[Federal Register Volume 91, Number 197 (Wednesday, October 14, 2026)]
[Rules and Regulations]
[Pages 65390-65432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-21024]



[[Page 65389]]

Vol. 91

Wednesday,

No. 197

October 14, 2026

Part IV





Department of Homeland Security





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Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 281, 1003, and 1280





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

Federal Register / Vol. 91, No. 197 / Wednesday, October 14, 2026 / 
Rules and Regulations

[[Page 65390]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 281

[Docket No: ICEB-2025-0034]
RIN 1653-AA96

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1280

[Dir. Order No. 11-2026]
RIN 1125-AB36


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

AGENCY: U.S. Immigration and Customs Enforcement (``ICE''), Department 
of Homeland Security (``DHS''); Executive Office for Immigration Review 
(``EOIR''), Department of Justice (``DOJ'').

ACTION: Final rule.

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SUMMARY: On June 27, 2025, the Departments issued an interim final rule 
(``IFR'') to streamline assessment of civil penalties under the 
Immigration and Nationality Act (``INA'') for aliens who fail to depart 
during a voluntary departure period, willfully fail or refuse to depart 
after a final removal order and certain other proscribed activities, or 
are apprehended while improperly entering or attempting to enter the 
United States. This final rule addresses comments and finalizes the IFR 
with one change: it permits acceptance of a late-filed appeal based on 
documented mail delivery delays that ICE finds were beyond the alien's 
control.

DATES: The effective date of this final rule is October 14, 2026.

FOR FURTHER INFORMATION CONTACT: 
    For DHS: Office of the Principal Legal Advisor, Regulatory Affairs 
Unit, U.S. Immigration and Customs Enforcement, Department of Homeland 
Security, 500 12th Street SW, Washington, DC 20536; telephone (202) 
732-6960.
    For DOJ: Jamee E. Comans, Assistant Director, Office of Policy, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2500, Falls Church, VA 22041; telephone (703) 305-0289.

SUPPLEMENTARY INFORMATION:

I. Background

A. Basis and Purpose of the IFR

    On January 20, 2025, President Trump issued Executive Order 
(``E.O.'') 14159, Protecting the American People Against Invasion. E.O. 
14159, 90 FR 8443 (Jan. 29, 2025). In Section 2 of that E.O., President 
Trump directed that it is ``the policy of the United States to 
faithfully execute the immigration laws against all inadmissible and 
removable aliens'' and ``to achieve the total and efficient enforcement 
of those laws, including through lawful incentives and detention 
capabilities.'' 90 FR 8443. Section 8 of E.O. 14159 directs the 
Secretary of Homeland Security, in coordination with the Secretary of 
the Treasury, to ``take all appropriate action to ensure the assessment 
and collection of all fines and penalties that the Secretary of 
Homeland Security is authorized by law to assess and collect from 
aliens unlawfully present in the United States, including aliens who 
unlawfully entered or unlawfully attempted to enter the United 
States.'' 90 FR 8444-45. Section 12 of E.O. 14159 directs the Secretary 
of Homeland Security, in coordination with the Secretary of State and 
the Attorney General, ``to take all appropriate action . . . to adopt 
policies and procedures to encourage aliens unlawfully in the United 
States to voluntarily depart as soon as possible, including through 
enhanced usage of the provisions of section 240B of the INA (8 U.S.C. 
1229c), international agreements or assistance, or any other measures 
that encourage aliens unlawfully in the United States to depart as 
promptly as possible''. 90 FR 8445. In Section 2 of E.O. 14165, 
Securing Our Borders, President Trump directed the Departments to 
``take all appropriate action to secure the borders of our Nation,'' 
including by ``[d]eterring and preventing the entry of illegal aliens 
into the United States'' and by ``[o]btaining complete operational 
control of the borders of the United States.'' E.O. 14165, 90 FR 8467 
(Jan. 30, 2025). In Proclamation 10935, President Trump established 
Project Homecoming to ``present illegal aliens with a choice: either 
leave the United States voluntarily, with the support and financial 
assistance of the Federal-government, or face the consequences.'' 
Establishing Project Homecoming, 90 FR 20357 (May 14, 2025).
    On June 27, 2025, the Departments issued an IFR, effective on the 
same date, to streamline how DHS assesses certain civil monetary 
penalties that Congress has long authorized under the INA. See 
Imposition and Collection of Civil Penalties for Certain Immigration-
Related Violations, 90 FR 27439 (June 27, 2025). The IFR applies to 
three categories of illegal aliens: (1) aliens who willfully fail or 
refuse to depart the United States pursuant to a final order of removal 
or take certain actions to thwart their departure or removal, INA 
274D(a)(1), 8 U.S.C. 1324d(a)(1); (2) aliens who voluntarily fail to 
depart the United States within the time period specified pursuant to a 
voluntary departure order, INA 240B(d)(1)(A)-(B), 8 U.S.C. 
1229c(d)(1)(A)-(B); \1\ and (3) aliens apprehended while entering (or 
attempting to enter) the United States unlawfully, INA 275(b)(1), 8 
U.S.C. 1325(b)(1). See also 8 CFR 281.1(a) (scope of the IFR). The IFR 
revised the Departments' civil monetary penalty procedures for these 
categories of aliens so that DHS can more efficiently and effectively 
promote compliance with Immigration Court orders and support border 
security. See 90 FR 27442. The IFR partially implements Section 8 of 
E.O. 14159 and supports DHS's efforts, as directed by the President, to 
faithfully execute the immigration laws, to achieve total and efficient 
enforcement of those laws, and to secure the borders of the United 
States. See 90 FR 27446-47. The IFR also advances the purpose of 
Proclamation 10935, Establishing Project Homecoming, by reinforcing 
that aliens must either voluntarily depart the United States, with 
Federal support as applicable, or face statutorily authorized 
consequences for failing to comply with removal or departure orders.
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    \1\ For ease of reading, this preamble in some instances uses 
the phrase ``failure to depart civil monetary penalties'' to refer 
collectively to both (1) the civil monetary penalties under section 
274D(a)(1) of the INA, 8 U.S.C. 1324d(a)(1), for willful failure or 
refusal to depart following a removal order; and (2) civil monetary 
penalties under section 240B(d)(1)(A) of the INA, 8 U.S.C. 
1229c(d)(1)(A), for failure to voluntarily depart within the time 
period specified in a voluntary departure order.
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    As the IFR explains, the revised procedures are needed to 
complement DHS's efforts to address the large number of aliens who 
remain in the United States despite having final removal or voluntary 
departure orders. See 90 FR 27446. Prior to the issuance of the IFR, 
there were approximately 1.5 million aliens on ICE's non-detained 
docket with final orders of removal, including those who failed to 
depart after being granted voluntary departure pursuant to INA 240B, 8 
U.S.C. 1229c. For example, as discussed in the IFR, in FY 2024 alone, 
EOIR issued more than 282,000 final removal orders, but DHS data 
indicate that only about 10 percent of those orders were executed. 90 
FR 27445. In the same year, EOIR granted approximately 8,800 voluntary 
departure orders, yet only about 50 percent of those aliens confirmed 
their departure. Id. Moreover, as a result of the prior 
Administration's policies, including its border policies, the

[[Page 65391]]

Immigration Court caseload has dramatically increased in recent 
years.\2\ In the third quarter of FY 2026, there were over 3.4 million 
pending Immigration Court cases, a large percentage of which, if 
consistent with previous years, will result in removal or voluntary 
departure orders once adjudicated.\3\ Thus, without the IFR's 
intervention, the number of aliens who remain in the United States 
despite final removal and voluntary departure orders would have been 
likely to increase in the coming years. Id.
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    \2\ However, although EOIR's pending caseload continues to be 
over 3.4 million, this number is trending downwards for the first 
time since its dramatic increase between 2021 and 2024. This 
downward trend has resulted from corrective action taken by the 
current Administration to address the crisis at the border, supra at 
Section I.A of this preamble; as well as corrective action taken by 
EOIR to improve the efficiency of EOIR operations, which promoted a 
record number of case completions in FY 2025; and a dramatic drop in 
the number of cases before EOIR initiated by DHS in FY 2025. EOIR 
Workload & Adjudication Statistics, Pending Cases, New Cases, and 
Total Completions (July 24, 2026), https://www.justice.gov/eoir/media/1344791/dl?inline [https://perma.cc/B2AW-2QYD].
    \3\ See EOIR Workload & Adjudication Statistics, Pending Cases, 
New Cases, and Total Completions (July 24, 2026), https://www.justice.gov/eoir/media/1344791/dl?inline [https://perma.cc/B2AW-2QYD].
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    An Immigration Court's order of an alien's removal, unless reversed 
or vacated on appeal, is binding on all parties, including aliens. See 
8 CFR 1240.1(a)(1)(i), 1240.41, 1241.1. Aliens subject to final 
executable orders of removal \4\ remain legally obligated to comply 
with Immigration Court orders to depart the United States, regardless 
of prior DHS policies that did not prioritize all such aliens for 
apprehension, detention, and removal. The large number of unexecuted 
removal orders and the growth of DHS's non-detained docket demonstrate, 
however, that many aliens do not comply with this obligation.\5\ This 
pattern of large-scale noncompliance risks further encouraging aliens 
to disregard such orders under the belief that they can remain in the 
United States without consequence. See 90 FR 27446. Such noncompliance, 
in turn, undermines the integrity of the immigration system, weakens 
the authority of Immigration Courts, and raises fairness concerns for 
aliens who do comply with removal and departure requirements. See id.
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    \4\ The term ``final executable removal order'' describes a 
situation where there is no legal impediment to the alien's removal. 
As discussed in Section III of this preamble, DHS does not issue 
failure to depart penalties to aliens for whom there is no final 
executable removal order because, for example, they have a stay of 
removal or other forms of protection, including Temporary Protected 
Status, withholding of removal, or protection under the regulations 
implementing the Convention Against Torture when no alternative 
country of removal is available, or have a DHS approved reason for 
remaining in the United States including an affirmative grant of 
deferred action. (For aliens who have protection under the 
regulations implementing the Convention Against Torture but for whom 
there is an alternative country of removal, the final order of 
removal may still be executable to that alternative country.) For 
ease of reading in this preamble, the Departments use the term 
``removal order'' to mean a ``final executable removal order'' when 
discussing civil penalties for failure to depart.
    \5\ Section 241(a) of the INA, 8 U.S.C. 1231(a), governs the 
detention and removal of aliens who have already been ordered 
removed. It directs DHS to remove an alien within a 90-day removal 
period. The statute provides: during the removal period, DHS shall 
detain the alien and ``[u]nder no circumstance during the removal 
period shall the [Secretary] release an alien who has been found 
[removable on certain criminal and national-security grounds].'' See 
INA 241(a)(1), 1231(a)(1). The prior Administration did not 
prioritize the apprehension, detention, and removal of all aliens 
with final removal orders. See United States v. Texas, 599 U.S. 670, 
715 (2023) (Alito, J. dissenting) (discussing enforcement priorities 
memoranda issued by DHS and ICE in 2021). Instead, many simply 
remained in the United States without consequence. Congress, 
however, has not absolved such aliens of their obligation to depart 
the United States if they were not removed, were never detained, or 
were released during the removal period. Indeed, section 241 of the 
INA, 8 U.S.C. 1231, expressly contemplates that even aliens who were 
never detained during the 90-day removal period have an independent 
obligation to leave the United States. See INA 241(a)(3), 8 U.S.C. 
1231(a)(3) (providing that DHS may impose conditions of supervision 
on the alien ``[i]f the alien does not leave or is not removed 
within the removal period.'' Moreover, Congress has specifically 
authorized DHS to impose civil monetary penalties on aliens who 
willfully remain in the United States after a removal order which 
demonstrates that aliens have an independent obligation to leave the 
United States even if ICE did not take action to physically remove 
the alien or the alien was released after the expiration of the 
removal period. See INA 274d(a)(1), 8 U.S.C. 1324(d)(a)(1).
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    Under this Administration, DHS is taking robust action, consistent 
with the President's direction, to ramp up efforts to locate, 
apprehend, detain, and remove aliens with final removal orders who were 
released under supervision or otherwise not subject to detention in 
prior years and who remain in the United States. See E.O. 14159, 90 FR 
8443 (Jan. 29, 2025). Managing those removals requires a significant 
expenditure of ICE resources in addition to costs to taxpayers.\6\ 
Although ICE is hiring Enforcement and Removal Operations (ERO) 
officers and expanding detention capacity pursuant to additional 
funding under the One Big Beautiful Bill Act, Public Law 119-21, 139 
Stat. 72, 358-59 (2025), those efforts will take time to implement, and 
ICE must continue to devote immigration enforcement resources to all 
categories of illegal aliens that may or may not be subject to removal 
orders, including criminal aliens, national security risks, and other 
aliens unlawfully present in the United States.\7\
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    \6\ See DHS, DHS Announces Historic Travel Assistance and 
Stipend for Voluntary Self-Deportation (May 5, 2025) (noting that 
currently the average cost to arrest, detain, and remove an illegal 
alien is $17,121) https://www.dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation 
[https://perma.cc/8ST2-RHHP]; see also Proclamation 10935, 90 FR 
20357 (``Removal flights of illegal aliens are a necessary aspect of 
immigration enforcement and upholding the rule of law, but they 
require substantial resources and manpower.'').
    \7\ See DHS, Finding of Mass Influx of Aliens, 90 FR 45396-98 
(Sept. 22, 2025) (explaining that in September 2025, ICE was working 
to fulfill a 61 percent vacancy rate for ERO officers and that the 
hiring of new ICE ERO officers ``takes time and includes the hiring 
onboarding and training of new officers''); DHS Finding of Mass 
Influx of Aliens 91 FR 59795, 59796-97 (Sept. 21, 2026); 59796 
(Sept. 21, 2026) (explaining that ICE detention facilities are at 83 
percent capacity as of August, 2026).
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    The IFR was also intended to complement DHS's efforts to maintain 
border security. Under the prior Administration, more than 8 million 
aliens were encountered along the southern border of the United States. 
90 FR 8334. In FY 2024 alone, DHS estimates that approximately 1.5 
million aliens entered or attempted to enter unlawfully between ports 
of entry. 90 FR 27445. Although encounters have since declined in 
connection with this Administration's policies, these prior high 
encounter levels demonstrate the need for DHS to use all statutorily 
authorized tools to maintain border security and reduce incentives for 
unlawful entry. Id.
    When such large numbers of aliens enter unlawfully between POEs, as 
occurred under the last Administration, DHS's capacity to apprehend, 
process, detain, and swiftly remove all such aliens diminishes.\8\ As a 
result, under the prior Administration, millions of aliens were 
released into communities nationwide, many of whom were subject to but 
not processed under expedited removal as envisioned by the statutory 
framework, imposing substantial costs on the States and encouraging 
additional migration by unlawful aliens who believed they would likely 
be released into the United States while awaiting removal proceedings 
that often

[[Page 65392]]

take years to resolve.\9\ When U.S. Border Patrol (``USBP'') officers 
are diverted from patrol duties to process large groups of migrants and 
conduct detention-related activities, criminal organizations and 
smugglers can exploit the diversion of resources to move illegal drugs, 
weapons, contraband, and aliens into the United States. See E.O. 14165, 
90 FR 8467 (Jan. 20, 2025). Elevated levels of unlawful border 
crossings also strain ICE's detention resources and impede ICE's 
ability to detain other aliens, including those with final removal 
orders. See 90 FR 45397, 45397. In combination, the prior 
Administration's policies and resulting incentives for unlawful entry 
hindered the effective operation of immigration laws designed to 
protect U.S. sovereignty and prevent the unlawful entry of illicit 
contraband, criminals, and illegal aliens.
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    \8\ See Proclamation 10888, Guaranteeing the States Protection 
Against Invasion, 90 FR 8333 (Jan. 29, 2025) (``The sheer number of 
aliens entering the United States has overwhelmed the system and 
rendered many of the INA's provisions ineffective.''); see also 
Securing the Border, 89 FR 48710, 48714-15 (June 7, 2024) (interim 
final rule) (explaining that when large numbers of aliens cross the 
border unlawfully, the ``Departments' ability to refer and process 
[aliens] through expedited removal thus continues to be overwhelmed, 
creating a vicious cycle in which the border security and 
immigration systems cannot deliver timely decisions and consequences 
to all the people who are encountered at the SWB and lack a lawful 
basis to remain in the United States'').
    \9\ See Proclamation 10888, 90 FR 8333, 8334 (Jan. 29, 2025) 
([T]he ``influx of illegal aliens across the southern border of the 
United States has placed significant costs and constraints upon the 
States, which have collectively spent billions of dollars in 
providing medical care and related human services, and have spent 
considerable amounts on increased law enforcement costs associated 
with the presence of these illegal aliens within their 
boundaries''); see also Securing the Border, 89 FR 48710, 48714 
(discussing incentives for irregular migration during periods of 
high encounters at the U.S. southern border including possible 
release into the United States and years long delays in Immigration 
Court proceedings).
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    Additionally, elevated border crossings can severely inhibit the 
effective functioning of the Immigration Courts. Under the prior 
Administration, the record numbers of aliens encountered across the 
southern border overwhelmed DHS's capacity to process such aliens 
through expedited removal as envisioned by the statutory framework of 
the Act. 89 FR 81158. Instead, DHS was forced to place aliens into 
section 240 removal proceedings at a rate that outpaced EOIR's capacity 
to complete such cases in a timely manner and led to extensive delays 
in Immigration Court proceedings. Id. Under this Administration, the 
Departments have taken significant efforts to disrupt aliens' 
expectations of lengthy Immigration Court delays, including more robust 
utilization of expedited removal where available and a renewed focus on 
EOIR operational efficiency. Accordingly, EOIR has seen a precipitous 
drop in initial receipts of charging documents to initiate proceedings 
between FY 2024 and FY 2025, and has been continually increasing the 
total number of case completions.\10\ However, considering the 
challenges experienced under the prior administration at the southern 
border and the resulting consequences, the Departments have a need to 
use all available measures to prevent such a situation from 
reoccurring.
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    \10\ EOIR Workload & Adjudication Statistics, Pending Cases, New 
Cases, and Total Completions (July 24, 2026), https://www.justice.gov/eoir/media/1344791/dl?inline [https://perma.cc/B2AW-2QYD]; EOIR Workload & Adjudication Statistics, New Cases and Total 
Completion (July 24, 2026), https://www.justice.gov/eoir/media/1395636/dl?inline [https://perma.cc/49J5-JTWY].
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    For these reasons, and consistent with this Administration's 
policies, DHS believes that it must employ all immigration enforcement 
authorities that Congress has provided in order to both maintain border 
security, including to discourage large numbers of aliens from crossing 
the southern border and overwhelming the Departments' abilities to 
effectively process and remove such aliens as occurred under the last 
administration, and to address the large number of aliens with removal 
and voluntary departure orders who have violated U.S. immigration law 
by remaining in the United States in contravention of such orders.
    One such authority is civil monetary penalties. As explained in 
more detail in the IFR, Congress has authorized DHS to impose civil 
penalties on: (1) aliens who willfully fail or refuse to depart the 
United States after a final order of removal or take other action to 
thwart removal; (2) aliens who fail to comply with a voluntary 
departure order; and (3) aliens who are apprehended entering or 
attempting to enter the United States unlawfully (``unlawful entry 
penalties''). See INA 274D(a)(1), 8 U.S.C. 1324d(a)(1); INA 
240B(d)(1)(A), 8 U.S.C. 1229c(d)(1)(A); INA 275(b)(1), 8 U.S.C. 
1325(b)(1). Congress has also specified the authorized range of penalty 
amounts, which DHS has adjusted for inflation. For ``unlawful entry,'' 
the penalty amounts range from $100 to $500 per entry or attempted 
entry. See INA 275(b)(1), 8 U.S.C. 1325(b)(1); 8 CFR 280.53(b)(14). For 
failure to comply with voluntary departure conditions, the penalty is 
set by an Immigration Judge or the Board of Immigration Appeals 
(``BIA'') and may range from $1,992 to $9,970 after inflation 
adjustments, but the general default amount is $3,000. See INA 
240B(d)(1)(A), 8 U.S.C. 1229c(d)(1)(A); 8 CFR 280.53(b)(3), 1240.26(l). 
For aliens ordered removed who remain in the United States, DHS may 
impose a penalty of up to $998 for each day the alien willfully fails 
to comply with the order. See INA 274D(a)(1), 8 U.S.C. 1324d(a)(1); 8 
CFR 280.53(b)(14). As the IFR explains, DHS believes that robust 
application of these civil penalties will deter future unlawful entries 
and encourage greater compliance with removal and voluntary departure 
orders, in line with Congress's intent and this Administration's focus 
on securing the border and restoring integrity to the immigration 
system. See 90 FR 27439-40, 27442.
    Prior to the IFR, however, DHS was required to use the general 
civil penalty procedures at 8 CFR part 280 to impose these penalties. 
These procedures were promulgated by the former Immigration and 
Naturalization Service (``INS'') decades before Congress authorized the 
specific failure-to-depart and unlawful entry penalties covered by the 
IFR. See 90 FR 27440-41. Those regulations were designed primarily for 
penalties imposed on airlines and other carriers that violate INA 
provisions governing the transport of aliens into the United States, 
rather than for penalties against individual aliens for failure-to-
depart or unlawful entry. Id. Under those regulations, DHS had to 
provide a written notice of intent to fine (``NIF''), served in person 
or by certified mail, and then wait at least 30 days for a response. 
Id. If the alien did not respond or did not contest the fine, a DHS 
officer could issue a final decision imposing the penalty. Id. If the 
alien contested the fine, the alien could request an in-person 
interview or submit a sworn written response; a supervisory immigration 
officer would then issue a written decision; the alien could seek 
reconsideration within DHS; after exhausting DHS procedures, the alien 
could appeal to the BIA. Id. As discussed in the IFR, these procedures 
are lengthy, resource intensive, and not tailored to the failure-to-
depart and unlawful entry penalties that Congress later authorized. See 
90 FR 27444-46.
    The IFR streamlined and simplified the process DHS uses to impose 
civil penalties for failure-to-depart and unlawful entry and eliminated 
unnecessary procedures that are not required by statute. See 90 FR 
27449-52. The IFR changed only the way DHS issues and adjudicates civil 
monetary penalties and the way an alien may contest such penalties for 
these specific fines. 90 FR 27454. The IFR did not require the 
imposition of any new penalties or otherwise change the substantive 
criteria for issuing civil penalties. Id.
    Under the IFR, the new 8 CFR 281 allows a DHS immigration officer 
to initiate the penalty process by issuing a written decision and order 
imposing the civil monetary penalty. 8 CFR 281.1(b), (c). The decision 
and order must identify the statutory basis for the penalty, state the 
type and amount of the penalty, and provide a brief

