The Department of Homeland Security has significantly expanded issuing Notices of Intention to Fine under INA Section 274D(a) of the Immigration and Nationality Act (“INA”). Although this provision has existed since 1996, it has never been utilized by any prior Administration, including the first Trump Administration. The provision subjects foreign nationals who have been issued a final order of removal to a civil penalty of up to $500 per day for each day they fail to depart the United States. This represents another tool that the Administration has used in its deportation efforts that may affect employers and individuals.

A recent New York Times article highlights that “[m]ore than 100,000 people have received letters from the Homeland Security Department informing them that they owe $998 for each day that they have stayed in the United States after an immigration judge has ruled they have no legal right to remain in the country.” Many individuals who have lived in the United States after a removal order for decades have received a Notice of Intention to Fine totaling more than $1.8 million. The Notices give individuals little time to respond or contest the fine, leaving individuals with the difficult and often impossible decision to either self-deport or risk financial ruin by remaining inside the United States that could ultimately resort in the government utilizing private collection agencies, seize tax refunds and garnished wages, and taking foreign nationals to court to compel them to pay.

The article notes that legal aid organizations and lawyers representing individual clients have filed several federal lawsuits seeking to block the policy, arguing that the fines violate due process and the Eighth Amendment’s prohibition on excessive fines. Even if some individuals can contest these fines and ultimately succeed, many individuals may not have the resources or know their options on how to address these Notices. It is therefore important that anyone who has received such a Notice reach out to local nonprofit organizations or immigration counsel with expertise in removal proceedings. Some Notices may have been issued in error or may not take into account whether someone has a pending application with USCIS or otherwise is permitted to remain inside the United States.

If you would like to learn more, please contact the Pryor Cashman attorney you work with or one of the attorneys in our Immigration Practice.

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Counsel Evan Hey was a contributing author to this client alert.