Federal Register, Volume 90 Issue 122 (Friday, June 27, 2025)

[Federal Register Volume 90, Number 122 (Friday, June 27, 2025)]
[Rules and Regulations]
[Pages 27439-27459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-11965]

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Rules and Regulations
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

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Federal Register / Vol. 90, No. 122 / Friday, June 27, 2025 / Rules
and Regulations

[[Page 27439]]

DEPARTMENT OF HOMELAND SECURITY

U.S. Immigration and Customs Enforcement

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. 01-2025]
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: Interim final rule; request for comment.

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SUMMARY: This interim final rule (``IFR'') amends existing DHS and DOJ
regulations. It provides exclusive DHS procedures for the issuance of
civil monetary penalties under the Immigration and Nationality Act for
aliens who fail to depart voluntarily during the 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. The IFR
also transfers the appeals process for these penalties from DOJ's Board
of Immigration Appeals to DHS.

DATES:
Effective date: This final rule is effective on June 27, 2025.
Comment date: Comments must be received on or before July 28, 2025.

ADDRESSES: You may submit comments on this IFR, identified by DHS
Docket Number ICEB-2025-0034, through the Federal eRulemaking Portal at
http://www.regulations.gov. All comments must be submitted in English,
or an English translation must be provided. Follow the website
instructions for submitting comments.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to the Departments' officials, will
not be considered comments on the rule and may not receive a response
from the Departments. The Departments cannot accept any comments that
are hand-delivered or couriered. In addition, the Departments cannot
accept comments contained on any form of digital media storage devices,
such as CDs, DVDs, or USB drives. The Departments are not accepting
mailed comments at this time. If you cannot submit your comment using
http://www.regulations.gov, please see the FOR FURTHER INFORMATION
CONTACT section of this document.

FOR FURTHER INFORMATION CONTACT:
For DHS: Office of Regulatory Affairs and Policy, U.S. Immigration
and Customs Enforcement, Department of Homeland Security, 500 12th
Street SW, Washington, DC 20536; telephone (202) 732-6960 (not a toll-
free call) (for questions only--no comments will be accepted at this
phone number).
For DOJ: Stephanie Gorman, Acting Assistant Director, Office of
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2500, Falls Church, VA 22041; telephone (703) 305-0289 (not a
toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

Instructions for providing comments are in the ADDRESSES caption
above.
Privacy: You may wish to consider limiting the amount of personal
information that you provide in any comment submission you make to the
Department, because anyone can electronically search comments in any of
DHS's dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). The Departments may withhold information
provided in comments from public viewing that the Departments determine
may impact the privacy of an individual or is offensive. For additional
information, please read the Privacy and Security Notice posted on
https://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to https://www.regulations.gov, referencing
DHS Docket No. ICEB-2025-0034. You may also sign up for email alerts on
the online docket to be notified when comments are posted or when the
final rule is published.

II. Background and Purpose

A. Civil Monetary Penalty Provisions of the INA

The Immigration and Nationality Act (``INA'' or the ``Act'')
authorizes the imposition of numerous civil monetary penalties for
various immigration-related violations.\1\ Since its enactment, the INA
has included several civil monetary penalties against entities that,
and persons who, fail to comply with statutory and regulatory
requirements designed to prevent aliens' unlawful entry and presence in
the United States. For example, the INA has long required carriers,
including vessels and airlines, to ensure under pain of civil monetary
penalties that aliens being transported to the United States have valid
documents for admission. See, e.g., Screening Requirements of Carriers,
61 FR 29323 (June 10, 1996) (discussing the history of section 273 of
the INA, 8 U.S.C. 1323). The INA has also long imposed civil monetary
penalties on employers who knowingly hire, recruit, or refer for a fee
aliens without proper work authorization, and on employers who fail to
comply with employment verification requirements. See INA 274A, 8
U.S.C. 1324a.
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\1\ This rule variously refers to ``fines,'' ``civil
penalties,'' and ``civil monetary penalties.'' Those terms are meant
to have identical meaning for purposes of this rule.
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Prior to 1996, however, the INA generally did not authorize civil
monetary penalties against aliens who violated the immigration laws. In
1996, Congress substantially amended the INA through the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(``IIRIRA''). Public Law 104-208, 110 Stat. 3009-546. The purpose of
IIRIRA was to enhance immigration enforcement and the consequences of
violating the nation's immigration laws. H.R. Rep. No. 104-469, pt. 1,
at 1, 107 (1996). In furtherance of that purpose,

[[Page 27440]]

Congress added three new provisions to the INA that authorize the
Attorney General to impose civil monetary penalties against aliens who
fail to voluntarily depart the United States during the specified
period designated in an order granting voluntary departure, who are
subject to a final order of removal and willfully fail or refuse to
depart the United States or take certain other actions to thwart their
departure or removal, or who are apprehended while illegally entering
or attempting to enter the United States.\2\
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\2\ This authority was transferred to the Secretary of Homeland
Security as part of the Homeland Security Act of 2002. For a
discussion of the Departments' authority to issue this rule and the
transfer of immigration enforcement functions to DHS after the
Homeland Security Act of 2002, see Section III of this preamble.
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First, under section 240B(d)(1)(A) of the INA, 8 U.S.C.
1229c(d)(1)(A), Congress authorized the imposition of civil monetary
penalties against aliens granted voluntary departure who fail to depart
the United States within an allotted period. Public Law 104-208, 110
Stat. 3009-546, 3009-597. Voluntary departure is a discretionary form
of relief that allows certain aliens--either before the conclusion of
removal proceedings under section 240 of the INA, 8 U.S.C. 1229a
(``section 240 removal proceedings''), or after being found removable--
to request and be granted permission by an Immigration Judge to depart
the United States at their own expense as an alternative to formal
removal proceedings and the entry of a formal removal order. See INA
240B(a)(1), (b)(1), 8 U.S.C. 1229c(a)(1), (b)(1). Voluntary departure
under section 240B of the INA, 8 U.S.C. 1229c, ``allows the Government
and the alien to agree upon a quid pro quo.'' Dada v. Mukasey, 554 U.S.
1, 11 (2008). An alien granted this relief avoids a removal order and
its attendant consequences and is allowed to depart the United States
voluntarily; the Departments avoid the costs of immigration proceedings
and the burden of removing an alien. See id.
To promote compliance with voluntary-departure orders, Congress
imposed a civil penalty of between $1,992 and $9,970, as adjusted for
inflation, for failing to depart voluntarily during the period
specified. See INA 240B(d)(1)(A), 8 U.S.C. 1229c(d)(1)(A); see also 8
CFR 280.53(b)(3); Civil Monetary Penalty Adjustments for Inflation, 90
FR 1, 2 (Jan. 2, 2025). Additionally, when entering an order granting
voluntary departure, the Immigration Judge is required to warn the
alien of the consequences of failing to depart during the period
specified, including that civil monetary penalties can be assessed. See
INA 240B(d)(3), 8 U.S.C. 1229c(d)(3).
Second, under section 274D(a)(1) of the INA, 8 U.S.C. 1324d(a)(1),
DHS has the authority to impose civil monetary penalties on an alien
who is subject to a final order of removal and who willfully fails or
refuses to (A) depart the United States pursuant to that order, (B)
make a timely application in good faith for travel or other documents
necessary for departure, or (C) present for removal at the time and
place required by DHS. Most aliens subject to these penalties have been
ordered removed at the conclusion of section 240 removal
proceedings.\3\ During those proceedings, aliens are provided with
statutory and regulatory procedural protections including a hearing
before an Immigration Judge, an opportunity to contest removal charges
and to apply for relief or protection from removal, and an opportunity
to offer evidence. Aliens also have the ability to appeal an adverse
order to DOJ's Board of Immigration Appeals (``BIA'' or ``Board'') and,
generally, petition for review of the removal order by a federal court
of appeals. See INA 240(b)(4), 8 U.S.C. 1229a(b)(4); see generally 8
CFR 1003, 1240. For any alien ordered removed at the conclusion of
section 240 removal proceedings, an Immigration Judge must warn the
alien of the consequences of failing to depart, including that the
alien could be subject to civil monetary penalties. See 8 CFR
1240.13(d). The statute provides a civil monetary penalty of not more
than $500, which when adjusted for inflation is $998, for each day that
the alien is in violation. See INA 274D(a), 8 U.S.C. 1324d(a); see also
90 FR 3.
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\3\ Under the INA, certain aliens can also be ordered removed by
DHS with limited or no review by EOIR. For example, section
235(b)(1) of the INA, 8 U.S.C. 1225(b)(1), provides an expedited
removal process for certain aliens. Section 241(a)(5) of the INA, 8
U.S.C. 1231(a)(5), provides for reinstatement of aliens previously
ordered removed. Section 238(b) of the INA, 8 U.S.C. 1228(b),
provides for an administrative entry of a removal order for non-
permanent resident aliens who are aggravated felons. Aliens ordered
removed through these processes, however, generally must be detained
for removal, see INA 235(b)(1)(B)(ii), (B)(iii)(IV), 241(a)(2), 8
U.S.C. 1225(b)(1)(B)(ii), (B)(iii)(IV), 1231(a)(2), which reduces
the likelihood of an alien's failure to depart. Therefore, while
applicable to all administratively final removal orders, the civil
monetary penalties under section 274D(a)(1)(A) of the INA, 8 U.S.C.
1324d(a)(1)(A), for willful failure to depart, and section
274D(a)(1)(C) of the INA, 8 U.S.C. 1324d(a)(1)(C), for failure to
present for removal, are most relevant to aliens ordered removed
through section 240 removal proceedings. The civil monetary penalty
under section 274D(a)(1)(B) of the INA, 8 U.S.C. 1324d(a)(1)(B),
could be applied to aliens issued an expedited removal order by DHS
who remain detained and who fail to make a timely application in
good faith for travel or other documents necessary for departure.
However, this is a rare class of aliens.
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Third, section 275(b)(1) of the INA, 8 U.S.C. 1325(b)(1), provides
that an alien who is apprehended while entering or attempting to enter
the United States improperly is subject to a civil penalty. The
penalty, which DHS has adjusted for inflation, ranges from at least
$100 to not more than $500 for each entry or attempted entry. See 90 FR
3 (Jan. 2, 2025). Aliens who have previously been fined for unlawful
entry under this section are subject to twice the amount of the penalty
for subsequent violations. See INA 275(b)(2), 8 U.S.C. 1325(b)(2).
Additionally, Congress amended section 280(b) of the INA, 8 U.S.C.
1330(b), to establish the Immigration Enforcement Account, Border and
Transportation Security. See Public Law 104-208, 110 Stat. 3009-651.
This account is available to DHS components for the deposit of
penalties, including those resulting from departure violations. These
monies are then permitted to be used to support DHS activities that
enhance immigration law enforcement, such as identifying,
investigating, detaining and removing criminal aliens, and the repair,
maintenance, and construction of barriers (e.g., a wall) to illegal
entry into the United States. See INA 280(b)(3)(A)(i)-(iii), 8 U.S.C.
1330(b)(3)(A)(i)-(iii).
Both ICE and United States Customs and Border Protection (``CBP'')
have the authority to administer civil monetary penalties related to
violations of the immigration laws and immigration court orders. See
INA 103(a)(1)-(5), 8 U.S.C. 1103(a)(1)-(5) (authorizing the Secretary
of Homeland Security to administer and enforce the immigration laws;
establish such regulations, prescribe such forms, issue such
instructions, and perform such other acts as she deems necessary for
carrying out her authority, authorize DHS employees to perform the
duties conferred under the INA, and control U.S. borders against the
illegal entry of aliens); 8 CFR 2.1; see also DHS Delegation No.
7010.3, Delegation of Authority to the Commissioner of U.S. Customs and
Border Protection (May 11, 2006); DHS Delegation No. 7030.2, Delegation
of Authority to the Assistant Secretary for U.S. Immigration and
Customs Enforcement (Nov. 13, 2004).

B. Civil Monetary Penalty Regulations

In 1952, the former Immigration and Naturalization Service
(``INS'') issued regulations at 8 CFR part 280 on the procedures that
apply to most civil monetary penalties authorized under the INA. See 17
FR 11469, 11534-36 (Dec. 19, 1952). The regulation was

[[Page 27441]]

republished with minor changes in 1957. See 22 FR 9765, 9807 (Dec. 6,
1957). The former INS issued these regulations prior to the amendments
that Congress made in 1996 to impose additional civil monetary
penalties on aliens who unlawfully enter the United States or fail to
depart after a voluntary departure or final removal order.
Indeed, since 1957 there have been minimal regulatory updates to 8
CFR part 280. See 22 FR 9765, 9807 (Dec. 6, 1957). For example, prior
to IIRIRA, the former INS amended 8 CFR part 280 in 1989 to authorize
the National Fines Office of the former INS to issue notices of intent
to fine and make certain decisions. See National Fines Office, 54 FR
18648 (May 2, 1989). Subsequently, DOJ reorganized the immigration
regulations to reflect the abolition of the INS and the transfer of
immigration enforcement functions to DHS after Congress passed the
Homeland Security Act of 2002 (``HSA''), see Public Law 107-296, sec.
102, 402, 116 Stat. 2135, 2142, 2177 (codified at 6 U.S.C. 112, 202);
see also INA 103(a)(1), 8 U.S.C. 1103(a)(1). See, e.g., Aliens and
Nationality; Homeland Security; Reorganization of Regulations, 68 FR
9824 (Feb. 28, 2003). At that time, DOJ replicated the provisions of 8
CFR part 280 into EOIR's regulations at 8 CFR part 1280 without
substantive change. 68 FR 9827. In 2011, DHS and DOJ issued a joint
rulemaking in which DOJ amended its regulations to reflect the transfer
of enforcement authority to DHS, but the Departments did not otherwise
address the existing procedures in 8 CFR part 280. See Civil Monetary
Penalties Inflation Adjustment, 76 FR 74625, 74628-29 (Dec. 1, 2011).
DHS has periodically amended 8 CFR part 280 to reflect annual inflation
adjustments mandated by Congress for civil monetary penalties imposed
by the Executive Branch, see, e.g., Civil Monetary Penalty Adjustments
for Inflation, 90 FR 1 (Jan. 2, 2025), but DHS has not amended the
procedures that apply to implementing these penalties.
Prior to this IFR, however, 8 CFR part 280 required DHS to apply
the following procedures to impose most civil monetary penalties
authorized under the INA,\4\ including the unlawful entry and failure-
to-depart penalties:
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\4\ ICE also has the responsibility for enforcing two other
sections of the INA which call for civil money penalties: INA 274A,
8 U.S.C. 1324a, and INA 274C, 8 U.S.C. 1324c. Procedures for
enforcement of those sections are spelled out explicitly in other
regulatory sections, e.g., 8 CFR 270, 274a, and cases brought under
those sections are adjudicated by DOJ rather than by DHS, see
generally 28 CFR 68. Accordingly, enforcement of those penalties is
not covered by 8 CFR part 280 and, thus, those penalties are not
included within the scope of the IFR.
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When an authorized DHS employee has a reason to believe
that an alien is subject to a civil monetary penalty under the INA, the
alien is served a Notice of Intention to Fine (``NIF''). 8 CFR 280.1,
280.11.
The alien is allowed a 30-day period to respond to the NIF
with a written defense, under oath, along with a request for an
interview, or choose not to respond to the NIF. 8 CFR 280.12-.13. An
immigration officer can extend the 30-day response period for good
cause shown. 8 CFR 280.12.
If requested, a personal interview is held where the alien
may present any evidence in opposition to the civil penalty. Id.
An immigration officer then prepares a report summarizing
any information, documents, and statements the alien provides in
support of why the penalty should not be imposed. The immigration
officer also provides a recommendation. 8 CFR 280.13(b).
The immigration officer submits this report, along with
their recommendation as to whether a penalty be issued, to the
appropriate deciding official for review. Id. The deciding official
will then determine whether to sustain the immigration officer's
recommended decision and, in so doing, decide whether a penalty will be
issued. Id.
Depending on the decision of the deciding official, the
alien is notified of the decision and of the opportunity to file an
appeal with DOJ's BIA within 30 days of the service of the decision
being appealed. Id.; 8 CFR 1003.3(a)(2).
If an alien appeals, DHS may reopen and reconsider its
decision if the disposition is to issue no penalties or otherwise grant
the benefit requested on appeal. 8 CFR 1003.5(b). However, if a new
decision is not made within 45 days of the briefs being received or
due, or if the alien does not agree with DHS's new decision, the record
of proceeding is immediately forwarded to the BIA. Id.
If the BIA denies the appeal, the original civil penalty
stands.
Under the current regulations, aliens are served a copy of the NIF
by personal service. See 8 CFR 280.11. Personal service generally
includes the following: delivery of a copy personally to the alien;
delivery of a copy at the alien's residence; delivery of a copy at the
office of the alien's attorney; or mailing a copy by certified or
registered mail, return receipt requested, addressed to the alien's
last known address. See 8 CFR 103.8(a)(2). Similarly, DHS also serves
the decision and order imposing civil monetary penalties to the alien
by personal service. See 8 CFR 103.8(c)(1).
Under the appeals process in 8 CFR part 280 (for the three
penalties that are the subject of this rule), aliens challenging a
civil monetary penalty may appeal to the BIA. See 8 CFR 280.51(c). This
process has an unpredictable timeframe for a final decision in part
because the BIA generally has a significant backlog of cases and often
takes years to decide a case. See, e.g., Matter of Bernardo, 28 I&N
Dec. 781 (BIA 2024) (deciding a case after an appeal was pending for
over four years). As of the second quarter of FY 2025, the BIA has
160,098 pending appeals.\5\ Pending appeals have increased
approximately 330 percent since FY 2015. In FY 2015, there were 37,285
pending appeals at the end of the year.\6\
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\5\ EOIR, Workload & Adjudication Statistics, All Appeals Filed,
Completed, and Pending (Apr. 4, 2025), https://www.justice.gov/eoir/media/1344986/dl?inline [https://perma.cc/C6T7-6JUQ].
\6\ Id.
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C. Enforcement History

