Illegal Reentry to the U.S. after Deportation (8 USC 1326)

8 U.S. Code § 1326 makes it a crime to enter, re-enter or attempt to re-enter the United States if you have:

• Been denied admission to the U.S.,
• Been removed, deported or excluded from the U.S., or
• Left the U.S. while under an order of removal or deportation (other than by voluntary departure with permission of an immigration judge or official).

In most cases, re-entering the U.S. illegally can be punished by a fine and/or up to 2 years in federal prison

But the possible prison sentence increases to a maximum 10 years if the order of removal (deportation) was due to conviction of:

• Three or more misdemeanors involving drugs and/or crimes against the person, or
• Any felony (other than an aggravated felony).

And if the removal was based on a conviction for an aggravated felony, the possible prison sentence increases to as much as 20 years.

To help you better understand the crime of unlawful reentry following deportation, our criminal and immigration lawyers discuss, below:

• 1. What does 8 USC 1326 prohibit?
• 2. What if I have been deported for a crime?
• 3. What if I left the U.S. by voluntary departure?
• 4. Will I go to prison if I am in the country illegally?
• 5. What if I was deported before I finished serving my original sentence?
• 6. Can I challenge my deportation order if I am arrested for illegal re-entry?
• 7. What are some other defenses to illegal re-entry?

1. What does 8 USC 1326 prohibit?

8 USC 1326 (a) provides:

“Subject to subsection (b), any alien who—

1. 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
2. enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from a foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under title 18, or imprisoned not more than 2 years, or both.”

2. What if I have been deported for a crime?

8 USC 1326 (b) sets forth increased prison sentences for people who re-enter the U.S. after conviction of certain crimes.

8 USC 1326 (b) provides:

“Notwithstanding subsection (a), in the case of any alien described in such subsection—

1. whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both;
2. whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;
3. who has been excluded from the United States pursuant to section 1225(c) of this title [security and related grounds] because the alien was excludable under section 1182(a)(3)(B) of this title [terrorist activities] or who has been removed from the United States pursuant to the provisions of subchapter V [terrorism], and who thereafter, without the permission of the Attorney General, enters the United States, or attempts to do so, shall be fined under title 18 and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence. or
4. who was removed from the United States pursuant to section 1231(a)(4)(B) of this title [prior to completion of sentence of imprisonment] who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be fined under title 18, imprisoned for not more than 10 years, or both.

For the purposes of this subsection, the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law”

3. What if I left the U.S. by voluntary departure?

If you were subject to criminal or immigration court proceedings and you voluntarily departed with the permission of the U.S., you did not leave because of a conviction.

In such a case, if you re-enter the U.S. without permission you face up to 2 years in prison.

4. Will I go to prison if I am in the country illegally?

Being unlawfully present in the U.S. is not a crime. (For instance, an alien might be unlawfully present in the U.S. simply because he or she overstayed a visa. It does not mean the person entered the U.S. unlawfully). Unlawful presence in the U.S. merely subjects a non-citizen to a civil fine.

However, the act of entering (or attempting to enter) the U.S. without authorization is a crime. A first offense can be punished by up to 6 months imprisonment and a fine.

For a second or subsequent offense, the sentence increases to a maximum of 2 years.

And if the entry was achieved by fraud (such as marriage fraud) penalties increase to:

• Up to 5 years in prison, and/or
• A fine of up to $250,000.¹

Note that this is a different crime, however, than illegal re-entry after removal, deportation or exclusion or denial of entry.

5. What if I was deported before I finished serving my original sentence?

An alien who re-enters the U.S. without permission after being deported can be incarcerated for the remainder any sentence which was pending at the time of deportation (without reduction for parole or supervised release).²

In addition, the prior deportation order may be reinstated. This means the alien will not be allowed to appear in immigration court to seek relief from removal. Instead, after serving any sentence imposed, the person will be removed again on the basis of the prior order.

6. Can I challenge my deportation order if I am arrested for illegal re-entry?

Generally, no. In most cases, an alien must challenge the order of deportation when the government initiates removal proceedings.

But an alien may challenge the underlying deportation order during criminal proceedings for illegal re-entry if:

• The alien exhausted all administrative remedies that were available to challenge the original removal order;
• The deportation proceedings deprived the alien of the opportunity for judicial review; and
• The entry of the removal order was fundamentally unfair.³

7. What are some other defenses to illegal re-entry?

The most common defense to a charge of illegal re-entry is usually to challenge the underlying deportation order as set forth above.

An alien may also be entitled to relief if he or she is entitled to relief from persecution or torture under U.S. asylum laws, the U.N. Convention Against Torture (“CAT”) or another program.

Arrested for unlawful re-entry? Call us for help…

If you or someone you know has been arrested for entering or re-entering the U.S. without authorization, we invite you to contact us for a free consultation.

Our California immigration attorneys have successfully defended many people accused of the same crime. We know that not all deportation orders are valid.

Call us or fill out the form on this page to discuss your case with a knowledgeable lawyer who will fight to protect your freedom.

---

Legal references: