Immigration Law Blog

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.  

For those legally residing within the United States on a visa or green card, being convicted of a crime can have dire consequences. In some cases, a conviction can revoke your right to remain within the United States, and potentially bar your future return. If convicted of a misdemeanor or felony, you may face deportation but can fight that deportation order via the legal system. However, if the conviction is for a crime of moral turpitude or an aggravated felony, you are  generally ineligible to contest the removal order.

Crimes of Moral Turpitude

Crimes of moral turpitude are crimes generally deemed to go beyond basic moral standards of society. Unfortunately, there is no definite list of crimes of moral turpitude. However, courts have found crimes involving deceit, fraud, and the victimization of to be crimes of moral turpitude. Specifical offenses found to be crimes of moral turpitude include carrying a concealed weapon without a license, abusing a child, committing wire or bank fraud, perjury, tax evasion, and mail fraud.

Aggravated Felony

An aggravated felony in relation to immigration law is not the same as in state courts.While certain crimes may constitute a misdemeanor at the state level,  for immigration purposes, such crimes may be considered an aggravated felony. Some of the crimes that Congress has an expressly identified crimes considered to be aggravated felonies for immigration purposes are:

Under current law, many immigrants are required to travel abroad and apply for an immigrant visa from their home country before they can return and become lawful permanent residents of the U.S.  Immigrants in the United States illegally, however, may be barred from returning to the United States for either three years or ten years under Section 212(a)(9)(B) of the Immigration and Nationality Act.  

To avoid this bar, these foreign nationals must obtain a waiver of their unlawful presence when applying for an immigrant visa.  Seeking a waiver can lead to a Catch-22, however—leaving the U.S. in order to return as a lawful resident only to be barred from returning.  One way to avoid this dilemma is to obtain a Provisional Unlawful Presence Waiver.

Non citizens who have been charged with a crime, have two sets of problems to worry about: the criminal charges, and how those charges might affect their immigration status.

On July 13, 2018, the USCIS posted a Policy Memorandum (PM), PM-602-0163 providing guidance to all USCIS employees regarding their discretion to deny an application, petition, or request without initially issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) when required original evidence on record failed to establish eligibility or was not submitted as requested.  The new PM is effective September 11, 2018 and applies to all applications, petitions, and requests apart from Deferred Action for Childhood Arrivals (DACA) adjudications received after that date.

A Notice to Appear (NTA) is a charging document that is issued by the Department of Homeland Security (DHS) through any of its constituent agencies including Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), or U.S. Citizenship and Immigration Services (USCIS).  Hence, the purpose of the Notice to Appear is to place an individual into deportation proceedings. 

 Accordingly, a newly-issued USCIS Policy Memorandum (PM) 602-0050.1 dated June 28, 2018 supersedes Policy Memorandum 602-0050, Revised Guidance for the Referral of Cases and Issuance of Notices to Appear in Cases Involving Inadmissible and Removable Aliens (dated November 7, 2011) and provides updates to USCIS’ guidelines for issuing NTAs and referring cases for deportation proceedings.  This new PM provides that the Federal Government will no longer exempt classes or categories of removable aliens from potential enforcement.  Furthermore, the PM changes USCIS’ general manner of handling potentially removable foreign national matters.  Previously, USCIS would refer these cases to ICE to establish whether or not removal proceedings should be initiated via an NTA.  The revised PM will provide USCIS an expanded mandate for initiating and issuing NTAs on it own without referring related cases to ICE for review and determination. This will immediately place foreign nationals in removal proceedings if the individual is believed removable at the time of the denial.

In light of the recent increase in the USCIS processing times for Form I-751, Petition to Remove Conditions on Residence, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, beginning June 11, 2018, USCIS will begin issuing Form I-751 or I-829 receipt notices valid for 18 months (previously 12) past the expiration date printed on the conditional Permanent Resident Card (“green card”) after filing a Form I-751 or I-829.

Additionally, USCIS will issue new receipt notices to eligible conditional permanent residents whose Forms I-751 or I-829 were still pending as of June 11, 2018. Those receipt notices will also serve as evidence of continued status for 18 months past the Permanent Resident Card expiration date.

U.S. Immigration and Customs Enforcement (ICE) recently issued guidelines to clarify the Administration’s announcement regarding the agency’s new immigration enforcement. The new procedures were developed to ensure limited resources are focused on the removal (deportation) of the highest priority individuals.

On May 11, 2018, USCIS posted a policy memorandum amending how the agency will move forward in assessing unlawful presence for students and exchange visitors in F/J/M nonimmigrant status (including F-2/J-2/M-2 dependents) who have failed to maintain current and valid status in the U.S.

Individuals in F, J, and M status who failed to maintain their status before August 9, 2018 will start accruing unlawful presence on that date UNLESS they have already started accruing unlawful presence.

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018 will start accruing unlawful presence on the earliest of any of the following:  

USCIS has announced that it will begin to use U.S. Postal Service’s (USPS) Signature Confirmation Restricted Delivery service to mail Green Cards and other secure documents starting April 30, 2018.
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The Immigration and Nationality Act (INA) makes it illegal for employers to knowingly hire undocumented workers and requires employers to verify each worker’s identity and eligibility by completing the I-9 Form. An employer’s failure to complete the I-9 Form can result in criminal and civil penalties.