Ye v. U.S. Department of Homeland SecurityYe v. U.S. Department of Homeland Security
I. BACKGROUND
A. Statutory and Regulatory Background
Under the Immigration and Nationality Act (“INA”), “[a]ny alien subject to a final order of removal who . . . willfully fails or refuses to . . . depart from the United States pursuant to the order . . . shall pay a civil penalty of not more than [$998]1 to the Commissioner for each day the alien is in violation of this section.”
Although Section 1324d became effective in 1996, the federal government did not assess penalties under that statute until after President Trump issued Executive Order No. 13768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799, 8800 (Jan. 30,
On July 27, 2025, the Trump Administration issued an interim final rule (“IFR”) concerning Section 1324d. See Imposition and Collection of Civil Penalties for Certain Immigration-Related Violations, 90 Fed. Reg. 27439 (June 27, 2025) (codified at
Under the new regulations, appeals are reviewed by a supervisory immigration officer, who considers the initial immigration officer’s decision, evidence of the noncitizen’s immigration history contained in DHS’s administrative files, and any written filings, briefs, documentary evidence, or other relevant material timely filed by the noncitizen.
If the noncitizen does not appeal or the appeal decision upholds the assessed penalty, the noncitizen receives an invoice from Customs and Border Patrol (“CBP”). ECF No. 29 at 13
These procedures are “intended to allow DHS to impose more civil penalties, more quickly, and in proportion to the sheer number of aliens who, in recent years, have unlawfully entered the United States and those who remain after a removal order or voluntary departure order . . . to deter future unlawful entries and encourage greater compliance with removal and voluntary departure orders.” 90 Fed. Reg. at 27442.
B. Factual and Procedural Background
Ye arrived in the United States from China in 2008 and applied for asylum shortly thereafter. ECF No. 2-2 ¶ 4 (Ye Decl.). Unable to understand English and confused about the proceedings, she submitted a statement “reveal[ing] only that [she] was pregnant and not [] disclos[ing] everything that had happened to [her] in China.” Id. ¶¶ 4, 6–7.
On April 20, 2011, a San Francisco IJ ordered Ye removed from the United States. See ECF No. 29-1 at 1–2. On December 20, 2012, Ye’s appeal to the BIA was dismissed. Id. Ye then filed a petition for review (“PFR”) and a motion to stay the removal order in the Ninth Circuit. See Ye v. Sessions, 719 F. App’x 649 (9th Cir. Jan. 15, 2013). On April 29, 2013, the Ninth Circuit granted Ye’s stay of the removal order pending review of her PFR, which remained in effect until the mandate issued. ECF No. 29 at 14. On April 16, 2018, the Ninth Circuit issued its opinion denying the petition for review. Ye, 719 F. App’x at 649–50. The mandate issued in Ye’s case on June 11, 2018. ECF No. 29 at 14.2
Ye is “currently considering filing a motion to reopen [her] case based on ineffective
On May 27, 2026, Ye received a Notice of Violation and Order from DHS imposing a civil penalty of $1,820,352.00 under Section 1324d(a)(1), for alleged willful failure to depart pursuant to a removal order. Ye Decl. ¶ 15; ECF No. 2-2 at 9. The notice states that the order of removal against Ye was made final on June 11, 2018, the date the mandate issued and stay of removal lifted in Ye’s PFR. Id. It also includes an informational page on self-deportation, which states that noncitizens may “[r]eceive forgiveness of any civil immigration fines for failure to depart after a final order of removal.” Id. at 15.
Ye filed an administrative notice of appeal on June 1, 2026, which DHS received on June 4, 2026. Ye Decl. ¶ 16; ECF No. 2-2 at 18; id. at 33. On June 9, 2026, she received an invoice from Customs and Border Patrol (“CBP”) dated June 4, 2026, demanding payment in full within ten days of invoice date. Ye Decl. ¶ 17; ECF No. 2-3 at 31. The invoice stated that failure to pay the penalty would result in a 4% annual accrual of interest, administrative costs assessed at 15%, and 6% annual late penalty charges. Id.