[[Page 65393]]

explanation of the reasons for the decision. 8 CFR 281.1(c)(1). The 
decision and order must also advise the alien of the right to appeal; 
the process for filing an appeal; the right to be represented by 
counsel at no expense to the government; and the opportunity to submit 
written arguments and supporting documentation challenging the penalty. 
8 CFR 281.1(c)(2). The alien may file a written defense and supporting 
evidence or may simply submit a written notice of appeal. 8 CFR 
281.1(c)(2), (e)(1). DHS may serve the decision and order in person or 
by regular mail. 8 CFR 281.1(d).
    The IFR also replaced the elaborate review process before DHS set 
forth in 8 CFR part 280 and appeal process before EOIR set forth at 8 
CFR 1280.1 \11\ for these three specific civil penalties with an appeal 
process that takes place solely before DHS. Under the IFR, an alien 
must file a notice of appeal within 15 business days of service of the 
initial decision and order. 8 CFR 281.1(e)(1). If the alien does not 
file a timely appeal with DHS, the initial decision and order become 
final. 8 CFR 281.1(f)(3). If the alien files a timely appeal with DHS, 
a supervisory immigration officer who did not issue the initial 
decision and order will review the appeal. 8 CFR 281.1(e)(2). The 
supervisory officer will review the appeal within 10 days of receipt 
and may, in his or her discretion, request additional written briefing 
or documentation, which the alien must provide within 15 days of 
receiving the request. Id. At the alien's request, the supervisory 
officer will generally provide copies of pertinent documents and 
records relevant to the penalty. 8 CFR 281.1(e)(3). The supervisory 
officer will decide the appeal on the written record; the IFR does not 
provide for in-person interviews. Id. The record must include the 
initial decision and order, evidence in DHS's administrative files, and 
any timely written submissions, briefs, documentary evidence, or other 
relevant materials submitted by the alien. Id. The supervisory officer 
will review this record de novo, including the initial decision and 
order and any written arguments and evidence submitted by the alien, 
and will issue a final decision within 45 days. 8 CFR 281.1(e)(2). That 
officer's decision constitutes the final agency action, subject only to 
discretionary review by the Secretary of Homeland Security, and the 
alien may not appeal the decision to the BIA. 8 CFR 281.1(e)(4), 
(f)(1)-(3). However, the IFR allows DHS to reopen a decision, in its 
sole discretion (i.e., sua sponte), at any time to reconsider the 
decision and reduce or rescind the fine. 8 CFR 281.1(f)(1).
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    \11\ Any cases appealed to the BIA would add to the BIA's 
pending caseload and be subject to the same case management 
framework as all other appeals. See 8 CFR 1003.1. To address an 
unprecedented caseload and an urgent need to improve the efficiency 
of BIA procedures, the Department has reconsidered the Board's role 
as an appellate tribunal and issued an IFR to streamline BIA 
procedures. See generally Appellate Procedures for the Board of 
Immigration Appeals, 91 FR 5267 (Feb. 6, 2026) (partially set aside 
on procedural grounds Amica Ctr. for Immigrant Rts. v. EOIR, No. CV 
26-696 (RDM), 2026 WL 662494, at *34 (D.D.C. Mar. 8, 2026)). 
Divesting the BIA of responsibility over DHS imposition and 
enforcement of civil fines and penalties, an area where there is no 
statutory requirement for EOIR review and where the BIA has no 
unique adjudicatory expertise, is consistent with BIA efforts to 
create operational efficiencies.
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    As explained in the IFR, the Departments reasoned that these 
updated procedures will allow DHS to impose these civil penalties more 
swiftly on more aliens who unlawfully enter the United States and on 
those who disregard removal and voluntary departure orders. See 90 FR 
27442. In turn, this will help support DHS's efforts to maintain border 
security and enforce immigration laws by deterring unlawful entries and 
encouraging compliance with removal and departure orders. See 90 FR 
27445-46. Compared to the general procedures in 8 CFR part 280, the 
revised process reduces unnecessary administrative burdens and allows 
DHS to reach final decisions more quickly while at the same time 
reducing unnecessary burdens on the BIA's caseload. See 90 FR 27444-45. 
The IFR explained that these changes are needed to ensure that DHS can 
efficiently employ these statutory penalties while continuing to 
prioritize, without diverting resources away from, border security and 
the apprehension, detention, and removal of aliens who have violated 
the Nation's immigration laws, consistent with this Administration's 
policy objectives and the President's direction. See 90 FR 27444-46.
    To further advance the IFR's goal of encouraging compliance with 
removal and departure orders, DHS has announced that it will rescind 
most failure to depart fines if an alien uses the U.S. Customs and 
Border Protection (``CBP'') Home app to arrange and complete self-
departure from the United States.\12\ This policy, coupled with DHS's 
expanded use of these civil penalties, is intended to provide an 
additional clear incentive for aliens to comply with removal and 
departure orders and avoid civil monetary penalties by doing what the 
law requires: departing the United States as ordered.\13\
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    \12\ See DHS, DHS Announces It Will Forgive Failure to Depart 
Fines for Illegal Aliens who Self-Deport Through the CBP Home App 
(June 9, 2025), https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport 
[https://perma.cc/8RBN-PACA]. As discussed below in response to 
comments in Section III of this preamble, DHS has recently updated 
its website to make clear that all non-criminal illegal aliens may 
register under CBP Home app to depart the United States and DHS will 
forgive failure-to depart civil penalties once the alien departs.
    \13\ See id.; see also Proclamation 10935, 90 FR 20357.
---------------------------------------------------------------------------

    At the same time, the Departments determined that the revised 
procedures are consistent with due process. For the reasons discussed 
more fully in the IFR and in response to comments in Section III of 
this preamble, the Departments have concluded that a shortened appeal 
period, removal of in-person interviews, and the shift from BIA review 
to internal DHS review are appropriate and consistent with due process 
given that these civil penalties typically turn on routine and 
straightforward factual and legal determinations and aliens have 
limited grounds to contest them. 90 FR 27451-55. In addition, ICE will 
now also permit acceptance of a late-filed appeal based on documented 
mail delivery delays that ICE finds were beyond the alien's control.
    First, INA 275(b), 8 U.S.C. 1325(b), authorizes DHS to impose a 
civil penalty on any alien who is apprehended while entering or 
attempting to enter the United States at an improper place or time. 
Aliens apprehended while entering unlawfully have, by definition, 
violated INA 275(b), 8 U.S.C. 1325(b), and the documented encounter 
provides the only fact necessary to impose these penalties. 
Additionally, when USBP agents apprehend an alien entering unlawfully, 
the agents prepare a Form I-213, Record of Deportable/Inadmissible 
Alien, which documents the apprehension and is sufficient to 
demonstrate liability for these penalties. See 90 FR 27442. As a matter 
of practice, USBP issues these penalties at the time that it apprehends 
the alien. In these circumstances, the Departments do not believe that 
a lengthy, multi-step appeal process is necessary. See id. The IFR's 
appeal structure preserves an alien's meaningful ability to contest an 
unlawful entry penalty if the alien believes a penalty was issued 
erroneously.
    Second, the nature of the failure to depart penalties also supports 
the IFR's changes. Congress has authorized DHS to impose civil monetary 
penalties on aliens for failure to depart, subject to the general 
federal statute of limitations, 28

[[Page 65394]]

U.S.C. 2462, if two elements have been satisfied: (1) the alien is 
subject to a final order of removal or was granted voluntary departure 
and (2) the alien willfully fails or refuses to depart under a removal 
order or voluntarily fails to comply with a voluntary departure order. 
INA 274D(a)(1), 8 U.S.C. 1324d(a)(1); INA 240B(d)(1)(A), 8 U.S.C. 
1229c(d)(1)(A). DHS maintains records of an alien's immigration 
history, including removal and voluntary departure orders, and has 
ready access to information about any pending appeals needed to verify 
that the alien is subject to a final removal or departure order. 90 FR 
27442-43. Before issuing a penalty, ICE guidance requires the 
immigration officer to verify that there are no DHS records of the 
alien's departure from the United States and reviews the alien's 
immigration records for information suggesting that the alien's failure 
to depart was not willful or voluntary. This includes information 
about: automatic stays resulting from motions to reopen; certain 
immigration benefits under the Violence Against Women Act (``VAWA'') 
that stay the alien's removal; for aliens on an order of supervision, 
efforts the alien has made to secure travel documents at DHS's request; 
whether DHS has affirmatively approved the alien for deferred action; 
whether the Immigration Courts, DHS, or a federal court has granted a 
stay of removal; and whether DHS or EOIR has granted the alien 
protection that excuses the alien's failure to depart while the alien 
maintains that protection, including temporary protected status 
(``TPS''), protection under the Convention Against Torture (``CAT''), 
and withholding of removal under INA 241(b)(3), 8 U.S.C. 1231(b)(3) 
when no alternative country of removal is available.
    Absent evidence in records accessible to DHS showing that the alien 
is permitted to remain in the United States, or that the alien has 
departed, DHS believes the statutory prerequisites to issue a penalty 
will have been met where an alien ordered removed or granted voluntary 
departure is physically present in the United States beyond the time 
frame specified by the Immigration Judge. As the IFR explains, civil 
penalties for failure to depart are generally issued after completion 
of section 240 removal proceedings that resulted in a final order 
requiring the alien's departure from the United States immediately or 
within a certain time frame specified by the Immigration Judge. See 90 
FR 27440. These aliens have received due process through section 240 
removal proceedings where they had an opportunity to contest the 
charges against them, to seek relief, and to be informed by an 
Immigration Judge of their obligation to depart and of the consequences 
of failing to do so. Id. Aliens granted voluntary departure prior to 
the conclusion of section 240 removal proceedings have already agreed 
to forgo challenging removal or seeking relief in exchange for being 
allowed to depart voluntarily. Id. In these circumstances, and when DHS 
records show the removal order is executable, the Departments reasoned 
that an alien's continued presence in the United States is generally 
sufficient to establish liability for these civil penalties, absent the 
alien providing evidence on appeal \14\ to demonstrate otherwise. See 
90 FR 27442-43.
---------------------------------------------------------------------------

    \14\ The Departments determined that such appeal should take 
place before DHS, and not the BIA, given the straightforward and 
readily determinable requirements for imposing and enforcing such 
penalties based on information within DHS's and the alien's 
possession. 90 FR 27444.
---------------------------------------------------------------------------

    In addition, Immigration Judges are required by law to inform 
aliens of their departure obligations and the consequences for failing 
to comply. Under INA 240(c)(5), 8 U.S.C. 1229(a)(5), when an 
Immigration Judge orders removal, the Immigration Judge must inform the 
alien of the consequences for failure to depart under the order of 
removal, including civil penalties described at sections INA 274D, 8 
U.S.C. 1324(d). See 8 CFR 1240.13(d). Likewise, for voluntary 
departure, the INA requires that an Immigration Judge ``shall inform 
the alien of the penalties'' that will apply if the alien voluntarily 
fails to depart within the time allowed, including civil monetary 
penalties and ineligibility for certain forms of relief. INA 
240B(d)(3), 8 U.S.C. 1229c(d)(3). These advisals are mandatory 
components of 240 removal proceedings, not discretionary steps.
    These statutory and regulatory requirements are directly relevant 
to the willfulness and voluntariness elements in the civil penalty 
statutes. Before DHS considers imposing a failure to depart penalty, 
the alien will ordinarily have been advised, on the record, that the 
law requires the alien to depart the United States and that failure to 
do so may result in civil fines and other adverse consequences. When an 
alien remains in the United States after such clear, legally required 
notice, his or her continued presence strongly supports the conclusion 
that the alien has ``willfully fail[ed] or refuse[d]'' to depart under 
a removal order or ``voluntarily'' failed to comply with a voluntary 
departure order, as required by the failure to depart civil penalty 
statutes. In making this assessment, DHS also relies on the presumption 
of regularity that attaches to official acts of government officers, 
including Immigration Judges. See United States Postal Serv. v. 
Gregory, 534 U.S. 1, 10 (2001). Under this presumption, DHS may 
reasonably assume that Immigration Judges complied with their legal 
obligations under the INA and implementing regulations and provided the 
required advisals concerning departure obligations and the consequences 
of noncompliance, absent specific evidence to the contrary in the 
record. In all cases, ICE considers the willfulness of an alien's 
violation in determining whether to impose a penalty.
    Taken together--(1) the procedural protections provided in section 
240 removal proceedings, (2) the mandatory Immigration Judge advisals 
of departure obligations and penalties, (3) the presumption of 
regularity applicable to those advisals, and (4) DHS's careful review 
of U.S. Government records to confirm that the alien is subject to a 
final, executable order and lacks lawful permission to remain--DHS 
concludes that an alien's continued presence in the United States is 
generally sufficient to establish the willful or voluntary failure to 
depart required to impose these civil penalties, absent evidence 
provided by the alien on appeal to demonstrate that the alien is not 
liable. Therefore, the Departments reasoned that streamlining the 
issuance and adjudication of these civil penalties, and the associated 
appeals process, aligns more closely with the nature and intent of 
these straightforward civil penalties. While in most cases, DHS records 
sufficiently establish the facts necessary to demonstrate that the 
alien is subject to these civil penalties, the alien retains the right 
to contest them on limited grounds. See 90 FR 27442-46.
    To the extent an alien believes that DHS issued a penalty 
erroneously--for example, because the alien is not subject to a removal 
order, is legally permitted to remain in the United States, or did not 
willfully or voluntarily fail to depart--the Departments determined 
that the IFR provides sufficient notice and an opportunity to contest 
the decision before DHS, and that further review before EOIR is 
unnecessary. See 90 FR 27451-55. Under the IFR, a DHS immigration 
officer must issue a written decision that sets forth the statutory and 
factual basis for the penalty and informs the alien of the requirements 
and deadlines for filing an appeal. See Mullane v. Cent. Hanover Bank & 
Tr. Co., 339 U.S. 306, 314 (1950) (stating

[[Page 65395]]

that notice under due process must be of a sufficient nature as to 
reasonably convey the required information). The revised appeal process 
also preserves an alien's opportunity to contest a civil penalty. Under 
the IFR's procedures, the alien has 15 business days to appeal using 
the DHS-developed Form 281, Notice and Violation of Order, and a 
supervisory immigration officer who did not issue the initial decision 
will review the record de novo and may request additional evidence 
before making a final determination. See 90 FR 27452-54.
    As explained in the IFR and in response to comments in Section III 
of this preamble, the Departments believe that additional procedures, 
beyond those contained in the IFR, would not enhance the accuracy, 
fairness, or reliability of the process given the straightforward 
nature of these penalties and the limited grounds that an alien may 
have to contest them. See id. Thus, for the reasons discussed in the 
IFR and in response to comments in Section III of this preamble, the 
Departments believe that the revised procedure preserves an alien's 
ability to contest the fine while better ensuring that the BIA does not 
unnecessarily expend resources in areas where DHS is better positioned 
to review such determinations, and that DHS can reach final decisions 
efficiently and apply these statutory penalties swiftly and at the 
scale necessary to address the large number of aliens who have entered 
or remain unlawfully in the United States. Accordingly, after carefully 
considering comments received on the IFR, the Departments are 
finalizing this rule with one change discussed in more detail below to 
account for U.S. postal delays.

B. The Departments' Experience With the IFR

    The IFR is working as intended. As a result of the IFR, DHS has 
been able to issue a significantly greater number of civil penalties 
compared to the pre-IFR process under 8 CFR part 280. From March 26, 
2025, through June 26, 2025, ICE issued 12,135 civil penalties under 
the pre-IFR process.\15\ From June 27, 2025, after the IFR took effect, 
through September 14, 2026, ICE issued approximately 110,000 failure to 
depart civil penalties, and CBP issued an additional 66,000 civil 
penalties for unlawful entry. Thus, DHS increased the number of civil 
penalties issued from approximately 930 per week under the pre-IFR 
process to nearly 2,800 per week under the IFR process.\16\ 
Accordingly, the IFR has allowed DHS to impose more civil penalties 
more quickly on a greater scale, while retaining procedural safeguards 
designed to promote accurate penalty assessments without diverting 
resources away from border security, and the apprehension, detention, 
and removal of aliens who have violated our immigration laws.
---------------------------------------------------------------------------

    \15\ See Office of Homeland Security Statistics analysis of 
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case 
Outcomes (Oct. 7, 2026).
    \16\ Id.
---------------------------------------------------------------------------

    Second, DHS's robust use of civil penalties appears to be shifting 
incentives for aliens with removal and departure orders who might 
otherwise remain unlawfully in the United States. DHS data indicates 
that over 82,000 aliens with removal orders and voluntary departures 
orders have self-departed from the United States since DHS began 
issuing civil penalties in March 2025 through September 14, 2026.\17\ 
In that same period, over 7,700 aliens have self-departed after 
receiving a civil penalty.\18\ Further, the number of aliens with 
removal orders or voluntary departure orders who have self-departed 
since the IFR took effect has increased significantly, as has the 
number of aliens who have departed after receiving a civil penalty. In 
the pre-IFR period from March 26, 2025, through June 26, 2025, 
approximately 8,600 aliens with removal or voluntary departure orders 
self-departed, and approximately 540 aliens self-departed the United 
States after receiving a civil penalty during this period.\19\ In the 
post-IFR period from June 27, 2025, through September 14, 2026, over 
74,000 aliens with removal orders or voluntary departure orders self-
departed in total, and approximately 7,180 aliens self-departed after 
receiving a civil penalty during this period. This data indicates that 
DHS's robust use of civil penalties, as facilitated by the IFR's 
streamlined procedures, is encouraging illegally present aliens to 
depart the United States on their own, consistent with the IFR's 
objectives.
---------------------------------------------------------------------------

    \17\ Id. For the purpose of this analysis, the term self-
departure includes the sum of confirmed departures without 
involvement of DHS enforcement or without DHS expense including ICE-
assisted repatriations at the alien's own expense and OFO 
repatriations. It also includes observed departures of aliens who 
have voluntarily departed with financial support from the U.S. 
Government through the CBP Home program. See Proclamation 10935, 90 
FR 20357 (establishing Project Homecoming and directing DHS to 
establish a seamless process for illegal aliens to depart the United 
States including through the CBP Home program); see also DHS Fact 
Sheet, CBP Home: Assistance to Voluntarily Self-Deport (Sept. 1, 
2026), https://www.dhs.gov/cbphome [https://perma.cc/PWQ2-W6ZJ] 
(explaining CBP Home app and departure incentives available to 
aliens who use the app to voluntarily self-depart). The count of 
departures without DHS assistance may be under-inclusive because, as 
explained in the IFR, DHS does not maintain comprehensive departure 
records for all aliens, particularly those who depart across the 
southern or northern land border without informing DHS. See 90 FR 
27443, n.17.
    \18\ Id.
    \19\ Id.
---------------------------------------------------------------------------

