 2025), which provides aliens with a process to voluntarily depart the United States and return to their home countries. See 90 FR 27455-56. All of these efforts indicate that the removal and voluntary return of aliens with no legal right to remain in the United States is a critical foreign policy objective of the United States. For these foreign policy efforts to continue to succeed, DHS must continue to demonstrate its own commitment to this foreign policy objective, including by encouraging aliens to take advantage of these expanded opportunities that the United States Government has secured through international efforts. The IFR directly and clearly serves this purpose by incentivizing aliens to comply with departure obligations, including through these expanded departure options, and by imposing consequences on those who fail to depart.

In addition to the IFR's clear and direct involvement in foreign affairs, the Departments believed that issuing the rule after notice and comment, and with a delayed effective date, could have led to definitely undesirable international consequences. As discussed in the IFR, these consequences include negative impacts to border security, which is a shared regional problem, and DHS's inability to capitalize on the momentum that the United States Government had achieved in encouraging countries to support the return of their citizens, including those with outstanding removal and departure orders. In this regard, the Departments disagree with commenters that claimed that the Departments did not demonstrate an immediate need for the IFR because this Administration's asylum policies at the southern border had already reduced irregular border encounters. The IFR acknowledged that encounters between POEs at the southern border had decreased significantly from their historic highs under the prior Administration. See 90 FR 27455. The Departments explained, however, that the IFR would help DHS to continue to build on the then-recent progress that DHS had achieved at the southern border. See 90 FR 27446, 27455-56. The Departments note that DHS was encountering nearly 1,000 aliens per day at the southern border only six months prior to the IFR's publication and nearly 2,000 aliens per day between June and December 2024.\57\ Therefore, although encounter numbers had declined when the IFR was issued in large part due to the Administration's border policies, DHS reasonably believed at the time that there was a substantial risk that, without additional tools in place at the southern border encounters, like this IFR, encounters could once again increase.

\57\ See Nationwide Encounters, U.S. Customs and Border Protection (Sept. 16, 2026), https://www.cbp.gov/newsroom/stats/nationwide-encounters (select Region: “US SW Land Border” and Component: U.S. Border Patrol).

Further, the Departments also disagree with the claim that the Departments did not demonstrate an immediate need to implement the rule under the foreign affairs exception because these civil monetary penalties have been authorized for many years but rarely used, and DHS has mainly applied them to aliens in the interior. As an initial matter, regardless of the past administrations' policies, this Administration has made clear that that the rapid return of illegal aliens to their home countries is a critical foreign policy objective of the United States and

it has conducted its recent foreign policy efforts consistent with this objective. In the months prior to issuing this IFR, the Administration had been engaged in discussions with several countries aimed at ensuring that those countries promptly issue travels documents to facilitate the return of their nationals. Moreover, in the weeks prior to issuing the IFR, the President directed the Secretary of State and the Secretary of Homeland to take all appropriate “actions to enable the rapid departure of illegal aliens from the United States” \58\ including assisting aliens with obtaining travel documents or relocating to another country and providing financial incentives and support to such aliens. The President also directed the Secretaries to notify aliens that should they choose not to take advantage of these incentives they will face consequences, including civil fines covered by this rule.

\58\ Proclamation 10935, 90 FR 20357, 20357 (May 9, 2025).

In light of these efforts, the Departments explained that by issuing the IFR immediately DHS would be able to capitalize on these recent foreign policy efforts by encouraging aliens, through the use of civil penalties, to take advantage of these expanded opportunities achieved through international discussions and cooperation, to depart the United States. The Departments also explained that the IFR would allow the U.S. Government to build on this foreign policy momentum by demonstrating to other countries that it is committed to using all necessary tools to facilitate the rapid departure of illegal aliens and that other nations should support the Administration's continued efforts to achieve this objective. Quite simply, if the United States is unable to demonstrate, through measures like the IFR, that it is committed to taking quick and robust action to remove aliens and encourage them to depart the United States voluntarily, which depends in large part on international cooperation, countries may be less inclined to engage with the United States on these ongoing efforts in the future. Accordingly, the Departments believe that, contrary to commenters' claim, immediate issuance of this rule was appropriate and necessary to avoid undesirable international consequences. iii. Good Cause

Commenters also argued that the Departments lacked good cause to make the IFR effective immediately upon publication, and one commenter asserted that the Departments improperly invoked the good cause exception under 5 U.S.C. 553(b)(B) to issue and immediately implement the IFR without prior notice and comment. Commenters argued that the IFR does not respond to sudden or unforeseeable emergency, and any need for the IFR was an emergency of DHS's own making--i.e., DHS's own decision to restart issuing civil penalty program despite previously ending that program in 2021 after determining that civil penalties were ineffective and legally vulnerable. Commenters also argued that the public burden imposed by immediate implementation, particularly on immigrant communities and service providers far outweighs any government benefit from accelerating enforcement.

