The Department of Homeland Security, the parent agency for U.S. Customs and Border Protection, has issued a notice describing its plan to align with a May 9 executive order from President Trump establishing that enforcement of criminal regulatory offenses (particularly those that are strict liability offenses) is disfavored by the federal government.
Under this new policy, when DHS is deciding whether to refer alleged criminal violations of its regulations to the Department of Justice, DHS officers and employees will consider the following factors to the extent consistent with law.
- the harm or risk of harm, pecuniary or otherwise, caused by the alleged offense
- the potential gain to the putative defendant that could result from the offense
- whether the putative defendant held specialized knowledge or expertise or was licensed in
an industry related to the rule or regulation at issue
- any available evidence of the putative defendant's general awareness of the unlawfulness of their conduct as well as their knowledge or lack thereof of the regulation at issue
- other factors as appropriate
The EO also requires DHS to post on its website and submit a report containing (1) a list of all criminal regulatory offenses enforceable by DHS or DOJ and (2) for each such offense, the range of potential criminal penalties and the applicable mens rea standard (i.e., the state of mind that must be proven to convict a particular defendant of a particular crime) for the offense. DHS states that it is reviewing its regulations to compile this list and will submit its report by the May 9, 2026, deadline.
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