Palma R. Yanni, lawyers in Washington, DC, District Of Columbia

Penalties for Failure to Depart

Section 243 of the Immigration and Naturalization Act (INA) provides that an alien subject to a final order of removal must leave the United States pursuant to the terms of the removal order. If the alien fails to leave the country, for example by failing to make arrangements for the necessary travel documents, conspiring to prevent his or her departure, or failing to show up for departure as scheduled, the alien is subject to certain penalties. These penalties include a fine and imprisonment, not to exceed four years for most aliens. A prison sentence may be suspended where "good cause" is shown to justify the release of the alien. In determining good cause, a court must consider the age, health, and period of detention of the alien; the effect of the alien's release upon the national security and public peace or safety; the likelihood of the alien's resuming or following a course of conduct which made or would make the alien deportable; the character of the efforts made by such alien himself and by representatives of the country or countries to which the alien's removal is directed to expedite the alien's departure from the United States; the reason for the inability of the government to secure passports, other travel documents, or removal facilities from the country or countries to which the alien has been ordered removed; and the eligibility of the alien for discretionary relief under the immigration laws.

If an alien does not leave the United States within the time period set for removal and then also fails to comply with the terms of his or her supervision pending removal, the alien is subject to a fine of not more than $1,000 or a prison sentence of not more than one year.

If an alien being removed was a stowaway, and the Attorney General is satisfied that a person failed to remove the alien stowaway as required, the person is liable to pay a fine in the sum of $5,000 for each alien stowaway not removed. Such fine is not subject to reduction or waiver. If a person operating any vessel or aircraft refuses to receive a removed alien back onto the vessel or aircraft on which the alien arrived, the person is subject to pay a $ 2,000 fine for each violation.

In some cases, when an alien is subject to a removal order, the government of which that alien is a citizen or national will refuse or delay acceptance of the removed alien. In such cases, the United States Secretary of State shall order consular officers in that foreign country to discontinue granting visas to the citizens, subjects, nationals, and residents of that country until the country has accepted the removed alien.

In addition to the civil penalties in § 243, any alien who is subject to a final removal order may be subject to civil penalties pursuant to INA § 274D for the alien's willful failure to depart within the terms set forth in the removal order. Such an alien must pay a fine, not to exceed $ 500 for each day the alien is in violation of the removal order. Nothing in § 274D diminishes or qualifies any penalties to which an alien may be subject for activities proscribed by § 243(a).