Response: As an initial matter, the Departments note that the IFR did not invoke good cause under 5 U.S.C. 553(b)(B) to dispense with notice and comment. Rather, the Departments issued the IFR under the procedural rule exception under 5 U.S.C. 553(b)(A) and the foreign affairs exception under 5 U.S.C. 553(a)(1) and invoked good cause under 5 U.S.C. 553(d)(3) solely to make the rule effective upon publication. Section 553(d)(3) permits an agency to waive the standard 30-day delayed-effective-date requirement when it finds good cause for the rule to take immediate effect, balancing the agency's need for immediate implementation against affected persons' need for a reasonable amount of time to prepare for the effective date of its ruling. As explained in the IFR and reaffirmed here, the Departments determined that the ordinary reason for delay in a rule's effective date, to give members of the regulated community time to prepare and adjust their behavior, does not apply here because the IFR does not affect any person's substantive rights. Rather, it merely modifies the manner in which DHS issues and adjudicates civil monetary penalties and how an alien may contest such penalties. Moreover, the Departments found that the benefits of immediate implementation, ensuring uniformity, and administrative efficiency in the imposition and collection of civil monetary penalties, outweighed any need for affected parties to prepare for the effective date and adjust their behavior accordingly as this rule does not affect substantive right. Thus, the Departments conclude that invocation of the good cause under 553(d)(3) was lawful and appropriate. iv. Comment Period Duration

Comment: Commenters argued that the 30-day post-promulgation comment window was inadequate given the breadth and complexity of the rule, which alters established practices related to assessing and collecting civil penalties under the three INA provisions. Commenters also cited Executive Order 12866, Regulatory Planning and Review, 58 FR 51735, 51740, directing agencies to “afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days” and argued that the abbreviated timeframe prevented comprehensive analysis of the rule's many substantive changes.

Response: As an initial matter, commenters did not suggest or indicate what additional issues the comment period precluded them from addressing; to the contrary, the comments received reflect both a breadth and a level of detail which suggests that the period was more than sufficient. Cf. City of Waukesha v. EPA, 320 F.3d 228, 246 (D.C. Cir. 2003) (“In [showing prejudice] in the context of a violation of notice-and-comment requirements, petitioners may be required to demonstrate that, had proper notice been provided, they would have submitted additional, different comments that could have invalidated the rationale for the revised rule.”).

The APA does not prescribe any specific minimum duration for public comment periods. While agencies often provide a 30-day period for proposed rules, and sometimes longer for complex or economically significant rulemakings, the statute simply requires that agencies generally afford interested parties an opportunity to participate through submission of written data, views, or arguments.

Although not required to do so, the Departments nonetheless provided a 30-day comment period following publication of the IFR on June 27, 2025, accepting comments through July 28, 2025. That period afforded the public a meaningful opportunity to review the IFR and provide input. Indeed, federal courts have presumed 30 days to be a reasonable comment period length. See Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921 F.3d 1102, 1117 (D.C. Cir. 2019). Here, the detailed public comments the Departments received are evidence that the 30-day period was sufficient for the public to meaningfully review and provide informed comments. See, e.g., Little Sisters of the Poor Saints Peter and Paul Home, 140 S. Ct. at 2385 (“The object [of notice and comment], in short, is one of fair notice.”) (citation omitted).

The Departments received and carefully considered all timely submissions. Providing a 30-day

window for comments on a rule of limited procedural scope is consistent with longstanding administrative practice and the guidance reflected in Executive Orders 12866 and 13563, which encourage agencies to provide meaningful participation. The Departments' post-promulgation comment process thus satisfied the APA's requirements and furthered its purposes of transparency and public involvement, even though prior notice and comment were not legally required under 5 U.S.C. 553(a)(1) and (b)(A). 2. E.O. 12866 Analysis

Comment: One commenter asserted that the IFR would impose substantial new economic burdens on affected aliens and their households, with potentially significant aggregate impacts. They contended that the IFR's increased and accelerated civil monetary penalties, particularly daily fines approaching $1,000 for failure to depart following a final order of removal, could result in liabilities large enough to cause long-term financial hardship, including wage garnishment, asset seizure, and bankruptcy. They further stated that these costs would likely fall disproportionately on low-income individuals and mixed-status families, potentially creating spillover effects for U.S. citizen spouses and children and exacerbating economic insecurity in immigrant communities. The commenter also argued that the IFR may generate billions of dollars in annual penalties, and that DHS's retention of penalty revenues could create institutional incentives to maximize fine issuance. They maintained that the IFR was implemented without sufficient economic analysis or public input and recommend alternatives such as means-based penalties, hardship waivers, or installment plans, independent review mechanisms, and pilot implementation to evaluate real world economic effects before nationwide implementation.