Although DHS and its predecessor, INS, have had the authority to
assess civil monetary penalties for failure to depart and unlawful
entry since 1996, DHS did not issue any of these penalties until after
Executive Order 13768, Enhancing Public Safety in the Interior of the
United States, 82 FR 8799 (Jan 30, 2017), was issued. Section 6 of that
order directed the Secretary of Homeland Security to ``ensure the
assessment and collection of all fines and penalties . . . from aliens
unlawfully present in the United States.'' 82 FR 8799, 8800 (Jan. 30,
2017). In response, ICE began issuing penalties under sections
240B(d)(1)(A) and 274D(a)(1) of the INA, 8 U.S.C. 1229c(b)(1)(A) and 8
U.S.C. 1324d(a)(1).\7\ In the absence of an alternative, the
Departments utilized the civil monetary penalties procedures contained
in 8 CFR part 280. As of 2021, ICE had 26 active fines under these two
authorities.\8\ On January 20, 2021, former President Biden rescinded
Executive Order 13768, see E.O. 13993, Revision of Civil Immigration
Enforcement Policies and Priorities, 86 FR 7051 (Jan. 20, 2021), and
DHS subsequently rescinded the active

[[Page 27442]]

decisions to fine and withdrew the active NIFs.\9\
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\7\ Civil monetary penalties under section 275(b) of the INA, 8
U.S.C. 1325(b), were not assessed at that time.
\8\ See 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).
\9\ Id.
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On January 20, 2025, President Trump issued Executive Order 14159,
Protecting the American People Against Invasion, 90 FR 8443 (Jan. 20,
2025), in response to an ``unprecedented flood of illegal immigration
into the United States'' under the Biden Administration. See id. at
8443. As relevant to this IFR, the President directed the Secretary of
Homeland Security to take ``all appropriate action to ensure the
assessment and collection of all fines and penalties that [DHS] 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, and from those who
facilitate such aliens' presence in the United States.'' Id. at 8444-
45.
On March 17, 2025, the ICE Acting Director delegated authority to
ICE Enforcement and Removal Operations' (``ERO'') Executive Associate
Director (``EAD''), Deputy EAD, and Field Office Directors to
administer and enforce these civil fines.\10\ The Acting EAD of ERO
then re-delegated this authority to ERO Deportation Officers.\11\
Pursuant to this delegation of authority, as of June 13, 2025, ICE has
initiated nearly 10,000 NIFs for failure-to-depart civil monetary
penalties, and aliens or their attorneys have responded in
approximately 100 cases to contest the fine, ask for additional time to
respond, or request more information.
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\10\ See ICE Deleg. Order No. 003-2025, Delegation of Authority
to Administer and Enforce Certain Provisions Relating to Civil
Penalties for Failure to Depart (Mar. 17, 2025).
\11\ See ERO Deleg. Order No. DO99-002, Re-delegation of
Authority to Administer and Enforce Provisions Relating to Civil
Penalties for Failure to Depart (Mar. 24, 2025).
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Related to these efforts, DHS is taking additional action to
encourage illegal aliens to depart the United States voluntarily,
including aliens who are subject to the failure-to-depart civil
monetary penalties, through DHS's CBP Home mobile application (``CBP
Home app''), consistent with Presidential Proclamation 10935,
Establishing Project Homecoming, 90 FR 20357 (May 9, 2025). The CBP
Home app allows aliens to register to depart the United States
voluntarily, provide required biographical information, and notify DHS
after they have departed.\12\ DHS offers financial and travel document
assistance for some aliens who request it, provides a $1,000 stipend
upon confirmation through the app that return has been completed, and
rescinds civil monetary fines imposed for failure-to-depart after
return has been completed.\13\
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\12\ See CBP, CBP Home: Assistance to Voluntarily Self Deport,
https://www.dhs.gov/cbphome [https://perma.cc/CK3X-QM79] (last
visited June 17, 2025).
\13\ Id.; see also 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].
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D. Purpose and Need for the Rule

Through this IFR, the Departments are streamlining the process for
imposing civil monetary penalties on aliens who have entered the United
States unlawfully or have failed to depart after being ordered removed
or granted voluntary departure.\14\ The current process under 8 CFR
part 280 was not designed with these penalties in mind. It contains
unnecessary procedures and extended timelines that could hinder DHS's
ability to impose these penalties swiftly and in proportion to the
scale of aliens who have entered the United States unlawfully,
including aliens who may have entered lawfully but failed to depart
after removal and voluntary departure orders in recent years. The
revised process is intended to allow DHS to impose more civil
penalties, more quickly, and in proportion to the sheer number of
aliens who, in recent years, have unlawfully entered the United States
and those who remain after a removal order or voluntary departure
order. DHS believes that this effort will, in turn, help deter future
unlawful entries and encourage greater compliance with removal and
voluntary departure orders consistent with this Administration's focus
on securing the border and restoring integrity to our nation's
immigration system.
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\14\ For ease of reading, in some instances this preamble uses
the phrase ``failure-to-depart civil monetary penalties'' to cover
both civil monetary penalties under section 274D(a)(1) of the INA, 8
U.S.C. 1324d(a)(1), for willful failure to depart after a removal
order and civil penalties under section 240B(d)(1)(A) of the INA, 8
U.S.C. 1229c(d)(1)(A), for failure to voluntarily depart under a
voluntary departure order.
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1. Straightforward Nature of the Failure-to-Depart and Unlawful Entry
Penalties
DHS believes that the nature of the failure-to-depart and unlawful
entry penalties supports the need for more streamlined procedures. The
unlawful entry civil penalties under section 275(b) of the INA, 8
U.S.C. 1325(b), typically turn on routine and straightforward
determinations of fact that are readily verifiable by DHS. Aliens
intercepted while entering or attempting to enter the United States at
an improper time or place have, by definition, violated section 275(b)
of the INA, 8 U.S.C. 1325(b), and therefore the documented encounter
serves as the only fact required to impose the penalty in these
instances. For aliens who enter unlawfully and are later encountered in
the interior of the United States, ICE and CBP immigration officers
typically prepare Form I-213, Record of Deportable/Inadmissible Alien,
which documents the apprehension or encounter and includes the alien's
immigration history. The information on the Form I-213 is entitled to a
strong presumption of reliability, see Punin v. Garland, 108 F.4th 114,
125 (2d Cir. 2024), and thus will often be sufficient to demonstrate
the alien is subject to the fine.
The same is true for the failure-to-depart civil monetary penalties
under sections 240B(d) and 274D(a)(1) of the INA, 8 U.S.C. 1229c(d) and
1324d(a)(1). An alien subject to a failure-to-depart penalty has
typically already availed himself of the immigration process, has had
the opportunity to request relief or protection from removal, was
ordered removed or granted voluntary departure, and was made aware of
the civil penalties associated with failing to comply with the removal
or voluntary departure order.\15\ An alien cannot challenge his removal
or voluntary departure order during the civil monetary penalty process.
Instead, these provisions of the INA principally authorize DHS to
impose a civil monetary penalty if two conditions are met: (1) the
alien was granted voluntary departure \16\ 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).
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\15\ For a discussion of the various procedures that apply in
section 240 removal proceedings, including the warnings that
Immigration Judges provide to aliens about the consequences of
failing to comply with removal and voluntary departure orders see
Section II.A of this preamble above.
\16\ In the case of an order granting voluntary departure, the
Immigration Judge enters an alternate removal order that becomes
effective upon the expiration of the period allowed for voluntary
departure unless the alien takes further procedural actions within
the specified period. See 8 CFR 1240.26(d), 1240.26(c)(3).
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In the vast majority of cases, United States Government records
will sufficiently establish the facts necessary to demonstrate that the
alien is subject to these civil monetary penalties. DHS maintains
records of an alien's immigration history, including removal and
voluntary departure orders, information about any pending appeals or
motions to reopen, and copies of any

[[Page 27443]]

orders that could preclude an alien's removal. See Alien File, Index,
and National File Tracking System of Records, 82 FR 43556, 43559-60
(Sept 18, 2017). Therefore, DHS can confirm that an alien is subject to
a final executable removal order or voluntary departure order by
verifying that all appeals or motions have been exhausted that would
otherwise stay the alien's removal. DHS also maintains certain
departure records that can help verify whether an alien has
departed.\17\
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\17\ DHS acknowledges that it does not maintain comprehensive
departure records for all aliens, particularly for aliens who cross
land borders. See Collection of Biometric Data From Aliens Upon
Entry to and Departure From the United States, 85 FR 74162, 74167
(Nov. 19, 2020) (``Persons departing the United States at the land
border are not consistently subject to CBP inspection, as they are
upon arrival. As a result, land departures may not be recorded
accurately.''). However, DHS may rely on an alien's other actions in
the United States that could indicate that the alien has failed to
depart. Additionally, as discussed in Section II.C of this preamble,
DHS is expanding the ability of aliens to provide departure
information, such as by enabling aliens to use the CBP Home app to
record their intention to voluntarily depart the United States and
rescinding outstanding civil penalties for aliens that use the
application to voluntarily depart. CBP, CBP Home Mobile Application
(June 10, 2025), https://www.cbp.gov/about/mobile-apps-directory/cbphome [https://perma.cc/K6WZ-6CZB]; see also 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].
---------------------------------------------------------------------------

Moreover, the alien's immigration court records will typically
demonstrate that the alien was aware of the obligation to depart the
United States and, when combined with the alien's failure to do so,
will ordinarily raise a sufficient inference that the alien willfully
or voluntary failed to depart. Indeed, when an alien is granted
voluntary departure, the alien is informed by the Immigration Judge
that the alien must depart within the allotted time and that failing to
do so will subject the alien to civil monetary penalties. See 8 CFR
1240.26(l). The Immigration Judge also issues a written voluntary
departure order that provides further notice of the alien's obligations
and potential penalties. See INA 240B(d)(3), 8 U.S.C. 1229c(d)(3). An
alien who is subject to a final order of removal issued by an
Immigration Judge will have received the relevant warning earlier in
the proceedings. See INA 240(c)(5), 8 U.S.C. 1229a(c)(5); 8 CFR
1240.13(d). As with other records, DHS also has the ability to examine
the alien's immigration court documents to verify that the alien
received these warnings and was on notice of the departure obligations.
Therefore, DHS's decision to impose civil monetary penalties will
typically be based on incontrovertible records that establish that
alien's liability for the penalty.
Given the straightforward and readily determinable nature of the
failure-to-depart penalties, DHS anticipates that aliens will have
limited grounds to contest them. For civil penalties under section
240B(d) of the INA, 8 U.S.C. 1229c(d), the BIA has held that an alien's
ability to challenge his failure to depart is ``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.''
Matter of Zmijewska, 24 I&N Dec. 87, 94 (BIA 2007). For fines under
section 274D(a)(1) of the INA, 8 U.S.C. 1324d(a)(1), DHS anticipates
that an alien's ability to challenge them will also be limited to
similar types of circumstances that indicate that the alien did not
willfully fail to comply with a final removal order. Such circumstances
might include situations where: (1) the alien did not receive notice of
the removal order because it was sent to the wrong address or the
alien's attorney did not inform the alien of the order; (2) the alien
was not advised of his obligation to depart or of the consequences of
failing to depart; or (3) the alien was prevented from departing
because of circumstances such as hospitalization, incarceration, or
because an embassy declined to issue a passport or travel documents. In
these situations, aliens should be able to demonstrate through
documentary evidence in their possession that their failure to depart
was not voluntary or willful. Such evidence may include medical records
after a hospitalization, evidence of a prior incarceration, or a letter
from an embassy declining to issue a passport. With respect to lack of
notice claims, as discussed above, DHS is often able to verify whether
the alien received notice of the removal or voluntary departure order.
The alien's failure to comply with the order after receiving notice of
the consequences of doing so typically demonstrates that the alien is
liable for the penalty absent other evidence.
DHS notes that there are other grounds in section 274D(a)(1) of the
INA, 8 U.S.C. 1324d(a)(1), that could subject an alien to a civil
monetary penalty and recognizes that this IFR's procedures apply to
those penalties as well. Specifically, aliens who are subject to a
final removal order can be fined for (1) willfully failing to make a
timely application in good faith for travel documents; or (2) willfully
failing or refusing to present for removal at the time and place
directed by DHS. See INA 274D(a)(1)(B), (C), 8 U.S.C. 1324d(a)(1)(B),
(C). Although the focus of this IFR is on fines related to failure to
depart and unlawful entry, DHS has not excluded these other penalties
from this IFR's coverage because these penalties are also readily
verifiable by the alien's conduct and United States Government records.
Civil penalties under section 274D(a)(1)(B) of the INA, 8 U.S.C.
1324d(a)(1)(B), typically involve situations where an alien is in
detention and the immigration officer is engaged in efforts to remove
the alien, and the alien resists those efforts or refuses to take
requested action necessary to secure travel documents. In these
circumstances, the alien's liability for a civil monetary penalty will
typically be based on the alien's actions that indisputably demonstrate
that the alien is willfully failing or refusing to assist ICE's efforts
to secure or finalize travel documents for the alien, including refusal
to sign travel documents or requisite paperwork. See, e.g., United
States v. Ashraf, 628 F.3d 813, 815-17 (6th Cir. 2011) (detailing the
circumstances surrounding an alien's criminal conviction for refusal to
cooperate with immigration officials to obtain travel documents). The
alien's actions are based in fact and on the alien's observable
conduct.
Similarly, civil penalties under section 274D(a)(1)(C) of the INA,
8 U.S.C. 1324d(a)(1)(C), for failure to report for removal, when aliens
are not in detention, are also typically readily determinable based on
an alien's actions. Aliens released from DHS custody after a removal
order are issued an Order of Supervision (``OSUP''), Form I-220B. 8 CFR
241.5(a). Aliens released on an OSUP have final orders of removal and
must appear at ICE offices for check-ins or to surrender for removal.
Aliens released by ICE on OSUPs will be subject to conditions of
release and reporting requirements based on the individual facts and
circumstances. When ICE directs an alien on an OSUP to report for
removal, and the alien fails to report as directed, this failure will
typically demonstrate an alien's liability for a civil penalty for
willfully failing to present for removal at the time and place directed
by DHS absent evidence that the alien's failure to appear was due to
circumstances beyond the alien's control.
Additionally, an alien released on an OSUP will normally be given a
certain amount of time to provide evidence that the alien has applied
for a passport or visited an embassy. ICE communicates this information
to the alien in the OSUP. An alien's failure to apply for

