U.S. finalizes streamlined civil fines for unlawful presence and failure to depart

The Department of Homeland Security and the Department of Justice finalized a rule that streamlines how the government assesses and collects civil monetary penalties from aliens unlawfully present in the United States, publishing it in the Federal Register of Wednesday, October 14, 2026 (Vol. 91, No. 197, p. 65390). The final rule, effective that same day, adopts the June 27, 2025 interim final rule with a single change allowing late-filed appeals caused by documented mail delays.

Two agencies, one penalty process

The rule is issued by U.S. Immigration and Customs Enforcement (ICE) at DHS and by the Executive Office for Immigration Review (EOIR) at DOJ, under Docket No. ICEB–2025–0034 and RIN 1653–AA96 for DHS and Dir. Order No. 11–2026 and RIN 1125–AB36 for DOJ. It amends 8 CFR part 281 and 8 CFR parts 1003 and 1280.

The Departments say the revised procedures are needed to complement efforts to address the large number of aliens who remain despite final removal or voluntary departure orders. Before the interim rule, approximately 1.5 million aliens were on ICE’s non-detained docket with final removal orders; in FY 2024, EOIR issued more than 282,000 final removal orders, but DHS data indicate only about 10 percent were executed.

Who can be fined and for how much

Congress authorized penalties for three categories of aliens:

• Those who willfully fail or refuse to depart after a final removal order, INA 274D(a)(1), up to $998 per day of noncompliance.
• Those who fail to comply with a voluntary departure order, INA 240B(d)(1)(A), with amounts set by an Immigration Judge or the Board of Immigration Appeals between $1,992 and $9,970 and a general default of $3,000.
• Those apprehended entering or attempting to enter unlawfully, INA 275(b)(1), from $100 to $500 per entry or attempted entry.

A faster, DHS-only appeal

Under the interim rule, an alien must file a notice of appeal within 15 business days of service of the initial decision; if no timely appeal is filed, the decision becomes final. A supervisory immigration officer who did not issue the initial decision reviews the appeal de novo within 10 days, may request additional briefing within 15 days, and issues a final decision within 45 days. Appeals no longer go to the Board of Immigration Appeals, and DHS may reopen a decision on its own initiative.

The final rule’s one change amends 8 CFR 281.1(e) to permit an appeal postmarked after the 15-business-day deadline when the alien asserts, and ICE determines case by case, that a mail delay beyond the alien’s control caused the untimely filing.

Enforcement data and the CBP Home incentive

The Departments report that ICE issued 12,135 civil penalties under the pre-IFR process from March 26 to June 26, 2025, then about 110,000 failure-to-depart penalties from June 27, 2025, through September 14, 2026, while CBP issued about 66,000 unlawful entry penalties. Over 82,000 aliens with removal or voluntary departure orders self-departed between March 2025 and September 14, 2026, including more than 7,700 after receiving a civil penalty. DHS has said it will cancel most failure-to-depart fines for aliens who use the CBP Home app to arrange self-departure.

Legal challenges and procedural questions

The Departments rejected comments that the penalties violate the Eighth Amendment’s Excessive Fines Clause, that the rule lacks an empirical basis, and that it should adopt means-tested or tiered fines. They also noted that the interim rule’s effective date was stayed on October 5, 2026, and that the measure is procedural and not a “rule” under the Congressional Review Act. The rule was signed by Markwayne Mullin, Secretary of Homeland Security, and Sirce E. Owen, Acting Director of EOIR.

For readers, the rule locks in a faster, DHS-run penalty machinery covering three categories of immigration violations, with per-day fines that can accumulate into six-figure liabilities, while offering a narrow mail-delay exception and a self-departure incentive through the CBP Home app.

Source: Federal Register, Vol. 91, No. 197, 14 October 2026, Rules and Regulations, p. 65390 (official reference: 2026-21024).