Yellow Jacket InitiativeBy E. Lawrence Anderson, Yellow Jacket Initiative
As of Saturday, October 24, 2026, about 11:15 p.m. ET. Sources: DHS/ICE, "Ratification of Civil Penalties," FR Doc. 2026-21751, 91 FR 67325–67326, both the public-inspection copy (filed Friday, October 23) and the Federal Register copy dated Monday, October 26, which was posted on govinfo when we checked; the October 14, 2026 final rule (91 FR 65390); the June 27, 2025 interim final rule (90 FR 27439); and the September 30, 2026 opinion and order in Maria L. v. Mullin, No. 1:25-cv-13471 (D. Mass.), Dkt. 113 and 114.
In a notice filed for public inspection on Friday, October 23, and published in the Federal Register dated Monday, October 26 (FR Doc. 2026-21751, 91 FR 67325), Homeland Security Secretary Markwayne Mullin "hereby ratifies all final civil penalty decisions, as defined in 8 CFR 281.1(f)(3), issued pursuant to the procedures codified at 8 CFR part 281 from June 27, 2025, through October 13, 2026." Decisions that were reversed on appeal, are pending appeal, or were reopened and rescinded are excluded. The notice says the ratification "relates back to the original date of each civil penalty."
DHS's stated reason. The Department says it is acting "out of an abundance of caution" and "to resolve any uncertainty." It adds that the ratification "is not a statement that the fines covered by this ratification would have been invalid absent this ratification." Ratification is an established legal tool. The notice cites Guedes v. ATF, 920 F.3d 1, 13 (D.C. Cir. 2019), for the principle that an agency can "purge[] any residual taint or prejudice left over from" a potential defect. The notice does not name a defect. It says the October 14 final rule "has no material difference from the IFR for the purposes of the civil penalties that had already been assessed." That is DHS's characterization.
The rules behind it. The June 27, 2025 interim final rule (90 FR 27439) took effect the day it was published, without prior notice and comment. It created 8 CFR part 281 for fines under three statutes: failure to depart after a removal order (8 U.S.C. 1324d), failure to depart under a voluntary departure agreement (1229c(d)), and unlawful entry (1325(b)). The interim rule says it "transfers the appeals process for these penalties from DOJ's Board of Immigration Appeals to DHS." Under the old procedure, DHS served a written notice of intent to fine and waited at least 30 days for a response. Under part 281, a penalty decision can be served by regular mail, and the person has 15 business days to appeal (91 FR 65392–93). The October 14 final rule adopted the interim rule with one change: an appeal filed late because of a documented mail delay "beyond the alien's control" can now be accepted (91 FR 65390). By the final rule's count, from June 27, 2025 through September 14, 2026, ICE issued approximately 110,000 failure-to-depart penalties under the interim rule and CBP issued an additional 66,000 unlawful-entry penalties (91 FR 65395). Neither figure is the number of decisions this notice ratifies, which the notice does not state.
What the notice leaves out. On Wednesday, September 30, Judge George A. O'Toole Jr. of the U.S. District Court for the District of Massachusetts issued an order in Maria L. v. Mullin, No. 25-cv-13471. It reads: "the Interim Final Rule ... and all fines issued thereunder, are hereby STAYED pending further Order of this Court" (Dkt. 114). In the accompanying opinion, the court found the plaintiffs likely to succeed on two claims: that fines were imposed "without individual consideration" of whether the person's conduct was willful or voluntary, and that the interim rule "was issued without customary notice and comment" (Dkt. 113 at 10). At this preliminary stage, the court rejected the government's foreign-affairs and procedural-rule exceptions (Dkt. 113 at 13–17). The October 14 final rule acknowledges the stay. The ratification notice does not mention it, and it gives no count or dollar total of the decisions it covers.
Status of the stay. The public copy of the court docket we read on Saturday, October 24, about 11:15 p.m. ET, runs through Wednesday, October 7 (Dkt. 115). It shows no order lifting or narrowing the stay, and no appeal. We could not see docket activity after that date.
The claim window. A "respondent alien who asserts that he or she has been prejudiced by the interim regulations" may raise that claim by email. The email must include name, date of birth, alien registration number, current address and phone number, penalty tracking number, and any invoice number. "ICE will not review claims that fail to include the above-listed required information." The notice adds: "This process is not an additional appeal mechanism." Claims "must be received by ICE on or before November 16, 2026," a Monday, 13 days after Election Day. The public-inspection copy left that date blank; the Federal Register copy fills it in.
Not known: what defect, if any, the ratification addresses, or how it relates to the stay. Neither the notice nor any court document we read connects the two.
Primary sources: FR Doc. 2026-21751, Federal Register copy (91 FR 67325–67326, dated October 26, 2026); public-inspection copy (filed October 23, 2026, 8:45 a.m.); Federal Register record; final rule, 91 FR 65390 (October 14, 2026); interim final rule, 90 FR 27439 (June 27, 2025); Maria L. v. Mullin opinion and order, Dkt. 113 and order, Dkt. 114 (both filed September 30, 2026; copies posted by plaintiffs' counsel); public docket.
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