[[Page 27444]]

travel documents or visit an embassy within the allotted time period
may serve to establish that the alien is liable for a civil monetary
penalty for willfully failing or refusing to make a timely application
in good faith for travel documents.
2. Current Process Does Not Align With These Penalties' Straightforward
Nature
As explained in Section II.B of this preamble, the civil monetary
penalty procedures in 8 CFR part 280 were designed in 1952 for fines
against airlines and carriers that violate certain provisions of the
INA designed to control the transport of aliens into the United States.
In 1996, Congress authorized DHS's predecessor agency INS to also
impose civil monetary penalties on aliens who enter the United States
unlawfully or fail to depart. DHS has never updated the procedures in 8
CFR part 280 to account for this new authority because until recently
the unlawful entry and failure-to-depart penalties have rarely been
used. The Departments have now determined that this IFR is needed
because procedures in 8 CFR part 280 do not align with the
straightforward and readily determinable nature of these particular
penalties and the context in which they arise.
First, the requirement that DHS must serve civil fine notices and
civil monetary penalty decisions on the alien in person or by certified
mail does not necessarily align with certain statutory requirements.
Under the INA, all aliens within the United States, with limited
exceptions, must register with DHS and notify DHS of their address and
any change of address within ten days from the date of such change. See
INA 262, 265, 8 U.S.C. 1302, 1305; see also 8 CFR 265.1. Moreover, upon
initiation of section 240 removal proceedings, aliens are informed of
their obligation to update any changes of address with DHS and EOIR.
See INA 239(a)(1)(F), 8 U.S.C. 1229(a)(1)(F). Therefore, DHS believes
that it should be able to serve the alien by routine mail for these
civil monetary penalties, as DHS should be able to rely on an alien's
responsibilities in reporting his or her address to the Government.
Second, the 30-day timeline for an alien to contest a penalty is
unnecessary given both the context of these penalties and their
straightforward nature. Most aliens subject to the failure-to-depart
penalties have already been warned of their obligations to depart the
United States during removal proceedings and that failure to do so may
result in a penalty. Similarly, when an immigration officer apprehends
an alien for unlawful entry, the officer interviews the alien, decides
whether the alien is inadmissible, and informs the alien of the
determination. In addition, where civil monetary penalties will be
issued, the immigration officer will inform an alien that he or she is
subject to civil monetary penalties for unlawful entry. In these
circumstances, DHS believes that an alien does not need 30 days to
review and respond to the fine because the alien is already on notice
that his or her conduct constitutes a violation of the nation's
immigration laws that could result in a penalty. Additionally, the need
for a more limited appeal period is supported by the straightforward
nature of these penalties and the limited grounds to challenge them as
discussed above in this Section II.D.1 of this preamble.
The same is true of the in-person interview under 8 CFR 280.12. As
discussed above, in the vast majority of cases, the alien's immigration
records will demonstrate liability for the penalty. Similarly, for
aliens who have entered unlawfully, the fact of apprehension by CBP for
crossing the border illegally and the documented encounter will, in
most cases, provide the basis for the civil monetary penalty.
Accordingly, DHS believes that an in-person hearing adds no value in
the context of civil monetary penalties for unlawful entry and failure
to depart. Rather, if an alien disputes the penalty, DHS will be able
to accurately resolve the challenge through the alien's written
submission given the alien has limited grounds to challenge these
determinations, as discussed in Section II.D.1 of this preamble.
Finally, an alien's ability under 8 CFR part 280 to appeal a civil
penalty decision to the BIA raises similar concerns. As discussed
above, 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. The BIA has no
unique expertise with these penalties because, until very recently,
they have rarely been used. Therefore, the Departments believe that
there is no operational need for the BIA to adjudicate administrative
appeals of DHS decisions for civil monetary penalties under sections
240B(d), 274D(a)(1), or 275(b) of the INA, 8 U.S.C. 1229c(d), 1324d(a),
or 1325(b), because these civil monetary penalties are both set and
enforced by DHS and involve readily determinable information within
DHS's possession. Accordingly, the Departments believe that BIA
appellate review of these penalties is also unnecessary.
3. Need To Ensure That the Procedures Can Be Applied Efficiently and at
Scale
Without this IFR, the current procedures under 8 CFR part 280 have
the potential to become unnecessarily burdensome and cause unnecessary
delay as DHS expands its use of the failure to depart and unlawful
entry civil monetary penalties.
The current personal service requirement has already proven to be
overly burdensome, costly, and unnecessary. Personal delivery 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. Additionally, 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. Therefore,
without the changes in this IFR, the certified mail requirement has the
potential to hinder DHS's ability to apply these civil penalties at
scale. Additionally, for the reasons discussed in Section IV.E of this
preamble, DHS believes that service of these civil monetary penalties
by ordinary mail is ``reasonably calculated under all the
circumstances, to apprise'' aliens of the fines and ``afford them an
opportunity to present their objections.'' Mullane v. Cent. Hanover
Bank and Tr. Co., 339 U.S. 306, 314 (1950).
The 30-day response period also has the potential to become
administratively burdensome as DHS expands its use of these civil
monetary penalties. A 30-day period for the alien to respond can lead
to a growing number of outstanding NIFs that, when combined with the
issuance of subsequent NIFs, can result in a growing backlog of civil
penalties cases. As a result of the backlog, DHS would need to devote
more time and resources towards managing, tracking, and closing out
these NIFs. With more outstanding NIFs to manage, there is also an
increased risk that some NIFs will slip through the cracks. As DHS
expands the use of these civil monetary penalties, a longer response
period has the potential to divert resources away from DHS's other
immigration enforcement functions by requiring DHS to spend more time
and resources on

[[Page 27445]]

simply managing the growing volume of outstanding NIFs.
Furthermore, the 30-day period requires DHS to stand by while the
clock runs down. DHS cannot proceed with finalizing the NIF, including
initiating the collection process. An administratively finalized NIF
must go through ICE finance and the United States Department of the
Treasury (``Treasury'') before the collection process can begin. The
30-day period delays Treasury's ability to generate and send collection
notices and invoices to aliens. A reduced appeal window affords the
alien appellate rights while enabling the collections process to move
at a more reasonable pace.
Similarly, ICE has limited resources to conduct interviews, and, if
requested by a significant number of aliens, providing these interviews
could impact ICE's ability to perform other critical immigration
enforcement functions including apprehending, detaining, and removing
unlawful aliens. In these circumstances, ICE would likely need to re-
calibrate how many civil penalties it could issue at a time and this,
in turn, could unnecessarily impede ICE's ability to impose these
penalties quickly and at a scale necessary to respond to the
significant number of aliens who have unlawfully entered or failed to
depart the United States.
The BIA appeal process raises additional concerns. The BIA has a
large backlog of cases and appeals, and BIA appeals take a long time to
resolve.\18\ Indeed, the Departments estimate that the time from when
the NIF is served until the final decision is issued could take more
than a year given the BIA's backlog of cases. Therefore, if aliens
begin appealing these decisions in significant numbers, this could
significantly delay DHS's ability to reach final decisions on these
fines in a large number of cases.
---------------------------------------------------------------------------

\18\ EOIR Workload & Adjudication Statistics, All Appeals Filed,
Completed, and Pending (Apr. 4, 2025), https://www.justice.gov/eoir/media/1344986/dl?inline [https://perma.cc/C6T7-6JUQ].
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Moreover, the BIA appeals process itself involves several steps
that take time and requires substantial agency resources. When an alien
appeals a DHS fine decision, DHS will need to prepare the
administrative record and forward it to the BIA. DHS is also
responsible for issuing briefing schedules and receiving and forwarding
briefs to the BIA.\19\ Although these fines are typically relatively
straightforward, ICE attorneys will also need to devote time to
reviewing and potentially responding to the alien's appeal. Therefore,
as DHS continues to expand its use of these civil penalties, BIA
appeals involving these fines could occur with some frequency and
impose unnecessary burdens on DHS and contribute to the BIA's backlog.
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\19\ See BIA Practice Manual ch.10.3(b), (c) (last visited June
17, 2025) (``Processing''), available at https://www.justice.gov/eoir/reference-materials/bia/chapter-10/3 [https://perma.cc/J5XQ-KEGN].
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The Departments have considered streamlining the BIA process for
appeals involving these civil penalties but have decided that it is
more important that EOIR's resources are focused on their statutorily
prescribed functions under the INA--adjudicating and reviewing appeals
from section 240 removal proceedings and exercising authority with
respect to other immigration-related functions explicitly provided in
the INA. Indeed, if the BIA were to prioritize these cases over others,
that action could impede the BIA's ability to decide other appeals in a
timely manner, which could impact DHS's ability to secure final removal
orders against aliens consistent with this Administration's enforcement
priorities.
DHS acknowledges that it has issued a significant number of
penalties to aliens in recent months using the process set forth in 8
CFR part 280, and very few aliens have contested them as discussed
above in Section II.C of this preamble. However, DHS must ensure that
the civil penalty procedures align with the straightforward nature of
these penalties and do not hinder DHS's ability to apply these
penalties efficiently in response to the scale of aliens who have
violated the immigration laws and are subject to these monetary
penalties. The current procedures collectively and individually have
the potential to impede DHS's ability to issue and finalize these civil
penalties at scale and in a timely and efficient manner that aligns
with the straightforward nature and the circumstances under which these
civil fines are issued.
The need for this IFR's more streamlined civil monetary penalty
process is demonstrated by the sheer number of aliens who are
potentially subject to the unlawful entry and failure-to- depart
penalties. As noted in Proclamation 10888, Guaranteeing the States
Protection Against Invasion, ``[o]ver the last 4 years, at least 8
million illegal aliens were encountered along the southern border of
the United States, and countless millions more evaded detection and
illegally entered the United States.'' 90 FR 8334. DHS estimates that
approximately 1.5 million aliens entered or attempted to enter
unlawfully (``encounters'') between ports of entry (``POEs'') in fiscal
year 2024.\20\ In addition, in March 2025, the Secretary of Homeland
Security determined ``that an actual or imminent mass influx of aliens
is arriving at the southern border of the United States and presents
urgent circumstances requiring a continued federal response.'' Finding
of Mass Influx of Aliens, 90 FR 13622, 13622 (Mar. 25, 2025).
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\20\ CBP, Southwest Land Border Encounters, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters [https://perma.cc/U6W3-GK3R] (last visited Apr. 15, 2024) (showing monthly U.S. Border
Patrol land border encounters).
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Moreover, DHS data indicates that the percentage of aliens who are
ordered removed or granted voluntary departure and whose removal order
has not been executed or whose voluntary departure is not confirmed has
significantly increased in recent years.\21\ In fiscal year (``FY'')
2024, EOIR issued over 282,000 final removal orders, but 90 percent of
those removal orders (255,000) were unexecuted, which may indicate a
failure of those aliens to depart. In the same year, EOIR granted
approximately 8,800 aliens voluntary departure orders, but only about
50 percent of these aliens confirmed their departures.\22\
Additionally, based on EOIR Workload and Adjudication Statistics, there
were almost 4 million pending section 240 removal proceedings in FY
2024 and even more as of the second quarter of FY 2025.\23\ When
completed, these cases may result in a substantial number of additional
removal orders against aliens. Without additional action, there is a
risk that many of these aliens may remain in the United States.
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\21\ DHS Office of Homeland Security Statistics analysis of EOIR
and DHS data. DHS acknowledges that this data may include aliens who
have departed on their own and those who have not provided their
departure information to the government prior, during, or after
their self-departure. In these circumstances, the government would
have this information only if provided by the alien, such as by
using the CBP Home app to record their intention to voluntarily
depart the United States. See CBP, CBP Home Mobile Application (June
10, 2025), https://www.cbp.gov/about/mobile-apps-directory/cbphome
[https://perma.cc/K6WZ-6CZB].
\22\ Id.
\23\ EOIR Workload & Adjudication Statistics, Pending Cases, New
Cases, and Total Completions (Apr. 4, 2025), https://www.justice.gov/eoir/media/1344791/dl?inline, [https://perma.cc/6LXK-X9Q9]. EOIR statistics reported 3,918,340 pending cases in FY
2024 and 3,923,439 pending cases as of FY 2025 (Second Quarter). The
term ``pending cases'' includes all uncompleted cases in removal,
deportation, exclusion, asylum-only, and withholding-only
proceedings.
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An alien's failure to depart has serious consequences for
immigration enforcement and the adjudication of immigration cases. An
alien's failure to comply with a removal order risks undermining the
authority of

[[Page 27446]]

immigration courts and the integrity of this nation's immigration laws
and processes. An alien's failure to comply also has enforcement
costs--DHS must spend limited time and resources locating and
apprehending these aliens--in addition to the costs expended by the
Departments to prosecute and adjudicate the alien's removal proceedings
to completion in the first instance. Similarly, an alien who fails to
comply with a voluntary departure order has failed to uphold his end of
the bargain despite being granted the privilege of voluntary departure.
This action too risks undermining the overall integrity of the
immigration system, and it risks further incentivizing aliens to simply
ignore removal orders or voluntary departure orders.
Similarly, aliens who enter the United States unlawfully pose a
significant strain on DHS resources and American communities and pose a
threat to public safety and border security. See 90 FR 13622, 13623.
DHS acknowledges that encounters between POEs have fallen significantly
over the last few months, which DHS believes is a result of the
Securing the Border IFR and final rule and the Trump Administration's
efforts. Securing the Border, 89 FR 48710 (June 7, 2024) (IFR);
Securing the Border, 89 FR 81156 (Oct. 7, 2024) (final rule);
E.O.14165, Securing Our Borders, 90 FR 8467 (Jan. 20, 2025);
Presidential Proclamation 10888, Guaranteeing the States Protection
Against Invasion, 90 FR 8333 (Jan. 20, 2025). DHS believes, however,
that additional action is needed to ensure that the Government
continues to build on this progress and deter future unlawful entries,
consistent with the Administration's objective of fully securing the
border.
This IFR is 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 orders
and voluntary departure orders and to deter unlawful entries. DHS has
previously recognized that the efficacy of immigration enforcement
measures depends on the Government's ability to apply them quickly and
in proportion to the scale of the problem which, in turn, will reduce
incentives that aliens may have to violate our nation's immigration
laws.\24\ Similarly, DHS must be able to do the same with civil
monetary penalties covered by this IFR to ensure that these penalties
have their intended deterrent effect. In sum, DHS believes that faster
processing and broader application of these penalties will more
effectively deter illegal entry and aliens illegally remaining in the
United States after agreeing to voluntarily depart or receiving an
administratively final order of removal.
---------------------------------------------------------------------------

