Illegal Reentry Charges: When Coming Back is a Federal Crime
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 for Illegal Reentry: 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.
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.
Also published on Medium.