The American Immigration Council is a non-profit, non-partisan organization. Under a new system put in place by the Trump administration on June 27, immigration officers may be able to impose penalties of millions of dollars on certain undocumented immigrants, putting them at risk not only of deportation but of crushing financial debt. Under this new procedure, designed to reduce the due process available to people facing possible fines, individual Department of Homeland Security (DHS) officers could send letters imposing fees on noncitizens, and if they fail to respond within 15 business days, all right to appeal would be eliminated.
In 1996, as part of a larger “tough on immigration” law, Congress permitted immigration officers to impose escalating civil monetary penalties on some undocumented immigrants. The most significant fee added by the law imposed a $500 daily fine for any person who fails to depart after being ordered deported or accepting “voluntary departure.” After periodic adjustments for inflation, this fee is now $998 per day, or $364,270 per year.
Despite these fees being put in place in 1996, they have rarely been enforced over the last three decades. Immigration officers generally focus on deportations, and most people who could be fined under the law could not pay fines of those levels. Therefore, immigration officers generally did not impose the penalties under the law, focusing instead on removal, rather than additional punishment. That is changing now, in part because the process for levying the fines has been made much easier.
Under previous procedures, anyone facing a civil penalty would be first mailed a Notice of Intention to Fine. This notice was required to be sent via certified mail or served in person, ensuring that the target was aware of the fine. After the target received the notice, they had 30 days to oppose the fines, and even had the right to seek an in-person hearing arguing that the fines did not apply. Only after the 30-day period expired did the fines go into effect. Even then, individuals who were fined had the right to appeal the decision to the Board of Immigration Appeals, the body which hears appeals coming from immigration courts and other actions of immigration officers.
The new rule reduces this process substantially. Now, rather than a notice of an intention to fine, immigration officers at DHS can send out a fine directly. And rather than a period of 30 days where the immigrant could argue that they should not be fined, immigrants will be fined first, and then have 15 business days in which to file an appeal. Failure to appeal within 15 days will be considered a permanent bar to challenging the fines. And rather than the Board of Immigration Appeals, the appeals would go only to a supervisory immigration officer and no one else. There would also be no right to seek an in-person hearing.
DHS justifies these changes by arguing that the previous procedure provided too much due process to impose the fees at the scale Congress authorized. They also claim that modern databases make the underlying legal question of whether the person is subject to the fees easier to answer.
With this new procedure in place, DHS could potentially mail out civil penalties en masse to hundreds of thousands of people who have final orders of removal and did not depart within 30 days. Many of those individuals were ordered removed for missing a court hearing, potentially years in the past – and fines have been accruing the whole time. Some individuals may not even know they were previously ordered removed, as they did not receive notice of the hearing because it was sent to the wrong address (or they were a child at the time). If the government had the wrong address, a person could face escalating fines without their knowledge.
While the rule is likely to face challenge, the administration is moving forward with fining people already. Under the old procedure, the Trump administration issued thousands of notices of an intent to fine. One woman in Florida received a notice ordering her to pay $1.8 million for failure to depart. Now those fines are set to expand. Currently, there are at least 1.4 million people in the country with final orders of removal.
Should the administration use this new power aggressively, they could potentially seek to impose exorbitant fines on all of them, with far less due process than ever before. That could put people in serious risk of financial ruin on top of deportation — a fate that is likely to further create fear in immigration communities nationwide.