\24\ For example, the Departments issued the Securing the Border
IFR in 2024 to address sustained high encounter rates and illegal
entries at the southern border. See 89 FR 48731. The Departments
explained that the changes made in that rule were intended to
``maximize the consequences for those who cross unlawfully or
without authorization [by] . . . deliver[ing] consequences swiftly
to the highest proportion of individuals who fail to establish a
legal basis to remain in the United States,'' 89 FR 48749, which in
turn would ``reduce incentives for irregular migration'', 89 FR
48766.
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Therefore, due to the significant increase in illegal immigration
in recent years, DHS seeks to update the regulations that govern civil
monetary penalties in an effort to maximize the use of all statutory
provisions available to increase removal activity, disincentivize
aliens from entering or remaining in the United States illegally,
promote public safety, and ensure that DHS has an effective, workable
process to issue and collect civil monetary penalties. See E.O. 14159,
90 FR 8443, 8444-45 (Jan. 20, 2025).
4. Why This IFR Is Needed
For the above discussed reasons, through this IFR, DHS is adding a
new 8 CFR part 281 to govern the process for civil monetary penalties
for unlawful entry and failure-to-depart to address the above concerns
and to better ensure that the process aligns with the straightforward
nature of these penalties and the need for DHS to impose them quickly
and at scale.
Section IV of this preamble discusses these new procedures in
detail. In short, DHS is streamlining the process for assessing and
imposing civil penalties by: (1) removing the NIF process; (2)
shortening the timeline for an alien to contest a civil penalty
decision; (3) creating a simplified process for aliens to c8
u.s.contest civil penalties through a written appeal that will be
decided by a DHS supervisory immigration officer, rather than the BIA;
and (4) allowing DHS to serve civil monetary penalty decisions and
orders by ordinary mail. DOJ is making conforming changes to its
regulations.
In comparison to the process set forth in 8 CFR part 280, DHS
believes these procedures will reduce potential and unnecessary
administrative burdens and allow DHS to reach a final decision more
quickly. These changes are needed to ensure that DHS can improve its
efforts to impose these penalties while continuing to prioritize the
apprehension, detention, and removal of aliens in the United States in
violation of the immigration laws.
At the same time, for the reasons discussed more fully in Section
IV.E of this preamble, DHS believes that these changes are consistent
with due process. Under the new regulation, a supervisory immigration
officer must issue a decision that informs the alien of the statutory
and factual basis for the penalty and advises the alien of the
requirements for filing an appeal. The alien has 15 business days to
appeal and can use the appeal form that DHS has developed for these
fines. If the alien files a timely appeal, a supervisory immigration
officer who did not issue the initial decision will review the record
de novo and may request additional evidence or information. DHS has
determined that a shortened appeal period, elimination of the option
for an in-person interview, and shift from BIA to DHS review better
aligns with the nature of these fines, which typically turn on routine
and straightforward determinations of fact that can be decided quickly
on a written record. The revised process protects an alien's ability to
contest the fine and better ensures that DHS can efficiently reach a
final decision, which is critical to DHS's ability to 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.
The Departments acknowledge that, in 2021, DHS rescinded the 2018
delegation orders that allowed ICE officers to enforce civil monetary
penalties against aliens who unlawfully remained in the United
States.\25\ At the time, DHS explained that the civil penalty process
was ineffective and did not encourage aliens to comply with departure
obligations.\26\ DHS also cited its need to focus limited enforcement
and removal resources on aliens ``posing the greatest risk to national
security and public safety in accordance with the [then] current
guidance on civil immigration enforcement and removal priorities.''
\27\ In an accompanying memo, ICE also noted the resources needed to
impose these penalties ``outweigh[ ]'' the amounts that can be
collected from ``a transient noncitizen population that generally lacks
the means to pay.'' \28\
---------------------------------------------------------------------------

\25\ DHS, DHS Announces Rescission of Civil Penalties for
Failure-to-Depart (Apr. 23, 2021), https://www.dhs.gov/archive/news/2021/04/23/dhs-announces-rescission-civil-penalties-failure-depart
[https://perma.cc/3PYD-7GDG].
\26\ Id.
\27\ Id.
\28\ See 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.

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[[Page 27447]]

Upon reconsideration, DHS believes that its limited experience
implementing those civil monetary penalties in prior years does not
demonstrate that these penalties are innately ineffective. At the time
ICE rescinded prior failure-to-depart penalties in 2021, ICE had only
26 active penalties.\29\ DHS now believes that it is not accurate to
draw a broad generalization about the efficacy of these civil penalties
based on the limited sample size. More importantly, as explained above,
DHS believes that these civil penalties will be most effective if
applied quickly and at scale. This IFR is needed to ensure that the
process for imposing these penalties does not impede DHS's ability to
do so. Indeed, ICE noted that the prior effort to implement the
failure-to-depart civil monetary penalties ``pose[d] a significant
resource drain to ICE in cases with pending appeals or where ICE [had]
not yet issued a final decision to fine.'' \30\ This IFR is designed to
minimize these burdens by streamlining the process.
---------------------------------------------------------------------------

\29\ Id.
\30\ Id.
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Additionally, DHS rescinded the prior delegations in part to focus
limited enforcement and removal resources on aliens ``posing the
greatest risk to national security and public safety in accordance with
the [prior Administration's] guidance on civil immigration enforcement
and removal priorities.'' \31\ On January 20, 2025, President Trump
directed that DHS enforcement resources should be focused on ``the
successful enforcement of final orders of removal'' and the
``provisions of the INA and other Federal laws related to the illegal
entry and unlawful presence of aliens in the United States.'' See E.O.
14159, Protecting the American People Against Invasion, 90 FR 8443,
8444 (Jan. 20, 2025). As explained above, that Executive Order also
directed the Secretary to take all appropriate action to assess and
collect ``all fines and penalties that [DHS] is authorized by law to
assess and collect from aliens.'' Id. at 8444-45. This IFR is needed to
facilitate DHS's ability to meet both directives. Quite simply, this
IFR 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 without unnecessarily diverting
resources away from ICE's and CBP's missions to apprehend, detain, and
remove aliens who have illegally entered and are unlawfully present.
---------------------------------------------------------------------------

\31\ DHS, DHS Announces Rescission of Civil Penalties for
Failure-to-Depart (Apr. 23, 2021), https://www.dhs.gov/archive/news/2021/04/23/dhs-announces-rescission-civil-penalties-failure-depart
[https://perma.cc/3PYD-7GDG].
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Finally, with respect to ICE's prior determination that the
resource burdens outweigh the amount that can be collected from a
transient population of aliens that lacks the means to pay, as noted
above, this IFR is intended to reduce potential resource burdens by
streamlining the process. Moreover, DHS notes that the collection of
civil monetary penalties is not the only goal. Maximizing the use of
these civil penalties is intended to help incentivize illegal aliens
who are subject to them to voluntarily leave the United States. To help
achieve this objective, DHS has announced that it will rescind
outstanding civil penalties in certain cases where an alien uses the
CBP Home app to depart the United States as discussed in Section II.C
of this preamble.\32\ DHS intends this policy to create greater
incentives for aliens who are subject to these penalties to depart,
including aliens who do not have the means to pay these fines.\33\
---------------------------------------------------------------------------

\32\ 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].
\33\ In addition to rescinding outstanding civil penalties, DHS
has announced that ``aliens who use the CBP Home App to self deport
[will] also receive cost free travel and a $1,000 exit bonus paid
after their return is confirmed through the app.'' Id.; see also
Proclamation 10935, Establishing Project Homecoming, 90 FR 20357,
20357 (May 9, 2025) (establishing ``Project Homecoming, which will
present illegal aliens with a choice: either leave the United States
voluntarily, with the support and financial assistance of the
Federal Government, or remain and face the consequences'').
---------------------------------------------------------------------------

Additionally, DHS, in coordination with Treasury, has made recent
improvements to the collection process for the failure-to-depart civil
monetary penalties. These efforts are intended to increase the U.S.
Government's ability to successfully collect these fines, including
through processes that allow DHS to more quickly send civil monetary
fine packages to Treasury. On receipt of the civil monetary fine
packages, Treasury can begin using its suite of collection methods,
including call centers and skip tracing, to locate the alien and
collect the fine. These changes to the collections process, in
combination with this IFR's changes to the civil monetary penalty
process, are intended to better ensure that DHS can more effectively
enforce the collection of civil monetary penalties against aliens who
choose to remain in the United States unlawfully rather than taking
advantage of incentives to depart voluntarily.
In sum, DHS believes that this IFR's streamlined procedures, paired
with incentives to depart and recent changes to the collections
process, minimize ICE's prior concerns about the effectiveness of these
penalties. Moreover, it is DHS's assessment that this IFR would still
be needed, even if it does not fully resolve all of the challenges
associated with enforcing these penalties against aliens, given the
large number of aliens who have entered and remained in the country
illegally under the prior Administration.

E. Scope of the Rule

This rule does not change the process for all civil penalties that
DHS can impose under the INA. Rather, this rule addresses civil
monetary penalties issued under sections 240B(d), 274D(a)(1), and
275(b) of the INA, 8 U.S.C. 1229c(d), 1324d(a), and 1325(b), and
creates a revised process only for these specified penalties. The
Departments believe it makes sense to streamline the process for
adjudicating these penalties while retaining the current process for
other INA civil penalties under 8 CFR part 280 that primarily relate to
carrier violations.
The revised process is particularly appropriate for these three
provisions because it will address a pressing need. Specifically, this
IFR is needed to ensure that DHS can efficiently impose civil monetary
fines in response to the large number of unlawful entrants and aliens
who have failed to depart the United States, a population of high
enforcement priority.\34\ The Departments do not see a similarly
pressing need to modify the process applicable to other civil
penalties. In contrast to the potential difficulties that the existing
process could create as applied to the large number of aliens in the
United States who have entered unlawfully or have failed to depart,
based on CBP data from October 1, 2022, to May 5, 2025, 1,428 carrier
fines cases were initiated.
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\34\ Securing the Border, 89 FR 48710 (June 7, 2024) (IFR);
Securing the Border, 89 FR 81156 (Oct. 7, 2024) (final rule); E.O.
14165, Securing Our Borders, 90 FR 8467 (Jan. 20, 2025);
Presidential Proclamation 10888, Guaranteeing the States Protection
Against Invasion, 90 FR 8333 (Jan. 20, 2025).
---------------------------------------------------------------------------

Additionally, the civil monetary penalties covered by this rule
differ from other penalties that are issued by CBP using the process at
8 CFR part 280. Those penalties largely involve carrier fines that are
issued against entities such as airlines, shipping lines, cruise

[[Page 27448]]

lines, train and bus companies, and international bridge authorities
for various violations under the INA. Such violations generally involve
a carrier's, or its agent's, failure to meet a requirement of the INA
regarding the arrival of alien crewmembers, passengers, and stowaways
transported into the United States on their conveyance. Those penalties
cover various conduct such as vessels or airlines failing to detain
their alien crew until CBP inspection, see INA 254(a)(1), 8 U.S.C.
1284(a)(1), or bringing in alien passengers without valid passports and
unexpired visas, see INA 273(a)(1), 8 U.S.C. 1323(a)(1). Some of these
carrier fines may be subject to mitigation or other procedures unique
to each authority. See, e.g., 8 CFR part 273 (allowing carriers to seek
a reduction, refund, or waiver of a fine imposed under section 273 of
the INA, 8 U.S.C. 1323).
In comparison, this rule covers a more limited set of civil
monetary penalties, involving aliens who enter the country unlawfully
or fail to depart after a removal or voluntary departure order,
including taking certain action that impedes removal. Additionally,
unlike many of the other civil monetary penalties covered by 8 CFR part
280 applicable to carriers, aliens who are subject to unlawful entry
and failure-to-depart penalties cannot seek mitigation. And, as
discussed above in Section II.D of this preamble, the vast majority of
cases involving the unlawful entry and failure-to-depart penalties
typically turn on readily verifiable and straightforward determinations
of fact, making it less likely that aliens will have grounds to contest
these penalties. The Departments believe that these differences, in
combination with the pressing need to address the scale of aliens who
are subject to these penalties, supports this rule's more limited
approach at this time.

III. Legal Authority

The Attorney General \35\ and the Secretary issue this joint IFR
pursuant to their respective authorities. The HSA, as amended,
transferred many functions related to the execution of Federal
immigration law to the newly created DHS. 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), and grants the Secretary
the power to take actions ``necessary for carrying out'' the
Secretary's authority under the provisions of the INA. INA 103(a)(3), 8
U.S.C. 1103(a)(3). As relevant to this rule, the HSA and the amendments
to the INA now provide the Secretary with the authority to issue most
civil monetary penalties authorized under the INA, including those
authorized under sections 240B(d), 274D(a), and 275(b) of the INA, 8
U.S.C. 1229c(d), 1324d(a), 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); 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).
---------------------------------------------------------------------------

\35\ In Attorney General Order Number 6260-2025, the Attorney
General has exercised her authority under 28 U.S.C. 509 and 510 to
delegate her authority to issue regulations related to immigration
matters within the jurisdiction of EOIR to EOIR's Director.
---------------------------------------------------------------------------

Within DHS, the HSA separated immigration functions and
responsibilities into three principal components: CBP, ICE, and U.S.
Citizenship and Immigration Services (``USCIS''). See 6 U.S.C. 211
(CBP); 6 U.S.C. 252 (ICE); 6 U.S.C. 271 (USCIS). ICE is generally
responsible for immigration enforcement in the interior of the United
States and CBP is generally responsible for immigration enforcement at
POEs and along the borders of the United States. ICE and CBP both have
the authority to administer civil monetary penalties related to certain
violations of immigration law and immigration court orders, including
those authorized under sections 240B(d), 274D(a), and 275(b) of the
INA, 8 U.S.C. 1229c(d), 1324d(a), 1325(b). See, e.g., 8 CFR part 280.
The Secretary may redelegate or confer any of the DHS functions and
authorities with respect to the immigration laws at her discretion to
any official, officer, or employee of DHS (including by means of
successive redelegations). See INA 103(a)(4), 8 U.S.C. 1103(a)(4); 8
CFR 2.1; see also Authority of the Secretary of Homeland Security;
Delegations of Authority; Immigration Laws, 68 FR 10922, 10922 (Mar. 6,
2003). The Secretary may delegate her authority in any manner she
chooses, including by regulation, memorandum, directive, or other
method. 8 CFR 2.1. Moreover, under section 102(a)(3) of the HSA, 6
U.S.C. 112(a)(3), all functions of DHS officers, employees, and
organizational units are vested 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; see also
INA 103(g)(1), 8 U.S.C. 1103(g)(1). Immigration Judges within EOIR have
authority to conduct section 240 removal proceedings and to issue
orders of removal or grant voluntary departure. See INA 240, 240B, 8
U.S.C. 1229a, 1229b. And the INA provides that the ``determination and
ruling by the Attorney General with respect to all questions of law
shall be controlling.'' INA 103(a)(1), 8 U.S.C. 1103(a)(1). Nothing in
this IFR alters EOIR's or the Attorney General's authority over section
240 removal proceedings, including their authorities to issue removal
orders and grant voluntary departure.
Rather, DOJ's involvement in this rulemaking is necessary because
the existing EOIR regulations provide the BIA with appellate authority
to review DHS decisions involving certain civil monetary penalties
authorized under the INA, including those covered by this rule. See 8
CFR 1003.1(b)(4), 1280.1(b). Nothing in the INA precludes the Attorney
General from exercising her authority to remove the BIA's appellate
authority over these civil monetary penalties imposed by another
agency. Rather, the statute--section 103(g)(1) of the INA, 8 U.S.C.
1103(g)(1)--provides authority to DOJ to issue regulations that govern
EOIR. Furthermore, the statute, section 103(g)(2) of the INA, 8 U.S.C.
1103(g)(2), states that the Attorney General has authority to establish
such regulations as are ``necessary for carrying out'' EOIR's
responsibilities. To ensure EOIR's resources are focused on their
statutorily prescribed functions under the INA--adjudicating and
reviewing appeals from section 240 removal proceedings and exercising
authority with respect to other immigration-related functions
explicitly provided in the INA--DOJ has determined that it is necessary
to amend its regulations to eliminate the BIA's appellate authority
over these penalties.
This IFR specifically addresses DHS procedures for imposing civil
monetary penalties under sections 240B(d), 274D(a)(1), and 275(b) of
the INA, 8 U.S.C. 1229c(d), 1324d(a), 1325(b). Those statutes do not
specify the procedures that immigration officers must follow to impose
those civil monetary penalties, and they do not require DOJ review of
any such fines.\36\ Instead, those statutes only define the category of
aliens who are subject to the

[[Page 27449]]

specified penalties, set the amount, and authorize DHS to impose those
penalties. Moreover, section 280 of the INA, 8 U.S.C. 1330, sets forth
certain requirements for collecting civil monetary penalties, including
those authorized under sections 240B(d), 274D(a)(1), or 275(b) of the
INA, 8 U.S.C. 1229c(d), 1324d(a), 1325(b), but does not specify the
procedures for assessing and issuing such penalties. Accordingly, the
statute gives DHS discretion to employ the procedures it reasonably
concludes are appropriate to assess and issue the authorized
penalties.\37\ 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.'' (quotation marks omitted) (quoting FCC v.
Schreiber, 381 U.S. 279, 290 (1965))).
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\36\ Cf., e.g., INA 214(c)(14)(A), 8 U.S.C. 1184(c)(14)(A)
(allowing for imposition of civil monetary penalties for certain H-
2B nonimmigrant program violations only ``after notice and an
opportunity for a hearing'').
\37\ Other related sections of the INA confirm that DHS has
discretion to adopt reasonably appropriate procedures for these
penalties. For example, sections 274A and 274C of the INA, 8 U.S.C.
1324a and 1324c, authorize civil monetary penalties against
employers for certain immigration-related violations and persons for
engaging in immigration document fraud. Those statutes--which
Congress last amended in 1996 through IIRIRA, Public Law 104-208,
110 Stat. 3009-546, at the same time it authorized civil monetary
penalties that are the subject of this IFR--set forth detailed
procedures for DHS to bring civil monetary penalties against
employers and aliens under those sections and for DOJ to adjudicate
cases seeking such penalties. The language of these statutes
demonstrates that when Congress intended to require certain
procedures for civil monetary penalties under the INA, it ``knew how
to do so.'' Custis v. United States, 511 U.S. 485, 492 (1994).
Congress's omission of similar procedures for civil monetary
penalties under sections 240B(d), 274D(a), or 275(b) of the INA, 8
U.S.C. 1229c(d), 1324d(a), 1325(b), indicates that Congress intended
to give DHS the discretion to employ procedures that DHS reasonably
believes are appropriate for such penalties.
---------------------------------------------------------------------------

IV. Discussion of Changes

A. Creation of Part 281

Regulations at 8 CFR part 280 govern DHS's imposition of civil
monetary penalties for immigration violations. This IFR adds a new
part, 8 CFR part 281, to govern the process for imposing civil monetary
penalties under sections 240B(d), 274D(a)(1), and 275(b) of the INA, 8
U.S.C. 1229c(d), 1324d(a)(1), 1325(b).\38\ As discussed in Section II.D
of this preamble, the updated procedures streamline the process and
enhance DHS's ability to issue civil monetary penalties at a scale
needed to respond to the large number of aliens who have failed to
depart under voluntary departure orders and removal orders in recent
years. DHS believes that the updated procedures will allow DHS to more
swiftly issue civil monetary penalties against aliens who unlawfully
enter the United States and aliens who ignore removal and voluntary
departure orders, which in turn will aid DHS's efforts to secure the
border by further deterring unlawful entries and unlawful presence. To
meet these goals, the IFR removes unnecessary and potentially
burdensome procedures that are not statutorily required. In sum, Part
281 enables DHS to better execute its mission of safeguarding our
homeland and enforcing the immigration laws, including those related to
the illegal entry and unlawful presence. In addition, it is consistent
with Executive Order 14159. See 90 FR 8443 (Jan. 20, 2025).
---------------------------------------------------------------------------

\38\ Section 275 of the INA, 8 U.S.C. 1325, also provides for
criminal penalties for improper entry. This IFR does not address
those provisions.
---------------------------------------------------------------------------

This IFR applies prospectively to actions to impose civil monetary
penalties that are initiated on or after June 27, 2025. Aliens who had
the procedures in 8 CFR part 280 initiated against them at the time of
the effective date of this IFR would continue to be subject to those
procedures, as well as the related DOJ provisions in 8 CFR parts 1003
and 1280. The IFR states these provisions are controlling where the
alien had been served a NIF prior to the effective date of this rule.
See 8 CFR 281.1(h). Under the rule, the provisions of 8 CFR part 281.1
will be applied prospectively to aliens against whom DHS seeks to
impose civil monetary penalties on or after the effective date of this
IFR.

B. Initiation of the Civil Penalty Process; Service of Decision and
Order

The revised process no longer requires DHS to issue and personally
serve NIFs and wait for any responses from the alien prior to issuing a
decision. Compare 8 CFR 281, with 8 CFR 280. Rather, the IFR requires
an immigration officer to initiate the process by issuing a decision
and order imposing civil monetary penalties under sections 240B(d),
274D(a)(1), or 275(b) of the INA, 8 U.S.C. 1229c(d), 1324d(a)(1), or
1325(b). See 8 CFR 281.1(b), (c)(1).
The immigration officer's decision and order will inform the alien
of the statutory basis for the penalty and the amount and type of the
penalty being imposed, and will include a brief statement of the
reasons for the decision. See 8 CFR 281.1(c)(1). This requirement
ensures that the alien understands the basis for the penalty and has
the requisite information in the event that the alien seeks to
challenge the immigration officer's decision.
Furthermore, the decision and order will include advisals informing
the aliens of their right to appeal, the process for such an appeal,
the right to be represented by counsel at their own expense, and an
opportunity to provide any supporting evidence or documentation to
challenge the penalty. See 8 CFR 281.1(c)(2). These short and
straightforward advisals are intended to give the alien notice of how
to contest the civil penalty decision, including where and how to
submit an appeal. These advisals also make clear that the alien can
file a written defense or documentary evidence if the alien contests
the penalty. See 8 CFR 281.1(c)(2)(iii). However, the alien is not
required to submit such materials in connection with an appeal; the
alien can simply submit a written notice indicating that the alien is
appealing the decision.
The IFR also allows DHS to serve the decision and order of civil
monetary penalties under sections 240B(d), 274D(a)(1), or 275(b) of the
INA, 8 U.S.C. 1229c(d), 1324d(a)(1), or 1325(b), either in person or by
routine service, as defined in 8 CFR 103.8(a)(1)(i), which includes
regular mail. 8 CFR 281.1(d). As discussed above in Section II.D of
this preamble, the existing procedures in 8 CFR part 280 unnecessarily
require DHS to use personal service or certified mail to impose these
civil penalties. For the reasons discussed in that Section, DHS
believes that the Government should be able to serve the alien by
routine mail because aliens have a legal obligation to report their
address to the Government, including any change of address, aliens are
advised of this requirement and DHS facilitates their ability to report
any change of address, and DHS officers have access to aliens' address
information that is contained in multiple systems, including those
maintained by DHS components and EOIR. DHS also believes that this
change will be less costly and burdensome than requiring service by
certified mail or personal service, and increases DHS's ability to
impose these civil monetary penalties.
It is worth noting that an NTA, which carries greater weight
because its filing initiates section 240 removal proceedings, can be
served by regular mail. INA 239(a)(1), 8 U.S.C. 1229(a)(1). Prior to
1996, the statute required the Government to use certified mail, but
IIRIRA amended the provision to allow charging documents to be sent
using other forms of mail (deleting the ``certified'' part). See INA
239(a)(1), (2), 8 U.S.C. 1229(a)(1), (2), as amended by

[[Page 27450]]

IIRIRA, Public Law 104-208, div. C, tit. III, secs. 304(a)(3),
308(b)(6), 110 Stat. 3009-546, 3009-587-88, 3009-615. The INA presently
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). In comparison, the INA is silent on the
method of service for civil monetary penalties under sections 240B(d),
274D(a), and 275(b) of the INA, 8 U.S.C. 1229c(d), 1324d(a), and
1325(b). Therefore, this IFR will allow DHS to use routine service,
including regular mail which in turn will lessen DHS's administrative
burdens and appropriately provide an alien notice of the imposition of
a civil monetary penalty.

C. Changing How an Alien Contests Civil Penalties

For the civil penalties covered by this IFR, the Departments are
also streamlining the unnecessary and drawn-out process described in 8
CFR part 280 that applies when an alien contests a civil penalty. As
discussed above, under 8 CFR part 280, an alien has 30 days to contest
a civil penalty, which can be extended, can choose to have an in-person
interview, and can appeal DHS's final decision to the BIA. Through this
IFR, DHS is shortening the 30-day response period and creating a
simplified paper appeals process that will be decided by a DHS
supervisory immigration officer rather than the BIA.
First, an alien will have 15 business days to file a written notice
of appeal to DHS. See 8 CFR 281.1(e)(1). If the alien responds by mail,
DHS will calculate the timeliness of an appeal based on the date that
the alien's appeal is postmarked. Id. Extensions to the appeal filing
period are prohibited. 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. The alien must file the notice of appeal in accordance
with the filing instructions and to the address provided in the
decision. Id. If the alien files a notice of appeal, the initial civil
penalty decision will remain inoperative during the appeal. Id. If the
alien does not file a notice of appeal with 15 business days, the
initial decision and order imposing the civil monetary penalty will
become final. See 8 CFR 281.1(f)(3).
Second, if an alien appeals, a supervisory immigration officer who
did not issue the initial decision and order will review the alien's
appeal within 10 days of receiving the appeal. See 8 CFR 281.1(e)(2).
The officer may, in his discretion, call for additional briefing or
written filings from the alien, and the alien shall 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. See 8
CFR 281.1(e)(3).
The supervisory officer will then decide the alien's appeal on the
paper record; there is no option for the alien to request an in-person
interview. See 8 CFR 281.1(e)(2). The record reviewed by the
supervisory officer must include the initial decision and order, the
evidence contained in the Department's administrative files, and any
written filings, briefs, documentary evidence, or other relevant
material timely filed by the alien in connection with the alien's
appeal. See 8 CFR 281.1(e)(3). The officer will review this record de
novo, including the initial decision and order imposing the civil
monetary penalty, and any written argument and documentary evidence
submitted by the alien. See 8 CFR 281.1(e)(2). The supervisory officer
will issue a final decision on the administrative appeal within 45
days. Id.
Finally, the supervisory officer's decision is the final agency
action unless the Secretary of Homeland Security certifies the decision
for review as discussed below in Section IV.D of this preamble. See 8
CFR 281.1(f)(3). An alien cannot appeal the officer's decision to the
BIA. Moreover, an alien cannot seek reopening or reconsideration of the
decision. However, this IFR preserves DHS's ability to sua sponte
reopen a decision at any time to reconsider and reduce or rescind the
fine imposed as further discussed below in Section IV.D of this
preamble. In sum, a civil penalty decision generally becomes final
under the IFR's procedures, and DHS can begin collection efforts: (1)
15 days business days after DHS serves the initial decision and order
if the alien does not contest the decision or fails to respond, or (2)
no later than 45 days after the alien contests the fine. See 8 CFR
281.1(f)(2), (3).
As further discussed above in Section II.D of this preamble, these
changes better ensure that DHS can finalize these straightforward civil
monetary penalty decisions quickly and at scale, while also relaxing
the filing requirements to ensure that if an alien contests the
penalty, the alien can do so quickly. A shorter appeal period and a
paper review process rather than an in-person interview better align
with the straightforward and readily verifiable nature of these
penalties. In the vast majority of these cases, DHS documentary
evidence or conduct observed by an immigration officer will demonstrate
the alien's liability for these penalties. Moreover, an alien will
ordinarily possess the necessary information to quickly contest a
decision if there are grounds to do so, including, for example, medical
records after a hospitalization, criminal records after incarceration,
documents indicating that the alien has applied for, or took steps to
obtain, travel documents, or similar objective evidence demonstrating
that the alien did not voluntarily or willfully fail to depart or did
not receive notice of a removal or voluntary departure order. The
longer period to contest a fine and ability to ask for an interview
under 8 CFR part 280 would not enhance the accuracy, fairness, or
reliability of the process for these civil penalties.
Similar reasons support the Departments' decision to remove the
BIA's jurisdiction over appeals involving these civil penalties. There
is no operational need for the BIA to adjudicate administrative appeals
of DHS decisions for civil monetary penalties under sections 240B(d),
274D(a)(1), or 275(b) of the INA, 8 U.S.C. 1229c(d), 1324d(a)(1), or
1325(b), because these civil monetary penalties are both set and
enforced by DHS and, as discussed throughout this preamble, are
typically based on readily verifiable records and information within
DHS's possession. Additionally, the BIA has no expertise with these
fines, because only a handful have ever been appealed. Notably, DHS
already exercises some review authority following a decision and order.
See 8 CFR 1003.5(b). Under the current regulations, if an alien appeals
DHS's determination, DHS may, rather than forwarding the record of
proceeding to the Board, reopen and reconsider its decision if the
disposition is to issue no penalties, or otherwise grant the benefit
requested on appeal. Id. Therefore, this IFR will remove an
operationally unnecessary and redundant process from the BIA's
jurisdiction as it continues to address its backlog, and better
facilitate DHS's internal handling of the civil monetary penalties
process.
On the other hand, as explained in Section II.D.3 of this preamble,
the BIA appeals process under 8 CFR part 280 could hinder DHS's ability
to impose these penalties swiftly and at scale if aliens begin
appealing them to the BIA in large numbers. This IFR better ensures
that if an alien contests a civil monetary penalty, DHS can swiftly

[[Page 27451]]

resolve the alien's appeal within 45 days, compared to the BIA process
which takes a much longer amount of time, requires many more steps, and
imposes burdens on the Departments' resources.
In sum, the Departments have decided it is more appropriate for DHS
to handle the appeals of decisions and orders of civil monetary
penalties through this streamlined process under the new part 281. The
revised procedures provide aliens with a meaningful opportunity to
contest civil monetary penalties while balancing the Departments'
interests in operating efficiently and fulfilling their missions.