Response: The Departments do not agree that this rule needs additional economic analysis or that it was adopted without considering financial impacts. As previously discussed, the rule does not create any new fines, change who can be fined, or increase the dollar amounts Congress has already set; it only changes the internal process DHS uses to issue and review those fines. Any financial hardship, including possible collection actions, comes from the underlying law and from an alien's choice to remain in the United States after being ordered to leave, not from these procedural updates. DHS's goal is to encourage people to follow removal and departure orders and to deter unlawful entry, not to generate revenue, and DHS will cancel most failure to depart fines when eligible aliens use the CBP Home app to leave the country. OMB has reviewed the rule as significant under Executive Order 12866. DHS has weighed the limited added economic effects of these process changes against their enforcement benefits, and the Departments provided a 30-day comment period and considered economic and other feedback before finalizing the rule.

The Departments have determined that this rule can take immediate effect notwithstanding the 30-day delayed effective date requirement in 5 U.S.C. 553(d).

Generally, there is good cause for this rule to take immediate effect. See 5 U.S.C. 553(d)(3). This rule generally adopts the provisions of the IFR, with one change to help mitigate the potential effect of mail delays that could impact the amount of time an alien has to contest a civil penalty. See 5 U.S.C. 553(d)(1) (excepting from the delayed effective date requirements substantive rules that grant or recognize an exemption or relieve a restriction). The purpose of the 30-day waiting period is “to give affected parties time to adjust their behavior before the final rule takes effect.” Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992). Here, however, that purpose would not be served by delaying the effective date of this final rule or the rule's amendment to account for mail delays because the public does not need advanced notice in order to conform their behavior to the rule.

This final rule largely adopts the provisions of the IFR, which took effect on June 27, 2025. Consequently, aliens and legal service providers who may represent such aliens have long been on notice of those procedures and processes this rule adopts. See United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (noting that the “legislative history of the APA” indicates that the waiting period “was not intended to unduly hamper agencies from making a rule effective immediately,” but intended “to `afford persons affected a reasonable time to prepare for the effective date of a rule . . . or to take other action which the issuance may prompt' ” (citing S. Rep. No. 752, 79th Cong., 1st Sess. 15 (1946); H.R. Rep. No. 1980, 79th Cong., 2d Sess. 25 (1946))). Indeed, the Departments have consistently communicated an intent to finalize the IFR.\59\ The fact that the IFR's effective date was recently stayed \60\ does not change the Departments' determination--the brief period between the entry of the stay on October 5, 2026, and October 14, 2026, does not alter the fact that the public operated under the rule's provisions for more than a year and has long been on notice of the Departments' intent to make them final.

\59\ See 2026 Unified Agenda, RIN 1653-AA96, Imposition and Collection of Civil Penalties for Certain Immigration-Related Violations, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202510&RIN=1653-AA96 [https://perma.cc/T87D-AN6A] (showing August 2026 as the expected timeline for publication of this final rule); Def.'s Opp'n to Pls.' Mot. to Compel, Maria L. v. Mullin, No. 1:25-cv-13471 (DDC filed May 11, 2026), dkt. 69 (“Third, the Interim Final Rule (“IFR”) Plaintiffs challenge is currently the subject of ongoing final rulemaking. The agencies are reviewing comments, including the comment Plaintiff Immigration Legal Resource Center (“ILRC”) submitted, and will issue a final rule in due course.”).

\60\ See Maria L. v. Mullin, No. CV 25-13471-GAO, 2026 WL 2983111 (D. Mass. Sept. 30, 2026).