    Finally, DHS's experience implementing the civil penalties covered 
by this rule since March 26, 2025, confirms that many pre-IFR 
procedures were unnecessary and that the IFR's procedures provide a 
meaningful opportunity to contest penalties believed to be erroneous 
without unnecessarily diverting BIA resources away from adjudicating 
its existing pending caseload to conduct review better addressed by 
DHS. As discussed above, the IFR shortens the appeal period, eliminates 
in-person interviews, and shifts appeals from the BIA to DHS. DHS data 
support these changes:
     Under the pre-IFR process, aliens filed written answers 
pursuant to 8 CFR 280.12 contesting failure to depart penalties for 
only 222 of the 12,135 notices of intent to fine that ICE issued, a 
less than 2 percent appeal rate. Under the post-IFR process through 
September 10, 2026, aliens appealed failure to depart civil penalties 
in 3,072 cases of the approximately 110,000 penalties that ICE issued 
between June 27, 2025, through September 14, 2026, a nearly 3 percent 
appeal rate. The appeal rate has therefore increased under the post-IFR 
process.\20\
---------------------------------------------------------------------------

    \20\ Prior to the IFR, CBP did not issue any penalties for 
unlawful entry under INA 275(b), 8 U.S.C. 1325(b). Thus, the 
comparison between pre-IFR and post-IFR appeals is limited to the 
failure to depart penalties under INA 240B(d), 8 U.S.C. 1229c(d) and 
INA 274D, 8 U.S.C. 1324d. Further, as discussed throughout this 
preamble, the Departments believe that very few aliens have grounds 
to appeal unlawful entry penalties issued under INA 275(b), 8 U.S.C. 
1325(b), given the even more straightforward nature of those 
penalties.
---------------------------------------------------------------------------

     Only 4 aliens requested an in-person interview out of the 
222 penalty notices that aliens contested under the pre-IFR process, 
indicating that in-person interviews are generally unnecessary and that 
aliens can adequately contest these decisions through written 
submissions based on information in the alien's possession.
     Under the pre-IFR process, only 44 aliens appealed DHS's 
penalty decision to the BIA under 8 CFR part 1003, further supporting 
the Departments' assessment that the legal issues associated with these 
penalties are relatively straightforward and appeals can be handled by 
DHS. As of September 10, 2026, the BIA has issued only two decisions in 
these appeals, including a published decision which

[[Page 65396]]

upheld the civil penalty.\21\ This further supports the Departments' 
decision to eliminate BIA review in favor of an internal DHS appeal 
process given the lengthy BIA adjudication timeframes.
---------------------------------------------------------------------------

    \21\ See Matter of R-P-L-, 29 I&N Dec. 859 (BIA 2026).
---------------------------------------------------------------------------

     Aliens have successfully contested penalty decisions under 
the post-IFR processes. Of the appeals that DHS has adjudicated under 
the post-IFR process, aliens prevailed in 25 percent of the cases. This 
clearly demonstrates that the IFR's appeal process is meaningful, and 
DHS can adjudicate these penalties fairly without the need for the 
BIA's review.
    These results support the Departments' conclusion that the IFR's 
streamlined procedures provide appropriate protections while allowing 
DHS to apply statutory penalties efficiently and at scale. DHS believes 
there have been fewer appeals to fines issued under 8 CFR part 281, as 
compared to 8 CFR part 280, because of the straightforward 
determinations of fact associated with fines under part 281. 
Additionally, the appeal process under 8 CFR part 281 discourages 
frivolous or non-meritorious appeals, focusing resources on cases with 
substantive claims.

II. Statutory Authority

    The Attorney General and Secretary of Homeland Security issue this 
joint final rule pursuant to their respective authorities. The Homeland 
Security Act of 2002 (``HSA''), Public Law 107-296, 116 Stat. 2135, as 
amended, transferred to the Secretary many functions previously 
exercised by the former INS in implementing and enforcing Federal 
immigration law. The INA, as amended, charges the Secretary ``with the 
administration and enforcement of this chapter and all other laws 
relating to the immigration and naturalization of aliens.'' INA 
103(a)(1); 8 U.S.C. 1103(a)(1). It authorizes the Secretary to take 
actions ``necessary for carrying out'' that responsibility. INA 
103(a)(3); 8 U.S.C. 1103(a)(3). As relevant here, the INA and HSA now 
authorize the Secretary to impose most civil monetary penalties under 
the INA, including those set forth in INA 240B(d), 274D(a), and 275(b); 
8 U.S.C. 1229c(d), 1324d(a), and 1325(b). See INA 103(a)(1); 8 U.S.C. 
1103(a)(1) (reposing in the Secretary the authority to administer and 
enforce the immigration laws except as expressly reserved to the 
President, Attorney General, or Secretary of State) and HSA 402(3), 6 
U.S.C. 202(3) (charging the Secretary with carrying out the immigration 
enforcement functions vested by statute in, or performed by, the 
Commissioner of the former INS).
    Within DHS, the HSA allocated immigration functions and 
responsibilities to CBP, ICE, and U.S. Citizenship and Immigration 
Services (``USCIS''). See HSA 411, 6 U.S.C. 211 (CBP); HSA 442, 6 
U.S.C. 252 (ICE); HSA 451, 6 U.S.C. 271 (USCIS). ICE is generally 
responsible for interior immigration enforcement, and CBP is generally 
responsible for immigration enforcement at ports of entry and along the 
United States border. Both components have authority to administer 
civil monetary penalties relating to certain violations of immigration 
law and Immigration Court orders, including penalties authorized under 
INA 240B(d), 274(D)(a), and 275(b). See, e.g., 8 CFR part 280.
    The Secretary may delegate or re-delegate any authority vested in 
DHS under the immigration laws to any DHS officer, official, or 
employee, including by successive delegations. See INA 103(a)(4), 8 
U.S.C. 1103(a)(4); 8 CFR 2.1; Authority of the Secretary of Homeland 
Security; Immigration Laws, 68 FR 10922 (Mar. 6, 2003). The Secretary 
may delegate his authority in any manner he chooses, including by 
regulation, memorandum, directive, or other method. 8 CFR 2.1. In 
addition, HSA 102(a)(3), 6 U.S.C. 112(a)(3), vests all functions of DHS 
officers, employees, and organizational units in the Secretary.
    The HSA retains in DOJ, under the direction of the Attorney 
General, the functions of EOIR. See HSA 1101, 6 U.S.C. 521, INA 
103(g)(1), 8 U.S.C. 1103(g)(1). Immigration Judges within EOIR conduct 
section 240 removal proceedings and have authority to issue removal 
orders or grant voluntary departure. See INA 240, 240B, 8 U.S.C. 1229a, 
1229b. The INA further provides that the Attorney General's 
determinations on questions of law ``shall be controlling.'' INA 
103(a)(1), 8 U.S.C. 1103(a)(1). Nothing in this final rule alters 
EOIR's or the Attorney General's authority to conduct or review section 
240 removal proceedings, including the issuance of removal orders or 
grants of voluntary departure.
    DOJ participates in this rulemaking because, prior to the IFR, 
DOJ's regulations established BIA appellate jurisdiction over certain 
DHS-issued civil monetary penalties authorized under the INA, including 
those covered by this rulemaking. The IFR removed that appellate 
authority, which is finalized without further change in this rule. See 
90 FR 27439, 27459. The INA does not require the BIA to review civil 
penalties, and nothing in the statute precludes the Attorney General 
from removing the BIA's appellate jurisdiction over civil monetary 
penalties imposed by another agency. To the contrary, INA 103(g)(1) and 
(g)(2), 8 U.S.C. 1103(g)(1)-(2), authorize the Attorney General to 
issue regulations necessary for carrying out EOIR's responsibilities 
and governing its adjudicatory structure. Consistent with that 
authority, through the IFR, DOJ amended its regulations to eliminate 
the BIA's appellate authority over these DHS-imposed penalties in order 
to focus EOIR's resources on its statutory functions.
    This final rule addresses DHS procedures for imposing civil 
monetary penalties under INA 240B(d), 274D(a)(1), and 275(b), 8 U.S.C. 
1229c(d), 1324d(a), and 1325(b). Those statutory provisions define the 
categories of aliens subject to civil penalties, establish penalty 
amounts, and authorize DHS to impose such penalties, but they do not 
prescribe procedures DHS must follow or require DOJ review of those 
penalties. Similarly, INA 280, 8 U.S.C. 1330, addresses the collection 
of civil monetary penalties but does not specify assessment procedures. 
Accordingly, the INA affords DHS discretion to adopt reasonable 
procedures for assessing and issuing civil monetary penalties. See Vt. 
Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 
519, 543 (1978) (``Absent constitutional constraints or extremely 
compelling circumstances the administrative agencies should be free to 
fashion their own rules of procedure and to pursue methods of inquiry 
capable of permitting them to discharge their multitudinous duties.'') 
(cleaned up).

III. Response to Public Comments on the IFR

    The Departments received a total of 28 public comment submissions 
in response to the IFR. The Departments reviewed all the public 
comments received and have addressed relevant comments in this final 
rule, grouped by subject matter. While some commenters wrote that they 
supported the IFR, the vast majority of commenters opposed all or part 
of it.

A. General Support

    Comment: Several commenters expressed overall support for the IFR. 
These commenters agreed with the use of civil monetary penalties to 
promote compliance with immigration laws. One commenter considered such 
civil penalties necessary to deter unlawful presence, encourage self-
departure, and help offset the costs associated with

[[Page 65397]]

enforcing immigration laws and carrying out removals. Another commenter 
recognized the government's interest in recovering some of the costs 
associated with removing aliens. A third commenter expressed general 
support for imposing civil monetary fines to strengthen overall 
immigration enforcement. Collectively, these comments broadly endorsed 
the IFR's underlying policy objective of streamlining the process for 
imposing civil monetary penalties on aliens subject to the violations 
addressed in this rule.
    Response: The Departments agree that promoting compliance with the 
Nation's immigration laws and maintaining border security is critical, 
and this rule is a key part of DHS's efforts to use all statutorily 
available tools to help achieve those objectives consistent with the 
Administration's policies and priorities while also allowing EOIR to 
focus time and resources on completing cases that are more aligned with 
its statutory authorities. See 90 FR 8445-55. Specifically, the 
unprecedented number of aliens entering and remaining in the country 
illegally, in recent years necessitates this rule. See 90 FR 27442 
(quoting 90 FR 8443). Congress has authorized DHS to impose civil 
monetary penalties on aliens who unlawfully enter the United States and 
those who remain after a final removal or voluntary departure order. 
See 90 FR 27439-41. As explained in the IFR, this rule allows DHS to 
preserve due process while more efficiently imposing a greater number 
of these civil penalties on the aliens subject to them. 90 FR 27442. 
The Departments believe that this effort will, in turn, encourage 
greater compliance with removal and voluntary departure orders and 
discourage future unlawful entries. Id.

B. General Opposition

1. Impacts on Aliens, Families, Businesses, and Communities
    Comment: Many commenters opposed the IFR, asserting that it will 
negatively impact aliens and their families. One commenter stated that 
the aliens impacted by this rule could face steep civil monetary fines 
in excess of $1,000,000, causing significant financial distress for 
them and their families. Other commenters echoed this point, stating 
that the rule creates a substantial financial burden on aliens, and 
specifically viewed as particularly egregious the fine of $998-per-day 
for willful failure or refusal to depart after a final removal order 
and certain other proscribed activities. One commenter said the IFR 
directly harms U.S. citizens and lawful permanent residents because 
many aliens subject to these civil monetary fines are parents and 
spouses of U.S. citizens and permanent residents. They characterized 
these fines as ``economically catastrophic for the entire household'' 
resulting in ``eviction, bankruptcy, or forced separation.'' This 
commenter also noted that aliens who fail to pay the assessed penalties 
may be subject to additional consequences including garnished wages, 
seizure of assets including homes and vehicles, and long-term financial 
ruin.
    Another commenter reiterated this point and additionally noted the 
potential confiscation of savings and vehicles and imposed additional 
financial planning burden and financial uncertainty. This commenter 
claimed that the Departments' conclusion that the IFR aligns with due 
process was arbitrary and capricious. The commenter said that the IFR 
arbitrarily characterized these penalties as ``modest,'' and claimed 
the Departments overlooked case law recognizing heightened due process 
interests when the government seizes homes, confiscates savings, and 
imposes fines that result in significant economic impacts on families. 
Given the substantial penalty amounts and the collateral consequences 
that can result if an alien fails to pay, the commenter argued that the 
IFR's procedures are constitutionally inadequate.
    Response: As an initial point, Congress, not the Departments, has 
defined both the types of violations and the monetary range for the 
civil penalties covered by the IFR and this rule. These penalties and 
their amounts reflect Congress's judgment that the conduct involved--an 
alien's unlawful entry and failure to depart after a removal or 
voluntary departure order--is serious, and in some cases substantial 
civil fines are necessary to encourage aliens to comply with the 
immigration laws. See 90 FR 27439-40. This rule does not expand the 
scope of these penalties, nor their minimum or maximum dollar amounts. 
Furthermore, the immigration consequences for failing to depart or 
unlawful entry flow from the underlying immigration violation, not from 
the failure to pay the assessed civil monetary penalties. This rule 
merely streamlines the process that DHS applies when imposing civil 
penalties that Congress has already authorized DHS to impose. 
Therefore, to the extent that commenters are objecting to these civil 
monetary penalties and the amounts authorized by Congress, such 
concerns are outside of the scope of this rulemaking.
    DHS often assesses the maximum penalty amount to fulfill the 
enforcement and deterrent objectives of the statute, as intended by 
Congress. These amounts are also consistent with the enforcement 
priorities of the Administration, as reflected in recent Executive 
Orders. See 90 FR 8443, 8443-45; 90 FR 8467, 8467. However, the 
Departments note that, in the voluntary departure context, immigration 
officers follow the civil penalty amounts that will continue to be set 
by EOIR. See 8 CFR 1240.26(l).
    The Departments disagree with commenters' arguments that DHS should 
not streamline the process for imposing these civil penalties because 
of the burdens the penalties create for aliens and their families. The 
Departments acknowledge these concerns but note that financial, 
emotional, and family burdens are also an inherent consequence of 
removal based on an alien's violation of the Nation's immigration laws. 
See e.g., Moctezuma-Reyes v. Garland, 124 F.4th 416, 423 (6th Cir. 
2024) (``[F]inancial and emotional strains are the typical results of 
removal; they aren't rare''); see also Matter of Pilch, 21 I&N Dec. 
627, 631 (BIA 1996) (``[E]motional hardship caused by severing family 
and community ties is a common result of deportation''). The most 
substantial civil fines apply only to aliens who have been ordered 
removed or granted voluntary departure after the conclusion of 
immigration proceedings. These aliens have been warned of the 
consequences for failing to comply with the removal or departure order 
but have willfully ignored their departure obligations. In these 
circumstances, the Departments do not believe that it is unfair to 
impose substantial civil penalties that Congress has authorized for 
these violations even though it may cause additional burdens and 
hardships on aliens and their families.
    To help alleviate the financial burden of civil penalties and 
incentivize compliance, DHS has announced it will reopen and rescind 
most outstanding civil penalties when an alien uses the CBP Home app to 
voluntarily self-depart the United States.\22\ This option allows 
aliens to avoid the civil penalties and attendant consequences that 
commenters have noted. The

[[Page 65398]]

Departments recognize that an alien's choice to exercise this option 
may still impose significant personal and family hardships, including 
to U.S. citizen or lawful permanent family members, but the Departments 
note that these hardships are an inherent consequence of a removal 
order and are compounded by the alien's willful failure to depart when 
that order became final and executable. See Morales-Izquierdo v. DHS, 
600 F.3d 1076, 1091 (9th Cir. 2010) (rejecting argument that ``an 
illegal alien with United States citizen family members cannot be 
removed'' because such a proposition ``would radically alter the status 
quo of our immigration law''). Additionally, the Departments believe 
that permitting removable aliens to remain in the United States would 
undermine immigration enforcement, the integrity of the Nation's 
immigration laws, American communities, and public safety.\23\
---------------------------------------------------------------------------

    \22\ DHS, DHS Announces It Will Forgive Failure to Depart Fines 
for Illegal Aliens who Self-Deport Through the CBP Home App (June 9, 
2025), https://www.dhs.gov/news/2025/06/09/dhs-announces-it-will-forgive-failure-depart-fines-illegal-aliens-who-self-deport [https://perma.cc/8RBN-PACA]. See Presidential Proclamation 10935, 
Establishing Project Homecoming, 90 FR 20357 (May 9, 2025); 90 FR 
27442.
    \23\ See 90 FR 47445-46 (discussing how an alien's failure to 
depart has serious consequences for immigration enforcement and the 
adjudication of immigration cases); see also E.O. 14159, 90 FR 8443, 
8444-45 (Jan. 20, 2025). (``enforcing our Nation's immigration laws 
is critically important to the national security and public safety 
of the United States''); Presidential Proclamation 10935, 90 FR 
20357 (May 9, 2025) (``The continued presence of illegal aliens in 
our Nation forces American taxpayers to bear a tremendous fiscal 
burden to support them, including through costs related to 
healthcare, food stamps, public housing, emergency services, 
education, and shelter, as well as the costs of crimes committed by 
illegal aliens.'').
---------------------------------------------------------------------------

    Regarding commenters' concerns that aliens may face collateral 
consequences if they fail to take advantage of this off-ramp and 
further fail to pay these civil fines, the Departments note that the 
IFR and this final rule do not authorize the confiscation of savings, 
garnished wages, or the seizure of assets. Rather, separate statutes 
and regulations govern the U.S. Government's debt collection activities 
and remedies, which are outside the scope of this rule. However, the 
Departments note that only DOJ's Civil Division or another authorized 
litigating component of DOJ, not EOIR and DHS, have authority to obtain 
a judgment on a debt owed to the United States. See 31 CFR 904.1-904.4. 
DOJ's Civil Division or another authorized litigating component must 
bring an action in federal court to obtain a judgment and pursue any 
lien against assets or confiscation of savings, and the alien has an 
opportunity to request a federal court hearing on the enforceability of 
the debt. See, e.g., 28 U.S.C. 3002(3)(B), 3101(d)(1), (d)(2). This 
provides due process before the U.S. Government seeks to obtain a 
judgment on an uncollected debt and before it can confiscate an alien's 
property or savings. Accordingly, nothing in this rule deprives an 
alien of the ability to challenge the imposition of particular civil 
penalty assessments or collection methods that the alien regards as 
disproportionate, excessive, or in violation of due process during a 
federal court hearing.
    Finally, the Departments disagree that the IFR's due process 
analysis fails to consider the full magnitude of the departure 
penalties and the collateral consequences that could result, should an 
alien remain in the United States and fail to pay the civil monetary 
penalty. As an initial matter, contrary to one commenter's claim, the 
Departments did not characterize the penalties covered by this rule as 
``modest.'' Rather, the IFR used that term to contrast the penalty 
amounts associated with the unlawful entry and voluntary departure 
order penalties and the per diem fines Congress has authorized DHS to 
impose on aliens who willfully remain in the United States for many 
years after a removal order. See 90 FR 27541.
    The Departments do, however, acknowledge that the per diem civil 
penalties can result in substantial fines, including sums of over one 
million dollars in certain cases, and that these amounts could impose 
significant economic and emotional burdens on aliens and their 
families. The Departments also note that DHS will cancel most 
outstanding penalties when an alien uses the CBP Home app to depart the 
United States, as discussed above. Similarly, the Departments 
acknowledge the collateral consequences that could result if an alien 
fails to pay a civil penalty or depart the United States, but the 
Departments reiterate that this rule does not authorize DHS or EOIR to 
seize an alien's property, garnish wages, or confiscate savings. That 
authority rests with DOJ's Civil Division or another litigating 
component, and the alien would be able to challenge any action in court 
before any deprivation occurs.
    The Departments, however, also have a weighty interest in ensuring 
that DHS can impose statutorily authorized civil monetary penalties 
efficiently and at scale to create greater incentives for aliens to 
comply with final removal orders and to impose timely consequences on 
those who do not. As the Departments explained in the IFR and Section 
II of this preamble, the need for this rule is demonstrated by the 
sheer number of aliens in the United States with final removal orders 
and the risk that, without additional action, a significant number of 
the millions of aliens currently in Immigration Court proceedings may 
be encouraged to simply ignore final decisions ordering their removal. 
See 90 FR 27445. An alien's failure to comply with a removal order 
risks undermining the overall integrity of the immigration laws and 
processes and imposes significant enforcement costs on DHS. Id; see 
also Section II of this preamble.
    On balance, the Departments believe that the IFR's streamlined 
civil monetary penalty procedures strike an appropriate balance 
between: (1) increasing DHS's ability to impose statutorily authorized 
civil penalties quickly against aliens who have willfully failed to 
comply with removal orders and (2) protecting an alien's interest in 
ensuring that he or she has a meaningful opportunity to contest any 
civil penalty that DHS may have issued erroneously. Based on its 
experience, DHS believes that the risk of imposing these civil fines in 
error is low given the straightforward nature of these civil penalty 
determinations, and that the IFR's procedures provide sufficient due 
process to aliens who contest these penalties. See 90 FR 27451-54.
    Comment: Commenters claimed that these penalties will harm 
businesses and communities. One commenter stated that many aliens 
targeted by this IFR pay taxes and work in ``essential'' sectors such 
as agriculture, healthcare, and construction. Another commenter claimed 
that the threat of high civil penalties will increase fear in 
communities and push people into hiding. The commenter claimed that the 
high penalties would reduce enrollment in schools and healthcare, and 
deter victims and witnesses from reporting crimes, thereby harming 
public safety and communities. Given these claimed impacts, commenters 
argued that the Departments should rescind the IFR.
    Response: The Departments do not dispute the contributions of 
lawful immigrants to United States businesses and communities. The 
purpose of the IFR and this rule, however, is not to harm businesses or 
communities but to allow DHS to more efficiently impose these 
statutorily authorized civil monetary penalties on the large number of 
aliens who violate the Nation's immigration laws by entering or 
remaining in the country unlawfully. Congress has authorized DHS to 
impose civil penalties for these violations and did not create 
exceptions for aliens who pay taxes, work in ``essential sectors'', or 
otherwise ``contribute'' to communities. An alien's engagement in these 
activities does not absolve him or her from complying with the 
immigration laws. Moreover, the Departments note that, with limited 
exceptions, Congress has not authorized

[[Page 65399]]

aliens with final executable removal and voluntary departure orders to 
work in the United States. INA 241(a)(7), 8 U.S.C. 1231(a)(7). 
Therefore, the Departments decline to rescind the IFR based on 
commenters' speculation that its procedures for imposing penalties on 
aliens will indirectly ``harm'' businesses or essential sectors. 
Further, the Departments believe that any such indirect impact that the 
penalties themselves may have on businesses would be outweighed by 
their benefits, including benefits to border security, public safety, 
immigration enforcement, and the integrity of the immigration laws. See 
90 FR 27445-46; Section II of this preamble; see also 90 FR 8444-45.
    Regarding comments related to the IFR's potential effects on the 
willingness of aliens to report crimes, while DHS does not dispute that 
illegal aliens might be less willing to report a crime, DHS cannot 
reliably estimate this rule's speculative impact on local policing, 
especially considering that this rule merely provides procedures for 
issuing civil fines that are authorized by statute. For similar 
reasons, the Departments decline to rescind the IFR based on other 
speculative community-level effects described by some commenters. 
Commenters provided no support for their belief that the revised civil 
penalty procedures will discourage eligible individuals from accessing 
education, healthcare, or other community services, or otherwise 
disengaging from their communities. The Departments believe that any 
such indirect impacts are also outweighed by this rule's potential 
benefits, including benefits to border security, public safety, 
immigration enforcement, and the integrity of the immigration laws.
2. Impacts on Specific Populations
    Comment: Commenters broadly suggested that the IFR will have a 
disproportionate impact on vulnerable groups such as minors, aliens 
with limited English proficiency, and aliens fleeing hardships and 
lacking sufficient funds for legal representation. Commenters asserted 
that such aliens may face barriers in understanding or responding to 
civil monetary penalties within the prescribed timeframes and that the 
imposition of fines could create additional hardship or deter some from 
challenging these penalties altogether. One commenter expressed 
particular concern about aliens subject to domestic violence and human 
trafficking. The commenter explained that these aliens may be eligible 
for immigration relief based on this harm, but large civil fines may 
impose a barrier to escaping these situations and obtaining such 
relief. Collectively, these commenters suggested that the IFR's 
streamlined penalty process, including its deadlines, should not apply 
to these groups.
    Response: The procedures established by the IFR are designed to 
ensure efficiency in assessing civil penalties authorized by the INA, 
while maintaining the due process protections required by law. See 90 
FR 27451-53. The rule does not alter eligibility for immigration 
benefits or relief available under other provisions of the INA, 
including protection for victims of trafficking or domestic violence, 
nor does it limit the Departments' existing discretion to consider 
individual circumstances consistent with applicable statutes and 
regulations. Moreover, ICE's guidance to immigration officers instructs 
that aliens with approved (or in some cases tentatively approved) 
applications for VAWA protections, T-visas, and U-visas for aliens who 
are victims of human trafficking or certain crimes should not be issued 
a civil fine. DHS also notes that nothing in this rule prevents 
immigration officers from exercising discretion in individual cases to 
not issue a civil monetary penalty if DHS is aware of such 
circumstances.
    Moreover, the Departments reject commenters arguments that the 
IFR's procedures would have a singular impact on non-English speakers 
or aliens who are unrepresented, low-income, or unfamiliar with the 
law. First, the Departments note that all immigration documents issued 
to aliens by DHS, and all orders, decisions, and notices issued by 
EOIR--including written removal and voluntary departure orders--are in 
English.\24\ Therefore, the Departments do not believe that civil 
penalty decisions issued in English raise any inherent fairness 
concerns for non-English speakers, as a reasonable recipient would be 
on notice that further inquiry is required. See, e.g., Lopez v. 
Garland, 990 F.3d 1000, 1003 (6th Cir. 2021) (recognizing that English 
language notice typically satisfies due process because it alerts the 
alien to make further inquiry and seek help with any language barrier); 
see also Ojeda-Calderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013) 
(citing Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999)) (explaining 
due process does not require notices to be in a language the alien can 
understand).
---------------------------------------------------------------------------

    \24\ All EOIR forms are written in English with instructions for 
select forms available in other languages. See EOIR, Forms & Fees 
(last visited Oct. 6, 2026), https://www.justice.gov/eoir/eoir-forms 
[https://perma.cc/G5PY-WDY]; USCIS, All Forms (last visited May 29, 
2026), https://www.uscis.gov/forms/all-forms [https://perma.cc/J8A6-UASE]. Regulations require that all documents filed with the EOIR 
Immigration Courts must also be in the English language or 
accompanied by a certified English translation. See 8 CFR 1003.33, 
1003.23(b)(1)(i). DHS regulations also contain English-language 
requirements. E.g., 8 CFR 103.2(b)(3), 204.1(f)(2).
---------------------------------------------------------------------------

    Second, the IFR's procedures provide all aliens with a fair 
opportunity to contest civil penalties. The penalty decision itself 
provides aliens with notice, in plain language about why the alien is 
subject to a civil penalty, see 90 FR 27449, and the Departments 
reiterate that Immigration Judges have already warned aliens subject to 
the failure to depart penalties about the consequences of failing to 
comply with removal and departure orders. See Section II of this 
preamble. The penalty decision also explains, in plain language, what 
an alien must do to contest the penalty. See 90 FR 27449. Indeed, the 
penalty decision, DHS Form 281, Notice of Violation and Order, contains 
a textbox that the alien can use to indicate that he or she is 
contesting the penalty decision and to provide a brief statement of 
reasons for the appeal. Moreover, the IFR simplifies regulatory 
requirements to trigger an appeal compared to the former process at 8 
CFR part 280 that applies when an alien responds to a NIF. See 8 CFR 
280.12 (requiring written answers responding to civil penalties to be 
filed under oath and in triplicate). Finally, under the IFR, an alien's 
appeal suffices to trigger mandatory de novo supervisory review. See 8 
CFR 281.1(e)(2). In these circumstances, the Departments disagree with 
commenters' speculative concerns that the IFR's procedures unfairly 
disadvantage non-English speakers and unrepresented aliens with limited 
financial means. With regard to commenters' concerns about minors, DHS 
notes that ICE guidance to immigration officers is that such penalties 
should not be issued to minors without exceptions.
    Comment: One commenter claimed that the IFR is particularly harmful 
to aliens seeking asylum or protection at the border. The commenter 
stated that, as a result of this IFR, these aliens will now be charged 
a civil fine, which the commenter characterizes as an erosion of their 
right to seek asylum, particularly when paired with other policies 
limiting asylum at the border.
    Response: This rule does not alter or limit any statutory or 
regulatory right to apply for asylum or related protections under the 
INA or the regulations implementing U.S. obligations under the CAT. It 
does not create new grounds of inadmissibility, deportability, or 
ineligibility for relief or protection, and

[[Page 65400]]

it does not authorize the imposition of penalties based solely on the 
act of seeking asylum or protection. Rather, the IFR streamlines the 
process for assessing statutorily authorized civil penalties against 
aliens who violate immigration laws by entering the United States 
unlawfully, irrespective of their purpose for doing so. The statute 
does not create an exception for those who enter the United States 
unlawfully for the purpose of seeking asylum or related protection. 
Aliens who present themselves at a port of entry to seek asylum or 
other related protection are not subject to civil penalties under this 
rule.
3. Discrimination and Value-Based Considerations
    Comment: Several commenters characterized the IFR as inconsistent 
with U.S. values and traditions, describing the IFR as ``un-American,'' 
``unjust,'' and ``contrary to national values.'' One commenter 
characterized the IFR as designed to ``punish'' people trying to 
navigate the ``labyrinthian immigration system.'' One commenter 
suggested that the IFR was promulgated for a pretextual political 
purpose rather than a legitimate administrative one. The commenter 
argued that the IFR punishes aliens rather than deterring violations 
and improving compliance with removal obligations or upholding 
statutory requirements. Commenters generally suggested that the 
Administration should pursue policies that focus on humane and fair 
immigration policies, rather than punitive ones.
    Response: The Departments categorically reject commenters' 
characterization of this rule as inhumane, ``un-American,'' ``unjust,'' 
or ``contrary to national values.'' The United States is a nation of 
immigrants and a nation of laws. DHS is charged with administering and 
enforcing those laws, but the number of illegal aliens in the United 
States who are subject to final removal orders has outpaced DHS's 
enforcement resources. See 90 FR 27445; see also Section II of this 
preamble. Further, EOIR statistics indicate that there are over 3.4 
million pending Immigration Court proceedings as of the third quarter 
of FY 2026.\25\ When completed, these cases may result in a substantial 
number of additional removal orders against aliens, and without 
additional action there is a risk that many of these aliens may remain 
in the United States unlawfully. Further, although this Administration 
has made great strides to secure the southern border, DHS is committed 
to maintaining operational control of the border to ensure that DHS has 
sufficient resources to address the public safety and national security 
threats that arise constantly at the border.\26\
---------------------------------------------------------------------------

    \25\ See EOIR Workload & Adjudication Statistics, Pending Cases, 
New Cases, and Total Completions (July 31, 2026), https://www.justice.gov/eoir/media/1344791/dl?inline [https://perma.cc/B2AW-2QYD]. EOIR statistics reported 3,469, 569 pending cases as of FY 
2026 (Third Quarter). The term ``pending cases'' includes all 
uncompleted cases in removal, deportation, exclusion, asylum-only, 
and withholding-only proceedings.
    \26\ See Finding of Mass Influx, 90 FR 45396 (Sept. 22, 2025) 
(explaining the impact on DHS resources and the public safety and 
national security concerns that result when there is an influx of 
aliens arriving at the border and entering or attempting to enter 
illegally).
---------------------------------------------------------------------------

    The Departments believe that these circumstances warrant additional 
action consistent with this Administration's direction to use all 
available statutory immigration enforcement tools including civil 
penalties. See 90 FR 27445-46 and Section II of this preamble; see also 
90 FR 8444-45. Congress has authorized DHS to apply these penalties 
against aliens who are entering or attempting to enter the United 
States unlawfully and against aliens who have failed to comply with 
removal and departure orders. See 90 FR 27439-41. The enforcement of 
these statutory penalties is a legitimate and integral component of 
ensuring compliance with the Nation's immigration laws and maintaining 
the integrity of the immigration system. See 90 FR 27444-46. Indeed, 
the IFR is achieving this objective, as DHS has issued over 176,000 
civil penalties under the IFR (compared to approximately 12,000 
penalties issued under 8 CFR part 280). These penalties have encouraged 
greater compliance with removal and voluntary departure orders as 
evidenced by the nearly 82,000 aliens with removal orders and voluntary 
departure orders who have self-departed the United States after DHS 
began issuing civil penalties in March 2025, and the nearly 7,200 
aliens who self-departed from the United States after receiving notice 
of a civil penalty issued under the IFR.\27\
---------------------------------------------------------------------------

    \27\ See Office of Homeland Security Statistics analysis of 
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case 
Outcomes (Oct. 7, 2026).
---------------------------------------------------------------------------

    Similarly, the Departments reject the claim that this rule is 
intended to dehumanize or punish people navigating the immigration 
system. DHS notes that these penalties generally are not imposed until 
after the aliens have completed immigration proceedings and received a 
determination that they are not authorized to remain in the United 
States. The IFR did not create new categories of violative conduct or 
expand the scope of existing penalties. Instead, it updated the 
procedural framework that applies to these statutorily authorized 
penalties to ensure that DHS can assess them efficiently against aliens 
who have failed to comply with the Nation's immigration laws. This 
framework allows DHS to avoid unnecessarily diverting resources from 
ICE's and CBP's missions to apprehend, detain, and remove aliens who 
have illegally entered and are unlawfully present. See 90 FR 27447. DHS 
remains committed to administering these authorities in a manner 
consistent with principles of due process, other statutory and 
regulatory requirements, and the Nation's longstanding values of 
fairness and respect for the rule of law.
    Comment: One commenter claimed that the IFR is discriminatory 
because its streamlined penalty process applies only to aliens, while 
the Departments' regulations continue to provide additional procedural 
protections to companies that violate the immigration laws when they 
are faced with a fine. The commenter characterized the IFR as saying 
that the Departments cannot provide aliens with the same due process 
protections that they can afford companies like airline carriers 
because of the large number of fines that ICE has issued against 
aliens. The commenter claimed that this is a crisis of DHS's own making 
rather than a rational reason for distinguishing between aliens and 
companies when designing civil penalty procedures. The commenter 
further argues that the IFR is discriminatory because other regulations 
require the Departments to consider mitigating circumstances when 
imposing penalties on employers and companies that violate immigration 
laws, but the IFR does not afford aliens the same treatment or allow 
them to seek mitigation.
    Response: The Departments disagree with the commenter's assertion 
that the IFR is discriminatory because it establishes a streamlined 
penalty process for aliens but not for carriers. The IFR is not 
intended to favor carriers over aliens. It addresses an immediate 
enforcement need: deterring large numbers of aliens from entering the 
United States unlawfully and encouraging compliance with removal and 
departure orders.
    As an initial matter, the Departments note that aliens and carriers 
are not similarly situated under the INA. Aliens are the direct 
subjects of removal and departure orders and are personally responsible 
for complying with those

[[Page 65401]]

orders, if not removed by ICE. They receive an opportunity for a full 
and fair hearing during section 240 removal proceedings, including an 
opportunity to contest removability and seek relief.\28\ When an alien 
fails to comply with a removal or departure order after such 
proceedings, that violation directly undermines the orderly 
administration of the immigration system and the integrity of the 
immigration laws. By contrast, carriers are regulated third parties 
that frequently transport passengers, including aliens, into the United 
States, but are not directly responsible for an alien's independent 
decision to violate the Nation's immigration laws. Rather, their 
obligations are tailored to their role as carriers, arising from 
statutory and regulatory requirements to verify the travel documents of 
passengers seeking to travel to the United States, such as those in INA 
273(a), 8 U.S.C. 1323(a). Noncompliance by carriers is addressed 
through a separate statutory provision, INA 273, 8 U.S.C. 1323, through 
a long-standing regime of inspections, penalties, and cooperative 
compliance measures with CBP tailored to entities engaged in 
international transportation.
---------------------------------------------------------------------------

    \28\ As noted in the IFR, under the INA, certain aliens can also 
be ordered removed by DHS with limited or no review by EOIR. See 90 
FR 27740, n. 3 (discussing removal process outside of section 240 
removal proceedings including expedited removal under INA 235(b)(1), 
8 U.S.C. 1225(b)(1), reinstatement of a prior removal order under 
INA 241(a)(5), 8 U.S.C. 1231(a)(5), and administrative removal 
orders for certain non-permanent residents aliens who are aggravated 
felons under INA 238(b), 8 U.S.C. 1228(b)). As the IFR explained, 
however, aliens ordered removed through these processes generally 
must be detained, which reduces the likelihood of the alien's 
failure to depart. Id. Therefore, while applicable to all 
administratively final removal orders, the failure to depart civil 
monetary penalties are most relevant to aliens ordered removed 
through section 240 removal proceedings. Id.
---------------------------------------------------------------------------

    The IFR focused on streamlining the process for collection of 
penalties against aliens because DHS identified an urgent need to 
increase the scale of such penalties and facilitate more timely 
processing, as well as to reduce incentives to unlawfully enter the 
United States and to ignore removal and departure orders. 90 FR 27447-
48; see also Section II of this preamble. The streamlined process is 
intended to allow DHS to issue penalties more quickly and at a volume 
necessary to promote compliance and deterrence. DHS did not identify a 
comparable, immediate need to revise the penalty process for carrier 
violations. 90 FR 27447.
    For years, CBP has assessed civil monetary penalties against 
carriers for violations of their obligations under the immigration laws 
\29\ and has routinely worked with carriers to improve compliance.\30\ 
Carriers that operate regular transportation services into the United 
States already have strong incentives to verify passengers' travel 
documents to avoid substantial and repeated fines, as well as the costs 
of securing and returning inadmissible passengers.\31\ These incentives 
are further reinforced by CBP programs and arrangements with carriers 
designed to strengthen document screening and compliance, including 
CBP's voluntary document validation program and memoranda of 
understanding under which civil penalties may be reduced if carriers 
submit to CBP review of their screening processes and demonstrate 
successful screening procedures, as described in INA section 273, 8 
U.S.C. 1323 violations.\32\
---------------------------------------------------------------------------

    \29\ As discussed in the IFR, between October 1, 2022, and May 
5, 2025, CBP initiated 1,428 carrier fines. 90 FR 27447; see also 
Advanced Passenger Information System: Electronic Validation of 
Travel Documents, 88 FR 7016, 7027 (Feb. 2, 2023) (noting that ``the 
average number of penalties issued annually between 2015 and 2019 
was 415 and explaining that the number of civil penalties for the 
years 2020-2022 was affected by the COVID-19 global pandemic 
consistent with a decrease in arrivals).
    \30\ For example, CBP's carrier liaison program enhances border 
security by providing standardized training and assistance to 
international air carriers related to admissibility and fraudulent 
document detection. See CBP Carrier Liaison Program, https://www.help.cbp.gov/s/article/Article-1664?language=en_US [https://perma.cc/F3NW-MFU6] (Nov. 4, 2025). Additionally, CBP has 
established a process, first created by the legacy INS, for carriers 
to enter into a Memorandum of Understanding with CBP that results in 
automatic mitigation of carrier fines if the carrier agrees to 
certain conditions and the carrier demonstrates successful screening 
procedures by achieving satisfactory performance levels measured by 
the number of violations under INA 273, 8 U.S.C. 1323. See 
Mitigation of Carrier Fines for Transporting Aliens Without Proper 
Documents; Modification of Memorandum of Understanding and 
Recalculation of Performance Levels To Measure Carrier Performance; 
CBP Dec. 09-06, 75 FR 7616 (Feb. 22, 2010).
    \31\ See INA 273(c)-(e), 8 U.S.C. 1323(c)-(e). See also Advanced 
Passenger Information System: Electronic Validation of Travel 
Documents, 88 FR 7016, 7027 (Feb. 2, 2023) (noting that the cost of 
a penalty under INA 273, 8 U.S.C. 1323, and the cost of securing and 
transporting the passenger out of the United States, which amounts 
to about $10,000 for a single passenger).
    \32\ See, e.g., 88 FR 7018, 7026 (discussing CBP's voluntary 
Document Validation Program, which allows CBP to vet travel document 
information submitted by carriers for passengers on international 
flights arriving in the United States prior to departure, and noting 
that, as a result of carrier participating in the program, 67 
percent of commercial air passengers were covered by document 
validation as of FY 2021); see also CBP Dec. 09-06, 75 FR 7616 (Feb. 
22, 2010).
---------------------------------------------------------------------------

    As explained in the IFR, carrier fines also raise distinct 
considerations, including different grounds for violations and issues 
related to statutorily authorized mitigation procedures, that are not 
present for the alien-focused civil penalties covered by this rule. See 
90 FR 27447-48. These factors can in some cases make carrier penalty 
processes more complex and less suitable for the streamlined procedures 
adopted in the IFR. In addition, the existing regulations in 8 CFR part 
280 were designed initially for carrier fines, not for the alien-
focused civil penalties covered by this rule. See 90 FR 27440-41; see 
also National Fines Office, 54 FR 18648 (May 2, 1989) (describing 8 CFR 
part 280 procedures as applying to ``violations of the [INA] by 
transportation companies''). The Departments concluded that addressing 
these carrier-specific issues in the IFR could have delayed action on 
the more pressing need to streamline penalties for aliens.
    Quite simply, the IFR leaves the existing penalty framework for 
carriers intact while addressing a separate enforcement challenge 
related to aliens who unlawfully enter or remain in the United States 
in violation of the immigration laws. The Departments agree that it 
remains important to ensure that carriers comply with their obligations 
under immigration laws and that CBP can administer carrier penalties 
efficiently and effectively. Focusing this rulemaking on alien 
penalties does not preclude future consideration of whether changes to 
carrier penalty procedures may be warranted. The decision to address 
alien penalties first reflects prioritization based on pressing 
enforcement needs, not discrimination against aliens in favor of 
carriers. See Ctr. for Biological Diversity v. EPA, 722 F.3d 401, 409-
10 (D.C. Cir. 2013) (quoting City of Las Vegas v. Lujan, 891 F.2d 927, 
935 (D.C. Cir. 1989) (agencies may address problems in stages and 
``treat a problem partially'' or regulate ``in a piecemeal fashion.''). 
The Departments therefore reject the claim that it is irrational or 
discriminatory to focus this rule on civil penalties against aliens 
without amending the procedures that apply to carriers.
    For similar reasons, the Departments disagree with the commenter's 
claim that the need for streamlined procedures is a ``problem of DHS's 
own making,'' which, according to the commenter, was created by DHS's 
decision to issue large numbers of penalties against aliens. The 
Departments acknowledge that ICE rarely issued such fines prior to this 
Administration. As explained in the IFR, however, the Departments have 
determined that DHS must now use these penalties more robustly in light 
of the significant number of aliens who

[[Page 65402]]

have violated removal and departure orders and have unlawfully entered 
the country in recent years. 90 FR 27446-47. The increased use of 
penalties is intended to deter continued violations of the immigration 
laws and is consistent with this Administration's enforcement policies. 
Simply put, the IFR addresses the widespread failure by certain aliens 
to comply with the immigration laws and with removal or departure 
orders. The streamlined procedures in the IFR reflect a legitimate and 
rational interest in promoting timely and efficient enforcement against 
aliens who violate these laws. Congress provided these penalties and 
related authority in the INA; this rule merely modifies DHS's 
administration of collecting those penalties to implement that existing 
statutory authority more efficiently.
    Finally, the streamlined procedures preserve the essential elements 
of due process for aliens. Aliens subject to these penalties continue 
to receive notice of the proposed penalty and an opportunity to seek 
review. Agencies may design procedures that take account of enforcement 
realities and deterrent effect, provided that the procedures preserve 
the core protections of meaningful notice and opportunity for a 
hearing. This rule maintains those protections while allowing DHS to 
more effectively enforce existing statutory penalties.
    The Departments also disagree with the commenter's claims that the 
IFR discriminates against aliens in favor of companies because the IFR 
does not allow aliens to seek mitigation of civil penalties. The 
commenter's assertion overlooks that Congress established distinct 
statutory frameworks governing civil penalties imposed on employers and 
carriers, on the one hand, and the civil penalties at issue in this 
rule, on the other.
    First, the commenter's reference to certain mitigating 
considerations for employer-related penalties under INA 274A, 8 U.S.C. 
1324a, is misplaced. Congress has explicitly directed EOIR 
Administrative Law Judges (``ALJs'') to consider the ``mitigating'' 
factors cited by the commenter when imposing a civil penalty against an 
employer under INA 274A, 8 U.S.C. 1324a. See INA 274A(e)(5), 8 U.S.C. 
1324a(e)(5). By contrast, the INA civil penalty provisions underlying 
this rule contain no comparable statutory requirement to consider 
mitigating factors. Compare INA 274A(e)(5), 8 U.S.C. 1324a(e)(5), with 
INA 240B(d)(1)(A), 274D(a)(1), and 275(b)(1), 8 U.S.C. 1229c(d)(1)(A), 
1324d(a)(1), 1325(b)(1). The differing procedures therefore reflect 
differences Congress itself intended in these statutory schemes, not 
disparate treatment by the Departments, and the rule properly 
implements the procedures authorized for these distinct violations.
    Second, the Departments disagree with the commenter's statement 
that ``an [alien's] right to seek mitigation'' has been curtailed under 
the IFR. The prior penalty process at 8 CFR part 280 did not provide 
all aliens subject to the civil penalties covered by this rule with a 
right to seek mitigation. Rather, 8 CFR 280.5 clarifies that an 
individual subject to a civil penalty covered by 8 CFR part 280 may 
only seek mitigation if it ``is authorized by the [INA].'' By statute, 
only certain individuals and entities subject to civil penalties 
covered by 8 CFR 280 are eligible to seek mitigation. For example, INA 
273(e), 8 U.S.C. 1323(e), directs DHS to reduce, refund, or waive 
certain carrier penalties upon a showing of circumstances that would 
justify reduction, refund, or waiver. However, for the reasons 
discussed more fully in Section III.D.7 of this preamble, the INA does 
not authorize aliens to seek mitigation of the failure to depart and 
unlawful entry civil penalties. Accordingly, the Departments disagree 
that the aliens had a right to seek mitigation under 8 CFR part 280 and 
that this IFR denies them that right. For this reason, the Departments 
also disagree with the commenter that the IFR is facially 
discriminatory because it does not allow aliens to seek mitigation but 
preserves companies and corporations' ability to do so. Rather, the IFR 
merely implements Congress's choice. It is Congress, not the 
Departments, that has authorized carriers, companies, and employers to 
seek mitigation of certain immigration-related civil penalties, while 
not extending the same opportunity to aliens.

C. Justification and Need for the Rule

1. Nature of the Civil Fines
    Comment: Several commenters took issue with the IFR's claim that 
the straightforward and readily verifiable nature of the failure to 
depart penalties supports the Departments' decision to streamline the 
underlying penalty process. 90 FR 27441-46. Commenters claimed that DHS 
has erroneously issued many civil fines over the past year under the 
prior penalty process, including to aliens with temporary or permanent 
immigration status and with an approved visa petition and related 
waiver request. A commenter also claimed that DHS has issued fines to 
aliens with pending motions seeking to reopen or rescind removal 
orders. One commenter claimed that their client received a NIF that 
incorrectly stated a voluntary departure order had been issued several 
years prior to the date of actual issuance. Another alleged that, based 
on their clients' experiences, DHS frequently does not use or seek out 
the relevant information to determine whether aliens are willfully 
evading a removal order, thus frequently making incorrect assessments 
of such civil monetary penalties. One commenter stated that DHS appears 
to be issuing these fines in bulk through an automated system, often 
based on incomplete or inaccurate records and without considering 
aliens' individual circumstances. Collectively, these commenters argued 
that the number of alleged errors seen in these fines contradict the 
IFR's assertion that these penalties are straightforward and readily 
verifiable and raise concerns that the number of errors will be even 
higher under the IFR's streamlined process.
    Response: Civil penalties are issued based on the facts of an 
alien's case; an alien who chooses to appeal to DHS may present 
evidence relevant to their specific circumstances. Prior to issuing a 
failure to depart civil penalty, immigration officers verify there are 
no applications or actions pending litigation--including appeals, 
motions, and petitions for review (``PFRs'')--that would affect the 
finality of a removal order or allow the alien to lawfully remain in 
the United States. In the jurisdictions in which the filing of a PFR 
results in an automatic stay of removal, ICE generally will not issue 
the civil fine until there are no legal impediments to removal. 
Additionally, when calculating a fine under INA 274D, 8 U.S.C. 1324d, 
immigration officers account for any periods after the removal order 
became administratively final during which the alien was authorized to 
remain in the United States due to, for example, a stay of removal 
issued by EOIR, DHS, or a federal circuit court of appeals.
    DHS rejects the claim that it is issuing these penalties in bulk 
through ``an automated system'' without a human verifying that there is 
a final executable removal order, and there are no legal impediments to 
removal. DHS further notes that aliens assessed a failure to depart 
civil penalty may raise on appeal any issues that purportedly affect 
the finality of the removal order, dates of issuance, or the alien's 
willfulness in failing to depart.
    Finally, ICE acknowledges that, in some limited number of cases, it 
mistakenly issued penalties under the pre-IFR procedures in 8 CFR part 
280.

[[Page 65403]]

However, ICE does not agree that the risk of such errors will increase 
under the more streamlined IFR procedures that this rule finalizes. The 
IFR was designed to simplify and speed up the process of issuing and 
finalizing ICE civil penalty decisions. It does not change ICE's 
process for deciding in the first place whether an alien is subject to 
a civil penalty. Moreover, as discussed above in Section II of this 
preamble, aliens have appealed civil penalties under both the pre-IFR 
and post-IFR procedures, albeit to different agencies, and have 
succeeded in having penalties set aside when issued in error at similar 
rates under both procedures. For these reasons, DHS continues to 
believe that the IFR provides aliens with sufficient opportunity to 
challenge a penalty they believe was issued in error and to have those 
penalties rescinded. The commenters' examples of errors in a limited 
number of individual cases under the pre-IFR process do not, on their 
face, call into question the adequacy of the IFR's process for error-
correction. See Mathews v. Eldridge, 424 U.S. 319, 344 (1976) (finding 
that ``procedural due process rules are shaped by the risk of error 
inherent in the truth-finding process as applied to the generality of 
cases.'').
2. Compliance With Removal Orders
    Comment: One commenter disagreed with the IFR's premise that 
increased use of civil penalties will deter immigration violations. 
Another commenter disagreed that the IFR would encourage individuals to 
comply with removal and departure orders through self-departure. The 
commenter stated that the IFR fails to account for the practical 
realities faced by many aliens who are unable to depart the United 
States, including aliens who cannot obtain travel documents because of 
the lack of U.S. consular relations with their home government and 
those who face dangers returning over land. According to the commenter, 
fining aliens who genuinely cannot depart is unjust and inconsistent 
with encouraging compliance with removal orders.
    Response: The Departments disagree with commenters' claims that 
this rule will not encourage compliance with removal and departure 
orders through self-departure. In fact, since March 26, 2025, when DHS 
began issuing civil penalties, over 82,000 aliens with removal orders 
or voluntary departure orders have self-departed. DHS's ability to 
impose statutorily authorized civil penalties swiftly and in proportion 
to the large number of aliens with removal and departure orders is a 
critical part of DHS's efforts to encourage such aliens to depart the 
United States. Indeed, the IFR is achieving this objective, as DHS has 
issued approximately 176,000 fines under the IFR (compared to 
approximately 12,100 fines issued under 8 CFR part 280). These fines 
have encouraged greater compliance with removal and voluntary departure 
orders as evidenced by the over 7,700 illegal aliens who self-departed 
from the United States after receiving notice of a civil fine issued 
under the IFR. Moreover, DHS believes that these civil penalties are 
likely having a broader effect on encouraging compliance with removal 
orders as indicated by the total number of aliens with removal or 
voluntary departure orders who have self-departed the United States 
since DHS began issuing these penalties.
    DHS disagrees that it failed to consider that certain aliens may 
face impediments to departing the United States, including aliens who 
cannot obtain travel documents through U.S. consular relations with 
their country of citizenship or nationality. When an alien remains in 
DHS custody, immigration officers help them obtain and complete the 
necessary paperwork, including assisting where possible with consulate 
interaction.\33\ When an alien has been released on supervision, the 
alien must sign ICE Form 220B, attesting that he or she will assist DHS 
in obtaining necessary travel documents in the event that a final order 
of removal is issued.
---------------------------------------------------------------------------

    \33\ ICE notes that aliens in this situation could be subject to 
a range of options, including further detention, orders of 
supervision, removal to a third country, or in some cases, parole. 
These options do not grant the alien status in the United States and 
aliens remain subject to their final order of removal. 8 CFR 241.13.
---------------------------------------------------------------------------

    DHS notes that aliens subject to a final order of removal who fail 
to timely depart the United States will be subject to civil penalties. 
Evidence that an alien has made a good faith attempt to obtain travel 
documents needed to timely depart is held by only aliens and DHS is not 
privy to this evidence until an alien presents it to DHS. During the 
appellate process, the alien or counsel may present evidence of the 
alien's inability to obtain travel documents due to no fault of his or 
her own. DHS officers retain the discretion to rescind civil penalties 
depending on the circumstances, such as a good-faith attempt to obtain 
travel documents. In addition, an alien need not depart to their 
country of citizenship or nationality; they need only depart the United 
States.
    Moreover, as directed by the President, DHS has removed many 
impediments to an alien's ability to self-depart the United States. See 
90 FR 8443. For example, DHS in partnership with the State Department 
is offering aliens free flights and providing travel document 
assistance to any non-criminal alien who uses the CBP Home app to 
indicate their intent to depart whether to their home country or a 
third country other than the United States. See DHS Press Release, DHS 
Announces Historic Travel Assistance and Stipend for Voluntary Self-
Deportation (May 5, 2025), https://dhs.gov/news/2025/05/05/dhs-announces-historic-travel-assistance-and-stipend-voluntary-self-deportation [https://perma.cc/8ST2-RHHP]. Indeed, DHS data indicates 
that over 104,000 aliens have voluntarily departed the United States 
through this program since the IFR took effect on June 27, 2025 through 
September 14, 2026.\34\
---------------------------------------------------------------------------

    \34\ See Office of Homeland Security Statistics analysis of 
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case 
Outcomes (Oct. 7, 2026).
---------------------------------------------------------------------------

    Comment: Another commenter explained that pressuring aliens to 
depart the United States to avoid civil fines undermines their existing 
rights and forecloses eligibility for immigration relief. One commenter 
said that leaving during removal proceedings can result in the loss of 
the statutory right to a fair hearing before an Immigration Judge. 
These commenters argued that departing interrupts the continuous 
presence requirement for cancellation of removal, thereby depriving 
qualifying aliens of this form of relief. Similarly, a commenter stated 
that departing terminates an alien's pending application for adjustment 
of status, impacting eligibility for lawful permanent resident status. 
Commenters also noted that departure can trigger statutory re-entry 
bars, creating barriers to lawful return and future immigration 
benefits. In this regard, one commenter characterized the IFR's goal of 
incentivizing aliens to self-depart as a ``legal trap'' that deprives 
aliens of due process and access to immigration benefits while barring 
their reentry.
    Response: The Departments acknowledge that an illegal alien's 
departure from the United States can trigger various immigration 
consequences. However, the Departments disagree with the claim that 
this rule, which uses civil penalties and the CBP Home application to 
encourage aliens to leave the United States, unfairly denies them 
access to Immigration Court proceedings or immigration relief. Rather, 
the penalties covered by this rule primarily apply to

[[Page 65404]]

aliens who have already gone through Immigration Court proceedings, 
which have resulted in an order of removal or grant of voluntary 
departure, and have failed to depart as required after the conclusion 
of such proceedings. Thus, commenter concerns about the implications of 
an alien's departure on the outcome of removal proceedings are 
unfounded. Relatedly, concerns about impacts to continuous physical 
presence are equally unfounded. The alien would stop accruing 
continuous physical presence, at the latest, on the date that they were 
served with the Notice to Appear to implement the removal proceedings 
that resulted in a final order of removal or grant of voluntary 
departure, not the date that they departed after being notified that 
they are subject to civil fines and penalties. INA 240A, 8 U.S.C. 
1229b(d)(1). Departures for reasons other than the imposition of civil 
fines and penalties that may take place prior to the commencement of, 
or during, an alien's removal proceedings are beyond the scope of this 
rulemaking.
    Moreover, aliens who are subject to removal orders or have failed 
to comply with voluntary departure orders are generally not eligible 
for, or face significant barriers to obtaining, the forms of relief 
mentioned by commenters. Under INA 240B(d)(1)(B), 8 U.S.C. 
1229(d)(1)(B), aliens who fail to comply with voluntary departure 
orders are generally ineligible, for a period of 10 years to seek 
cancellation of removal, adjustment of status, and other forms of 
relief. Furthermore, aliens under removal orders generally must reopen 
their removal proceedings to seek such immigration relief. However, the 
BIA has held that reopening is generally not justified for relief based 
on eligibility that arose after the removal order. See Matter of H-Y-Z-
, 28 I&N Dec. 156, 161 (BIA 2020) (``[E]quities that were acquired 
while [an alien] remained illegally in the United States after being 
ordered removed . . . generally do not . . . warrant discretionary 
reopening''); see also Matter of Yauri, 25 I&N Dec. 103, 105 (BIA 2009) 
(``[U]ntimely motions to reopen to pursue . . . adjustment of status . 
. . will ordinarily be denied''). More broadly, aliens subject to final 
executable removal orders do not have a right to remain in the United 
States to apply for motions to reopen or potential immigration benefits 
and, in many instances, they do not even have a right to remain to 
pursue pending applications for immigration benefits or motions to 
reopen.\35\ There may be limited circumstances where penalizable aliens 
can obtain the relief that the commenters mention. The number of cases 
in which an alien could obtain such relief in these circumstances is 
small, and civil penalties do not actually prevent aliens from applying 
for such relief. At most, it has an incidental deterrent impact on the 
alien, which is justified by the policies that the rule promotes. 
Therefore, the Departments disagree with commenters' claims that the 
IFR's goal of encouraging self-departure impermissibly deprives an 
alien of potential eligibility for immigration benefits or relief.
---------------------------------------------------------------------------

    \35\ See, e.g. Dada v. Mukasey, 554 U.S. 1, 21 (2008) 
(explaining that an alien subject to a removal order ``may be 
removed by the DHS . . . even if the motion to reopen has yet to be 
adjudicated''); Dada Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264 
(7th Cir. 1985) (``Congress has not given deportable aliens a right 
to the reopening of deportation proceedings.''); see also Riasati v. 
I.N.S., 738 F.2d 1115, 1118 (10th Cir. 1984) (``[a] pending visa 
application does not entitle an alien to a stay of deportation'') 
(citations and quotations omitted). The Departments acknowledge that 
certain aliens may be entitled to a stay of removal after filing for 
certain immigration benefits or certain motions to reopen. See, 
e.g., 8 CFR 214.205(g) (T-visas with a positive bona fide 
determination); INA 240(c)(7)(C)(iv), 8 U.S.C. 1229a(c)(7)(C)(iv) 
(VAWA self-petitioners); INA 240(b)(5)(C), 8 U.S.C. 1229a(b)(5)(C) 
(motions to reopen an in-absentia order based on lack of notice). As 
explained in Section III.E.2 of this preamble, DHS does not issue 
civil fines in these circumstances.
---------------------------------------------------------------------------

    For similar reasons, the Departments also disagree with the claim 
that the IFR's goal of encouraging self-departure creates a ``legal 
trap'' for aliens who may become subject to reentry bars if they leave 
the United States. The Departments acknowledge that aliens who are 
subject to final removal orders or have accrued unlawful presence may 
be barred from re-admission to the United States for a certain number 
of years after departing. INA 212(a)(9), 8 U.S.C. 1182(a)(9). However, 
Congress did not intend for such consequences to excuse an illegal 
alien's continued presence in the United States. Enactment of these 
reentry bars plainly demonstrates that Congress intended immigration 
violations to carry significant consequences and did not view the 
possibility of future inadmissibility as a reason to excuse compliance 
with departure obligations. Accordingly, it is important for the 
Departments to faithfully carry out Congress's intent in a streamlined 
manner within the bounds of the law.
    Moreover, the Departments note that relief may be available to 
certain aliens who are barred under these inadmissibility grounds if 
they later have a valid basis to re-enter the United States. See INA 
212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii) (exception to re-entry 
bar for certain aliens ordered removed who seek permission to re-
enter); see also INA 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (waiver 
to unlawful presence bars for certain aliens).
    Finally, to the extent that commenters are concerned about the 
impact of the unlawful entry civil monetary penalties, the Departments 
believe that concerns about aliens leaving the United States and 
abandoning removal hearings or benefits applications to avoid these 
specific penalties are speculative. The Departments do not believe that 
it is reasonable to assume that such aliens would abandon viable claims 
for relief or ongoing Immigration Court hearings given the more modest 
amount of these penalties.\36\ See DHS, Press Release DHS Announces It 
Will Forgive Failure to Depart Fines for Illegal Aliens who Self-Deport 
Through the CBP Home App (June 9, 2025). Furthermore, Congress has made 
clear that aliens who enter unlawfully are subject to such penalties 
notwithstanding the initiation or pendency of removal proceedings. See 
INA 275(b)(1), 8 U.S.C. 1325(b)(1).
---------------------------------------------------------------------------

    \36\ Indeed, the Departments note that the fees for filing many 
immigration benefits applications, including cancellation of removal 
and adjustment of status, are higher than the civil penalty for 
unlawful entry.
---------------------------------------------------------------------------

