Defending Against Illegal Reentry Charges After Deportation
Illegal reentry after deportation is a serious federal crime that carries significant penalties, including lengthy prison sentences. Under 8 U.S.C. § 1326, it is illegal for any person who has been denied admission, excluded, deported, or removed from the United States to enter or attempt to enter the country again without proper authorization. Because this is a federal offense, cases are prosecuted by the U.S. Attorney's Office and heard in federal court.
Understanding the Crime of Illegal Reentry
To secure a conviction for illegal reentry, federal prosecutors must prove several elements beyond a reasonable doubt. First, they must establish that the defendant is an alien—meaning they are not a U.S. citizen. Second, they must prove that the defendant was previously deported, removed, or denied admission to the United States. Third, prosecutors must show that the defendant subsequently entered or was found in the United States. Finally, they must demonstrate that the defendant did not have the express consent of the Attorney General or Secretary of Homeland Security to reenter.
It's worth noting that the government does not need to prove that the defendant knew reentry was illegal. The crime focuses on the act of reentry itself, regardless of the defendant's understanding of immigration law.
Penalties for Illegal Reentry
The penalties for illegal reentry are severe and depend largely on the defendant's prior criminal history. A basic illegal reentry charge carries a maximum sentence of two years in federal prison. However, the penalties escalate dramatically based on prior convictions:
Standard Illegal Reentry
For defendants with no significant criminal history beyond the prior removal, the maximum penalty is two years imprisonment and fines.
Prior Felony Conviction
If the defendant was removed after being convicted of three or more misdemeanors involving drugs, crimes against the person, or both, or after a felony conviction (other than an aggravated felony), the maximum sentence increases to ten years.
Prior Aggravated Felony
When the defendant was previously removed following conviction for an aggravated felony, the maximum sentence jumps to twenty years in federal prison. Aggravated felonies include serious crimes such as murder, rape, drug trafficking, firearms offenses, and certain theft or fraud offenses where the sentence imposed exceeded one year.
The Role of the Prior Deportation Order
One critical aspect of illegal reentry cases is the validity of the underlying deportation or removal order. The government must prove that a valid prior removal occurred. This opens an important avenue for defense: challenging the legality of the original deportation.
Under certain circumstances, a defendant may collaterally attack the prior removal order. This is possible if the defendant can show that the deportation proceedings were fundamentally unfair, that the defendant exhausted administrative remedies or was denied the opportunity to seek judicial review, and that the entry of the order was fundamentally unfair.
Possible Defenses
Several defenses may be available in illegal reentry cases, depending on the specific circumstances:
Invalid Prior Removal Order
If the original deportation was conducted improperly—for example, if the defendant was not properly advised of their rights, if there were due process violations, or if the immigration judge made legal errors—the removal order may be subject to collateral attack. If the underlying removal is invalid, the illegal reentry charge cannot stand.
Claim of U.S. Citizenship
If the defendant can establish that they are actually a U.S. citizen, they cannot be guilty of illegal reentry. Citizenship can be acquired at birth through parentage or through naturalization, and sometimes individuals are unaware of their citizenship status.
Lack of Voluntary Reentry
In rare cases, a defendant may argue that their presence in the United States was not voluntary. For example, if someone was kidnapped and brought across the border against their will, this could serve as a defense.
Duress or Necessity
While difficult to establish, a defendant might argue that they reentered the United States under duress or out of necessity—for example, to escape imminent danger or persecution in their home country. However, this defense requires meeting strict legal standards.
Consent to Reenter
If the defendant received permission from immigration authorities to reenter, this negates an essential element of the crime. Documentation of any such authorization is crucial.
Plea Bargaining Considerations for Noncitizens
For noncitizen defendants, plea negotiations in illegal reentry cases require careful consideration of immigration consequences. Under Padilla v. Kentucky, defense attorneys have a constitutional obligation to advise clients about the deportation consequences of guilty pleas.
In illegal reentry cases, this becomes particularly nuanced. A conviction will almost certainly result in removal, but the specific charge and sentence can affect future immigration options. An experienced attorney may be able to negotiate a plea that minimizes the length of any immigration bar or preserves certain forms of relief.
Additionally, defendants should understand that federal sentencing guidelines consider not just the illegal reentry itself but also the defendant's entire criminal history and the circumstances of the prior removal. Strategic plea negotiations must account for how these factors interact.
Related Charges: Accessory After the Fact
Individuals who assist someone who has illegally reentered the country may face charges under California Penal Code Section 32 as an accessory after the fact, or under federal harboring statutes. These charges carry their own serious penalties and require immediate legal attention.
Federal Sentencing and Fast-Track Programs
Many federal districts along the border have implemented "fast-track" programs for illegal reentry cases. These programs offer reduced sentences in exchange for quick guilty pleas, waiving certain rights. While these programs can result in significantly shorter sentences, defendants should carefully consider whether a fast-track plea is in their best interest, particularly if viable defenses exist.
Under the federal sentencing guidelines, judges consider various factors including the defendant's criminal history, the circumstances of the reentry, and any aggravating or mitigating factors. An experienced defense attorney can advocate for downward departures or variances based on the individual circumstances of the case.
Immigration Consequences Beyond Criminal Penalties
Beyond the immediate criminal penalties, a conviction for illegal reentry carries lasting immigration consequences. Defendants face mandatory removal following completion of their sentence. Perhaps more significantly, those convicted of illegal reentry after removal following an aggravated felony face a permanent bar to legal reentry, with extremely limited exceptions.
For defendants with U.S. citizen or lawful permanent resident family members, these consequences can be devastating. An experienced attorney will consider all aspects of a client's situation when developing a defense strategy.
Why You Need an Experienced Federal Defense Attorney
Illegal reentry cases involve the intersection of federal criminal law and complex immigration regulations. Successfully defending these cases requires deep knowledge of both areas. An experienced attorney will thoroughly investigate the circumstances of the prior removal, identify any procedural or constitutional violations, evaluate potential defenses, negotiate effectively with federal prosecutors, and advocate persuasively at sentencing.
If you or a loved one has been charged with illegal reentry after deportation, time is of the essence. Contact Gasner Criminal Law immediately at (415) 782-6000 for a confidential consultation. With decades of experience in federal criminal defense, we understand what's at stake and will fight to protect your rights.
