What are Federal Illegal Reentry into the United States Charges?
Reentering the United States illegally after being denied admission or ordered removed (deported) is a federal crime.
Do I Need a Defense Attorney for Illegal Reentry into the United States Charges?
Under federal immigration law, known as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), the government might charge a person with Illegal Reentry into the United States if they reenter, attempt to reenter, or are caught in the U.S. after previously facing one of the following immigration actions:
- Removal proceedings (otherwise known as deportation) – when the government removes an individual from the U.S. to another country. Illegal Reentry felony charges following deportation are the most common charging scenario.
- Denied admission or excluded means that U.S. government agents previously determined that someone was inadmissible, and the U.S. denied the request for admission.
- An individual left the U.S. while an order of exclusion, deportation, or removal was outstanding.
A federal defense lawyer can fight for a favorable resolution to Illegal Reentry into the United States charges. They can seek an extraordinary plea bargain from the U.S. Attorney’s Office and a lenient sentence from the district court judge. It is possible to get charges dismissed and thrown out of court in some cases. The most effective defense lawyers are well-respected, have a track record of success, and have decades of experience fighting to protect and defend clients in federal court.
“How much jail time will I get for Illegal Reentry?”
The severity of the penalties for Illegal Reentry into the United States depends on the accused’s criminal history, including the number and type of convictions on their prior record. Someone with an unlawful reentry conviction might face time in jail or prison, as well as various other consequences. The average sentence for illegal reentry offenders is 18 months in prison.
- Up to Two (2) Years in Prison: If the defendant’s criminal background is minor, they could face two years in prison, penalties, and a ban on reentering the country.
- Up to 10 Years in Prison: If the defendant has three or more state or federal misdemeanor convictions involving drugs, crimes against persons, or a combination of the two, they may face fines, up to 10 years in prison, and a reentry ban. If that person has a past felony conviction that is not an aggravated felony, the sentence is the same (fines, ten years, and no reentry). If the defendant has an egregious felony conviction, the sentence would be harsher.
- Up to 20 Years in Prison: For an Illegal Reentry into the United States conviction following or in conjunction with an aggravated felony, the accused may face up to 20 years in prison. Forty percent of those charged with illegally reentering the United States face a 20-year maximum under 8 U.S.C. 1326.
Is There a Defense Against Illegally Reentering the United States Charges?
Regardless of their legal status, law enforcement frequently subjects immigrants to unjust prejudice. Because of this bias, if someone has reentry or other immigration charges, it is vital that they have an attorney to advocate for their rights and attempt to mitigate immigration consequences. That person may have a solid defense to Illegal Reentry charges in the United States, but will need an attorney to develop a winning strategy and represent them in court.
Defenses to Illegal Reentry into the United States charges include the following:
- Lawful status in the United States (sometimes illegal reentry charges result from mistakes in paperwork or misunderstandings).
- No previous removal, deportation, or exclusion from the U.S. (sometimes there is a case of mistaken identity or the previous deportation involved a person using a stolen identity).
- Mistaken entry into the United States.
- The previous deportation or removal was unlawful.
- Earlier deportation or removal without the opportunity for judicial review.
- Previously denied the opportunity to file for asylum.
- Illegal reentry after voluntary departure (a mitigation defense).
Is it best to hire a private lawyer for Illegal Reentry into the U.S. charges?
Although someone charged with Illegal Reentry into the United States is entitled to court-appointed representation, it is generally best to hire a private lawyer if you want to choose an attorney you feel will fight to protect and defend you or your loved one. As the federal courts in the United States have become more rigorous and less sympathetic to those accused of unlawfully entering the country, having a professional attorney on your side has become increasingly important, especially at an illegal reentry sentencing hearing. Even if you are not a citizen of the United States, you are entitled to the same rights and protections in criminal court.
Federal Defense Attorneys for Illegal Reentry into the United States Charges
The federal defense lawyers with LEWIS & DICKSTEIN, P.L.L.C. have decades of experience defending clients on Illegal Reentry into the United States and other charges in the federal district courts throughout Michigan. United States District Court judges and the Assistant United States Attorneys know that when we walk into the courtroom to defend our clients, we will do whatever it takes to achieve the best possible result. As a result of our stellar reputation for providing the highest caliber of defense, we tend to get the benefit of the doubt when seeking an outstanding plea bargain or a merciful sentence.
Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.
We will find a way to help you.
