When Coming Back is a Federal Crime: Illegal Reentry Charges
The debate regarding the scope of legal immigration to the United States has existed for decades. It is a political hotbed. Arguments for and against expanding or retracting immigration seem to permeate the political landscape of this country. While the public discourse ebbs and flows, federal courts have adjudicated a myriad of criminal cases where people have been shown to re-enter the U.S. after being deported and face illegal reentry charges.
While it is common knowledge that persons who enter the United States illegally can be deported, it is also important to recognize that persons who have been previously deported may, if found in the United States after their deportation, be federally prosecuted.
8 USC 1326 prohibits a person who has “been denied admission, excluded, deported, or removed” to then “enter, attempt to enter, or [at] any time be found in the United States.”
Challenges to Illegal Reentry Charges
Successful prosecution of illegal reentry charges depends on the government’s ability to prove the original deportation was valid. If the immigration judge did not inform you of your right to stay in the country, if such a provision applied, the prior deportation order may be invalid. Depending on the circumstances, we may order the transcript of your immigration file (also known as Alien File) and transcripts of court proceedings to determine if your prior deportation order was valid. Similarly if the prior deportation did not follow proper procedures, we might be able to negotiate a lesser charge.
When we order an Alien File or A-File we look for:
- Prior statements to authorities.
- Removal orders and Notices to Appear (NTA’s) or Orders to Show Cause (OSC).
- Documents relating to criminal history.
- I-205 warrant of removal.
- Any previous immigration applications the person may have filed,
- Prior legal status the person may have had.
We also analyze the case for a Lopez-Mendoza collateral attack which has three steps:
- The deportation proceeding must have been “fundamentally unfair.”
- The alien was deprived of judicial review; and
- The defect must have prejudiced the alien, depriving him of what would otherwise have been a reasonable likelihood of avoiding removal.
Statutory Penalty Range: The Outer Boundaries
The overall penalty is a federal felony that can carry anywhere up to 20 years prison depending upon certain circumstances. It is also important to recognize that this prison term does not eradicate a separate deportation consequence. That is, upon completion of the prison sentence, the prisoner is then deported.
A person who has been deported in the past is subject to a sentence of up to 2 years. However, if the deportation was due to a criminal conviction, that sentence can be as high as 20 years.
The length of sentence typically has to do with the criminal history of the defendant.
If a defendant has committed 3 or more misdemeanors involving drugs or a crime against a person, or a felony, that person is subject to an imprisonment range of 0-10 years. Further, if a defendant has reentered after committing an aggravated felony, that person is likely subject to an imprisonment range of 0-20 years.
If the defendant has committed a previous aggravated felony, then the range is 0-20 years.
The terms felony and aggravated felony mean many different things in different circumstances. Under federal law, a felony is an offense that is subject to more than one year imprisonment in the territory where the offense occurred. Under federal law, and specifically in the context of illegal reentry, the term aggravated felony is defined under 8 USC 1101.
Our attorneys defend federal illegal reentry charges throughout the country. If your loved one needs help, anywhere in the country, contact us.
(A) murder, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18);
(C) illicit trafficking in firearms or destructive devices (as defined in section 921 of Title 18) or in explosive materials (as defined in section 841(c) of that title);
(D) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(E) an offense described in–
(i) section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses);
(ii) section 922(g)(1), (2), (3), (4), or (5), (j), (n), (o), (p), or (r) or 924(b) or (h) of Title 18 (relating to firearms offenses); or
(iii) section 5861 of Title 26 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at3 least one year;
(G) a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment at3 least one year;
(H) an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography);
(J) an offense described in section 1962 of Title 18 (relating to racketeer influenced corrupt organizations), or an offense described in section 1084 (if it is a second or subsequent offense) or 1955 of that title (relating to gambling offenses), for which a sentence of one year imprisonment or more may be imposed;
(K) an offense that–
(i) relates to the owning, controlling, managing, or supervising of a prostitution business;
(ii) is described in section 2421, 2422, or 2423 of Title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage; or
(iii) is described in any of sections 1581-1585 or 1588-1591 of Title 18 (relating to peonage, slavery, involuntary servitude, and trafficking in persons);
(L) an offense described in–
(i) section 793 (relating to gathering or transmitting national defense information), 798 (relating to disclosure of classified information), 2153 (relating to sabotage) or 2381 or 2382 (relating to treason) of Title 18;
(ii) section 3121 of Title 50 (relating to protecting the identity of undercover intelligence agents); or
(iii) section 3121 of Title 50 (relating to protecting the identity of undercover agents);
(M) an offense that–
(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
(ii) is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2) of section 1324(a) of this title (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter4
(O) an offense described in section 1325(a) or 1326 of this title committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of Title 18 or is described in section 1546(a) of such title (relating to document fraud) and (ii) for which the term of imprisonment is at least 12 months, except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this chapter;
(Q) an offense relating to a failure to appear by a defendant for service of sentence if the underlying offense is punishable by imprisonment for a term of 5 years or more;
(R) an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year;
(T) an offense relating to a failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed; and
(U) an attempt or conspiracy to commit an offense described in this paragraph.
The term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years. Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996.
Guideline Range: Suggested Actual Sentences for Illegal Reentry Charges
The United States Sentencing Guidelines are a set of standards used to present a federal judge with a suggested specified range for punishment. As opposed to the statutory range, the guideline range often takes specific aspects of the offense into account to create a tailored penalty range. Guideline ranges are not mandatory after Booker but followed by federal judges in the great majority of cases.
For Illegal Reentry cases the Guidelines are driven by the prior criminal history of the person. Specifically, all cases begin with a base offense level of 8.
However, several enhancements may come into play to increase the offense level, and as a consequence, the guideline range.
If a defendant commits illegal reentry after committing a prior felony illegal reentry, then the offense level is increased by 4 levels.
If a defendant commits illegal reentry but had committed a felony after being deported in the first place, then the offense level increases by 4-10 levels depending on the seriousness of the felony.
It is also important to recognize that if a defendant has 3 misdemeanor drug convictions, before or after the initial deportation, then the level is increased by 2 levels.