D. Secretary Certification; DHS's Authority To Reopen

As noted above in Section IV.C of this preamble, under this IFR, a
decision imposing a civil monetary penalty against an alien is
generally final when either a supervisory immigration officer decides
the alien's appeal, or the appeal period expires and no appeal is
taken. This IFR, however, includes two exceptions. First, 8 CFR
281(e)(4) clarifies that the Secretary, or the Secretary's designee,
may certify for review any decision to issue civil monetary penalties
for violations under sections 240B(d), 274D(a)(1), or 275(b) of the
INA, 8 U.S.C. 1229c(d), 1324d(a)(1), or 1325(b), and issue a new
decision de novo. This change ensures that the Secretary maintains
appropriate review authority and executive control over the actions of
DHS.
Second, this IFR includes a provision allowing DHS to reopen a
covered civil monetary penalty decision, in its sole discretion (i.e.,
sua sponte), at any time to reconsider the decision and reduce or
rescind the fine imposed. Prior to this IFR, the Department had the
ability to reopen and reconsider fines rather than refer appeals to the
BIA under 8 CFR 1003.5(b). As this IFR removes the BIA and its
regulations from the process for the unlawful entry and failure-to-
depart civil penalties after this IFR takes effect, DHS is adding a
provision at 8 CFR 281.1(f)(1) to clarify that DHS continues to have
discretion to reopen and reconsider these fines sua sponte.
The ability to reopen, reconsider, and reduce or rescind fines in
its discretion enables DHS to make modifications to fines imposed when
it is in the best interest of the parties. For example, as discussed
above in Sections II.C and D.4 of this preamble, DHS is currently
rescinding fines imposed against aliens who depart the United States
voluntarily using the CBP Home app. Therefore, 8 CFR 281.1(f)(1) allows
DHS to continue to do so after this IFR goes into effect. Moreover, if
an alien is seeking to enter the United States on a visa, DHS may
determine that a civil penalty previously imposed must be paid but may
decide to reduce the amount of the fine to an amount payable by the
alien. Quite simply, the ability for DHS to reopen, reconsider, and
rescind or reduce fines provides DHS with flexibility to respond to
changing policy goals and enforcement directions, consistent with DHS's
broad discretion over whether and how to take enforcement actions
against aliens who violate the immigration laws.\39\
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\39\ As discussed above in Section II.C. and II. D.4 of this
preamble, in 2021, DHS rescinded 26 civil monetary fines it had
imposed as it determined they were inconsistent with DHS's policy
goals and direction at that time.
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Moreover, this authority is appropriate because it will ensure that
DHS has a mechanism to reopen, reconsider, and rescind or reduce a
civil monetary penalty decision that was issued erroneously if DHS
becomes aware of information that calls into question the validity of
the decision or the amount of the penalty imposed. In this regard, DHS
notes that when a discretionary determination is made by DHS to reopen,
reconsider, and rescind or reduce a fine, this change will always be to
the benefit of an alien as it results in the reduction or elimination
of a fine previously imposed. At the same time, 8 CFR 281.1(f)(1) also
makes clear that an alien has no right to seek reopening and
reconsideration. DHS believes that allowing aliens to seek reopening
and reconsideration, even under a heightened standard, would create an
unacceptable risk that a large number of aliens would request
reopening, which in turn could impede DHS's ability to issue final
decisions quickly and at the scale needed to address the serious
challenges created by unchecked illegal immigration and unlawful
presence.

E. Ensuring Procedural Safeguards

The procedures in 8 CFR part 281 are consistent with the
requirements for due process established by the Supreme Court in
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In that decision, the
Court identified three factors should be considered when a Government
action deprives a person of a property interest: (1) ``the private
interest that will be affected by the official action''; (2) ``the risk
of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute
procedural safeguards''; and (3) ``the Government's interest, including
the function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.'' Id.
First, in issuing this IFR, the Departments have sufficiently taken
into account an alien's property rights, i.e., the alien's loss of
property resulting from imposed civil monetary penalties. In many
cases, the civil penalty amount will be modest, particularly for aliens
who are subject only to fines for unlawful entry or for failure to
depart after a voluntary departure order.\40\ Therefore, in these
cases, the degree of the potential deprivation is more limited. In
other cases, the Departments acknowledge that these civil monetary
penalties can involve significant fines, particularly for aliens who
fail to depart the United States after a removal order.\41\ Even in
these cases, however, the Departments believe that this IFR's
procedures are sufficient in light of other factors discussed below.
---------------------------------------------------------------------------

\40\ As discussed in Section II.A of this preamble, for civil
monetary penalties under section 275(b) of the INA, 8 U.S.C.
1325(b), the statutory civil monetary penalty amount, which has been
adjusted for inflation, ranges from $100 to $500 per entry or
attempted entry, with higher penalties for repeat offenders. For
civil monetary penalties under section 240B(d)(1) of the INA, 8
U.S.C. 1229c(d)(1)(A), Congress imposed a civil penalty of between
$1,992 and $9,970, as adjusted for inflation, for failing to depart
voluntarily during the period specified in the voluntary departure
order.
\41\ For civil monetary penalties for failure-to-depart after a
removal order and for certain related conduct, section 274D(a)(1) of
the INA, 8 U.S.C. 1324d(a)(1), provides a civil monetary penalty of
not more than $998, after adjusting for inflation, for each day that
the alien is in violation.
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Second, the Departments believe that this IFR's procedures are
sufficient to ensure a low risk of error for these civil penalty
determinations. As an initial matter, civil penalties for failure-to-
depart are generally only issued following the completion of section
240 removal proceedings that resulted in the issuance of an order
requiring the alien's departure from the United States. These aliens
have already received due process through section 240 removal
proceedings, where they have had an opportunity to contest any charges
against them with respect to immigration violations and have had an
opportunity to apply for relief. Importantly, an Immigration Judge has
also typically warned these aliens of the penalties associated with
violating certain immigration laws.\42\ Aliens subject to section
275(b) of the INA, 8 U.S.C. 1325(b), are by definition intercepted
while attempting to violate United States immigration laws. Existing
DHS processes provide due process for the determination that the aliens
have improperly and illegally

[[Page 27452]]

entered the United States, and the imposition of a civil monetary
penalty is a statutorily authorized consequence of those illegal
actions.
---------------------------------------------------------------------------

\42\ For a discussion of the various procedural protections
available during section 240 removal proceedings, see Section II.A.
of this preamble.
---------------------------------------------------------------------------

Moreover, DHS believes that this IFR's revised procedures will
sufficiently ensure that aliens have notice of the penalty decision and
have a meaningful opportunity to challenge the decision, if necessary,
through a simplified and streamlined process that better aligns with
the straightforward nature of these penalties. As discussed above in
Section IV.B of this preamble, the immigration officer's decision will
contain information that informs the alien of the basis for the civil
penalty, and it will provide advisals informing the alien of the right
to appeal and the procedures that the alien must follow to file a
notice of appeal. See 8 CFR 281.1(c). Given the straightforward nature
of these penalties, DHS believes this information and these advisals
will provide sufficient notice to the alien of the basis for the
penalty and how to contest it. See Mullane v. Cent. Hanover Bank & Tr.
Co., 339 U.S. 306, 314 (1950) (stating that notice under due process
must be of a sufficient nature as to reasonably convey the required
information).
There are numerous safeguards through statute and regulation as
well as real time technology \43\ that enable DHS to have the
confidence that routine service is ``reasonably calculated under all
circumstances, to apprise'' aliens of the fine and ``afford them an
opportunity to present their objections.'' Id. As noted above, in
general, aliens in the United States are under specific statutory and
regulatory obligations to register their presence and to keep the U.S.
Government apprised of their current address while in the country.\44\
Moreover, most aliens subject to the monetary penalties covered by this
rule are warned of their address obligations upon initiation of section
240 removal proceedings, see INA 239(a)(1)(F), 8 U.S.C. 1229(a)(1)(F),
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.\45\ 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. 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. Therefore, DHS believes that
using ordinary mail for these civil monetary penalties, sent to the
address most recently provided by the alien, is reasonably calculated
to apprise aliens of the fine and that any additional benefits of
certified mail are outweighed by its costs and DHS's interest in
applying these penalties swiftly and at scale to address the sheer
number of aliens unlawfully in the United States.
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\43\ ICE, Online Change of Address Portal, https://portal.ice.gov/ocoa (last visited June 10, 2025); see also, ICE How
to Change your Address (Jan. 2025), https://www.ice.gov/doclib/detention/checkin/changeAddress-en.pdf [https://perma.cc/AV3Q-Z2FU].
\44\ DHS acknowledges that, in Jones v. Flowers, 547 U.S. 220
(2006), the Supreme Court held that ``failure to comply with a
statutory obligation to keep [one's] address updated'' does not mean
the party ``forfeits his right to constitutionally sufficient
notice'' and that the state was required to ``take additional
reasonable steps to provide notice'' to a homeowner before taking
the owner's real property. Id. at 232. The Court explained, however,
that ``assessing the adequacy of a particular form of notice
requires balancing the interest of the [Government] against the
individual interest sought to be protected by [the due process
clause]''. Id. at 229 (citations and quotations omitted). Here,
DHS's interest in swiftly serving notices by ordinary mail, at the
most recent address provided by the alien, outweighs any interest an
alien may have in receiving notice by certified mail or through
other methods of delivery. As an initial matter, this IFR involves
civil monetary penalties, not the Government's exercise of
``extraordinary power against a property owner--taking and selling a
house he owns.'' Id. at 239. Although these penalties can amount to
substantial fines in some cases, the interests are not the same as
those in Jones.
On the other side of the ledger, DHS's interests are more
substantial than the state's interest--securing tax revenue--that
was at issue in Jones. ``[C]ontrol over matters of immigration is a
sovereign prerogative, largely within the control of the executive
and the legislature'' that must ``weigh heavily in the [due process]
balance''. Landon v. Plasencia, 459 U.S. 21, 34 (1982). As discussed
above, DHS believes that it must be able to issue these fines
quickly and at scale in response to the large number of aliens in
the United States who are in the country illegally and subject to
these fines. And DHS assesses that the most reasonable way to
accomplish this goal is through this IFR's measures, including the
provision allowing immigration officers to send notices by ordinary
mail to the most recent address provided by the alien. Indeed, as
discussed above, Congress has required aliens to provide up-to-date
information about their location in the country, including any
change of address, so that DHS can more effectively enforce the
nation's immigration laws, which necessarily includes civil
penalties. Moreover, in the removal context which is inextricably
linked with the failure-to-depart civil monetary penalties, courts
have held the Government's use of ordinary mail to serve aliens with
notice related to their section 240 removal proceedings is
permissible if aliens are warned about their address obligations and
an alien's failure to update his address is no excuse. Dominguez v.
U.S. Att'y Gen., 284 F.3d 1258, 1259-60 (11th Cir.2002) (holding
that an alien's due process rights not violated when the legacy INS
sent a notice of a removal hearing by regular mail to an address
that the alien had provided several years earlier); see also Matter
of Nivelo-Cardenas, 28 I.&N. Dec. 68, 71 (BIA 2020) (collecting
cases). Accordingly, DHS believes that the tax sale context of Jones
does not transfer to this context, and DHS should be able to serve
the alien by routine mail for these penalties, as DHS should be able
to rely on both the alien's obligation to keep the Government
apprised of his or her address while in the United States, including
any change of address and the fact that DHS has provided readily
accessible means for the alien to comply with the requirement to
keep the Government apprised of his address.
\45\ See E.O. 14159 Protecting the American People Against
Invasion, 90 FR 8443, 8444 (Jan. 29, 2025); Alien Registration Form
and Evidence of Registration, 90 FR 11793 (Mar. 12, 2025)
(highlighting the requirement of alien registration, including
updated addresses).
---------------------------------------------------------------------------

DHS is also simplifying the appeal process as discussed above in
Section IV.C of this preamble. The foundation of due process is notice
and an opportunity to be heard, and nothing in this rule eliminates
either an alien's right to notice or an alien's opportunity to be heard
on appeal. Rather, the revised process implements sufficient safeguards
to preserve the alien's appellate rights. An alien may trigger an
appeal by simply filing a notice of written appeal indicating that the
alien is contesting the penalty. The alien may also, but is not
required to, submit written argument or documentary evidence contesting
the penalty. In either scenario, a supervisory immigration officer who
did not issue the initial civil monetary penalty decision will review
the record de novo, including the issuing officer's decision, the
information that he relied on, and any written materials submitted by
the alien. Therefore, the process provides meaningful appellate review
by allowing the alien to have an additional layer of review through a
supervisory immigration officer, one who was not involved in the
initial decision and order of the civil monetary penalties. See 8 CFR
281.1(e). The officer may also request additional information from the
alien if necessary, and the alien will have an opportunity to provide
it.
If, on appeal, a supervisory immigration officer determines that
the fine was improper, the notice of decision and order imposing the
fine would be withdrawn. As such, DHS believes that these procedures
minimize the ``risk of an erroneous deprivation.''
The Departments do not believe that additional procedural
safeguards beyond those adopted in this IFR would enhance the
reliability, fairness, or accuracy of these civil penalty
determinations. As discussed above in Section II.D.1 of this preamble,
civil monetary fines typically turn on routine and straightforward
determinations of fact and the procedures established in this IFR
present little risk of an erroneous deprivation of an alien's interest.
See Mathews v. Eldridge, 424 U.S. at 335. Aliens intercepted while
entering or attempting to enter the

[[Page 27453]]

United States at an improper time or place are by definition violating
section 275(b) of the INA, 8 U.S.C. 1325(b), and therefore the
documented encounter serves as the only fact required to impose the
penalty in these instances. Similarly, for the failure-to-depart civil
penalties, the alien's removal order or voluntary departure order,
evidence showing that the alien was aware of the order and was warned
of the consequences of failing to depart, and other evidence (including
the lack of departure records) indicating that the alien remains in the
United States, will generally support an inference that the alien is
liable for a civil monetary penalty, at least absent evidence
indicating that the alien's failure to comply was not voluntary or
willful.\46\ Additionally, DHS anticipates that an alien whose failure
to depart was not willful or voluntary should typically be able to
demonstrate their claim through available documentary evidence within
the alien's possession (e.g., evidence of a stay of removal,
incarceration, hospitalization, or evidence indicating that the alien
has made an application for travel documents or visited their embassy).
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\46\ As discussed above in Section II.D.1 of this preamble, DHS
acknowledges that there are other grounds in section 274D(a) of the
INA, 8 U.S.C. 1324d(a), that could subject an alien to a civil
monetary penalty and this IFR's procedures apply to those penalties
as well. Aliens who are subject to a final removal order can be also
fined for (1) willfully failing to make a timely application in good
faith for travel documents; (2) willfully failing or refusing to
present for removal at the time and place directed by DHS. See INA
274D(a)(1)(B), (C), (2), 8 U.S.C. 1324d(a)(1)(B), (C), (2). DHS
similarly believes that this IFR's revised procedures are
appropriate given the straightforward nature of those penalties and
the limited grounds that aliens will have to contest them in most
cases for the reasons discussed above in Section II.D.1 of this
preamble,
---------------------------------------------------------------------------