    Comment: One commenter questioned DHS's reliance on the CBP Home 
application as an available mechanism for compliance incentives. The 
commenter asserted that the application is not broadly accessible to 
all aliens subject to civil monetary penalties under the IFR but is 
limited to aliens who entered at or between a port of entry, those who 
arrived under a parole program, and those whose Temporary Protected 
Status had been terminated. The commenter stated that the application 
therefore excludes many aliens who could be fined under this rule and 
does not provide meaningful relief from fines or available incentive 
programs.
    Response: All non-criminal aliens who schedule their self-departure 
through the CBP Home App and depart will receive forgiveness of any 
civil penalties issued by DHS for failing to depart the United States. 
DHS has updated its website to reflect the full scope of the DHS 
policy.\37\ Thus, the departure incentives announced by DHS are not 
limited to the category of aliens identified by commenters, and DHS 
encourages all aliens subject to removal

[[Page 65405]]

or departure orders to take advantage of this opportunity and receive 
forgiveness for any civil penalty.
---------------------------------------------------------------------------

    \37\ See, DHS Press Release, CBP HOME: Assistance to Voluntarily 
Self-Deport, https://www.dhs.gov/cbphome [https://perma.cc/PWQ2-W6ZJ] (Sept. 1, 2026).
---------------------------------------------------------------------------

    Comment: Several commenters questioned the IFR's empirical basis 
for the assertion that civil monetary penalties will deter immigration 
violations and promote compliance with removal and departure orders. 
One stated that the IFR lacks evidence-based support for this 
justification and pointed to ICE's prior use of fines and subsequent 
recission of that policy as demonstrating that these fines are 
ineffective at achieving these purposes. One commenter stated that 
previous rules understood this and resultingly did not enforce these 
penalties, due to the cost of administering them far outweighing any 
fines collected. Collectively, these commenters viewed the IFR as 
lacking an empirical foundation, unlikely to alter behavior, and 
ineffective in achieving its compliance and enforcement goals.
    One commenter claimed that behavioral research on sanctions and 
procedural justice shows that fines do not deter unlawful behavior or 
encourage compliance with the law if the process for imposing them is 
unfair. The commenter cited to a ``policy briefing'' \38\ discussing 
research suggesting that people are more likely to comply with court 
orders when they believe that the underlying process is respectful, 
neutral, accessible, and provides an opportunity for them to 
participate before a decision is rendered.
---------------------------------------------------------------------------

    \38\ Emily Gold LaGratta, Criminal Justice Alliance, To Be Fair: 
Procedural Fairness in Courts (Oct. 2014), https://justiceinnovation.org/publications/be-fair-procedural-fairness-courts [https://perma.cc/YL4F-UVU9].
---------------------------------------------------------------------------

    Response: The Departments disagree with the assertion that this 
rule lacks an empirical basis or relies on unsupported assumptions 
regarding deterrence. Congress has expressly authorized civil monetary 
penalties for the violations addressed in this rule and has long 
identified such penalties as a tool that may promote compliance with 
these statutory obligations. See 90 FR 27439-40. The Departments' role 
in this rulemaking is to ensure that DHS can efficiently utilize these 
statutory penalties consistent with Congress's objective in enacting 
them, not to reconsider the policy judgement underlying those statutory 
authorities or to undertake a new empirical assessment of their 
effectiveness. Moreover, as explained in Section I of this preamble, 
the IFR is achieving its intended incentive and deterrence 
objectives.\39\
---------------------------------------------------------------------------

    \39\ See Office of Homeland Security Statistics analysis of 
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case 
Outcomes (Oct. 7, 2026).
---------------------------------------------------------------------------

    As explained in the IFR, DHS does not believe that its prior 
limited experience assessing these penalties in 2019 demonstrates that 
these penalties are ineffective. When ICE rescinded the prior penalty 
policy in 2021, there were only 26 active cases,\40\ which DHS 
concluded was an insufficient sample size to judge the effectiveness of 
these civil penalties. DHS explained its belief that these civil 
penalties would be more effective at achieving their deterrence and 
compliance objectives if applied quickly and at scale. In addition, the 
IFR was designed to address many of those administrative challenges 
that ICE faced when issuing civil penalties in 2019, by streamlining 
the procedures for these civil monetary penalties, thereby reducing 
operational burden and costs. Finally, the Departments noted that DHS's 
decision to stop issuing civil penalties under the prior Administration 
was based on that Administration's findings that there is no indication 
that these penalties promoted compliance with the alien's departure 
obligations. On January 20, 2025, President Trump directed DHS to focus 
enforcement resources on carrying out final orders of removal and 
enforcing laws related to illegal entry and unlawful presence. E.O. 
14159 also directed DHS to assess and collect all fines and penalties 
authorized by law. This rule is needed to help DHS meet these 
directives. See 90 FR 27447-48.
---------------------------------------------------------------------------

    \40\ See ICE Memorandum for Tae D. Johnson, Acting Dir., ICE, 
from Corey A. Price, Acting Exec. Assoc. Dir., Enforcement and 
Removal Operations, ICE, Re: Recission of Civil Penalties for 
Failure to Depart (Aug. 6, 2021).
---------------------------------------------------------------------------

    With respect to comments on sanctions and ``procedural justice,'' 
the Departments note that the rule preserves the core procedural 
protections necessary to ensure fairness and meaningful participation, 
including written notice of the proposed penalty, information about the 
factual basis for it, an opportunity to present a written response with 
supporting evidence, and independent supervisory review by an official 
who was not involved in the initial determination. These protections 
reflect the principles of neutrality, respect, accessibility, and 
meaningful opportunity to be heard that the cited research suggests may 
support voluntary compliance.
    Finally, while commenters questioned whether civil penalties would 
deter unlawful behavior, Congress has already determined that these 
penalties may serve an enforcement and compliance function, and the 
Departments' procedural refinements help ensure these penalties can be 
administered efficiently and fairly in accordance with due process 
principles required by law. In any event, the Departments believe that 
DHS's robust use of these penalties is helping to achieve their 
compliance function as demonstrated by the over 82,000 aliens with 
removal and voluntary departure orders who self-departed after DHS 
began issuing these penalties, and as demonstrated by the fact that 
nearly 7,200 aliens self-departed after receiving a civil fine under 
the IFR.\41\ Accordingly, the Departments conclude that the rule has a 
sufficient basis.
---------------------------------------------------------------------------

    \41\ See Office of Homeland Security Statistics analysis of 
Alien Departures by Civil Fine, DHS Enforcement, and EOIR Case 
Outcomes (Oct. 7, 2026).
---------------------------------------------------------------------------

3. Use of Government Resources
    Comment: Commenters said that a large-scale penalty process will 
waste government time and resources. One claimed that issuing fines on 
a large scale would be an inefficient use of DHS resources because few 
aliens will pay them. Commenters discussed several factors that make 
collection improbable and administrative enforcement costly. They noted 
that many aliens have limited financial resources to pay these fines 
and the amounts are so high that aliens will not take them seriously. 
One commenter also said that the IFR will only further confuse many 
aliens as they do not understand the immigration system and many will 
not pay if they will be deported anyway. Another commenter said that 
sending a large number of fines to the Treasury Department for 
collection is wasteful because DHS itself cannot verify that aliens 
subject to these fines are actually in the United States, citing the 
IFR's statement that DHS records do not always reliably indicate which 
aliens actually remain in the United States after a removal or 
departure order. Another commenter also pointed to DHS's prior 
conclusion that the resources needed to impose these penalties 
outweighed the potential collections from a transient alien population 
that generally lacks the means to pay. Accordingly, commenters claimed 
that DHS should not expend substantial time and resources pursuing 
these penalties.
    Response: The Departments do not agree that this rule's goal of 
streamlining the civil penalty process is wasteful or an improper use 
of Government

[[Page 65406]]

resources. As an initial matter, the IFR and this rule are a critical 
part of DHS's efforts to use all statutorily available tools to achieve 
the Administration's immigration enforcement and border security 
objectives. This includes issuance of civil monetary penalties to 
encourage aliens to comply with removal and voluntary departure orders 
and to deter unlawful entries. The purpose of the rule is to streamline 
the civil penalty process to ensure that DHS can use these statutorily 
authorized penalties swiftly and at the scale needed to respond to the 
large number of aliens who have entered the United States or remain 
unlawfully. See 90 FR 27442; see also Section I of this preamble. Quite 
simply, this rulemaking is intended to help ensure that DHS has a 
workable process for issuing civil monetary penalties against aliens 
who unlawfully entered or failed to depart the United States as part of 
ICE's and CBP's missions to apprehend, detain, and remove aliens who 
have illegally entered the United States and are unlawfully present.
    More fundamentally, the Departments do not agree that civil 
penalties are an ineffective solution to the problem that many aliens 
remain in the United States in contravention of removal and departure 
orders. To the contrary, Congress has authorized DHS to impose these 
civil penalties on such aliens as a means to encourage them to comply 
with removal and departure orders and to impose consequences on those 
who fail to comply. 90 FR 27446. Indeed, DHS's use of these statutorily 
authorized tools is working to achieve the objective as discussed above 
in Section I of this preamble.
    Similarly, the Departments disagree with one commenter's claims 
that attempting to collect failure to depart penalties is wasteful 
because DHS cannot verify that aliens issued fines remain in the United 
States. As discussed in the IFR, DHS acknowledges that it does not 
maintain comprehensive departure records for all aliens, particularly 
for aliens who cross land borders, and, therefore, DHS may have issued 
a certain number of penalties to aliens who have already departed. 90 
FR 27445. ICE believes however, based on its experience, that it is 
reasonable to assume that a large number of aliens with final removal 
and departure orders remain in the United States.\42\ Id. Therefore, 
consistent with the President's direction in section 8 of E.O. 14159, 
90 FR 8444-45, DHS believes that the IFR's goal of quickly imposing 
penalties to encourage compliance with removal and departure orders 
justifies the resource expenditure, even if some number of penalties 
are not collected because the alien departed.
---------------------------------------------------------------------------

    \42\ According to data in DHS's ENFORCE Alien Removal Module, 
there are 1.9 million aliens with final executable orders of removal 
out of a total of 2.1 million final orders of removal (last visited 
Sep. 10, 2026).
---------------------------------------------------------------------------

    Finally, the IFR fully explains why the Departments believe that 
this rule is needed notwithstanding ICE's prior determination in 2021 
that the resource burdens outweigh the amount that can be collected 
from a transient population of aliens that lacks the means to pay. 90 
FR 27446-47. In the IFR, DHS first noted that its limited experience 
implementing these civil monetary penalties in prior years does not 
demonstrate that these penalties are innately ineffective. 90 FR 27447. 
Moreover, DHS explained that the IFR is intended to reduce potential 
resource burdens that DHS previously experienced when issuing these 
penalties by streamlining the underlying civil penalty process. Id. 
Additionally, DHS noted that the collection of civil penalties was not 
the only or even the primary goal; rather, DHS believes that maximizing 
the use of these civil penalties will encourage illegal aliens who are 
subject to them to voluntarily depart the United States. Id. As 
discussed above, DHS's use of these civil penalties is achieving this 
objective, and the use of the CBP Home app to self-deport is a cost-
effective means of achieving this objective.
    Comment: At least one commenter suggested that pursuing fines on a 
large scale would merely divert limited agency resources away from 
higher priority enforcement objectives, such as apprehending aliens who 
pose threats to public safety or national security. The commenter 
concluded that the IFR's approach would ultimately increase costs for 
the Departments without meaningfully advancing enforcement goals. 
Similarly, one commenter claimed that the IFR would not promote public 
safety but would have the opposite effect by heightening fear and 
discouraging engagement with law enforcement amongst immigrant 
communities. According to the commenter, imposing high civil fines on 
aliens, including those without criminal histories, would lead to fewer 
reports of crime, diminishing public safety for all. Another commenter 
suggested that a more effective and resource-efficient approach would 
be to focus enforcement on employers who hire unauthorized workers, 
suggesting that such entities can be expected to understand and comply 
with employment verification laws and will be better motivated by civil 
penalties, or the threat of civil penalties, to follow those laws.
    Response: The Departments disagree that implementing the civil 
penalty process described in the IFR will divert resources away from 
higher priority enforcement objectives or fail to advance statutory 
enforcement goals. Congress has expressly authorized the imposition and 
collection of civil penalties under INA 240B(d), 8 U.S.C. 1229c; INA 
274D, 8 U.S.C. 1324d; and INA 275(b), 8 U.S.C. 1325. The Departments 
therefore have a responsibility to maintain procedures that enable the 
effective administration of these statutory authorities. Implementing a 
clear, streamlined penalty process does not diminish the Departments' 
ability to prioritize cases involving threats to public safety or 
national security, including cases where the alien fails to depart or 
illegally enters the United States. Rather, the IFR promotes 
administrative efficiency by updating and consolidating procedural 
steps.
    Additionally, the concerns about the imposition of civil penalties 
heightening fear and discouraging engagement with law enforcement by 
the immigrant community is speculative. The commenter failed to provide 
information or evidence to support the concern that civil penalties 
will discourage aliens from reporting crime or engaging with law 
enforcement. Even if there is a disincentive to report crime or engage 
with law enforcement, the commenter failed to provide a basis to 
conclude that these disincentives stem from making the process of 
imposing civil penalties more efficient, rather than from the existence 
of civil penalties or immigration enforcement more generally.
    The Departments also disagree that the penalty process undermines 
public safety by discouraging aliens from reporting crime or engaging 
with law enforcement. The penalties addressed in the IFR apply only in 
limited circumstances specified by statute and do not alter DHS's 
longstanding policies and efforts aimed at encouraging victims, 
witnesses, and other individuals to cooperate with law enforcement 
regardless of immigration status. Nothing in the IFR changes 
protections for victims of crime, humanitarian programs, or DHS's 
ability to exercise discretion on a case-by-case basis. The 
Departments, therefore, do not expect the procedural updates in the IFR 
to meaningfully affect crime reporting or relationships between 
immigrant communities and law enforcement.

[[Page 65407]]

    The Departments further disagree that focusing enforcement 
resources on employers who hire unauthorized workers would be a more 
effective or statutorily appropriate approach. Employer sanctions and 
worker-related civil penalties are governed by distinct provisions of 
the INA, and the IFR did not amend or affect those frameworks. While 
the Departments enforce employer compliance laws through separate 
authorities, those efforts do not displace the need to implement civil 
monetary penalties against aliens where Congress has authorized their 
use and vested DHS with authority to enforce them. The IFR ensures 
streamlined procedures for carrying out the statutory provisions for 
civil monetary penalties applicable to aliens for failure to depart, 
failure to voluntarily depart, and improper entry, while employer-
related enforcement continues under its own statutory framework.
    For these reasons, the Departments conclude that the IFR's civil 
penalty procedures are an appropriate use of agency resources. The 
procedures promote efficient administration of existing statutory 
penalty authorities to meet immigration enforcement priorities and 
challenges.

D. Comments on Specific Provisions

    1. Removal of Notice of Intent To Fine
    Comment: Several commenters asserted that eliminating the notice of 
intent to fine (NIF) erodes procedural protections by transforming what 
was once a preliminary document signaling DHS's intent to issue a fine 
into a final agency decision. Commenters stated that this change 
reduces the time that aliens have to understand and respond to fines, 
seek legal advice, and submit an appeal. Additionally, one commenter 
suggested that eliminating the NIF process--which the commenter 
characterizes as being designed to notify aliens of potential penalties 
and allowing them to rectify the violation--is inconsistent with the 
goal of incentivizing aliens to comply with removal and departure 
orders.
    Response: The Departments disagree with commenters' 
characterization of the rule. Although the IFR eliminated the NIF 
process for these penalties, it continues to require written notice of 
penalties that identify the factual and legal basis for liability, see 
8 CFR 281.1(c), and provides aliens with an opportunity to submit a 
written response with supporting evidence before a final determination 
is made, see 8 CFR 281.1(e). Indeed, the differences between the NIF 
process prior to the IFR under 8 CFR part 280 and the process 
established by the IFR under 8 CFR part 281 are less substantial than 
commenters suggest. Under both regulations, if an alien fails to 
respond to the NIF or the penalty decision, as applicable, the alien 
will be liable for the penalty. See generally 90 FR 27449-54 (comparing 
8 CFR 280 and 8 CFR 281). The only difference is that, under the part 
280 process, a supervisory officer must convert a NIF into a final 
unappealable decision; under the IFR, the penalty decision 
automatically becomes final if the alien does not appeal. Compare 8 CFR 
280.13(a)(2), with 8 CFR 281.1(f)(3). Under both regulations, an alien 
who timely appeals a penalty decision is entitled to additional process 
before a final decision is issued. Compare 8 CFR 280.13(b), with 8 CFR 
281.1(e). Therefore, the IFR merely converts the prior two-stage NIF 
process under 8 CFR part 280 into a single process that eliminates 
duplicate administrative steps and paperwork if an alien does not 
appeal, but the fundamental safeguards of notice and an opportunity to 
be heard remain unchanged. Id.
    The Departments acknowledge that the IFR reduces the amount of time 
that an alien has to contest a penalty and to submit supporting 
evidence compared to the NIF process. Prior to the IFR an alien 
generally was required to answer a NIF within 30 calendar days and 
could submit supporting evidence at an in-person hearing, if requested. 
8 CFR 280.12. Under the IFR, an alien must file an appeal postmarked 
within 15 business days of the date of service of the civil penalty 
decision and the alien is generally required to submit all evidence in 
support of the appeal at the time of filing. 8 CFR 281.1(e)(1). 
However, as explained in the IFR and in response to related comments in 
this preamble, the Departments believe that shortening the timeline for 
appeals and evidentiary submissions is appropriate for the failure to 
depart and unlawful entry penalties due to the straightforward and 
readily determinable nature of these penalties.
    Moreover, the Departments note that in some respects the IFR 
simplified the process for aliens to contest civil penalties compared 
to the procedures under 8 CFR part 280. An alien may trigger an appeal 
under the 8 CFR 281.1 process by simply filing a notice of written 
appeal indicating that the alien is contesting the penalty. Indeed, DHS 
uses the Form 281, Notice of Violation and Order, which includes a 
field for aliens to use to appeal a penalty. The alien may, but is not 
required to, submit written argument or documentary evidence contesting 
the penalty. Id. In contrast, under the NIF process, the alien must 
provide a written defense, in duplicate, under oath setting forth the 
reasons why a fine should not be imposed. See 8 CFR 280.12.
    In addition, this final rule amends 8 CFR 281.1(e) to permit aliens 
to file an appeal that is postmarked after the 15-business-day deadline 
where the alien asserts, and ICE determines after considering on a 
case-by-case basis all the evidence presented with the appeal, that 
there was a mail delay in receiving the immigration officer's decision 
and order issued under 8 CFR 281.1(c)(1). Additionally, to help ensure 
timely processing and avoid administrative delays by postal carriers on 
the backend, DHS encourages aliens to obtain contemporaneous, time-
stamped evidence of deposit of their mailed appeal directly from the 
U.S. Postal Service (``USPS'') or their chosen commercial carrier 
because merely depositing an appeal in a standard mail collection box 
does not guarantee an immediate postmark or proof of the date of 
dispatch. This amendment, which provides an exception to the 15-
business-day deadline to appeal, addresses commenters' concerns 
relating to the reduced time for aliens to submit an appeal under 8 CFR 
part 281. Even assuming that the IFR's streamlined process makes it 
more challenging for aliens to appeal and submit supporting evidence in 
some cases, the Departments believe that this risk is outweighed by 
DHS's strong interest in the revised civil penalty process as discussed 
further in the IFR and this preamble.
    Finally, regarding one commenter's claim that eliminating the NIF 
is inconsistent with the IFR's goal of incentivizing compliance with 
removal and departure orders, the Departments note that the IFR was 
designed to achieve several goals. As explained in the IFR preamble, 
one goal of this rule was to ensure that DHS has a workable process for 
issuing civil penalties against aliens without diverting resources away 
from ICE's and CBP's missions to apprehend, detain, and remove illegal 
aliens. 90 FR 27447; see also Section I of this preamble. Eliminating 
the NIF serves this goal by removing a duplicative step (i.e., the 
requirement to issue a separate final decision) in cases where an alien 
does not appeal the civil penalty decision. The Departments note that 
aliens continue to have an avenue to rectify any fines resulting from 
these immigration violations. As the IFR explains, DHS will rescind 
outstanding civil penalties in cases where a qualifying alien uses the 
CBP Home app

