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.

What is the legal definition of Illegal Reentry?

8 USC § 1326 defines the crime of Illegal Reentry. This law requires the government to prove four facts. These facts are the elements of the crime. The table below lists these facts.

8 USC § 1326 Definition for Illegal Reentry after Deportation

No.Reentry of Removed Aliens.
1The person was an alien when arrested;
2The 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.
The government must prove each of these facts beyond a reasonable doubt. Otherwise, the non-citizen is not guilty of Illegal Reentry after Deportation.

Incidentally, judges and lawyers call this crime a 1326 case. It refers to the code. Also, an “alien” is as any person who is not a natural-born or naturalized citizen of the United States.

Above all, the table explains why a large number of aliens plead guilty to this crime. A guilty plea usually results in a lower jail term. This creates is a strong incentive for migrants to plead guilty to a 1326 crime.

Are there defenses to a 1326 crime?

Yes. There are at least two defenses. They are duress and collateral attacks. But they only work in a small number of cases. To see why, let’s examine each defense.

A. Duress Defense to Illegal Reentry

Duress is an affirmative defense. The person must show someone forced him to break the law. If the person can prove duress, then it will excuse his conduct. To put it another way, the person admits to the crime, but says there was a good reason to break the law. As a result, the jury will find the person not guilty.

To win, the person must show:

  1. Someone else threatened the person with instant death or serious injury;
  2. The person did not put himself in a situation that required him to break the law;
  3. The person had no choice but to break the law; and
  4. His crime was directly related to the threat.

Moreover, this defense is common in border cases. In fact, border crossings are dangerous. Cartels and alien smugglers control the Mexican side of the border. These groups use violence to extort migrants crossing into the U.S. This includes beating, raping, and shooting the migrants.

Consequently, many migrants cross the border to avoid this harm. In these situations, a noncitizen can raise the duress defense.

But the government understands this issue. So they avoid filing cases with strong duress defenses. This means they only charge migrants who have either no duress defense or only a weak duress defense. This is one reason why it is difficult to raise a duress defense at trial.

B. Collateral Attacks

A collateral attack is an indirect challenge to the deportation order. The government needs a valid deportation order to prove a 1326 case. And without this order, the government cannot make its case.

So the defense asks the federal-trial judge to kick out the deportation order issued by an immigration judge. To succeed, the migrant must show the deportation order is no good. If he can show this, then the judge will not allow the government to use the order during the criminal trial. This is the essence of a collateral attack.

But the collateral attack only keeps the deportation order out of the criminal case. The order is still good in other courts. This means the government can still deport the migrant. They just cannot use it to charge him with a 1326 crime.

Finally, the table below shows the requirements for a collateral attack.

8 USC § 1326(d): Collateral Attacks

No.Collateral Attack Requirements
1The person exhausted any administrative remedies that may have been available to seek relief against the order;
2The deportation proceeding at which the order was issued improperly deprived the person of the opportunity for judicial review; and
3.The entry of the order was fundamentally unfair.
The first requirement means the alien must have fought the original removal order in immigration court. This also requires the alien to appeal the deportation order to the Board of Immigration Appeals.

This process is expensive and usually requires the alien to hire an immigration attorney. Unfortunately, many aliens in this position do not have the money to hire an attorney. As a result, they are not able to satisfy the first requirement. And this alone will bar the collateral attack.

Next, there must be an issue with the deportation proceeding. That is, something went wrong, and the alien did not get a chance to fight his case with the immigration court.

Finally, the deportation or removal proceeding must have been fundamentally unfair to the alien. This is usually a judgement call made by the trial and appellate judges.

C. Summary of Defenses

In summary, aliens charged with a 1326 crime have defense options. Consequently, the defense should review these options before the migrant pleads guilty to a 1326 charge. This is true even if the chances of success are low. Because overlooking a defense can have tragic consequences.

What are the maximum penalties for Illegal Reentry?

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.

LawCriminal HistoryFelony ClassMax PenaltyMax FineTerm 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.
The maximum penalties for Illegal Reentry range from 2 years to 20 years. Further, the maximum penalty that will apply in a case depends on the criminal history of the defendant.

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:

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.

How much jail time do people convicted of Illegal Reentry get?

The United States Sentencing Commission (USSC) keeps detailed records for all federal crimes. According to their Fiscal 2020 data, the average jail term for Illegal Reentry is eight (8) months.

In addition, this data shows the following:

  • 73 percent of offenders received a guideline sentence;
  • 96 percent of offenders were men;
  • 41 percent of offenders had little or no criminal record; and
  • Judges sent over 96 percent of Illegal Reentry offenders to jail.

Strikingly, this data is consistent with my experience handling Illegal Reentry cases in San Antonio and Del Rio. Judges give 1326 clients either time served or a guideline sentence.

What are the type five districts for Illegal Reentry Crimes?

According to the USSC, these five districts carry the highest Illegal Reentry case loads in the country:

  1. District of New Mexico;
  2. District of Arizona;
  3. Western District of Texas;
  4. Southern District of Texas; and
  5. District of Utah.

Reentry of Removed Aliens Criminal Defense

In many ways, 1326 cases are the longest of long shots. They are paper crimes that are easy to prove. But the defense must always review the file carefully. In some cases, migrants charged with a 1326 crime may have a strong defense. In addition, a review of the criminal history can protect the migrant from serving too much jail time.

Law Office of Genaro R. Cortez, P.L.L.C.

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San Antonio, Texas 78212
Phone: 210-733-7575
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Email: genaro.cortez@cortezlawyer.org