Given these circumstances, DHS believes that a 30-day appeal window
will not enhance the fairness of the civil penalty process because an
alien does not need to prepare a complicated legal defense or
evidentiary submission to challenge the civil penalty. Similarly, 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. If an alien, through no
fault of his own, did not receive notice of the removal or voluntary
departure order or was prevented from complying due to circumstances
beyond his control, the alien can provide a written explanation and
simple documentary evidence to support the claim. In these
circumstances, DHS believes that an in-person interview would not add
value. See Mathews v. Eldridge, 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).
Moreover, DHS believes that retaining BIA appellate review would
not add value to the fairness or accuracy of the process for these
civil monetary penalties. As discussed above in Section II.D.2, the BIA
has no experience adjudicating these civil monetary penalties, and BIA
review is unnecessary given these civil penalties typically turn on
straightforward issues of fact within DHS's possession, rather than
complicated questions of law. Finally, DHS believes that the appellate
process provided by this IFR, which will be handled exclusively by DHS,
will provide sufficient due process, including a second layer of review
by a supervisory immigration officer who was not involved in the
initial civil monetary penalty decision.
Finally, DHS believes that retaining the certified mail requirement
would not increase the likelihood of aliens receiving notice of these
fines. As discussed above in this Section of the preamble, DHS has
reason to believe that many aliens will have an incentive to comply
with statutory requirements to update their address with DHS, if
necessary, because failure to do so can result in criminal
consequences. In these circumstances, DHS believes that ordinary mail
is reasonably calculated to reach the alien and certified mail would
not add additional value. See Tulsa Pro. Collection Servs., Inc. v.
Pope, 485 U.S. 478, 489 (1988) (``We have repeatedly recognized that
mail service is an inexpensive and efficient mechanism that is
reasonably calculated to provide actual notice.''). To be sure, a
significant percentage of the illegal alien population will not respond
to the notice, no matter how it is provided, because these aliens are
fugitives hiding from ICE. And a proportion of this same population may
fail to update their address to avoid being located. In these
circumstances, requiring DHS to do more than send notice by ordinary
mail to the last address provided by the alien would only reward an
alien's evasion of service. See Maghradze v. Gonzales, 462 F.3d 150,
154 (2d Cir. 2006) (removal order proper where alien relocated and
failed to provide a change of address). It would also impose
unreasonable burdens on DHS's ability to utilize its civil monetary
penalty authority. See Mullane, 339 U.S. at 317-18 (disavowing
``impracticable and extended searches . . . in the name of due
process'').
Moreover, the Supreme Court has recognized that mailing notices
through regular mail may provide better notice than certified mail or
other methods in some circumstances. See Jones, 547 U.S. at 234-235.
Providing better notice through a change in manner of service utilized
is what this IFR intends to do. Indeed, ICE believes that, based on its
experience, it is reasonable to assume that the use of regular mail may
be more likely to reach aliens, including those who are attempting to
evade detection by DHS or who have moved and failed to update their
address. Aliens attempting to evade detection, or members of their
household, may be more likely to refuse to answer the door for ICE
officers, which would make personal service a fruitless option in many
cases. The same could be true for certified mail; an alien who is
evading detection, or other individuals at the alien's place of
residence, may be less likely to sign for a notice from DHS, compared
to standard mail where the postal worker simply places the notice in
the mailbox at the alien's place of residence. Even if the alien has
moved, and has failed to update his or her address, the Supreme Court
has recognized that regular mail might result in the current occupant
``scrawl[ing] the [intended recipient's] new address on the notice
packet and leav[ing] it for the postman to retrieve, or notify[ing the
intended recipient] directly''. Id. at 235. And, finally, DHS notes
that the regulation does not require DHS to use ordinary mail in every
case. See 8 CFR 281.1(d). Rather, DHS has discretion to use other
methods of delivery, which may be more appropriate depending on the
circumstances.
At bottom, DHS acknowledges that, as with any process, including
the processes under 8 CFR part 280, there is always a risk that an
alien could be issued a civil penalty in error or not receive notice.
However, ``procedural due process rules are shaped by the risk of error
inherent in the truth-finding process as applied to the generality of
cases.'' Mathews, 424 U.S. at 344. And here, DHS believes that in light
of its experience and the straightforward nature of these civil penalty
determinations, the risk of error is low. Moreover, this IFR allows
DHS, in its sole discretion, to reopen a civil penalty decision to
reconsider the determination and reduce or rescind the fine imposed,
including if DHS becomes aware of information that indicates that an
alien

[[Page 27454]]

was issued a civil monetary penalty erroneously. See 8 CFR 281.1(f).
Third, the Government's interest in the revised civil penalty
process, including the function involved and the administrative
burdens, are substantial under the Mathews v. Eldridge test. As
discussed above in Section II.D.3 of this preamble, the significant
increase in illegal immigration under the prior Administration requires
DHS to use all of the statutory tools that Congress has provided,
including civil monetary penalties, to restore the integrity of the
nation's immigration laws and secure the border. DHS is issuing this
rule in order to: (1) maximize its effort to use of these civil
monetary penalties to disincentivize aliens from entering or remaining
in the United States illegally; (2) promote public safety, and (3)
ensure that DHS has an effective, workable process to issue these civil
monetary penalties.\47\ Without this rule, the civil penalty process
has the potential to become overly burdensome which, as discussed above
in Section II.D.3 of this preamble, could hinder DHS's ability to
impose these penalties at scale to achieve this Administration's
immigration enforcement and border security objectives. The streamlined
process serves the Government interests set forth in Executive Order
14159, Protecting the American People Against Invasion, 90 FR 8443
(Jan. 20, 2025), and Executive Order 14165, Securing Our Borders, 90 FR
8467 (Jan. 20, 2025).
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\47\ Congress has authorized DHS to impose these civil monetary
penalties and has specified the amount that can be imposed. The
penalties and their amounts reflect Congress's considered judgment
that the conduct involved--an alien's unlawful entry and failure to
depart--is particularly serious and in some cases substantial fines
are necessary to encourage aliens to comply with the immigration
laws. See Mathews v. Diaz, 426 U.S. 67, 79-80 (1976) (``In the
exercise of its broad power over naturalization and immigration,
Congress regularly makes rules that would be unacceptable if applied
to citizens.''). See also Landon, 459 U.S. at 34 (noting under the
Mathews test, that ``[t]he Government's interest in efficient
administration of the immigration laws is weighty. Further, it must
weigh heavily in the balance that control over matters of
immigration is a sovereign prerogative, largely within the control
of the Executive and the Legislature.'').
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F. Severability

The changes 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 IFR 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

For the reasons described below, the Departments have issued this
IFR without prior notice and opportunity for comment and without a 30-
day delayed effective date. Notwithstanding the explanation below, the
Departments nonetheless welcome post-promulgation comment on all
aspects of this IFR.
1. Procedural Rule
The Departments may forgo notice-and-comment because this IFR is a
rule of ``agency organization, procedure, or practice.'' 5 U.S.C.
553(b)(A). 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, 754 F.3d 1002, 1023-24
(D.C. Cir. 2014).
This rule satisfies this standard. The IFR changes only the manner
in which the Departments issue and adjudicate civil monetary penalties
and the manner in which an alien may contest such penalties. The IFR
does not require the imposition of any new penalties or otherwise
change the substantive criteria for issuing penalties. It 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). For instance, while this IFR shortens the alien's response
period compared to the process in 8 CFR part 280, the procedural rule
exception applies to rules that alter the ``timetable for asserting
substantive rights'' before an agency. Lamoille Valley R. Co. v.
I.C.C., 711 F.2d 295, 328 (D.C. Cir. 1983). Moreover, for the reasons
discussed in this preamble, DHS believes that the 15-business-day
appeal period provides an alien with ample time to contest the penalty.
Cf. id. (holding that a rule moving up deadlines is not substantive
unless ``the time allotted is so short as to foreclose effective
opportunity to make one's case on the merits'').
In sum, this IFR pertains solely to agency procedures and practices
regarding the processing of cases before DHS and DOJ. This IFR does not
diminish or reduce any substantive rights of the parties utilizing
those practices and procedures, and it does not change the substantive
standards by which DHS evaluates civil monetary penalties under
sections 240B(d), 274D(a)(1), and 275(b) of the INA, 8 U.S.C. 1229c(d),
1324d(a)(1), 1325(b).
2. Foreign Affairs
The requirements of 5 U.S.C. 553 do not apply to these regulatory
changes because this rule involves a ``foreign affairs function of the
United States.'' 5 U.S.C. 553(a)(1). Courts have held that this
exception applies when the rule in question ``clearly and directly
involves 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.
Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008) (quotation marks
omitted). This rule satisfies both standards.
This IFR is intended to facilitate DHS's ability to more
effectively use statutorily authorized civil monetary penalties in
response to the large number of unlawful entrants and aliens who have
failed to depart the United States, a population of high enforcement
priority. DHS believes that imposing these penalties at scale will, in
turn, create disincentivizes for aliens to enter the United States
unlawfully or remain after being ordered removed or granted voluntary
departure.
Moving forward with actions like this IFR immediately will allow
the United States Government to build on momentum with international
partners to address shared challenges to border security and illegal
immigration. The United States's border management strategy is
predicated on the belief that migration is a shared responsibility
among all countries in the region, and Executive Order 14150, America
First Policy Directive to the Secretary of State, sets out the
President's vision that ``the foreign policy of the United States shall
champion core American interests and always put America and American
citizens first.'' 90 FR 8337 (Jan. 20, 2025). In this regard, the
Administration is actively engaged in negotiations including wide-
ranging discussions with foreign partners on matters related to border
security, such as to reduce illegal immigration \48\ and advance

[[Page 27455]]

security in the United States and the region.\49\
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\48\ For instance, on January 21, 2025, Secretary of State Marco
Rubio spoke with Mexican Foreign Minister Juan Ramon de la Fuente to
initiate bilateral talks on migration and security issues. See
Mexico's Top Diplomat Talks Security, Migration with New U.S.
Counterpart, Reuters (Jan. 22, 2025), https://www.reuters.com/world/americas/mexicos-top-diplomat-talks-security-migration-with-new-us-counterpart-2025-01-22/ [https://perma.cc/H9D7-USW7]. On January 23,
2025, President Trump, in his call with Salvadoran President Nayib
Bukele, discussed working together to stop illegal immigration and
crack down on transnational gangs like Tren de Aragua to advance
United States foreign policy objectives. See The White House,
Readout of President Donald J. Trump's Call with President Nayib
Bukele (Jan. 23, 2025), https://www.whitehouse.gov/briefings-statements/2025/01/readout-of-president-donald-j-trumps-call-with-president-bukele/ [https://perma.cc/XD6K-NZ4S]. Similarly, Secretary
of State Marco Rubio, speaking to Guyanese President Irfaan Ali,
emphasized the need to address the crisis of illegal migration, and
they both agreed to jointly address this regional challenge. See
U.S. Department of State, Secretary Rubio's Call with Guyanese
President Ali (Jan. 27, 2025), https://www.state.gov/secretary-rubios-call-with-guyanese-president-ali/ [https://perma.cc/7Y4H-45YG].
\49\ On February 1, 2025, the President expanded the scope of
the national emergency declared in Proclamation 10886 of January 20,
2025, 90 FR 8327, to cover ``the failure of Mexico to arrest, seize,
detain, or otherwise intercept DTOs, other drug and human
traffickers, criminals at large, and illicit drugs,'' and announced
ad valorem tariffs on articles that are products of Mexico as set
forth in the President's order. See E.O. 14194, 90 FR 9117, 9118
(Feb. 1, 2025). Following discussions with the Government of Mexico,
and after that country committed to immediately reinforce its
northern border with 10,000 members of the Mexican National Guard,
the President agreed to delay imposition of the tariffs by one
month. See E.O. 14198, 90 FR 9185 (Feb. 3, 2025); Mexico Deploys the
First National Guard Troops to U.S. Border After Tariff Threat, NPR
(Feb. 6, 2025), https://www.npr.org/2025/02/06/nx-s1-5288667/mexico-us-border-tariff-national-guard [https://perma.cc/H3HX-SXKE]; see
also E.O. 14197, 90 FR 9183 (Feb. 3, 2025) (discussing similar
engagement with an international partner in efforts to stem drug
trafficking and illegal immigration).
---------------------------------------------------------------------------

For its foreign policy efforts to succeed in this regard, the
United States must demonstrate its own willingness to put in place
appropriate measures like this IFR that will allow DHS to more
effectively use available tools to disincentivize, prepare for and
respond to ongoing migratory challenges and unlawful immigration. This
IFR is one part of this Administration's efforts to reduce unlawful
migration to the United States, by using all available tools under the
INA to increase the consequences for aliens who make the dangerous
journey to the United States and enter the country unlawfully. Such
efforts will demonstrate to international partners the Unites States's
commitment to addressing migratory challenges. As discussed in Section
II.D.3 of this preamble, although southern border encounters between
POEs have fallen significantly over the last few months, this
Administration has made it a priority to take all measures to ensure
that DHS maintains operational control at the border in order to
prevent large scale migration and our southern border from becoming
overrun as occurred under the last Administration. Loss of operational
control of the border results in large number of migrants making the
dangerous journey to the southern border through neighboring
countries.\50\ Therefore, delaying implementation of measures like this
IFR to combat and deter unlawful migration could undermine the momentum
that this Administration has built with foreign partners towards the
shared border security challenges.
---------------------------------------------------------------------------

\50\ See, e.g., 89 FR at 81186 (noting that when there is a
strain on resources due to a large number of aliens crossing the
southern border illegally this situation creates ``incentives for
migrants to make the dangerous journey to the southern border in the
hope that the overwhelmed and under-resourced immigration system
will not be able to expeditiously process them for removal'').
---------------------------------------------------------------------------

Moreover, the Administration is actively engaged in negotiations
with other countries intended to address the large number of illegal
aliens in the United States, including aliens who have failed to comply
with removal and voluntary departure orders.\51\ These discussions
include ensuring that other countries issue travel documents for their
nationals for removal in a timely manner and approve removal flights
from the United States in a timely manner.\52\ These efforts also
include coordination with other countries to support the
Administration's efforts to encourage aliens to depart the United
States voluntarily and return to their home countries, consistent with
Presidential Proclamation 10935, Establishing Project Homecoming, 90 FR
20357 (May 9, 2025).\53\ In sum, these actions 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.
---------------------------------------------------------------------------

\51\ For example, on January 26, 2025, the Government of
Colombia agreed to accept without restriction all illegal aliens
returned to Colombia from the United States, including on U.S.
military aircraft, without limitation or delay. See The White House,
Statement from the Press Secretary (Jan. 26, 2025), https://www.whitehouse.gov/briefings-statements/2025/01/statement-from-the-press-secretary/ [https://perma.cc/B5MT-2LXE]. Furthermore, on
January 27, 2025, President Trump had a productive conversation with
Indian Prime Minister Narendra Modi, after which he said that India
will ``do what's right'' in regard to illegal migration. Meryl
Sebastian, Trump Says India `Will Do What's Right' on Illegal
Immigration, BBC News (Jan. 28, 2025), https://www.bbc.com/news/articles/cj91z842wlmo [https://perma.cc/2NLS-AE8D].
\52\ It is critical to the ability of the United States to
remove aliens that the aliens' countries of citizenship timely issue
travel documents for their nationals for removal and that the
countries approve removal flights from the United States. In
bilateral engagements, this Administration has made it clear to
other countries that it is their responsibility to facilitate the
return of their nationals who do not have a legal basis to remain in
the United States. A country's refusal to either issue travel
documents for its nationals or authorize removal flights may carry
consequences. For example, on January 26, 2025, Colombia's refusal
to allow removal flights to land in Colombia led the United States
to impose visa restrictions to indicate that reducing illegal
immigration and removal of aliens with no legal right to remain in
the United States is a critical foreign policy objective of the
United States. See The White House, Statement from the Press
Secretary (Jan. 26, 2025), https://www.whitehouse.gov/briefings-statements/2025/01/statement-from-the-press-secretary/ [https://perma.cc/B5MT-2LXE]; U.S. Department of State, Secretary Rubio
Authorizes Visa Restrictions on Colombian Government Officials and
their Immediate Family Members (Jan. 26, 2025), https://www.state.gov/secretary-rubio-authorizes-visa-restrictions-on-colombian-government-officials-and-their-immediate-family-members/
[https://perma.cc/2NLS-AE8D]; U.S. Department of State, Ending
Illegal Immigration in the United States (Jan. 26, 2025), https://www.state.gov/ending-illegal-immigration-in-the-united-states/
[https://perma.cc/7L3M-TDTJ].
\53\ For example, on May 19, 2025, DHS conducted a voluntary
charter flight form the United States to Honduras and Columbia, in
coordination with those Governments, for aliens who opted to self-
deport. See DHS, Project Homecoming Charter Flight Brings Self-
Deporters to Honduras, Colombia (May 19, 2025), https://www.dhs.gov/news/2025/05/19/project-homecoming-charter-flight-brings-self-deporters-honduras-colombia/ [https://perma.cc/VXP9-6DSF]. The
participants were welcomed by representatives by representatives
from their home governments, who also provided benefits and services
to those aliens. See id.
---------------------------------------------------------------------------

