Your Family Member Has Been Charged With Illegal Reentry. Here’s What You Need to Know.
Finding out that a loved one has been charged with illegal reentry is terrifying. You may not understand what the charge means, how serious it is, or what happens next. The good news is that being charged is not the same as being convicted — and there are real defenses available. At the Law Office of Genaro R. Cortez, we have helped families in San Antonio and across South Texas navigate federal illegal reentry cases. We want to help yours too.
Illegal Reentry Federal Crimes Defense.
On January 20, 2025, the Government started cracking down on illegal entry and illegal-reentry crimes in the United States. They did this by locking down the border and by going after migrants who are in the country without permission. For some migrants, this simply means that ICE will try to deport you.
But for others, it may mean that the Government files criminal charges against a migrant for entering the country without proper papers. These charges can be either a misdemeanor or a felony crime. The exact charge will depend on the facts of your case.
What is illegal entry into the United States?
Illegal entry is a federal crime under 8 USC 1325. It is a misdemeanor crime that carries up to 6 months in jail and a fine for a first offense. Specifically, this law makes it a crime for an alien to “enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers[.]”
Illegal entry most often happens along the border when a migrant crosses the river trying to enter into Texas. In many cases, Border Patrol simply deports the migrant without filing criminal charges. But in other cases, Border Patrol will make a 1325 arrest.
Equally important, Border Patrol usually makes these types of arrests when the migrant has a clean record and has never been in the United States. But if the migrant has a prior deportation order, then Border Patrol may arrest him for Illegal-reentry, which is a more serious crime.
What is Illegal Reentry After Deportation?
Illegal Reentry after Deportation is one of the top immigration crimes in Texas. It is a felony. And it only applies to non-citizens. It occurs when a deported alien returns to the country without government approval.
More importantly, prosecutors like this charge for two reasons. First, Illegal Reentry is a paper crime. In these cases, the government has all the papers they need to convict an alien. These papers are located in the alien file (A-File).
For example, the A-File contains the non-citizen’s picture, fingerprints, and removal orders. Further, the A-File will also show the non-citizen had no permission to return to the United States. In short, these are all the facts the government needs to prove its case.
Second, the law ties the penalty to the alien’s criminal record. In other words, the more serious the record, the higher the jail time. This means aliens with little or no criminal history will get a light sentence. The penalty range for these offenders is between 0-2 years in jail.
However, aliens with serious criminal history may face longer jail terms. As an example, an alien with a prior conviction for a drug crime, an aggravated-assault crime, or a gun charge will face either 0-10 years in jail or 0-20 years in jail.
8 USC § 1326 Definition for Illegal Reentry after Deportation
| No. | Reentry of Removed Aliens. |
|---|---|
| 1 | The person was an alien when arrested; |
| 2 | The person was previously deported, removed, or excluded from the United States; |
| 3. | Thereafter, the person knowingly reentered, attempted to reenter, or was found in the United States; and |
| 4. | The person did not get consent from the Government to apply for readmission to the United States since the time of the person's previous deportation. |
What are the top penalties for migrants who enter the country without permission?
The table below lists the top penalties for 1326 cases. They show the outer limits of jail time for these cases. Fortunately, most people never get the full penalty in these cases.
8 USC § 1326: Penalties for Reentry of Removed Aliens.
| Law | Criminal History | Felony Class | Max Penalty | Max Fine | Term of Supervised Release (TSR) |
|---|---|---|---|---|---|
| 8 USC § 1326(a) | Little or no criminal history. | Class E Felony. | 2 years. | Up to a $250,000.00. | TSR of not more than 1 year. |
| 8 USC § 1326(b)(1) | Three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony). | Class C Felony. | 10 years. | Up to a $250,000.00. | TSR of not more than 3 years. |
| 8 USC § 1326(b)(2) | Convicted of an aggravated felony. | Class C Felony. | 20 years. | Up to a $250,000.00. | TSR of not more than 3 years. |
In addition, the type of criminal history matters too. The most serious types of criminal history are convictions for aggravated felonies. Aggravated felonies are defined in 8 USC § 1101(a)(43).
What are the sentencing guidelines for 1326 cases?
USSG §2L1.2 is the guideline for 1326 cases. The guidelines connect the jail time to the person’s criminal history. This shows two things.
