Illegally entering the United States, or remaining within the United States without legal status, is a civil offense that carries penalties of removal and potentially fines. However, illegally reentering the United States is a criminal offense punishable by fines and imprisonment. The following sections will define illegal reentry, explain the penalties associated with illegal reentry, and identify common defenses to charges of illegal reentry.
What is Illegal Reentry?
Under Title 8 U.S.C. Section 1326, it is illegal for someone who “has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter,” to enter or attempt to enter the United States. Thus, illegal reentry is being in the United States after the United States government has taken an affirmative action to exclude or remove the alien.
What are the Penalties for Illegal Reentry?
The penalties for illegal reentry depend upon the reason that the alien illegally reentering was previously denied admission, excluded, deported or removed from the United States. At the lowest level offense for illegal reentry, the alien faces a fine or imprisonment not to exceed two years, or both. However, if the alien has been previously convicted of a non-aggravated felony or has at least three misdemeanor convictions for drug-related crimes or crimes against persons, the alien may face a fine or imprisonment not to exceed ten years, or both. Similarly, if the alien has been previously convicted of an aggravated felony, the alien may face a fine or imprisonment not to exceed twenty years, or both.
How to Defend Illegal Reentry?
Defending a case of illegal reentry is exceptionally difficult. To prove that the alien is guilty of illegal reentry, the prosecutor only has to show that (1) the alien was within the United States (2) after having previously been denied entry, excluded, removed, deported, or otherwise departed the United States with an outstanding order of exclusion, deportation, or removal. Thus, there are very limited instances to defend a case of illegal reentry because there is minimal evidence to contest or otherwise present in favor of the alien being charged with illegal reentry.
The major areas to contest a charge for illegal reentry are through a (i) procedural defect in the original removal proceeding, (ii) defects in prior convictions if those convictions are aggravating the basic charge for reentry through misdemeanors or felony convictions, or (iii) simple misidentification. Here, an experienced defense attorney will conduct a thorough analysis of the original removal proceeding and any prior aggravating convictions to see whether due process was violated. For example, the alien may have been denied right to counsel in a prior removal proceeding that establishes a procedural defect invalidating the original removal order and thus mitigating the case for illegal reentry. Another similar example could be an alien who pled guilty to a felony charge but didn’t understand what he or she was pleading guilty to. Finally, the attorney may be able to prove that the alien in question is being misidentified as another alien who was previously removed, deported, etc.
Overall, illegal reentry is a difficult charge to handle which is why anyone charged with illegal reentry should consult with an experienced immigration attorney.