Here too, for these foreign policy efforts to succeed, the United
States must demonstrate that it is taking immediate action, including
through measures like this IFR, to help achieve the purpose of these
international efforts and negotiations: to encourage other countries to
cooperate with the United States's efforts to remove illegal aliens and
to incentivize aliens to depart the United States voluntarily and
return to their home countries. For example, this IFR is intended to
encourage removable aliens, through the use of civil penalties, to make
efforts to obtain travel documents that other countries, as a result of
international negotiations, have agreed to provide.\54\ Moreover, as
discussed above in Sections II.D and IV.D of this preamble, this IFR
supports the Administration's efforts to incentivize aliens to depart
the United States voluntarily and return to their home country and,
therefore, implicates the United States' efforts to encourage other
countries to support the voluntary return of their citizens.
---------------------------------------------------------------------------

\54\ As discussed above in Section II.D of this preamble, DHS
has authority to issue a civil monetary penalty against aliens who
willfully fail or refuse to make efforts to obtain travel documents,
willfully refusing to complete forms necessary to obtain travel
documents, or willfully fail to report for removal at a time and
place designated by DHS. See INA 274D(a)(1)(B), (C), 8 U.S.C.
1324d(a)(1)(B), (C).
---------------------------------------------------------------------------

Delaying enforcement measures like those adopted by this IFR would
have undesirable consequences on the United States' ongoing foreign
policy goals,

[[Page 27456]]

including efforts to encourage other countries to issue travel
documents and to support the United States' efforts to encourage aliens
to return voluntarily to their home countries. Quite simply, if the
United States is unable to demonstrate, through measures like this IFR,
that it is committed to taking quick and robust action to remove aliens
and encourage them to depart the United States voluntarily, which
depend on international cooperation, countries may be less inclined to
engage with the United States on these ongoing efforts in the future.
In addition, the Department of State recently described the foreign
affairs aspect of immigration in its determination that ``efforts . . .
to control the status, entry, and exit of people . . . across the
borders of the United States'' constitute a foreign affairs function of
the United States under the APA. In making this determination, the
Department of State explained that ``[s]ecuring America's borders and
protecting its citizens from external threats is the first priority
foreign affairs function of the United States'' and noted that an
unsecured border presents a range of threats to U.S. citizens, which
can be eliminated or mitigated through the execution of the foreign
affairs functions. See Determination: Foreign Affairs Functions of the
United States, 90 FR 12200 (Mar. 14, 2025). This rulemaking will enable
the United States to better achieve the total and efficient enforcement
of U.S. immigration law and, accordingly, champion a core American
interest in accordance with American foreign policy. See id.
3. Immediate Effective Date
The Departments have determined that this rule can take immediate
effect, notwithstanding 5 U.S.C. 553(d), for three independent reasons.
First, for the reasons discussed above in Section V.A.1 of this
preamble, this final rule relates solely to agency procedure and
practice and thus is not subject to the 30-day effective date for
``substantive rules'' under 5 U.S.C. 553(d).
Second, for the reasons discussed in Section V.A.2 of this
preamble, this rule involves a ``foreign affairs function of the United
States.'' 5 U.S.C. 553(a)(1). Such rules are exempt from all
requirements of 5 U.S.C. 553 including the 30-day effective date
requirement at 5 U.S.C. 553(d).
Finally, although the Departments have not invoked the ``good
cause'' exception at 5 U.S.C. 553(b)(B) as a basis to publish this IFR
without prior notice and comment--the Departments have instead invoked
the exceptions for procedural rules at 5 U.S.C. 553(b)(A) and for rules
related to a ``foreign affairs function of the United States'' at 5
U.S.C. 553(a)(1)--there is ``good cause'' for this rule to take
immediate effect pursuant to 5 U.S.C. 553(d)(3). See Am. Fed'n of Gov't
Emp., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981)
(``different standards govern the applicability of the good cause
exception to these requirements''); see also McChesney v. Petersen, 275
F. Supp. 3d 1123, 1137 (D. Neb. 2016) (``Good cause is more easily
shown under [ ] 553(d).'' (citing U.S. Steel Corp., v. EPA, 605 F.2d
283, 289 (7th Cir. 1979)), aff'd sub nom. McChesney v. Fed. Election
Comm'n, 900 F.3d 578 (8th Cir. 2018). In assessing ``good cause'' under
5 U.S.C. 553(d)(3), ``an agency should balance 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 its ruling.'' Omnipoint
Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996) (citation omitted). For
the reasons discussed throughout this IFR, but particularly in Sections
II.D.2, 3, 4 and V.A.2 above, the U.S. Government and the public have a
strong interest in implementing this IFR quickly. Further, 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, as described in Section V.A.1 of this preamble
above, the IFR does not affect any person's substantive rights but
instead merely modifies the manner in which the Departments issue and
adjudicate civil monetary penalties and how an alien may contest such
penalties. Therefore, this IFR is effective on June 27, 2025.

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 that this rule is significant under Executive Order 12866.
This IFR 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 IFR will result in an
increase in civil penalties collected by the Treasury. DHS believes
that this effort will reduce potential agency resource burdens by
streamlining the process, disincentivize future unlawful entries, and
encourage greater compliance with removal and voluntary departure
orders.

C. Executive Order 14192 (Unleashing Prosperity Through Deregulation)

This 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 IFR is exempt from the notice and comment
rulemaking. Therefore, a regulatory flexibility analysis is not
required for this rule.

E. 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 IFR 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 IFR consistent with
system purpose (``Enforcement-related data including: Case number,
record number, and other data describing an event involving alleged
violations of

[[Page 27457]]

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).

F. Unfunded Mandates Reform Act of 1995

This IFR 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.

G. Congressional Review Act

This IFR 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''). DHS will nonetheless submit this IFR to both
houses of Congress and the Comptroller General before the rule takes
effect.

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 \55\ and Instruction Manual 023-
01-001-01 Rev. 01 (``Instruction Manual'') \56\ establish the policies
and procedures that DHS and its components use to comply with NEPA.
---------------------------------------------------------------------------

\55\ DHS, Implementation of the National Environmental Policy
Act, Directive 023-01, Revision 01 (Oct. 31, 2014).
\56\ DHS, Implementation of the National Environmental Policy
Act (NEPA), Instruction Manual 023-01-001-01, Revision 01 (Nov. 6,
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.\57\
---------------------------------------------------------------------------

\57\ Instruction Manual 023-01-001-01 at V.B(2)(a) through (c)
and Appendix A at A-1 and A-2.
---------------------------------------------------------------------------

This IFR 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 IFR 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 IFR 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 IFR is
categorically excluded, and no further NEPA analysis or documentation
is required.

I. Executive Order 13132 (Federalism)

This IFR 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 IFR would not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

J. Paperwork Reduction Act

This IFR 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. This rule
falls under the category of an administrative action or investigation
involving an agency against specific individuals or entities and is
therefore excluded from Paperwork Reduction Act requirements. 44 U.S.C.
3518(c)(1)(B) and 5 CFR 1320.4(a).

List of Subjects

8 CFR Part 281

Administrative practice and procedure, Immigration, Penalties.

8 CFR Part 1003

Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).

8 CFR Part 1280

Administrative practice and procedure, Immigration, Penalties.

DEPARTMENT OF HOMELAND SECURITY

Accordingly, for the reasons set forth in the preamble, the
Secretary of Homeland Security amends 8 CFR chapter I subchapter B as
follows:

0
1. Add part 281 to read as follows:

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

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

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.

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

(a) Scope. Notwithstanding any contrary provision of 8 CFR part
280, and except as otherwise provided in this section, the procedures
in this section shall be the sole and exclusive procedures for the
issuance and appeal of civil monetary penalties imposed by the
Department under sections 240B(d), 274D(a)(1), or 275(b) of the
Immigration

[[Page 27458]]

and Nationality Act on or after June 27, 2025.
(b) Authority of immigration officers. Immigration officers of the
Department of Homeland Security, as defined in 8 CFR 1.2, who have
reason to believe that an alien has violated any of the provisions of
the Act and has thereby become liable to the imposition of a civil
monetary penalty under sections 240B(d), 274D(a)(1), or 275(b) of the
Act are authorized to both issue decisions imposing civil monetary
penalties under sections 240B(d), 274D(a)(1), or 275(b) as provided
under paragraph (c) of this section and to review appeals involving
such penalties as provided in paragraph (e) of this section.
(c) Assessment of civil monetary penalty. (1) Decision and order.
If the immigration officer decides that a civil penalty shall be
imposed under sections 240B(d), 274D(a)(1), or 275(b) of the Act, the
decision and order shall contain 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.
(2) Advisals. The decision issued under paragraph (c)(1) of this
section shall contain the following written information and advisals:
(i) That the alien has a right to an appeal and that a written
notice of appeal must be postmarked within 15 business days from the
date of service of the immigration officer's decision;
(ii) That any written notice of appeal must be submitted to the
Department in accordance with the filing instructions provided in the
decision and at the address specified in the decision;
(iii) That if the alien elects to submit a written defense or
documentary evidence or both in connection with an appeal, the alien
shall file these materials with the notice of appeal;
(iv) That the alien may be represented by counsel of his or her
choice at no expense to the United States Government; and
(v) That if the alien does not file a timely written notice of
appeal, the immigration officer's decision and order will become final,
and the alien will be liable for the assessed civil penalty.
(d) Service of the decision and order. Notwithstanding Sec.
103.8(c) of this chapter, the Department will serve the decision and
order referenced in paragraph (c) of this section that imposes the
civil penalties under sections 240B(d), 274D(a)(1), or 275(b) of the
Act either in person or using routine service as outlined in Sec.
103.8(a)(1)(i) of this chapter.
(e) Appeal. (1) Filing requirements. If the alien contests the
immigration officer's decision issued under paragraph (c)(1) of this
section, the alien shall file a written notice of appeal with the
Department postmarked within 15 business days of the date of service of
the decision. The alien may submit a written defense or documentary
evidence or both setting forth the reasons why a civil penalty should
not be imposed, provided that such materials are filed with the written
notice of appeal. The alien shall file the written notice of appeal and
any accompanying material with the Department in accordance with the
filing instructions and at the address provided in the decision. The
initial civil penalty decision under (c)(1) remains inoperative during
the appeal period and while a timely administrative appeal is pending.
(2) Review. The alien's appeal will be reviewed by a supervisory
immigration officer who did not issue the original decision. That
designated supervisory immigration officer shall review the record de
novo within 10 days after the notice of appeal is filed and may, in the
officer's discretion, call for additional briefing or written filings
from the alien. If the officer requests additional briefing or written
filings from the alien, the alien shall have 15 days from receipt of
that request to provide the information. In all cases, the designated
supervisory immigration officer shall issue a final decision in writing
no later than 45 days after the notice of appeal was filed and shall
serve it on the alien in accordance with the rules for service
described in paragraph (d) of this section.
(3) Record. The record reviewed by the supervisory immigration
officer shall include the immigration officer's decision, evidence
contained in the Department's administrative files, and any written
filings, briefs, documentary evidence, or other relevant material
timely filed by the alien in connection with the alien's appeal. If
requested by the alien on appeal, the supervisory immigration officer
shall provide copies of pertinent documentation and records relevant to
the penalty unless such records are law enforcement sensitive or
disclosure is prohibited by law.
(4) Secretary of Homeland Security. The Secretary of Homeland
Security, or the Secretary's designee, may certify for review any
decision to issue civil monetary penalties for violations under
sections 240B(d), 274D(a)(1), or 275(b) of the Act and issue a new
decision de novo.
(f) Final decision; payment of penalties. (1) No further appeal.
There is no further appeal from a final decision and order issued under
this section. The alien may not file a motion to reopen or reconsider a
decision under this section. However, the Department may reopen a fine
determination sua sponte at any time to reconsider the determination
and reduce or rescind the fine imposed.
(2) Notice of final decision. At such time as the decision and
order under this part is final, the supervisory immigration officer who
issued the final decision shall furnish a copy of the decision and
order to all other relevant immigration officers within the Department
as designated by the Secretary of Homeland Security.
(3) Final agency action. The supervisory immigration officer's
decision issued under (e)(2), or, if no appeal is taken, the decision
issued under (c)(1), constitutes final agency action unless the
Secretary of Homeland Security, or the Secretary's designee, certifies
the decision for review under (e)(4).
(4) Payment of penalties. All civil monetary penalties assessed
pursuant to sections 240B(d), 274D(a), or 275(b) of the Act shall be
made payable to and collected by the Department.
(g) Civil monetary penalty amounts. For the current civil monetary
penalty amounts for violations of sections 240B(d), 274D(a), or 275(b)
of the Act, refer to the provisions in 8 CFR 280.53.
(h) Grandfathering provision. The issuance and appeal of civil
monetary penalties imposed by the Department under sections 240B(d),
274D(a), or 275(b) of the Act are governed by the procedures provided
in 8 CFR part 280, and, as applicable, the appellate procedures
provided in 8 CFR parts 1003 and 1280, if the following conditions are
met:
(1) A Notice of Intention to Fine under 8 CFR part 280 was issued
prior to June 27, 2025; and
(2) That Notice of Intention to Fine was issued under sections
240B(d), 274D(a), or 275(b) of the Act.

Sec. 282.2 [Reserved]

DEPARTMENT OF JUSTICE

Accordingly, for the reasons set forth in the preamble and by the
authority vested in the Director, Executive Office for Immigration
Review, by the Attorney General Order Number 6260-2025, the Department
of Justice amends 8 CFR parts 1003 and 1280 as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
2. The authority citation for part 1003 continues to read as follows:

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,

[[Page 27459]]

1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

0
3. Amend Sec. 1003.1 by revising paragraph (b)(4) to read as follows:

Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.

* * * * *
(b) * * *
(4) Decisions involving administrative fines and penalties,
including mitigation thereof, as provided in part 280 of this chapter,
except that appeals of decisions imposing any penalty under sections
240B(d), 274D(a)(1), or 275(b) of the Act may not be filed with the
Board unless the conditions described in 8 CFR 281.1(h) are met.
* * * * *

PART 1280--IMPOSITION AND COLLECTION OF FINES

0
4. The authority citation for part 1280 continues to read as follows

Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281,
1283, 1284, 1285, 1286, 1322, 1323, 1330; 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. 104-134, 110 Stat. 1321.

0
5. Amend Sec. 1280.1 by revising the first sentence of paragraph (b)
to read as follows:

Sec. 1280.1 Review of fines and civil monetary penalties imposed by
DHS.

* * * * *
(b) Adjudication of civil monetary penalty proceedings. The Board
of Immigration Appeals (Board) has appellate authority to review DHS
decisions involving fines and civil monetary penalties imposed under 8
CFR part 280, as provided under 8 CFR part 1003, except that the Board
shall have no authority to review any decision imposing a civil
monetary penalty under sections 240B(d), 274D(a)(1), or 275(b) of the
Act unless the conditions described in 8 CFR 281.1(h) are met. * * *
* * * * *

Kristi Noem,
Secretary of Homeland Security.
Sirce Owen,
Acting Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2025-11965 Filed 6-26-25; 8:45 am]
BILLING CODE 9111-CB-P; 4410-30-P