Improbable Fines and Alien Scofflaws

By Dan Cadman on July 5, 2019

National Public Radio (NPR) has aired, and published online, a story about Immigration and Customs Enforcement (ICE) sending fine notices to aliens illegally in the United States who have failed to depart after being ordered to do so; the fines range up to $500,000. Yes, you read that right, up to half a million dollars. I'm of several minds about the whole thing.

On their face, the notices would seem to be ludicrous, falling into the "you can't bleed a turnip" category. Why waste the time and paper? Clearly NPR agrees and, given its pro-migrant bent in recent years, was probably happy to publish a piece making the agency look foolish. A part of me agrees—but only a part. Like so many immigration stories, you have to peel back the layers, as you would with an onion.

First, the facts: immigration law does in fact provide for civil fines of up to $500 per day for aliens who fail in their legal responsibility to depart, leaving no doubt that it is a legal responsibility. It would only take 10 days to accrue a fine of $5,000, and in less than three years of willfully remaining after being ordered by an immigration judge to depart, you'd be at that $500,000 mark.

Immigrant advocacy groups often complain about the need to ensure that aliens receive due process in their efforts to gain legal status, whether through asylum or other means. Unfortunately, it's a kind of lopsided desire for due process though, and all about getting aliens status—not about making sure that they abide by their responsibilities to comply with lawful orders of the court when they fail in their effort to gain legal status. After that, any concern over the alien's obligations to comply with orders of the court seem to vanish like smoke.

Sending those fine letters is one way to get an alien's attention, and clearly at least some of the aliens who ought to have left are getting those letters or NPR wouldn't have glommed onto the story. You can bet they weren't brought to the attention of NPR by ICE officials. So even as NPR is having some success at not-so-subtly mocking ICE with this story, at the same time you have to ask yourself what kind of system do we have where alien scofflaws can live in such brazen contempt of their obligation to leave when told by a judge?

But the story also leads me to wonder: if ICE is sending letters to an address where the notice actually ends up in the alien's hands, why aren't they instead cutting to the chase and just arresting the individual to effect a formal deportation?  

I'm also of a mind to note that civil fines aren't the only potential consequences for alien scofflaws who fail to depart as ordered. Another section of immigration law provides that an alien who willfully fails or refused to depart within 90 days of the final order is guilty of a felony for which he or she can be imprisoned for a period ranging from four to 10 years (based on the underlying grounds leading to the order of removal).  

There are over a million outstanding orders of removal pending, meaning all of those aliens are on the streets of America right now. If ICE wants to get the attention of alien fugitives who abuse the due process system after demanding access to it, then why not selectively sort through some of these cases involving the worst offenders—for instance, aliens ordered removed after commission of heinous crimes—and procure criminal warrants for their arrest?

This course of action has two additional salutary benefits: 

First, when a criminal warrant is issued, the individual named in the warrant is entered into the FBI's National Crime Information Center computer. Any cop on the street who encounters the individual and runs a check will find that he's wanted, and have legal authority to take him into custody for the wanting agency—in this case, ICE.

That leads me to the second point. Sanctuary jurisdictions are always saying they won't cooperate with federal immigration agents when the basis of the action is civil. Of course, that's hokum. It is a statement designed to mask what is essentially state/local nullification of federal laws they just don't like. But why not push them into a corner by procuring the criminal warrant? How are they going to weasel out of their responsibility to hold an alien they encounter when he is wanted for a federal criminal charge? They would be walking a tightrope because such an action risks infuriating a federal judge so sufficiently as to raise the very real possibility of incurring a contempt citation.

Seeking criminal warrants for violation of 8 U.S.C. Section 1253 might be a better use of time and effort for ICE than sending out fine notices that don't have much chance of ever generating a penny's worth of revenue into the U.S. Treasury. Something to think about.