Illegal Reentry to U.S. after Deportation (8 U.S.C. Section 1326)
If you are deported from the United States and then unlawfully re-enter the country, you could be charged with the federal crime of illegal re-entry to the U.S. after deportation under 8 U.S.C. Section 1326.
In order to be convicted of this crime, the prosecution must prove each of the following elements beyond a reasonable doubt:
- You are an illegal alien;
- You have been formally removed or excluded from the U.S.;
- You entered, attempted to enter or have been found in the United States; AND
- You did not have consent from the Attorney General to reapply for admission to the U.S.
Potential Punishment for Illegal Reentry
Under 8 U.S.C. Section 1326, if you’re convicted of illegal re-entry to the U.S., you face up to two years in federal prison, a fine, or both. 
However, if you were previously convicted of three or more misdemeanor drug charges, a crime against any person, or any felony, you face up to 10 years in prison. If you were convicted of any aggravated felony, such as a violent crime or sexual assault, you face up to 20 years in federal prison.
Defenses to Illegal Reentry
Federal law expressly states that you cannot be convicted of this crime if you received the express consent from the Attorney General prior to leaving the county after being deported. If you were provided with consent, it would be a complete defense to this crime.
Your attorney could also attack your deportation as a viable defense. In order to be successful, your lawyer must show that:
- Your prior deportation was “fundamentally unfair”
- You were deported without the opportunity to appeal or challenge the decision
- You have suffered prejudice; AND
- The prejudice deprived you of what would have been a reasonable likelihood of avoiding deportation1
Some ways to show that your prior deportation was unlawful include:
- Statute of Limitations: If ICE waits more than five years to prosecute you, then your otherwise unlawful reentry may be excused.2
- Asylum Refugee Status: If the Attorney General determines that you are a refugee as you are “unable or unwilling to return to [your home country]…because of persecution or a well-founded fear of persecution on account of race, religion, nationality, or membership in a particular social group, or political opinion.”3
- Failure to Advise of 212(c) Relief: If you pled guilty under advisement that there would not be immigration consequences, you could have a valid defense.
Some other potential defenses to this crime could include:
- Fourth Amendment Violation: Illegal aliens are afforded the full force and affect of the Bill of Rights, including the right to be free from illegal searches and seizures.
- Derivative Citizenship: Regardless of where you were born, if certain conditions are met, you may have acquired citizenship without even knowing it. For example, you were born out of wedlock to a U.S. citizen. However, this defense will likely require extensive documentary proof.
- People Not Papers Defense: This defense is only appropriate for trial and should be used only as a last resort. Essentially, the idea is that you want to convince the jury that you should not be convicted based on documentary evidence alone and that the government use actual, live witnesses.4
Call an Experienced Federal Attorney Today
If you or a loved one has been charged with illegal reentry to the U.S., you need to contact an experienced Wallin & Klarich federal defense attorney immediately. At Wallin & Klarich, our skilled attorneys have been successfully defending clients facing federal charges for over 30 years. We’ve helped thousands of people in their time of legal need, and we can help you now.
With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal lawyer available to help you no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.
1. https://www.fd.org/pdf_lib/FJC2011/Defending_Illegal_Reentry.pdf. href=”#ref1″>↩
2. https://www.fd.org/docs/select-topics/common-offenses/immigration/safe_approach_illegal_reentry.pdf?sfvrsn=10. href=”#ref2″>↩
3. 8 U.S.C. § 1101(a)(42)(A). href=”#ref3″>↩
4. Id.. href=”#ref4″>↩
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