[[Page 65408]]

to depart the United States. See 90 FR 27444.
    Comment: One commenter claimed that eliminating the preliminary NIF 
makes notice and the opportunity to be heard occur only after DHS 
imposes a civil monetary penalty, violating due process. Citing Mathews 
v. Eldridge, 424 U.S. 319 (1976), the commenter argues that similar to 
how the government must give a disability benefits recipient notice and 
an opportunity to submit information prior to terminating benefits, DHS 
must give aliens notice of the fine and an opportunity to challenge the 
accuracy of DHS's information and its conclusions before DHS imposes 
the fine. The commenter contends that the IFR violates due process 
because aliens are given no opportunity to submit information or 
contest the penalty prior to the final decision.
    Response: The Departments disagree with the commenter's 
characterization of the IFR. The IFR provides aliens with notice and an 
opportunity to contest civil penalties before they become final. As 
explained in the IFR, a decision imposing a civil monetary penalty 
becomes final only if the alien does not timely file an appeal, not at 
the time of issuance of the civil penalty.\43\ See 8 CFR 281.1(f)(3); 
see also 90 FR 27450. If the alien timely appeals, the initial penalty 
decision will remain inoperative during the pendency of the appeal. 8 
CFR 281.1(e)(1), (f)(3). At the end of the appeal process, and after 
considering any arguments and evidence submitted by the alien, a 
supervisory immigration officer who did not issue the initial penalty 
decision issues a final decision in writing affirming the initial 
penalty decision or withdrawing the decision and serves it on the 
alien. See 8 CFR 281.1(e). Therefore, contrary to the commenter's 
claim, the IFR provides an alien with both notice and an opportunity to 
challenge the penalty decision prior to the alien becoming liable for 
the penalty, in accordance with the pre-deprivation process upheld in 
Mathews v. Eldridge. 424 U.S. at 319.
---------------------------------------------------------------------------

    \43\ As a practical matter, the same is true of the NIF process; 
if an alien does not timely answer the NIF, DHS may issue a final 
decision imposing the penalty which the alien cannot appeal. See 8 
CFR 280.13(a)(2).
---------------------------------------------------------------------------

    Comment: Citing 5 U.S.C. 554(b), a commenter claimed that 
``eliminating the NIF also violates the [Administrative Procedure Act] 
because there is no notice of the matters of fact and law asserted, 
including what constitutes willfulness under these circumstances, and 
what factors are relevant to defenses or challenges to the penalty.'' 
More broadly, the commenter claims that the removal of the NIF violates 
``a foundational principle of administrative law: meaningful notice 
must precede the imposition of civil penalties to satisfy due process 
requirements.'' The commenter notes that federal statutes, including 
immigration statutes, consistently underscore the importance of notice 
in administrative proceedings, and discusses 8 U.S.C. 1182(n)(2)(C), 
which governs the civil penalty process for employers who violate 
certain labor conditions under the H1-B visa program as an example.
    Response: As an initial matter, the Departments note that, although 
the IFR eliminates the NIF process for these penalties, it continues to 
require DHS to issue a written notice that sufficiently identifies the 
basis for liability and provides aliens with an opportunity to contest 
such penalties before they become final. Under 8 CFR 281.1(c)(1), the 
initial penalty decision must include the statutory basis for the 
penalty, the amount and type of the penalty being imposed, and a brief 
statement of the reasons for the decision. DHS implements this 
requirement through Form 281, Notice of Violation and Order, which 
provides aliens with all of the required information, including 
information about the date that the alien became subject to a final 
removal or departure order or when the alien was apprehended entering 
the United States unlawfully. For the failure to depart penalties under 
section 274D(a)(1) of the INA, 8 U.S.C. 1324d(a)(1), the Form 281 also 
identifies the particular violation--e.g., willful failure or refusal 
to depart pursuant to a removal order; willful failure or refusal to 
make timely application in good faith for travel documents; willful 
failure or refusal to present for removal as required by DHS.
    This information ensures that aliens understand the basis for the 
penalty and have the requisite information in the event they seek to 
challenge it. See 90 FR 27449. Indeed, DHS notes that the NIF process 
does not require DHS to provide the alien with any additional 
information about the basis for a civil penalty beyond what the IFR and 
this rule require. See 8 CFR 280.1, 280.11. Moreover, as discussed in 
response to the comment immediately above, under the IFR an alien 
retains an opportunity to challenge a civil penalty decision issued 
pursuant to the IFR before it becomes final. Therefore, the Departments 
disagree that by eliminating the NIF this rule violates any 
``principles of administrative law'' related to notice in the civil 
penalty context.
    The Departments also note that the IFR's procedures are not subject 
to the requirements in 5 U.S.C. 554(a) because they are not 
adjudications ``required by statute to be determined on the record 
after opportunity for an agency hearing.'' Moreover, unlike the H1-B 
civil penalty statute cited by the commenter, the civil penalty 
statutes relevant to this rule do not specify the procedures that DHS 
must follow to impose these penalties. 90 FR 27448. As discussed in the 
IFR, Congress has set forth detailed procedures that the Government 
must follow when imposing certain immigration-related civil penalties, 
but Congress's omission of similar procedures for the penalties covered 
by this rule indicates that Congress intended to give DHS discretion to 
employ procedures that DHS reasonably believes are appropriate for such 
penalties. See id.; see also Vt. Yankee Nuclear Power Corp., 435 U.S. 
at 543 (concluding that ``[a]bsent constitutional constraints or 
extremely compelling circumstances the administrative agencies should 
be free to fashion their own rules of procedure and to pursue methods 
of inquiry capable of permitting them to discharge their multitudinous 
duties'') (cleaned up). For the reasons discussed further in the IFR 
and throughout this preamble, the Departments believe that the IFR's 
streamlined process, including the removal of the NIF, is reasonable 
and appropriate for these penalties given their typically 
straightforward nature and DHS's need to ensure that it has an 
efficient process for issuing these penalties more quickly and at scale 
to deter unlawful entries and to encourage compliance with removal and 
departure orders, while also providing aliens with sufficient notice of 
the basis for the penalty decision and opportunity to contest it before 
it becomes final.
2. Notice of Grounds for the Penalty
    Comment: Commenters objected to adequacy of the notice of the 
grounds for issuing the civil monetary penalties. One commenter said 
that the IFR's requirement that DHS must include a ``brief statement of 
the reasons'' for imposing a penalty is inconsistent with DHS's burden 
of proving by ``clear and convincing, and unequivocal evidence'' that 
an alien is liable. Commenters suggested that aliens cannot defend 
against fines without additional information or explanation in the 
penalty decision. One commenter said that the IFR violates the 
Administrative Procedure Act (``APA''), citing 5 U.S.C. 556, and due 
process principles requiring notice to reasonably apprise parties of 
the action and provide an

[[Page 65409]]

opportunity to present objections, because DHS is not required to 
provide a complete record supporting the penalty.
    Response: The Departments disagree that the penalty decision 
contains insufficient information for an alien to understand the basis 
for the penalty or to challenge it or that the IFR deprives aliens of 
their due process notice and hearing rights through lack of a record. 
There is no such requirement in statute for a hearing to be on the 
record in the civil penalties context or any indication that Congress 
intended the APA's procedures governing adjudications to apply. 
Therefore, DHS was not required to adopt the adjudication procedures in 
5 U.S.C. 554 and the follow-on procedures in 5 U.S.C. 556 that apply to 
adjudications governed by 5 U.S.C. 554. Regardless, new section 8 CFR 
281.1(e)(3) provides the materials that compose the record supporting a 
particular civil penalty.
    As an initial matter, DHS reiterates that the legal and factual 
predicates for these penalties are relatively straightforward and 
readily determinable based on information within DHS's and the alien's 
possession. 90 FR 27442; see also Section II of this preamble. For 
example, the INA authorizes DHS to impose a civil monetary penalty for 
failure to depart if two conditions are met: (1) the alien was granted 
voluntary departure or is subject to a final executable order of 
removal; and (2) the alien voluntarily failed to depart in the allotted 
time set forth in the voluntary departure order or willfully failed to 
depart under a final removal order. See INA 240B(d)(1), 274D(a)(1)(A), 
8 U.S.C. 1229c(d)(1), 1324d(a)(1)(A).\44\ The penalty decision provides 
aliens with sufficient information as to each of these elements.
---------------------------------------------------------------------------

    \44\ The Departments focus on the failure to depart penalties 
consistent with the scope of commenters' concerns. To the extent 
that commenters are raising similar concerns about the unlawful 
entry penalties, commenters' concerns are addressed in Section 
III.E.2 of this preamble.
---------------------------------------------------------------------------

    With respect to the first element (the removal or departure order), 
the civil penalty decision, i.e., DHS Form 281, Notice of Violation and 
Order, explicitly lists whether the alien is being fined on the basis 
of a voluntary departure order or a removal order, and it provides the 
date that such an order was issued. DHS does not agree with commenters 
that DHS can only prove the existence of a removal or voluntary 
departure order by attaching the order to the penalty decision. The 
information contained in the penalty decision reflects that the 
immigration officer issuing the penalty has reviewed relevant DHS 
records and the alien's immigration files as required by ICE guidance 
and has determined based on those records that the alien is subject to 
a final executable removal order or voluntary departure order. See 90 
FR 27442-43; see also Section I of this preamble. To the extent that an 
alien believes that DHS records are mistaken, the alien can appeal the 
penalty decision and provide documentary evidence needed to dispute the 
decision. DHS assumes that aliens retain important documents, including 
legal documents demonstrating, for example, that the alien has been 
granted a stay of removal or has a pending appeal, or other documents 
reflecting that the alien is not subject to a final executable removal 
or departure order. Commenters have provided only speculative reasons 
to believe otherwise. Moreover, under the IFR's process, if an alien 
requests a copy of the relevant documents in connection with an appeal, 
the IFR requires DHS to provide such documents. 8 CFR 281.1(e)(3). 
Commenters have not provided any concrete evidence demonstrating that 
requiring DHS to provide a copy of the alien's removal or voluntary 
departure order would allow aliens to more effectively challenge a 
penalty decision. Indeed, ICE notes that the prior process under 8 CFR 
part 280 did not require DHS to provide a copy of an alien's removal or 
voluntary departure order when issuing a NIF and the DHS sees no reason 
for requiring it now. See 8 CFR 280.11.
    With respect to the second (willfulness or voluntariness) element, 
the penalty decision lists whether the alien is being issued a civil 
penalty for willfully failing or refusing to depart the United States, 
or for instead, voluntarily failing to comply with a voluntary 
departure order. DHS does not believe that any additional information 
is required. As the Departments explained in the IFR and in Section II 
of this preamble, statutory and regulatory requirements impose a duty 
on Immigration Judges to inform aliens of their obligation to depart 
and of the consequences of failing to do so, including that they could 
be liable for civil penalties. See 90 FR 27440-41. Absent contrary 
evidence, the presumption of regularity satisfies DHS's burden to 
demonstrate that an Immigration Judge provided notice of these 
obligations and consequences, see U.S. Postal Serv. v. Gregory, 534 
U.S. 1, 10 (2001), and an alien's failure to comply with the order 
after receiving notice of the consequences satisfies DHS's burden to 
demonstrate that the alien is liable for the penalty. See Section I of 
this preamble. To the extent that an alien contests the voluntary or 
willful nature of his or her failure to depart due to circumstances 
beyond the alien's control (e.g., hospitalization, incarceration, 
inability to obtain travel documents, lack of notice of a removal or 
voluntary departure order), the Departments note that the alien, not 
DHS, is in the best position to produce such evidence and may do so 
during the available appeals process before DHS. See Zenith Elec. Corp. 
v. United States, 988 F.2d 1573, 1583 (Fed. Cir. 1993) (``The burden of 
production should belong to the party in possession of the necessary 
information.'').
    For these reasons, the Departments conclude that the information 
provided in the penalty decision is facially consistent with DHS's 
burden of proof to demonstrate an alien's liability for a civil penalty 
covered by this rule. Commenters argue that DHS must meet the ``clear 
and convincing evidence standard'' described in Woodby v. INS, 385 U.S. 
276, 277 (1964). However, this standard applies to the burden of proof 
for deportable aliens in removal proceedings, not in the civil 
penalties' context. See 8 CFR 1240.8(a). Even assuming that DHS must 
meet the same ``clear and convincing evidence standard'' here, any 
challenge that DHS did not meet its burden of proof must be raised by 
an alien during the appeal process and based on the facts in his or her 
individual case.
    Finally, with respect to commenters' claim that the IFR violates 5 
U.S.C. 556 because it does not require DHS to provide a complete record 
supporting the penalty, DHS notes that 5 U.S.C. 556 applies only to 
hearings required by 5 U.S.C. 553 or 554. To the extent that the 
commenter is suggesting that civil penalty ``adjudications'' fall 
within the ambit of 5 U.S.C. 554(a) and therefore require DHS to follow 
the procedures in both 5 U.S.C. 554 and 556, DHS disagrees. There is no 
requirement in statute for a hearing to be on the record in the civil 
penalties context, let alone to comply with the procedures in 5 U.S.C. 
554 and the follow-on procedures under 5 U.S.C. 556 that also apply to 
adjudications governed by 5 U.S.C. 554. See Marathon Oil Co. v. E.P.A., 
564 F.2d 1253, 1263 (9th Cir. 1977) (stating that ``[t]he failure of 
Congress to provide for any hearing whatsoever within an administrative 
process may well be a valid indication that Congress either did not 
feel that it was providing for an ` ``adjudication'' ' in the 
traditional sense of the word or did not intend the APA procedures to 
apply''); see also City of West Chicago, Ill. v. NCR, 701 F.2d 632,

[[Page 65410]]

641 (7th Cir. 1983) (``Congress must clearly indicate its intent to 
trigger the formal on-the-record hearing provisions of the APA.''). 
Regardless, 8 CFR 281.1(e)(3) provides the materials that compose the 
record supporting a particular civil penalty and as explained in 
response to other comments in this preamble, the IFR's other procedures 
satisfy due process.
    Comment: One commenter claimed that the IFR should require DHS to 
attach a copy of the underlying voluntary departure order when imposing 
a fine for failure to depart under INA 240B(d), 8 U.S.C. 1229b(d). The 
commenter also states that many voluntary departure orders do not 
comply with INA 240B(d)(3), 8 U.S.C. 1229c(d)(3), which, according to 
the commenter, requires orders to include written warnings about 
potential fines for failure to depart. Accordingly, the commenter 
suggests that DHS can only meet its burden of proof to impose a fine if 
DHS provides a copy of the order containing the required warning.
    Response: As an initial matter, the Departments disagree that 
Immigration Judges and the BIA regularly do not provide statutorily 
required civil monetary penalty warnings when granting voluntary 
departure. Absent information to the contrary, the presumption of 
regularity applies as both Immigration Judges and the BIA are legally 
required to provide these warnings. See Gregory, 534 U.S. at 10; 8 CFR 
1240.26(k)(3). The commenter's general assertion--in ``many'' cases 
Immigration Judges and the BIA do not comply with this obligation--
without any factual basis is speculative and insufficient to overcome 
the presumption of regularity. To the extent an alien's voluntary 
departure order does not contain the required warning, the alien can 
file a timely appeal of the penalty decision and submit a copy of the 
allegedly deficient order. Moreover, for the reasons discussed in the 
IFR and in the comment response above, the Departments believe that, 
given the straightforward nature of these penalties, the penalty 
decision provides sufficient notice to the alien of the basis for the 
penalty and how to contest it. See also 90 FR 27443-44, 27452.
3. Service by First Class Mail
    Comment: Several commenters claimed that the change in service of 
process raises due process concerns. One commenter observed that the 
rule permits DHS to unilaterally send fines by ordinary mail despite 
previously issuing NIFs by personal service or certified mail. Another 
commenter states that previous rules required that communications be 
sent by certified mail or served in person, guaranteeing receipt, and 
that the IFR removing this provision to instead allow service by 
ordinary mail will dramatically increase the likelihood that intended 
recipients will not receive information about their fine, miss their 
appeal window, and unknowingly accrue large amounts in civil monetary 
penalties. Another commenter suggests that these risks are amplified in 
this context given the highly transient nature of the population 
subject to these fines. One commenter explained that service by regular 
mail will not reasonably apprise aliens of the fine because regular 
mail makes it significantly less likely that the alien will receive the 
decision in a timely manner if at all. This commenter also points out 
that in the removal proceedings context in which DHS uses service by 
regular mail a significant amount of the information provided in 
mailings is also available online unlike in this civil penalty context. 
They state that here, in this context, aliens have no other way to 
access the information or be on notice that they have penalties brought 
against them. They also note that this is particularly an issue for 
those who have been fined incorrectly and explain that since the 
beginning of 2025 they have heard from permanent residents who have 
been in the United States for decades and would have no reason to 
believe there are pending proceedings against them who received NIFs. 
Other commenters also raised that authorizing service by regular mail 
increases the likelihood of delay or non-receipt, one noting that 
regular mail cannot be tracked.
    Another commenter claimed that the IFR fails to explain how 
ordinary mail saves money and staff time compared to personal service 
or certified mail. The commenter also noted that the IFR does not 
explain why ICE cannot use personal service for aliens with removal 
orders because, as the IFR notes, these aliens are required to attend 
in-person check-ins with ICE.
    Response: The Departments disagree that permitting service of civil 
monetary penalty determinations by regular mail raises due process 
concerns or fails to provide constitutionally adequate notice. Due 
process does not require use of any particular method of service or 
guarantee of actual receipt. Rather, it requires that the chosen method 
be ``reasonably calculated, under all the circumstances,'' to inform 
interested parties of the action and to permit them an opportunity to 
respond. Mullane, 339 U.S. at 314 (stating that notice under due 
process must be of a sufficient nature as to reasonably convey the 
required information). Service by regular mail has long been recognized 
as a constitutionally sufficient method of notice in civil, 
administrative, and immigration contexts, including in removal 
proceedings, and other DHS communications. See e.g., Gardner v. City of 
Columbus, Ohio, 841 F.2d 1272, 1279 (6th Cir. 1988) (recognizing that 
service by regular mail satisfied due process notice requirements, 
while among other factors, noting government's observation that service 
by certified mail would be more costly); Urbina-Osejo v. INS, 124 F.3d 
1314, 1317 (9th Cir.1997) (stating that ``notice of a deportation 
hearing sent by regular mail to the last address provided by the alien 
to the INS satisfies the requirements of constitutional due process''); 
Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995) (holding that notice sent 
by regular mail is presumed sufficient if it is properly addressed and 
mailed according to established procedures and that the presumption of 
delivery may be rebutted with evidence of non-receipt). The IFR adopted 
this established practice.
    Penalty determinations are sent to the address the alien has 
provided to DHS or that otherwise appears on file. As the IFR explains, 
DHS has a reasonable expectation that aliens will take these 
requirements seriously because failure to do so can result in a range 
of consequences including criminal penalties. INA 266, 8 U.S.C. 1306. 
In general, aliens in the United States are under specific statutory 
and regulatory obligations to register their presence, see INA 261-264, 
8 U.S.C. 1301-1304; 8 CFR part 264, and to keep the U.S. Government 
apprised of their current address while in the country, see INA 265, 8 
U.S.C. 1305; 8 CFR 265.1. Most aliens subject to the monetary penalties 
covered by this rule are warned of their address obligations upon 
initiation of section 240 removal proceedings, and DHS is taking steps 
to ensure that all aliens are aware of, and comply with, registration 
and address requirements consistent with this Administration's 
policies. Additionally, DHS provides convenient and reliable ways for 
aliens to update their addresses including through online portals, and 
immigration officers have access to current address data maintained in 
DHS and EOIR databases.
    Although some commenters expressed concern that personal service or 
certified mail had previously been used for NIFs, the governing 
statutory provisions do not require the use of those methods for civil 
monetary penalty notices, and neither do due process principles impose 
such a

[[Page 65411]]

requirement. INA 240B(d)(1)(A), 8 U.S.C. 1229c(d)(1)(A); INA 
274D(a)(1), 8 U.S.C. 1324d(a)(1); & INA 275(b)(1), 8 U.S.C. 1325(b)(1). 
See also Mullane, 339 U.S. at 314 (``Personal service has not in all 
circumstances been regarded as indispensable to the process due to 
residents, and it has more often been held unnecessary as to 
nonresidents. We disturb none of the established rules on these 
subjects.''); Dusenbery v. United States, 534 U.S. 161, 161-62 (2002) 
(upholding notice sent by certified mail to a prison, even though 
inmate claimed he never received it, demonstrating that due process 
does not require proof of actual receipt, and explaining that Mennonite 
Board of Missions v. Adams, 462 U.S. 791, 797 n.3 (1983) did ``not say 
that the State must provide actual notice, but that it must attempt to 
provide actual notice'') (emphasis in original).\45\ Furthermore, even 
a Notice to Appear (NTA), which initiates section 240 removal 
proceedings and thus carries greater legal consequences, may be served 
by regular mail. INA 239(a)(1), 8 U.S.C. 1229(a)(1). Although the 
statute previously required certified mail, Congress removed that 
requirement in IIRIRA, expressly permitting service by other forms of 
mail. See INA 239(a)(1)-(2), as amended by IIRIRA, Public Law 104-208, 
div. C, tit. III, 304(a)(3), 308(b)(6), 110 Stat. 3009-546, 3009-587-
88, 3009-615. The INA now provides that service by mail ``shall be 
sufficient if there is proof of attempted delivery to the last address 
provided by the alien.'' INA 239(c), 8 U.S.C. 1229(c). By contrast, the 
INA is silent as to the method of service for civil monetary penalties 
under INA 240B(d), 274D(a), 275(b), 8 U.S.C. 1229c(d), 1324d(a), 
1325(b). Accordingly, this final rule will allow DHS to use routine 
service, including regular mail which in turn will lessen DHS's 
administrative burdens, such as the time and resources needed for 
personal service and the additional costs and increased processing 
times associated with certified mail. Routine service also provides an 
alien appropriate notice of the imposition of a civil monetary penalty.
---------------------------------------------------------------------------

