DHS Will No Longer Issue Penalties for Failing to Depart the U.S.
Department of Homeland Security (DHS) Secretary Mayorkas announced this week that DHS will no longer issue civil penalties to aliens that fail to depart the United States. Thanks to this new policy, removable aliens will have a penalty-free avenue to avoid removal proceedings, even after removal proceedings are initiated by U.S. Immigration and Customs Enforcement (ICE), and an additional opportunity to disappear into the interior of the United States.
The Immigration and Nationality Act (INA) allows deportable aliens to enter into “voluntary departure” agreements with an immigration judge or ICE to in depart the United States instead of enduring removal proceedings and receiving a formal removal order. In these circumstances, an alien is able to coordinate, within a specified time frame, their own travel plans to return home and avoid immigration consequences associated with receiving a final order of removal.
Mayorkas’ announcement sends a dangerous message to the world amidst the ongoing and worsening crisis at the southern border. The message: aliens should not worry about the consequences of violating the United States’ immigration laws because the Biden administration has no intention of enforcing them. Indeed, the border crisis has been fueled by the Biden administration’s decisions to restrict enforcement of federal law. These policy decisions include (but are not limited to):
- Curtailing application of the Title 42 authority;
- Terminating use of the Migrant Protection Protocols (also known as the “Remain in Mexico” policy); and
- Issuing “enforcement priorities” that severely restrict U.S. Immigration and Customs (ICE) officers’ ability to enforce immigration laws within the interior of the United States.
In addition to encouraging additional illegal immigration to the United States, Mayorkas’ order to stop issuing civil penalties for failure to voluntarily depart directly violates federal law. Section 240(d) of the INA specifically directs the government to issue fines, of at least $1000 but not more than $5000, to aliens who make voluntary departure agreements with the government in order to avoid removal proceedings and subsequently fail to depart in accordance with those agreements.
DHS's refusal to issue statutorily mandated fines comes at the same time the Department's resources are severely strained on the southern border. Secretary Mayorkas recently requested over $1 billion dollars from Congress in discretionary funding for fiscal year 2022, but noted that not a penny would be put towards construction of the wall or other effective initiatives to deter illegal immigration.