ICE Civil Fines: DHS Rule Challenged as Defying Court Stay

The fight over ICE civil fines has moved from whether the government’s fast-track penalty rules were lawful to whether the government obeyed the order that paused them. Plaintiffs in the Boston class action against the fines filed two emergency motions on Friday, Nov. 6, arguing that DHS violated a September court order when it issued a final rule and a notice that purport to ratify billions of dollars in penalties already imposed on people accused of staying in the country after removal orders, Law360 reported.

The stakes are concrete. If the ratification stands, roughly 15 months of penalties assessed under procedures a federal judge found likely unlawful would be treated as settled. If the court sides with the plaintiffs, that effort could be set aside.

What Judge O’Toole stayed on Sept. 30

The case is Maria L. v. Mullin, No. 1:25-cv-13471, in the U.S. District Court for the District of Massachusetts. On Sept. 30, Judge George A. O’Toole Jr. granted a stay under 5 U.S.C. 705, the Administrative Procedure Act provision that lets a court pause agency action while a challenge proceeds. His order stayed the June 2025 interim final rule “and all fines issued thereunder” until further order of the court.

Two findings drove that ruling. First, the judge concluded the interim rule likely conflicts with the Immigration and Nationality Act, because the statutes penalize only conduct shown to be willful or voluntary, and the rule and DHS’s practice “effectively read the words ‘voluntarily’ and ‘willfully’ out of the relevant statutory provisions.” Second, he rejected the government’s arguments that it could skip notice and comment, describing the rule’s 15-day appeal window as “essentially punitive.” One named plaintiff, fined about $1.8 million, has since become a permanent resident; the fine remains.

The fines are not small. The failure to depart penalty runs up to $998 for each day a person willfully fails to comply with a removal order, and DHS and the Justice Department acknowledged in their final rule that it can produce sums of more than $1 million in some cases. According to that rule, ICE issued about 110,000 failure to depart penalties and CBP about 66,000 improper entry penalties between June 27, 2025, and Sept. 14, 2026. Bloomberg Law reported that DHS said in July it had issued more than 103,000 fines totaling $84 billion.

Two documents issued after the stay

Two weeks after the stay, DHS and DOJ finalized the penalty procedures in a rule published Oct. 14 after a comment period, keeping the interim structure largely intact. On Oct. 26, the department published a notice signed by Secretary Markwayne Mullin ratifying final penalties issued from June 27, 2025, through Oct. 13, 2026, under the failure to depart, voluntary departure and improper entry provisions. DHS said it acted “out of an abundance of caution” and that the ratification is not a statement that the fines would have been invalid without it. The notice gives people who say the interim rules harmed them 21 days to email ICE, a window that closes around Nov. 16. It does not mention the Boston case.

The plaintiffs’ position, as Law360 described it, is that those steps reach the very fines the court froze. The government’s response to the motions had not been reported as of Saturday, and Law360, whose article is behind a paywall, is so far the only outlet to report on the filings.

Can ratification fix what the court found wrong?

Agencies usually ratify earlier actions to cure a defect in who signed them or how they were adopted. Ratifying after full notice and comment is a plausible answer to the procedural half of Judge O’Toole’s ruling, and a weaker answer to the other half. A finding that the rules likely ignore the statute’s willfulness requirement is about substance, and re-adopting the same fines through a cleaner process does not, on its face, change whether each person’s conduct was willful. That is likely to be the center of the fight.

The second question is narrower and more urgent: whether an agency may act on fines a court has stayed “pending further Order” without first asking that court. Compliance disputes have surfaced in other immigration cases this fall, including one in which a Pennsylvania judge held three Trump officials in civil contempt.

People with old removal orders face other shifts too, including a Board of Immigration Appeals ruling on voluntary departure violations and a suit over ICE’s handling of final-order cases. The open questions are whether Judge O’Toole sets a fast briefing schedule before the Nov. 16 claims deadline, how DHS defends issuing the ratification while the stay was in place, and whether any order reaches the fines ICE issues under the new final rule.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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