    \45\ The agency acknowledges that in Jones v. Flowers, 547 U.S. 
220 at 232 (2006), the Supreme Court held that a person's failure to 
comply with a statutory address update requirement does not forfeit 
the right to constitutionally sufficient notice, and that additional 
reasonable steps may be required before the government takes certain 
actions. The Court emphasized, however, that due process adequacy 
requires balancing the government's interests against the individual 
interests at stake. Id. at 229. For the reasons discussed in the 
IFR, the Departments believe that the Supreme Court's decision is 
distinguishable. See 90 FR 27452 n.44.
---------------------------------------------------------------------------

    The Departments also disagree that service by regular mail 
increases the likelihood that aliens will unknowingly accrue penalties 
or be deprived of an opportunity to appeal. First, the rule's 
procedures are reasonably designed to prevent aliens from unknowingly 
accruing civil monetary penalties. Under INA 262, 8 U.S.C. 1302, most 
aliens present in the United States for 30 days or more are required to 
apply for registration and fingerprinting. As a result, most aliens are 
subject to the address update requirement in INA 265, 8 U.S.C. 1305. 
Moreover, most aliens subject to the penalties addressed in this rule 
are specifically advised of these obligations upon initiation of 
section 240 removal proceedings. INA 239(a)(1)(F), 8 U.S.C. 
1229(a)(1)(F). DHS provides convenient and reliable ways for aliens to 
update their addresses, including use of online portals, and 
immigration officers have access to current address data maintained in 
DHS and EOIR databases. 90 FR 27452.
    Against that backdrop and as noted in the IFR, the Supreme Court 
has recognized that service by regular mail may, in some circumstances, 
provide better notice than certified mail or other methods. Jones, 547 
U.S. at 234-35. This rule adopts that approach. 90 FR 27453. Based on 
ICE's experience, service by ordinary mail is often more likely to 
reach aliens, including those who may be attempting to evade detection 
or who have moved without updating their address. Id. Such aliens, or 
members of their household, may be less likely to answer the door for 
personal service or to accept certified mail, whereas regular mail is 
delivered directly to their mailbox. Id. Even when an alien has moved, 
regular mail may still result in the current occupant forwarding 
address information or otherwise alerting the intended recipient. Id. 
(citing Jones, 547 U.S. at 235). Moreover, the rule does not mandate 
use of regular mail in all cases. DHS retains discretion to use other 
methods of service where appropriate. 90 FR 27453 (citing 8 CFR 
281.1(d)). Accordingly, DHS reasonably believes that notices sent to 
the most recent address provided by the alien satisfy due process 
requirements.
    Secondly, the rule includes sufficient procedural protections that 
mitigate the effects of any variation in mail delivery times and afford 
a meaningful opportunity for appeal. Consistent with 8 CFR 281.1(e), an 
alien shall file a written notice of appeal with the Department 
postmarked within 15 business days of the date of service of the 
decision. Although service of the immigration officer's decision is 
complete upon mailing, the rule mitigates the effects of variability in 
mail delivery times at the appeal stage by defining timeliness based on 
the postmark date of the appeal rather than the date of receipt. As 
explained in the IFR, ``DHS will calculate the timeliness of an appeal 
based on the date that the alien's appeal is postmarked.'' 90 FR 27450 
(citing 8 CFR 281.1(e)). Under this framework, an alien who mails an 
appeal within the 15-business-day period is not penalized for postal 
delays occurring after the appeal is sent. This approach allocates the 
risk of mail delay at the filing stage to the Government and helps 
ensure that ordinary variations in mail delivery do not result in 
forfeiture of appeal rights.
    Along with the notice of appeal, an alien may, but is not required 
to, provide a written defense or documentary evidence, or both, setting 
forth the reasons why a penalty should not be imposed. Id. After the 
appeal is filed, a supervisory immigration officer who did not review 
the initial decision and order must conduct a de novo review and may 
request supplemental evidence or information, in which case aliens 
receive an additional 15 days to provide supporting material. 90 FR 
27450 (citing 8 CFR 281.1(e)(2)). The officer may, in their discretion, 
call for additional briefing or written filings from the alien, and the 
alien will have 15 days from the receipt of that request to provide the 
information. Id. The officer will also provide the alien with copies of 
pertinent documents and records relevant to the penalty, if the alien 
requests, unless they are law enforcement sensitive, or disclosure is 
prohibited by law. 90 FR 27450 (citing 8 CFR 281.1(e)(3)). Moreover, if 
the alien files a notice of appeal, the initial civil penalty decision 
will remain inoperative during the appeal. 90 FR 27450 (citing 8 CFR 
281.1(e)(1)).
    In addition, the Departments recognize that aliens may, in limited 
circumstances, experience delayed or untimely delivery of notices 
served by mail that is outside aliens' control. To address this concern 
while preserving the integrity and administrability of the appeals 
process, this rule provides a narrow, case-by-case mechanism for 
accepting appeals filed after the 15-day filing period when the alien 
demonstrates that the delay resulted from mail delivery issues. Under 
the rule, an alien who files an appeal after the applicable deadline 
and asserts that the delay was caused by untimely or delayed mail 
delivery must submit a written explanation and any available

[[Page 65412]]

documentary evidence supporting that assertion. If, based on the 
information submitted, ICE determines that the appeal was filed late 
due to mail delay beyond the alien's control, ICE will accept the 
appeal as timely filed and consider it on the merits. By requiring 
aliens to affirmatively raise mail delay and provide supporting 
evidence, the rule ensures that aliens are not prejudiced by mail 
delivery delays beyond their control, while maintaining finality and 
administrative efficiency.
    The Departments acknowledge commenters' concerns that certain 
populations may be more mobile or may have limited access to online 
resources. However, DHS's service method here is identical to the 
method used for numerous other immigration-related notices, including 
those in removal proceedings where similar concerns may exist. Even if 
mobile, aliens have a statutory duty to register their presence and 
keep the U.S. Government apprised of their current address, and DHS has 
a reasonable expectation that aliens will comply with such 
requirements. INA 266, 8 U.S.C. 1306. While the information in penalty 
notices is not available online like it is for removal proceedings 
notices, the constitutionally relevant question is whether the method 
of service is reasonably calculated to inform, not whether parallel 
avenues for accessing the same information exist. See Mullane, 339 U.S. 
at 315 (``The reasonableness and hence the constitutional validity of 
any chosen method may be defended on the ground that it is in itself 
reasonably certain to inform those affected.''). The penalty notice 
itself contains the relevant information: the statutory basis for the 
penalty, the factual allegations, the amount sought, and clear 
instructions on how to appeal. See 8 CFR 281.1(c)(1); 90 FR 27449. Due 
process does not require DHS to maintain a public online portal for 
civil monetary penalty notices, nor does the lack of such a portal make 
regular mail constitutionally insufficient. See Mullane, 339 U.S. at 
315.
    The Departments also disagree with commenters' suggestion that ICE 
must use personal service for individuals who attend in-person check-
ins. Not all aliens subject to civil penalties are enrolled in programs 
involving in-person reporting, and requiring personal service in every 
case would impose significant operational burdens without materially 
improving notice. Regular mail ensures efficient and consistent 
delivery of notices for geographically dispersed aliens.
    Finally, while one commenter questioned whether ordinary mail saves 
time or resources, the IFR explains that allowing service by regular 
mail promotes efficiency. As discussed in the IFR, personal delivery 
often may require burdensome manual efforts to locate the alien. It may 
further require the use of multiple DHS agents or officers to appear on 
location to ensure officer safety, and multiple attempts at personal 
service if not effectuated on the first attempt, thereby diverting 
officers from their other duties. 90 FR 27444-45. Service by certified 
mail involves preparation of individual mailings in each case, 
including handwriting envelopes, which has proven to be costly and 
resource intensive and would become even more so as DHS expands its use 
of these civil penalties. Indeed, ICE estimates that the certified mail 
requirement costs the agency $23.53 for each civil monetary penalty, 
which includes certified mail fees, materials, and labor. 90 FR 27444. 
Consequently, personal service or certified mail imposes higher costs 
and increases processing times and is unnecessary to satisfy 
constitutional or statutory notice requirements. See Mullane, 339 U.S. 
at 306. The Departments also recognize commenters' concerns that some 
individuals, including lawful permanent residents, may have reported 
receiving penalty-related notices in error. The IFR's service 
provisions do not increase the likelihood of incorrect notices. 
Instead, the procedural framework contains safeguards and corrective 
mechanisms, including written notice and a mandatory de novo 
supervisory review over any appeal. The initial civil penalty decision 
remains inoperative while a timely administrative appeal is pending. 
This provides structured mechanisms to correct any errors promptly. Any 
alien who believes a notice was issued in error may file a simple 
written appeal explaining as much, triggering the supervisory review 
process. These procedures ensure that aliens have meaningful 
opportunities to contest errors.
    Accordingly, the Departments conclude that service by regular mail, 
coupled with the exception to the 15-business-day deadline to appeal 
when ICE determines that there was a mail delay under 8 CFR 
281.1(e)(2), is a reasonable, appropriate, and constitutionally 
sufficient method of providing notice of civil monetary penalty 
determinations under the INA, particularly given the IFR's procedural 
safeguards that ensure aliens retain meaningful opportunity to contest 
penalties. See Mathews v. Eldridge, 424 U.S. at 335.
4. 15-Day Appeal Deadline and Process
    Comment: Commenters argued that a 15-business-day appeal deadline 
will prevent aliens from being able to contest these civil fines. 
Commenters listed several barriers they claim will prevent aliens from 
meeting the appeal deadline. One commenter asserted that a significant 
number of aliens that receive these fines speak a language other than 
English, but the IFR lacks any language accommodation, creating a 
barrier to responding within 15 days. Another commenter also noted that 
some may struggle to understand fine-related communications not 
delivered in their primary language. They noted that they expect this 
to be a common occurrence given that DOJ's July 14, 2025, memorandum 
regarding implementation of Executive Order 14224, Designating English 
as the Official Language of the United States, 90 FR 11363 (Mar. 6, 
2025), directed a reduction in multilingual services at federal 
agencies. This commenter also asserted that a 15-day appeal period is 
unrealistic and unfair because aliens will lack sufficient time to 
understand the fines and their applicability and legal nuances and the 
related processes and will be unfamiliar with the IFR's new provisions. 
Another commenter stated that the 15-business-day period would make 
obtaining legal representation difficult and expensive and asserted 
that the IFR minimized the complexity of proving and imposing civil 
penalties. Another commenter stated that the 15-business-day period 
does not account for the time needed to access the necessary 
information required to contest a penalty decision. They note that some 
medical records are accessible online but that many health networks 
cite a 7-to-14-business-day turn around to provide medical records and 
that federal law requires medical records to be processed in 30 days. 
They also explained that state and local incarceration, court records, 
and travel documents are difficult to access and involve waiting times 
in excess of 15 business days. The commenter also claimed that 
obtaining travel documents takes significant time because many 
countries' embassies are located in Washington, DC and require aliens 
to appear in person. The commenter also noted that aliens whose 
citizenship is not recognized by a country may have difficulty securing 
an appointment.
    Response: The Departments disagree that the 15-day deadline for 
submitting an administrative appeal will prevent aliens from contesting 
civil penalties. The revised process continues to provide aliens with 
written notice of the

[[Page 65413]]

proposed penalty that identifies the factual and legal basis for the 
determination and explains the steps to request the review. The 
Departments also disagree that the lack of language accommodation in 
the IFR, such as a requirement to translate penalty determinations and 
appeal instructions into each respondent's native language, prevents 
aliens from meeting the 15-day appeal deadline. As with other 
immigration notices and charging documents, including NTAs, removal 
orders, voluntary departure orders, and USCIS decision notices, civil 
monetary determinations are issued in English, and neither the INA nor 
the Constitution obligates DHS to translate such documents into every 
alien's native language. See Ojeda-Calderon v. Holder, 726 F.3d 669, 
675 (5th Cir. 2013) (citing Nazarova v. INS, 171 F.3d 478, 483 (7th 
Cir. 1999) (explaining that due process does not require immigration 
notices to be in a language the alien can understand). Civil penalty 
decisions issued under this final rule will continue to include written 
instructions explaining how to file an appeal. Aliens may also seek 
assistance from legal representatives, community organizations, or 
interpreters. Aliens may provide additional documentation if the 
supervisory officer requests supplemental briefing during de novo 
review. Accordingly, the Departments conclude that the English language 
format of penalty notices is consistent with longstanding immigration 
practice and constitutional requirements as well as DOJ's memorandum 
implementing Executive Order 14224 by minimizing non-essential 
multilingual services, redirecting resources toward English-language 
education and assimilation, and ensuring compliance with legal 
obligations through targeted measures where necessary. Memorandum for 
all Federal Agencies, from Pamela Bondi, Attorney General, Re: 
Implementation of Executive Order No. 14,224: Designating English as 
the Official Language of the United States of America at 2, 7 (July 14, 
2025) 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

[[Page 65414]]

civil penalties for failure to depart issued under 8 CFR part 281, as 
compared to 8 CFR part 280, which suggests that aliens are able to 
meaningfully file appeals within the shortened timeline. DHS believes 
this is because of the straightforward factual issues associated with 
these penalties. Additionally, the appeal process under 8 CFR part 281 
discourages frivolous or non-meritorious appeals, focusing resources on 
cases with substantive claims.
    Comment: Commenters raised general due process and fairness 
concerns with the 15-day appeal deadline and process. One commenter 
asserted that shortening the appeal deadline from 30- to 15-days 
eliminates a key due process safeguard. Commenters also claimed that 
DHS's interest in reducing the appeal period to avoid a backlog of 
penalties is outweighed by the alien's interest in having enough time 
to meaningfully respond to these penalties, especially given the 
amounts. One commenter stated that shortening the appeal period 
increases the chance that an alien could face serious penalties without 
even realizing what they are accused of. As an example, one commenter 
claimed that many aliens, including those who were brought to the 
United States as children, may not even be aware that they are subject 
to a removal order. A commenter claimed that, in light of the many 
barriers that aliens face responding to these penalties, the appeal 
period 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

[[Page 65415]]

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

[[Page 65416]]

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,

[[Page 65417]]

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

[[Page 65418]]

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

[[Page 65419]]

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

[[Page 65420]]

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.

[[Page 65421]]

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]

[[Page 65422]]

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

[[Page 65423]]

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.

E. Other Matters Related to the IFR

1. Statute of Limitations
    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

[[Page 65424]]

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

[[Page 65425]]

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

[[Page 65426]]

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.

F. Statutory and Regulatory Requirements

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

[[Page 65427]]

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

[[Page 65428]]

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 ***'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

[[Page 65429]]

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.

IV. Severability

    The changes made by the IFR, as amended by this final rule, impact 
provisions that are not necessarily interrelated and can function 
independent of one another. As such, the Departments believe that most 
of the provisions of this final rule can function sensibly and 
independently of other provisions. Therefore, in the event that any 
provisions in this rule are invalidated by a reviewing court, the 
Departments intend the remaining provisions to remain in effect to the 
fullest extent possible.

V. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    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

[[Page 65430]]

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.

B. Executive Order 12866 (Regulatory Planning and Review)

    Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 
(Sept. 30, 1993), and Executive Order 13563, Improving Regulation and 
Regulatory Review, 76 FR 3821 (Jan. 18, 2011), direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits. The Office of Management and Budget has 
determined this rule is significant under Executive Order 12866.
    This final rule will allow DHS to more quickly impose a greater 
number of civil penalties on aliens who have unlawfully entered the 
United States and those who remain after a removal or voluntary 
departure order. DHS has not assessed the extent to which this final 
rule will result in an increase in civil penalties collected by the 
Government. DHS believes that this effort will reduce potential agency 
resource burdens by streamlining the process, discourage future 
unlawful entries, and encourage greater compliance with removal and 
departure orders.

C. Executive Order 14192 (Unleashing Prosperity Through Deregulation)

    This final rule is not an Executive Order 14192 regulatory action 
because it is being issued with respect to an immigration-related 
function of the United States. The rule's primary direct purpose is to 
implement or interpret the immigration laws of the United States (as 
described in section 101(a)(17) of the INA, 8 U.S.C. 1101(a)(17)) or 
any other function performed by the United States Federal Government 
with respect to aliens. See OMB Memorandum M-25-20, Guidance 
Implementing Section 3 of Executive Order 14192, titled ``Unleashing 
Prosperity Through Deregulation'' at 5-6 (Mar. 26, 2025).

D. Regulatory Flexibility Act

    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

[[Page 65431]]

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 ***'ns, Inc. v. EPA, 175 F.3d 1027, 
1044 (D.C. Cir. 1999).
---------------------------------------------------------------------------

E. Unfunded Mandates Reform Act of 1995

    This final rule would not result in the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions are deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

F. Congressional Review Act

    This final rule is not a ``rule'' as defined by the Congressional 
Review Act, Public Law 104-121. See 5 U.S.C. 804(3)(C) (defining the 
term ``rule'' to exclude ``any rule of agency organization, procedure, 
or practice that does not substantially affect the rights or 
obligations of non-agency parties''). The Departments will nonetheless 
submit this final rule to both houses of Congress and the Comptroller 
General before the rule takes effect.

G. Privacy Act

    In accordance with the Privacy Act of 1974, DHS/ICE-011 Criminal 
Arrest Records and Immigration Enforcement Records (CARIER) System of 
Records Notice provides privacy coverage supporting the final rule 
consistent with system purpose (``To track the process and results of 
administrative and criminal proceedings, including compliance with 
court orders and hearing dates, against individuals who are alleged to 
have violated the INA or other laws enforced by DHS'') and categories 
of records in the system. 89 FR 55638 (July 5, 2024).
    Additionally, DHS/CBP-023 Border Patrol Enforcement Records, System 
of Records Notice provides coverage supporting the final rule 
consistent with system purpose (``Enforcement-related data including: 
Case number, record number, and other data describing an event 
involving alleged violations of criminal, immigration, or other laws 
(location, date, time, event category, types of criminal or immigration 
law violations alleged, types of property involved, use of violence, 
weapons, or assault against DHS personnel or third parties, attempted 
escape, and other related information); CBP encounter management 
information, including: Category (event categories describe broad 
categories of criminal law enforcement, such as smuggling and human 
trafficking), agent or officer, location of officer or officer's 
vehicle, date/time initiated, date/time completed, assets used for 
encounter (bike, horse, vehicle, etc.), results of the encounter, and 
any agent or officer notes and comments.''), 81 FR 72601 (Oct. 20, 
2016).

H. National Environmental Policy Act

    DHS and its components analyze final actions to determine whether 
the National Environmental Policy Act of 1969 (``NEPA''), 42 U.S.C. 
4321 et seq., applies to them and, if so, what degree of analysis is 
required. DHS Directive 023-01 Rev. 01 \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.

I. Executive Order 13132 (Federalism)

    This final rule would not have substantial direct effects on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the Departments believe that this FR would 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

J. Paperwork Reduction Act

    This final rule does not impose any new reporting or recordkeeping 
requirements or call for a collection of information under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 8 CFR Part 281

    Administrative practice and procedure, Immigration, Penalties.

[[Page 65432]]

Amendments to the Regulations

DEPARTMENT OF HOMELAND SECURITY

    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.
* * * * *

DEPARTMENT OF JUSTICE

0
Accordingly, for the reasons set forth in the preamble, and by the 
authority invested in the Director, Executive Office for Immigration 
Review, the Attorney General Order Number 6260-2025, the interim final 
rule amending 8 CFR parts 1003 and 1280, which was published at 90 FR 
27439 on June 27, 2025, is adopted as final without change.

Markwayne Mullin,
Secretary, U.S. Department of Homeland Security.

Sirce E. Owen,
Acting Director, Executive Office for Immigration Review, Department of 
Justice.
[FR Doc. 2026-21024 Filed 10-9-26; 4:15 pm]
BILLING CODE 9111-CB-P; 4410-30-P