First, the type of criminal history matters. Below are examples of prior convictions that will increase the jail time for a person convicted of Illegal Reentry:
- Federal Drug Convictions;
- Alien Smuggling Convictions;
- Aggravated assault;
- Murder;
- Voluntary Manslaughter;
- Rape;
- Robbery; and
- Other Crimes of Violence.
Indeed, the defense must review these records with caution. Sometimes a court file says a person committed a serious crime. However, the record shows prosecutors reduced the charge to a petty crime. As an example, a person is arrested for robbery. But he pleads guilty to a reduced charge of simple theft. As a result, his guideline range and jail time may be lower.
Second, the number of prior convictions matter. A person with a longer criminal record will get more jail time than a person with little or no criminal record.
In short, the defense should review the person’s criminal record closely. In many cases, the person’s criminal record is wrong. It either overstates his past crimes or it mistakenly classifies the crimes to a higher level. This can result in a longer jail term for the person.
What is the difference between Illegal Entry and Illegal Reentry?
Illegal entry is a misdemeanor crime under 8 USC 1325(a)(1). In contrast, Illegal Reentry is a felony under 8 USC 1326. In addition, Border Patrol most often files Illegal Entry cases at the border after a migrant crosses the river. But with Illegal Reentry cases, Border Patrol can file them anywhere in the United States.
That is an important distinction. For instance, if local police arrest a migrant for either a drug charge or an assault charge in a city away from the border, then the Government can file Illegal Reentry charges against the migrant if the Government previously deported the migrant. This is why we will likely see the Government file more Illegal Reentry cases in cities away from the border like San Antonio, Austin, or Houston.
In other words, if police arrest an undocumented migrant for a state crime like drug possession or DWI, that crime can snowball into an Illegal Reentry charge if ICE finds out you are in jail or if you get convicted of that crime.
How are alien smuggling crimes and illegal reentry crimes connected?
At its core, alien smuggling means picking up migrants you know are in the country illegally and then driving them farther into the United States. Therefore, when police stop a car loaded with undocumented migrants, they frequently make two different types of arrests. First, they arrest the driver on alien smuggling charges. And second, police often arrest the passengers for an illegal reentry crime.
Stated differently, an alien smuggling crime focusses on picking up and transporting migrants who entered the country without permission. But a driver arrested on a first-time alien smuggling crime will likely face a higher jail term than a migrant who re-entered the country if the migrant has a clean record.
Facing an Illegal Reentry Charge in San Antonio or South Texas? Call Us Today.
When your family member is sitting in federal detention, every day matters. The earlier an experienced federal defense attorney gets involved, the more options are available. Attorney Genaro R. Cortez has defended clients charged with illegal reentry in San Antonio, Laredo, Del Rio, Eagle Pass, and throughout South Texas. He understands the federal courts, the prosecutors, and most importantly — he understands what your family is going through.
Call us today at (210) 733-7575 for a free consultation. We are here to help.
Frequently Asked Questions — Illegal Reentry Defense in San Antonio & Del Rio
What is the difference between illegal entry and illegal reentry?
Illegal entry (8 USC 1325) is a misdemeanor that applies to someone crossing the border without permission for the first time. Illegal reentry (8 USC 1326) is a felony that applies when someone who was previously deported comes back to the United States without government permission. Illegal reentry is the more serious charge and carries much heavier penalties.
How much prison time is your family member facing for Illegal Reentry?
It depends on their criminal history. Someone with no prior criminal record may face up to 2 years. If they have prior felony convictions, the maximum goes up to 10 or even 20 years. However, most people do not receive the maximum sentence — the actual sentence is calculated using federal sentencing guidelines, which take into account the specific facts of the case.
Will they be deported even if they finish their prison sentence?
Most likely yes. In illegal reentry cases, a prison sentence and deportation are two separate consequences. After completing any prison term, Immigration and Customs Enforcement (ICE) will typically deport your family member. An attorney can sometimes work to minimize the prison sentence and prepare for what comes next.
What should I do right now to help my family member with an Illegal Entry or Illegal Reentry charge?
The most important thing you can do is hire an experienced federal criminal defense attorney immediately. Do not wait. The earlier an attorney gets involved, the more options exist for your loved one.
Do you handle illegal reentry cases in cities other than San Antonio?
Yes. The Law Office of Genaro R. Cortez handles federal illegal reentry cases throughout South Texas, including in Laredo, Del Rio, Eagle Pass, and the surrounding areas. Federal cases in this region are typically handled in the Western District of Texas.