When Ye’s attorney contacted CBP to clarify the status of the invoice in light of Ye’s appeal, CBP stated that the appeal had already been adjudicated. Ye Decl. ¶ 18; ECF No. 2-2 at 35. June 4, 2026, the invoice date, was the same date that the notice of appeal was received by the agency.3 On June 14, 2026, Ye received the appeal decision, dated June 9, 2026, which affirmed the full penalty in a form order without addressing any of the arguments raised in her notice of appeal or providing any reasoning. Ye Decl. ¶ 19; ECF No. 2-2 at 39–40.
Ye filed this complaint under the Administrative Procedure Act,
II. JURISDICTION
The Court has jurisdiction under
III. LEGAL STANDARD
The Court applies a familiar four-factor test on a motion for a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839–40 (9th Cir. 2001). A plaintiff “must establish that [she] is likely to succeed on the merits, that [she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [her] favor, and that an injunction is in the public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. Where the plaintiff does not establish a likelihood of success on the merits but merely establishes “serious questions going to the merits,” a preliminary injunction may still issue if the plaintiff can show that the balance of hardships “tips sharply in [his] favor,” irreparable injury is likely, and the injunction is in the public interest. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation marks omitted).
A. Likelihood of Success on the Merits
Under the Administrative Procedure Act, a reviewing court “shall . . . hold unlawful and set aside agency action” that is: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right; (C) in excess of statutory authority; (D) without observance of procedure required by law; (E) unsupported by substantial evidence; or (F) unwarranted by the facts.
1. Time-Barred
Under
Consistent with a substantial body of law interpreting Section 2462, the Ninth Circuit held in DLS Precision that the statute of limitations period starts running “from the day of the alleged violation.” Id. In the context of penalties for the employer’s failure to complete and retain I-9 forms, the five-year limitations period ran from the date that the company was no longer required
Here, the statute provides for penalties that accrue for each day that the noncitizen willfully fails to depart pursuant to an enforceable removal order.
In the Court’s order granting a TRO, it held that “[t]he penalty imposed . . . does not appear to be limited to those five years,” so Ye was likely to succeed “in part” on the merits of her claim that the penalty is time-barred. ECF No. 10 at 5. In fact, the $998 daily fine, multiplied by the five years preceding May 12, 2026, totals $1,822,348. Ye is therefore not likely to succeed on the merits of her claim that the $1,820,352 fine is time-barred.
2. Willfulness
Section 274D(a)(1) only imposes penalties on a noncitizen whose failure to depart the United States pursuant to an enforceable removal order is “willful.”
The government contends that the willfulness requirement should be read to encompass reckless conduct.4 ECF No. 29 at 18. The Supreme Court has observed that “where willfulness is a statutory condition of civil liability,” it generally covers “not only knowing violations of a standard, but reckless ones as well.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52, 57 (2007) (discussing the Fair Credit Reporting Act and citing cases about the Fair Labor Standards Act and the Age Discrimination in Employment Act). Safeco and circuit cases applying it distinguish the criminal context, where willfulness may require knowledge. See id. at 60; United States v. Hughes, 113 F.4th 1158, 1161 (9th Cir. 2024). The government further argues that the civil-criminal distinction applies here. When Congress passed Section 1324d, which imposes “[c]ivil penalties for failure to depart,” it expressly distinguished and preserved a parallel provision for criminal failure-to-depart penalties, recodified as
However, the Ninth Circuit has rejected a “recklessness” mens rea for immigration provisions requiring willfulness, even in civil contexts. In Espinoza-Espinoza, the court
In any case, even under a recklessness standard, Ye has raised serious questions going to the merits of her claim. The government repeatedly asserts that the bare fact of her removal order establishes reckless failure to depart because that order provided oral and written notice. See ECF No. 29 at 21 (government arguing that “[c]onfirmation that an alien has a final removal order is, effectively, confirmation the alien knows of his duty to depart the country”). The argument is at odds with the traditional understanding of recklessness. While recklessness is defined somewhat differently based on context, “criminal recklessness generally requires that ‘a person disregards a risk of harm of which he is aware.’” United States v. Rodriguez, 880 F.3d 1151, 1159–60 (9th Cir. 2018) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “In other words, the standard requires that the defendant ‘was subjectively aware of the risk.’” Id. at 1160 (quoting Farmer, 511 U.S. at 829). Similarly, in the context of civil penalties, the Ninth Circuit has held that “[a] person acts recklessly . . . when he consciously disregards a substantial and unjustifiable risk attached to his conduct, in gross deviation from accepted standards.” Consumer Fin. Prot. Bureau v. CashCall, Inc., 35 F.4th 734, 748 (9th Cir. 2022) (quoting Borden v. United States, 593 U.S. 420, 427 (2021)).