Similarly, the change this final rule makes does not alter the calculus merely because it has not been part of the status quo under the IFR for the past year. The minor amendment is designed to benefit aliens by recognizing that an alien's untimely appeal may nonetheless be accepted if the late appeal was caused by a mail delay. See 5 U.S.C. 553(d)(1). Even so, it relates solely to agency procedure and practice and thus is not subject to the 30-day effective date for “substantive rule[s]” under 5 U.S.C. 553(d). The procedural rule exception “covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.” JEM Broad. Co., Inc. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (quoting Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980)); see also Mendoza v. Perez, 54 F.3d 1002, 1023-24 (D.C. Cir. 2014). The amendment in this final rule

does not change an alien's right to appeal a penalty under the IFR's 15-business day appeal deadline and therefore “impose[s] no new substantive obligations or burdens upon the parties' rights and interests.” Am. Fed'n of Lab. & Cong. of Indus. Organizations v. Nat'l Lab. Rels. Bd., 57 F.4th 1023, 1043 (D.C. Cir. 2023) (quoting EPIC v. U.S. Dep't of Homeland Sec., 653 F.3d 1, 6 (D.C. Cir. 2011).\61\ Rather, while the amendment directs aliens to provide evidence of a mail delay in connection with an untimely appeal, this simply establishes a clear process for the agency to evaluate such a claim. Therefore, this evidentiary requirement is merely a procedural step, not a substantive change to the right to appeal itself.

\61\ The Departments further maintain that the 15-day appeal deadline is likewise a procedural change, rather than a substantive one, for the reasons explained in the IFR. 90 FR 27454.

In finding good cause to bypass the 30-day delayed effective date requirement, the Departments have “balanc[ed] the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable [amount of] time to prepare for the effective date of [the rule].” Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996) (citation omitted). Here, the balance tips sharply in favor of immediate implementation. The United States Government and the American people have a strong interest in making the final rule effective immediately to ensure that DHS can continue implementing the IFR's provisions. As discussed in Section I.B. of this preamble, the IFR has reduced agency resource burdens by streamlining the civil penalty process and has allowed DHS to exercise its statutorily authorized civil penalty authority at scale in response to the large number of aliens who have unlawfully entered the United States or have failed to comply with removal and voluntary departure orders in recent years. In turn, this has allowed DHS to encourage greater compliance with such orders and provides DHS with another tool to disincentive future unlawful entries at the border.

The Regulatory Flexibility Act of 1980 (“RFA”), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. A regulatory flexibility analysis is not required when a rule is exempt from notice- and-comment rulemaking. This final rule finalizes an IFR that was exempt from the notice-and-comment rulemaking. Therefore, a regulatory flexibility analysis is not required.

However, even assuming that this rule is not exempt from notice- and-comment procedures and therefore not exempt from the requirements of the RFA, the Departments have reviewed this rule in accordance with the RFA. The Secretary of Homeland Security and the Acting Director of EOIR certify that this rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

First, aliens are not “small entit[ies]” as defined by the RFA. See 5 U.S.C. 601(6) (defining “small entity” as having the same meaning as “small business,” “small organization,” and “small government jurisdiction” as defined in 5 U.S.C. 601(3)-(5)).

Second, to the extent that legal service organizations qualify as “small entities,” any economic effects of this rule on such organizations would not be significant under the RFA. The rule will not economically impact representatives of aliens in contesting these penalties. It does not limit the fees they may charge or the number of cases a representative may ethically accept under the rules of professional responsibility. For example, the IFR's changes to the procedures for contesting a civil penalty do not change the overall requirement that aliens must respond to a civil penalty notice to challenge the penalty; rather the IFR simply changed the procedures for how that appeal is filed, in what time frame, and which U.S. Government officials are responsible for adjudicating the appeal. The IFR's changes to shorten the appeal period required legal service providers to adjust to these new timelines. The Departments expect, however, that legal service organizations have quickly acclimated to this change without substantial disruption. Indeed, the IFR was in effect for over a year, and the appeal rate increased under the IFR compared to the pre-IFR process for these civil penalties under 8 CFR part 280. Thus, any costs incurred in adapting to the IFR's timelines were not significant under the RFA. And the one change in this final rule to the IFR's provisions is not expected to increase such costs significantly (if at all) given that it discretely applies to demonstrated mail delays.

In any event, this rule does not limit or otherwise dictate the fees that legal service providers may charge or the number of civil penalty cases the organization may ethically and competently accept. See Mid-Tex Elec. Co-op., Inc. v. FERC, 773 F.2d 327, 342-43 (D.C. Cir. 1985) (concluding “an agency may properly certify that no regulatory flexibility analysis is necessary when it determines that the rule will not have a significant economic impact on a substantial number of small entities that are subject to the requirements of the rule” and stating that legislative history of the RFA “gives rise to an inference that Congress did not intend to require that every agency consider every indirect effect that any regulation might have on small businesses in any stratum of the national economy”).

