Illegal reentry is a serious matter. The federal government prosecutes individuals with a prior removal order, under 8 USC 1326, if they reenter the United States after being previously removed. This will lead to your prosecution in federal court, and subsequent removal from the United States. Illegal reentry is a federal felony. The basic offense carries up to two years in prison, followed by removal from the United States. The statute enhances the sentence depending on prior prosecutions, several criminal convictions, or a conviction for an aggravated felony under INA §101(a)(43).
Congress, in order to dissuade people from entering the United States after being removed, criminalized illegal reentry to the United States. The government will prosecute the following individuals of illegal reentry:
These individuals would be charged with illegal reentry if they try to return to the United States in an undocumented way or are found in the United States after such reentry.
One of the defenses to this charge if a collateral attack on the underlying prior removal order. In many instances, especially with old removal orders, the immigrant’s rights to due process might have been violated. These violations would be detrimental to defending the charge in federal court. An immigration attorney would be able to find these problems with the underlying removal proceedings.
Another avenue to defending the charge would be to move to reopen the removal proceedings. A Motion to Reopen would be possible if the underlying statute leading to removal has been deemed unconstitutional. For example, an immigrant who has been previously removed for committing a “crime of violence” might be able to argue that the Supreme Court’s ruling in Dimaya changed the definition of such crime and the underlying removal order should be dismissed. Such reopening should lead to the dismissal of the illegal reentry charge.
To convict someone of illegal reentry, federal prosecutors must prove each of these points beyond a reasonable doubt:
If any one of these points is weak, for example if the prior removal order itself was flawed, that can change the outcome of the case.
The maximum sentence depends mostly on the person's record before the earlier removal:
The actual sentence is set by a federal judge using the Sentencing Guidelines, and it is usually well below the maximum. Every case is different, and no lawyer can promise a particular result.
Yes. Reentering the United States after a removal order, without permission, is a federal felony under 8 U.S.C. § 1326. The case is heard in federal district court, not immigration court.
Sometimes. Federal law allows a defendant to challenge the earlier removal order if they used the remedies that were available at the time, were improperly denied the chance for court review, and the order was fundamentally unfair. These challenges are difficult, but old orders entered without proper notice or advice can have real problems.
In most cases the earlier removal order is reinstated and the person is removed after serving any sentence. Some people may still have protection in immigration court, such as withholding of removal or protection under the Convention Against Torture, if they fear persecution or torture in their home country.
Attorney Ahmad Yakzan has represented numerous individuals in removal proceedings and would be more than happy to assist you in your illegal reentry case. Call us today or use the form below to contact us for a consultation.
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Meet Attorney Ahmad Yakzan
Attorney Ahmad Yakzan came to the United States as a young man to pursue a dream that seemed elusive at times. He struggled but knew what he was aiming for was worth it because he met people who helped him with his goals. Although the dream seemed distant, he carried on.
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