The government’s argument that provision of a notice of the obligation to depart conclusively establishes that a noncitizen’s failure to depart was reckless would read the willfulness requirement out of the statute by ignoring any evidence regarding the noncitizen’s intent—but the record here contains such evidence. Ye states that she was never provided any written document or court order. Ye Decl. ¶ 13; ECF No. 33-1 ¶¶ 8-9. She does not speak or read English and was never informed in her language of any obligation to depart or deadline to leave.
Moreover, the applicable regulations require DHS to provide “a brief statement of the reasons for the decision” in the order imposing civil penalties.
3. Eighth Amendment Excessive Fine
The Eighth Amendment to the United States Constitution provides that “excessive fines [shall not be] imposed.”
Civil penalties under Section 1324d clearly fall within the scope of the excessive fines clause. They have no clear remedial purpose but rather expressly serve to deter unlawful entry and noncompliance with removal orders. See 90 Fed. Reg. at 27442. Black’s Law Dictionary
A fine violates the Clause if it is “grossly disproportional to the gravity of a defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334 (1998). Courts afford some deference to Congressional judgments about the appropriate punishment for an offense. See U.S. Sec. & Exch. Comm’n v. Murphy, 50 F.4th 832, 849 (9th Cir. 2022). Nonetheless, the Ninth Circuit has prescribed four factors that are generally relevant to determining whether a penalty is grossly disproportional: “(1) the nature and extent of the underlying offense; (2) whether the underlying offense related to other illegal activities; (3) whether other penalties may be imposed for the offense; and (4) the extent of the harm caused by the offense.” Id. at 849–50 (adapting similar factors from Bajakajian for the civil penalties context); see also Pimentel v. City of Los Angeles, 974 F.3d 917, 921 (9th Cir. 2020) (same).
Here, the underlying offense was the failure to self-deport in response to a removal order.
The government contends that the fine is proportional because Ye falls squarely within the class of persons the law targets. ECF No. 29 at 26. But that reasoning is circular: if a fine without limit were permissible whenever the person ordered to pay it fell within the targeted class, no fine could ever be excessive. The Court rejects this argument.
The third factor considers other penalties authorized by the legislature, which may serve as “measures of the gravity of the offense.” United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1122 (9th Cir. 2004); see also Pimentel v. City of Los Angeles, 115 F.4th 1062, 1068 (9th Cir. 2024), cert. denied, 145 S. Ct. 2735 (2025). Willfully failing or refusing to depart within 90 days of a final removal order is also a criminal offense under
The government would have the Court also consider as a factor “the amount of the penalty authorized by Congress,” asserting that such factor favors the government. ECF No. 29 at 26. But neither Bajakajian nor its progeny contain such a factor.6 Bajakajian considered, as the Court does here, the penalties authorized under other legal frameworks. See 524 U.S. at 338–39 (holding that the low maximum sentence allowable under the Sentencing Guidelines “confirm[ed]
Finally, Ye’s offense appears to have caused minimal harm. In the years since her arrival, she has paid taxes, cared for her family, and committed no crimes. ECF No. 2-2 ¶ 14. In its opposition, the government describes certain conduct by Ye but identifies no harm from that conduct. ECF No. 29 at 27 (“Plaintiff came to the United States on a nonimmigrant visa in 2008, overstayed her visitor’s term, and then filed a ‘frivolous’ application for relief from removal, lied to the government and remained in the U.S. more than eight years after the Ninth Circuit denied her petition for review.”).
In assessing harm under this factor, the Ninth Circuit considers monetary harms to the state and the state’s interest in ensuring compliance with the law. See Pimentel, 115 F.4th at 1068–69. Certainly, the government has incurred some monetary cost in seeking to enforce Section 1324d and collect a fine. And Ye appears not to have complied with the law requiring her to depart. But even considering both of those harms—which are not harms the government relies on in its brief—the harm caused by Ye’s conduct is dwarfed by the size of the Brobdingnagian fine. Assessing a $63 parking ticket late fee, the Ninth Circuit in Pimentel held that absent an “‘articulable correlation to any injury suffered by the [government],’ the City’s interest alone does not validate any fine amount that the [government] might arbitrarily impose. Otherwise, no fine—no matter how sizable or disproportionate—would ever violate the Excessive Fines Clause because the government always has an interest in enforcing its laws.” Id. at 1069 (quoting Bajakajian, 524 U.S. at 340). The government has articulated no connection between its interest in enforcing the law and the $1.8 million penalty. This factor therefore does not support the government.
4. Due Process
Ye also argues that the procedures available for challenging7 the imposition of the $1.8 million fine were insufficient to ensure due process under the Fifth Amendment. ECF No. 2-1 at 16–18. In deciding what process is due, the Court considers the factors set forth in Mathews v. Eldridge: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 U.S. 319, 335 (1976).
To say the least, “the private interest at stake is extraordinary.” ECF No. 2-1 at 17. DHS imposed a penalty of $1,820,352 on an individual whose annual household income is $36,000, a ratio exceeding 50 to 1. Ye Decl. ¶¶ 20–24. She is the sole caretaker for a 76-year-old United States citizen who cannot care for herself as well as the primary caregiver of a school-aged minor. Id. ¶¶ 21-22. Enforcement would leave her and her family destitute. Id. ¶ 24. In the face of these facts, the government states only that “Defendants sufficiently accounted for an alien’s property rights,” ECF No. 29 at 28, but fails to engage with the magnitude of the potential deprivation.
The risk of erroneous deprivation through existing procedures is also high. While Ye and other noncitizens in her position are afforded the opportunity to submit written defenses and
The government asserts that, “[c]ourts have consistently held that paper hearings with a notice and an opportunity for written submissions satisfy due process, particularly where any disputed issues of fact can be ‘adequately resolve[d]’ ‘on the written record,’” but cites only an unpublished two-decade-old Ninth Circuit case concerning the Federal Energy Regulatory Commission’s approval of a corporate reorganization. ECF No. 29 at 29 (citing California ex rel. Lockyer v. FERC, 60 F. App’x 23, 24 (9th Cir. 2003)). As a threshold matter, except under circumstances not present here, “Unpublished dispositions and orders of [the Ninth Circuit] issued before January 1, 2007 may not be cited to the courts of this circuit[.]” Ninth Circuit Rule 36-3(c). Thus, it is doubtful that this Court can consider Lockyer for any purpose. Even if it can, however, that case does not address whether a paper hearing is adequate under the circumstances present here, where a decisionmaker must evaluate the appellant’s intent.
The circumstances of Ye’s case strongly reinforce the Court’s conclusion that she received inadequate process. The government concedes that it deliberately declined to consider the evidence she submitted, insisting that it need only have considered “whether an alien received a final removal order, thereby knowing of her duty to depart,” ECF No. 29 at 29, and that it need not have considered any of the arguments Ye raised in her written submission, which included arguments concerning the “willfulness” factor, the statute of limitations, and the Eighth Amendment’s excessive fines clause, id. at 23, 31. But each of the arguments Ye raised went to a potential “erroneous deprivation.” The government’s position that written submissions suffice is
The third factor weighs “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. As with the first factor, the government largely declines to address the merits of the third one. Rather than analyzing the administrative cost of providing hearings to noncitizens facing $1.8 million fines, it argues that the government has a weighty interest in encouraging compliance with the law. That is not the correct inquiry. The appropriate question is whether affording the procedure requested by the Plaintiff would place a disproportionate burden on the Defendant. Buckholz v. Kelso Hous. Auth., 781 F. Supp. 3d 1148, 1156 (W.D. Wash. 2025); see Rodriguez Diaz v. Garland, 53 F.4th 1189, 1208–09 (9th Cir. 2022) (“The longer detention lasts and the longer the challenges to an IJ’s order of removal take, the more resources the government devotes to securing an alien’s ultimate removal.”). Moreover, the government’s interest in encouraging compliance with the law suggests a corresponding interest in assessing fines only against those subject to the law, which counsels in favor of—not against—additional process. Granted, these factors must be considered in view of the large number of noncitizens potentially subject to penalties under Section 1324d. Seen in that light, this factor weighs slightly in favor of the government. Nonetheless, this factor is insufficient to outweigh the very high private interest and the substantial risk of error under the current procedures. Ye has demonstrated that she is likely to succeed on the merits of her due process claim.