Moreover, any effects this rule may have on legal service organizations, other representatives of aliens, or other entities that provide services to aliens subject to civil penalty procedures are

indirect. The rule does not impose reporting, recordkeeping, staffing, fee, or other compliance requirements on those entities. Rather, it establishes procedures governing DHS's issuance and review of civil penalties and the process by which an alien may seek administrative review of a penalty determination. Although a legal service organization or other representative may choose to adjust its internal practices in response to procedures or timelines applicable to its clients, any such effects result from the entity's provision of services to affected aliens and not from a regulatory requirement imposed directly on that entity by this rule. The RFA does not require an agency to assess indirect effects on small entities that are not themselves subject to the rule's requirements. Accordingly, the Departments do not treat such indirect effects as regulatory compliance costs imposed on small entities by this rule.\62\

\62\ See U.S. Small Business Administration, Office of Advocacy, A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act 22-23 (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf (explaining that courts have held that the RFA requires analysis of impacts on small entities directly regulated by a rule, rather than indirect effects on entities that provide services to or otherwise interact with directly affected persons); Mid-Tex Elec. Coop., Inc., 773 F.2d at 342-43; see also Am. Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1044 (D.C. Cir. 1999).

DHS and its components analyze final actions to determine whether the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. 4321 et seq., applies to them and, if so, what degree of analysis is required. DHS Directive 023-01 Rev. 01 \63\ and Instruction Manual 023- 01-001-01 Rev. 01 (“Instruction Manual”) establish the policies and procedures that DHS and its components use to comply with NEPA.

\63\ DHS, Implementation of the National Environmental Policy Act, Directive 023-01, Revision 01 (Oct. 31, 2014).

NEPA allows Federal agencies to establish categories of actions (“categorical exclusions”) that experience has shown do not, individually or cumulatively, have a significant effect on the human environment and, therefore, do not require an environmental assessment (“EA”) or environmental impact statement (“EIS”). An agency is not required to prepare an EA or EIS for a proposed action “if the proposed agency action is excluded pursuant to one of the agency's categorical exclusions.” 42 U.S.C. 4336(a)(2). The Instruction Manual, Appendix A, lists the DHS Categorical Exclusions. For an action to be categorically excluded under DHS's Instruction Manual, the action must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect.

This final rule is categorically excluded from DHS's NEPA implementing procedures, because it satisfies all three relevant conditions. First, the Departments have determined that the IFR fits clearly within categorical exclusions A3(a) of DHS's Instruction Manual, Appendix A, for the promulgation of rules of a “strictly administrative or procedural nature.” This final rule merely changes the procedures that DHS and DOJ apply when assessing civil monetary penalties authorized under certain sections of the INA. This change in procedures does not result in a change in their environmental effect. Second, this final rule is a standalone rule and is not part of any larger action. Third, the Departments are not aware of any extraordinary circumstances that would cause a significant environmental impact. Therefore, this final rule is categorically excluded, and no further NEPA analysis or documentation is required.

Accordingly, the interim final rule amending 8 CFR part 281, which was published at 90 FR 27439 on June 27, 2025, is adopted as final with the following change:

PART 281--IMPOSITION AND COLLECTION OF PENALTIES UNDER SECTIONS 240B(d), 274D(a)(1), and 275(b) OF THE ACT

0 1. The authority citation for part 281 continues to read as follows:

Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1229c, 1253, 1322, 1323, 1325, 1324d, 1330; 5 U.S.C. 301; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 101 et seq.); 66 Stat. 173, 195, 197, 201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.

0 2. Amend 281.1, by redesignating paragraphs (e)(2) through (e)(4) as (e)(3) through (e)(5) and adding new paragraph (e)(2) to read as follows:

Sec. 281.1 Exclusive procedures for civil monetary penalties under sections 240B(d), 274D(a)(1), and 275(b) of the Act.

* * * * *

(e) * * *

(2) Appeals affected by mail delay. An alien who files an appeal after the 15-business days filing period prescribed in paragraph (e)(1) of this section and asserts that the untimely filing resulted from delayed or untimely mail delivery of the immigration officer's decision must include with the appeal a written explanation and any available documentary evidence demonstrating the mail delay. An alien who files an appeal after the 15-business day filing period prescribed in paragraph (e)(1) of this section may also produce contemporaneous, time-stamped evidence of deposit of their mailed appeal directly from the U.S. Postal Service (“USPS”) or their chosen commercial carrier. If ICE determines that the appeal was filed after the deadline due to mail delay beyond the alien's control, ICE will accept the appeal as timely filed and consider it on the merits. In making this determination, ICE will consider the mailing and actual receipt dates, the cause and length of the delay, and the alien's good faith efforts in pursuing the appeal after receipt. ICE's determination will be case by case considering all evidence presented with the appeal. * * * * *