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FAQ – Illegal Reentry Charges, Penalties, and Defenses
What does “illegal reentry” mean under federal law?
Illegal reentry refers to a federal felony charged under 8 U.S.C. § 1326. It applies when a person previously denied admission, excluded, deported, or removed from the United States later enters, attempts to enter, or is found in the United States without lawful permission from the federal government to return.
The charge does not depend on how the person reentered. The government can proceed even if it cannot prove the exact date or location of reentry.
How is illegal reentry different from illegal entry?
Illegal entry and illegal reentry are separate federal offenses with different elements and consequences. Illegal entry generally involves entering or attempting to enter the United States without inspection or by misrepresentation and often appears as a misdemeanor under 8 U.S.C. § 1325. Illegal reentry requires a prior removal, deportation, exclusion, or denial of admission and is prosecuted as a felony under 8 U.S.C. § 1326.
What does it mean to be “found in” the United States?
“Found in” is a charging theory used in illegal reentry cases. It allows prosecutors to bring charges when immigration authorities discover a person physically present in the United States after a prior qualifying removal, even if the government cannot prove when or where the person crossed the border. This theory plays a significant role in venue, statute of limitations, and sentencing exposure arguments.
Is illegal reentry a felony?
Yes. Illegal reentry is always a federal felony. The seriousness of the felony and the maximum punishment depend on the individual’s prior criminal history and the circumstances surrounding the prior removal. Even a basic illegal reentry charge can carry prison time.
What penalties can someone face for illegal reentry?
The maximum penalties depend on the statutory subsection charged and the defendant’s prior record. A basic illegal reentry offense can carry up to two years in federal prison. Prior qualifying convictions can increase the maximum exposure to ten or even twenty years. These are statutory ceilings. Actual sentences often depend on the advisory sentencing guidelines and the specific facts of the case.
How do federal sentencing guidelines affect illegal reentry cases?
Federal judges use advisory sentencing guidelines to calculate a recommended sentencing range. In illegal reentry cases, the guideline calculation often hinges on prior convictions, the length of prior sentences, and an individual’s immigration history. Judges may sentence above or below the guideline range based on statutory sentencing factors and the equities of the case.
Does the government have to prove intent to violate immigration law?
In most illegal reentry prosecutions, the government does not need to prove that the person knew reentry was illegal. The focus usually falls on identity, the existence of a prior qualifying removal or exclusion, the fact of reentry or presence in the United States, and the absence of lawful permission to return.
Can a person challenge the prior deportation or removal order?
In limited circumstances, yes. Federal law allows a defendant to collaterally attack the underlying removal order only if strict requirements are met. The defendant generally must show that administrative remedies were unavailable or exhausted, judicial review was denied, and the prior proceeding was fundamentally unfair. Courts apply these requirements strictly, and most challenges fail without strong documentary support.
Does voluntary departure prevent an illegal reentry charge?
Not necessarily. Whether voluntary departure shields someone from an illegal reentry charge depends on the precise immigration history and the existence of any prior orders or bars. This issue requires careful review of immigration records. Assumptions based on memory or informal advice often lead to serious mistakes.
What is “permission to reapply,” and why does it matter?
Certain individuals who were previously removed must obtain government consent before seeking lawful admission again. This consent is often referred to as “permission to reapply.” In an illegal reentry case, a critical issue is whether the person obtained consent before reentering or before being found in the United States.
Can illegal reentry charges be dismissed?
Yes, but only in the right case. Dismissals often arise from proof problems, identity issues, lawful status defenses, permission to return, or a successful challenge to the underlying removal order. These defenses rely on records and legal analysis, rather than speculation.
Does an illegal reentry conviction affect future immigration options?
It often does. A conviction can trigger or compound serious immigration consequences, including long-term or permanent inadmissibility. Criminal defense decisions in an illegal reentry case can permanently shape immigration outcomes. Coordination between criminal defense and immigration strategy matters.
Where are illegal reentry cases prosecuted?
Illegal reentry cases are prosecuted in federal court. Venue often depends on where the person was arrested or “found,” but venue issues can become complex in certain cases. A careful review of how the government alleges venue can reveal defenses that are easily overlooked.
What should someone do after an arrest for illegal reentry?
They should avoid discussing immigration history or prior removals with law enforcement and seek experienced federal defense counsel immediately. Early access to immigration records and prior removal documents often determines whether meaningful defenses exist.