5. Whether the Agency Action Was Arbitrary and Capricious
An agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency
Here, DHS failed to consider Ye’s individual circumstances, provided no explanation for the penalty amount (which was the maximum permitted by the statute), and issued a form decision with no individualized analysis. ECF No. 2-2 at 9–10, 38–40. The Appeal Decision affirmed the penalty without addressing a single argument Ye raised, including that her failure to depart was not willful, the fine was time-barred, and it violated the Eighth Amendment’s excessive fines clause. ECF No. 29 at 30–31; ECF No. 2-2 at 18.
The government argues that the applicable regulations only require it to confirm whether the noncitizen “(1) is subject to a final order of removal and is, therefore, aware of her obligation to depart; (2) remains subject to a final executable removal order, rather than an order that has been stayed or otherwise impacted by a grant of protection or relief from removal, or a grant of lawful status; and (3) is present in the United States.” ECF No. 29 at 23 (citing 90 Fed. Reg. at 27442–43). Although this may be an accurate interpretation of the operative regulations, it is insufficient under the language of the statute, which unambiguously requires the agency to make a finding of willfulness.
Neither the skeletal form comprising the initial notice of fine nor the appeal decision articulated any basis for a willfulness finding. The Court concludes that Ye is likely to succeed on the merits of her claim that the penalty determination was arbitrary and capricious.
B. Irreparable Harm
To justify emergency relief, a plaintiff must demonstrate that irreparable harm is “likely” rather than merely “possible.” Winter, 555 U.S. at 22. Ye has met her burden for at least two reasons. First, “[i]t is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting
Ye has also shown material irreparable harm. As she argues, the ten-day payment deadline listed on the invoice she received has expired. ECF No. 2-1 at 19. She is now subject to compounding debt as a result of administrative fees, interest, and late penalties; collection litigation and referrals; credit bureau reporting; and administrative offsets of any eligible federal or state payments due to Ye. Ye Decl. ¶¶ 17, 24–27; ECF No. 2-3 at 31. As a result, she faces irreparable credit damage and the stress of impending financial instability. These impacts would also extend to her partner and her two dependents, a minor child and a disabled elder relative. Ye Decl. ¶¶ 20–21. Ye has established a high likelihood of irreparable harm in the absence of a temporary restraining order.
C. Balance of Equities and Public Interest
Finally, the balance of the equities and the public interest tip sharply in Ye’s favor. These factors “merge where, as is the case here, the government is the opposing party.” Leiva-Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Here, while Ye would suffer potentially irreversible constitutional injury, credit damage, and financial instability, there is no harm to the government from a short delay in recovering the penalty amount while these proceedings are pending. If the penalty is ultimately enforced, the government may collect the full amount with interest at that time. Its ability to “effectuat[e] statutes enacted by representatives of its people,” Trump v. CASA, Inc., 606 U.S. 831, 861 (2025), and “enforce[] the immigration laws,” Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1220 (D.C. Cir. 1981), will be unhindered. The nature of Ye’s conduct and absence of evidence of willfulness, as well as her long history as a law-abiding and tax paying community member, also support emergency relief.
D. Bond
“The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
CONCLUSION
Ye has shown a likelihood of success on the merits, irreparable harm, and that the balance of the equities and public interest support emergency relief. The operative temporary restraining order is converted into a preliminary injunction on the same terms. Accordingly, IT IS HEREBY ORDERED that:
Defendants and their officers, agents, employees, and all persons acting in concert with them are TEMPORARILY RESTRAINED AND ENJOINED from, as to the civil penalty of $1,820,352.00 assessed against Plaintiff under Penalty Tracking Number C260094794: (a) enforcing, collecting, or taking any action to collect the penalty or any associated debt; (b) referring the debt to the U.S. Department of Justice for collection litigation; (c) initiating or continuing any administrative offset of federal or state payments due to Plaintiff; (d) referring the debt to any private collection agency; (e) reporting the debt to any national credit bureau or credit reporting agency; (f) taking the debt into consideration, as a negative factor, in any immigration-related proceeding involving Plaintiff; and (g) assessing any interest, administrative costs, or late payment penalties during the pendency of this Order.
IT IS SO ORDERED.
Dated: September 1, 2026
JON S. TIGAR
United States District Judge