This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Sign up for future newsletters.
This week, the Department of Homeland Security announced a sweetener to its pitch for immigrants without legal status to leave the U.S. on their own: forgiveness of fines that the department says total nearly $3 billion.
The proposed deal for self-deportation sounds pretty good on paper. Those who take it have also been told they can keep their earnings from the U.S., get a free flight, pocket a $1,000 stipend, and preserve the possibility to reenter the country legally in the future. That bunch of proverbial carrots certainly sounds a lot better than the stick: arrest, indefinite detention, fines, fees, leaving in shackles, and being barred from return. Not to mention the possibility of being deported to an unfamiliar country.
But very little of what DHS is promising across a multi-million dollar ad blitz matches the reality of immigration law. The gap between the promises and what’s actually on offer has led the American Immigration Lawyers Association to describe the ads as “a deeply misleading and unethical trick.”
So what’s actually true? Here’s a closer look at some of DHS’s claims.
If I self-deport, can I return legally to the U.S. one day?
Under current immigration law, most undocumented migrants who leave after a period of unlawful presence, whether on their own or through deportation, face a “bar” against reentering the country for a period of time. For people who have been in the U.S. illegally for more than a year, the ban is 10 years. DHS has not outlined any workaround for this “reentry bar,” nor is it clear that it could, since the restrictions were set by Congress.
An immigration judge can waive the bar under a process called “voluntary departure,” which — unlike the Trump Administration’s concept of self-deportation — has a concrete basis in law.
People granted voluntary departure leave with an official order that doesn’t trigger the harshest penalties and preserves their eligibility for certain pathways to return. By contrast, the current Customs and Border Protection Home self-deportation program uses an app to record a person’s departure and offers no such protection. Migrants who leave through this process may unwittingly trigger reentry barriers — a possibility that self-deportation posters and marketing materials do not mention. People may also face consequences for missed court dates after their departure, since there aren’t official, legal instructions on how to inform the court you’ve left via self-deportation.
In an interview with Fox News, DHS spokeswoman Tricia McLaughlin said there would be “documentation” and that officials promised that migrants would not be arrested or detained when trying to self-deport.
Amelia Dagen is a senior attorney at the Amica Center for Immigrant Rights, a nonprofit that provides legal support for immigrants. In an emailed statement, she said “vague promises of ‘documentation’ do not alleviate the concern that noncitizens may trigger consequences by exiting the country or failing to attend hearings after self-deporting mid-proceedings.”
Will I face huge fines if I don’t self-deport?
DHS has threatened fines to encourage self-deportation, warning that foreign nationals could face penalties of nearly $1,000 per day if they fail to leave after a deportation order. While real on paper, legal experts say this penalty is largely a scare tactic.
Under the 1996 Immigration and Nationality Act, the government can impose fines on people who have agreed to leave the country and failed to do so, or those with final deportation orders who remain in the country.
In 2018, the Trump administration was the first to actively try to use the law, mass-notifying people with deportation orders of fines as high as half a million dollars each. DHS wound up mostly rescinding the fines in 2019 under mounting legal pressure and criticism, and it’s unclear if any of the fines were collected before the Biden Administration rescinded the policy in 2021.
Reuters reported last month that the second Trump administration has sent out notices to roughly 4,500 migrants, totaling more than half a billion dollars in fines.
The fines are civil, so they do not result in a criminal conviction, incarceration or a criminal record. But the fines are still subject to due process via an administrative review, and ultimately, civil collection action in federal court. While there’s little precedent for this exact scenario, legal experts said that the government would struggle to pursue this kind of asset forfeiture proceeding at scale — and even if they do, few migrants will have the resources to pay.
Could I face criminal penalties for not registering with USCIS?
Confusingly, there is a separate fine that non-citizens can face if they are convicted of a crime based on failing to register their presence in the country with the U.S. Citizenship and Immigration Services.
The self-deportation campaign warns that migrants without legal status could face criminal penalties, including a $1,000 fine and up to six months in jail, for failing to register. This threat is rooted in an obscure, Cold War provision that requires certain non-citizens to register their presence and address with the government. Failure to do so can be a misdemeanor, but there’s little evidence of its use over the past half century.
The administration has tried to ramp up prosecutions under this law, but so far, judges have been skeptical of enforcement, according to The Washington Post. One Louisiana magistrate judge noted in one case that there was “no evidence that any of these defendants knew they were required to register … and even if they had, until very recently, there was no mechanism for [them] to do so.”
That creates a difficult barrier for a statute that requires proof of a willful act. “They have to prove in a trial in a federal court that the foreign national willfully did not file. How are they going to do that? The act of not filing is not willful,” immigration lawyer Charles Kuck told The Marshall Project. He noted that the Fifth Amendment protects migrants from being forced to testify against themselves in such cases. “They can’t make you testify, so you don’t testify. So how can they prove it? It’s not going to happen,” Kuck said.
Kuck added that the government might pursue a handful of cases, essentially to make an example, but that it wasn’t feasible at scale.
Will I really receive the $1,000 stipend offer for self-deportation?
There is no law authorizing payments to undocumented immigrants, attorney Raul A. Reyes explained in The Hill last month. “There is nothing to stop the government from simply deporting people who sign up for it. There is certainly no guarantee that people will receive their cash stipend once they are out of the country,” Reyes wrote.
The administration has looked to cover the payments and other related costs by repurposing $250 million that had been set aside to aid refugees uprooted by war and natural disasters.
What does this all mean for navigating the immigration system?
The Marshall Project sent a list of questions to DHS about its assertions regarding self-deportation, but received no direct answers. Instead, the agency sent a statement from Secretary Kristi Noem encouraging people to self-deport and reiterating the offer of what she called “financial support.” Noem’s statement threatened fines, arrest and deportation if they don’t leave.
The threats and misleading claims about self-deportation are particularly risky, according to immigration lawyers, because the campaign comes at a time when immigrants have less access to real legal advice. Unlike in criminal courts, people facing deportation don’t have a guaranteed right to a lawyer if they can’t afford their own. Non-profit organizations, which often rely on federal funding, help fill in this gap.
In April, the Trump administration cut funding to a program that provided legal services for people with serious mental health conditions in immigration detention. The administration also cut a legal education program for people facing deportation. A coalition of nonprofits is challenging that decision in court, but a judge is allowing the cuts to remain in place while the lawsuit moves forward.
Dagen, the Amica Center attorney, said government posters encouraging people to self-deport have replaced fliers in detention centers that used to provide information about legal services and education.
“The biggest issue is you are taking away all the information that was available about people’s rights and their obligations that was provided in a holistic way and the only replacement messaging is: ‘Get out of the country,’” Dagen said. “And that is pushing people who have viable claims to give up their rights, give up due process and just leave the country.”
Dagen said fliers about self-deportation have also appeared in courtroom lobbies and have been handed out with court documents. That gives self-deportation the veneer of a concept that exists in law, when in reality it is not, she said. “One of the biggest things about this is that it actually means nothing,” she said. “It’s not something that is provided for under the law.”
