The Homeland Security and Justice departments on Wednesday made final a streamlined process for fining immigrants who stay in the United States after a final removal order, miss a voluntary departure deadline or are caught entering the country illegally. The final rule, which the departments released on Oct. 9, took effect with its publication in the Federal Register and adopts a June 2025 interim rule with a single change.
That interim rule is on hold. U.S. District Judge George A. O'Toole Jr. in Boston has stayed the 2025 rule and all fines issued under it until he orders otherwise, in a class-action lawsuit brought by two immigrants and the Immigrant Legal Resource Center. He found the challengers likely to succeed on their claim that the government should have taken public comment before changing the process. Fox News reported that he also faulted fine notices that did not spell out why a person's conduct warranted a penalty, and Bloomberg Law reported that he found the interim rule likely conflicts with the Immigration and Nationality Act.
The departments address the stay in a single passage of the new rule. They wrote that the stay, which they said was entered Oct. 5, did not change their decision to make the rule effective immediately, since the public had operated under the procedures for more than a year and had long been on notice that the departments meant to make them final. They also maintain that the interim rule was lawfully issued without advance public comment, calling it a rule of agency procedure and citing an exception for foreign affairs functions.
Under those procedures, an immigration officer can issue a written decision imposing a fine without first sending a notice of intent and waiting at least 30 days for a response, and the decision may arrive by regular mail. The person fined then has 15 business days to appeal to a supervisory officer, who decides on the written record within 45 days. The Board of Immigration Appeals no longer reviews these penalties. The one change lets ICE accept a late appeal when the person documents a mail delay that the agency finds was beyond the person's control.
By the departments' account, the faster process is working as intended. ICE issued 12,135 penalties in the three months before the interim rule took effect. From June 27, 2025, through Sept. 14 of this year, ICE issued about 110,000 penalties for failing to depart and Customs and Border Protection about 66,000 for unlawful entry, raising the pace from roughly 930 a week to nearly 2,800.
They also credit the fines with persuading people to leave. More than 82,000 people with removal or voluntary departure orders left the country on their own from March 2025 through mid-September, more than 7,700 of them after receiving a fine, the rule says. DHS has said it will cancel most failure-to-depart fines for people who arrange their departure through its CBP Home app.
Congress set the penalty ranges, which are adjusted for inflation. An illegal entry or attempted entry carries $100 to $500. Missing a voluntary departure deadline brings a penalty of $1,992 to $9,970, set by an immigration judge or the appeals board, with $3,000 as the general default. For someone who willfully fails to leave after a removal order, DHS may impose up to $998 for each day. Because the administration has assessed that daily penalty retroactively for up to five years, the fines can reach about $1.8 million. DHS said in July that it had issued more than 103,000 fines totaling about $84 billion.
Few people have contested the fines. Appeals were filed in 3,072 of the roughly 110,000 failure-to-depart cases, a rate of nearly 3 percent, and people won 25 percent of the appeals DHS has decided. The departments cite that record as evidence that review inside DHS is meaningful without the appeals board.
Twenty-eight comment submissions came in on the interim rule, most of them opposed to all or part of it. One commenter warned that daily fines approaching $1,000 could bring wage garnishment, asset seizure and bankruptcy, with the heaviest burden on low-income and mixed-status families. The departments replied that the rule creates no new fines and changes only the process, and that any hardship flows from the underlying law and from a person's choice to stay after being ordered to leave.
Hardship figured heavily in O'Toole's ruling. "The plaintiffs live in an economically precarious position even without the imposition of the government's exorbitant fines," he wrote. One of them, a laborer identified as Nancy M. who works more than 60 hours a week at two jobs, was fined more than $1.8 million, according to the ruling. A DHS spokesperson told Fox News that federal immigration law allows civil penalties against people who fail to depart and that those in the country illegally "should leave now or face consequences," including financial penalties.
The case, Maria L. v. Mullin, remains pending in federal court in Massachusetts. In the final rule, the departments wrote that if a court invalidates any of its provisions, they intend the rest to remain in effect.