Alien Reentry

8 U.S. Code § 1326 - Reentry of Removed Aliens

Under 8 U.S. Code 1326, it's a federal crime to enter, re-enter, or attempt to re-enter the United States if you have been denied admission, removed, deported or excluded, or left the U.S. while under an order of removal or deportation, other than an approved voluntary departure.

Re-entering the United States illegally could result in a fine and up to two years in federal prison, but up to 10 years if you were deported due to certain convictions, such as a drug offense.

8 U.S. Code § 1326 - Reentry of Removed Aliens
It's a federal crime for a non-citizen to reenter the United States after being removed or deported.

If you attempt to enter after being deported and stopped at the border, you can be arrested and charged with a crime, not just denied entry. Suppose you were deported and managed to avoid detection upon re-entry. In that case, you could be charged for violating 8 U.S.C. 1326 if found inside the United States.

Under federal immigration law, if you are a non-citizen called an “alien,” once you have been deported and removed from the United States, you cannot reenter without proper government authorization. This means you commit a federal crime if you attempt to return without appropriate authority.

8 U.S.C. 8 1326 says, “(a) In general, (b) any alien who-

(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding and after that

(2) enters, attempts to enter, or is at any time found in, unless (A) before his reembarkation at a place outside the United States or his application for admission from contiguous foreign territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under title 18, imprisoned under two years, or both.”

Alien Reentry – Quick Facts

There are some essential facts you should know about 8 U.S. Code 1326 Reentry of removed aliens, such as the following:

  • This law makes it a crime for non-U.S. citizens or nationals to reenter the United States after being formally removed or deported, regardless of how long they were removed or their current circumstances.
  • This law applies to aliens denied entry to the U.S. (excluded) and anyone who departed the country while their deportation was in progress.
  • Any attempts to reenter is considered the same crime as actual re-entry.
  • Being discovered in the U.S. is considered attempting to reenter.
  • Being unlawfully present in the U.S. is not a crime.
  • If you were under criminal or immigration court proceedings and voluntarily departed with permission but did not leave due to a conviction, you will face two years in federal prison.
  • You can't challenge your deportation order if arrested for illegal re-entry; challenges must be made when the government initiates removal proceedings.

What Are the Exceptions?

8 U.S.C. 1326 provides a few exceptions. For example, a previously removed alien might be exempt from prosecution for reentering the United States under the following conditions:

  • The U.S. Attorney General expressly consented to allow a non-citizen to re-apply for admission; or
  • The non-citizen can prove they did not need consent.

What Are the Related Federal Statutes?

8 U.S. Code Part VIII General Penalty Provisions has several federal laws related to 8 U.S.C. 1326 reentry of removed aliens, including the following:

  • 8 U.S.C. 1321 – Prevention of unauthorized landing of aliens;
  • 8 U.S.C. 1322 – Bringing in aliens subject to denial of admission on a health-related ground; persons liable; clearance papers; exceptions; “person” defined;
  • 8 U.S.C. 1323 – Unlawful bringing of aliens into the United States;
  • 8 U.S.C. 1324 – Bringing in and harboring certain aliens;
  • 8 U.S.C. 1324a – Unlawful employment of aliens;
  • 8 U.S.C. 1324b – Unfair immigration-related employment practices;
  • 8 U.S.C. 1324c – Penalties for document fraud;
  • 8 U.S.C. 1324d – Civil penalties for failure to depart;
  • 8 U.S.C. 1325 – Improper entry by an alien;
  • 8 U.S.C. 1327 – Aiding or assisting certain aliens to enter;
  • 8 U.S.C. 1328 – Importation of alien for immoral purpose;
  • 8 U.S.C. 1329 – Jurisdiction of district courts;
  • 8 U.S.C. 1330 – Collection of penalties and expenses.

What Are the Penalties?

Suppose you are convicted of violating 8 U.S.C. 1326 reentry of removed aliens law. In that case, you could face the following penalties:

  • For general violations, you could be sentenced to up to two years in federal prison and a fine of up to $250,000;
  • if you were deported after being convicted of a crime, the sentencing will increase;
  • If convicted of any felony or three misdemeanors involving drugs or bodily harm, you are facing up to 10 years in prison;
  • If convicted of an aggravated felony, you could face up to 20 years;
  • If you were excluded from the U.S. due to any terrorist activity, you could face up to 10 years in prison;
  • If you were voluntarily removed before completing a sentence for a non-violent crime, you could face up to 10 years in prison.

Notably, suppose you were deported before you completed any other prison sentence, and you attempt to reenter.  In that case, you could be sentenced under this law and have to resume serving your unfinished sentence.

Section 1326(c) says, “Reentry of alien deported before completion of term of imprisonment - Any alien deported pursuant to section 1252(h)(2) [2] of this title who enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien's reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to other penalties relating to the reentry of deported aliens as may be available under this section or any other provision of law.”

What Are the Defenses?

If you are accused of violating 8 U.S.C. 1326, our federal criminal defense attorneys could use different strategies, as discussed below.

Maybe we can argue that you qualified for one of the exceptions. Perhaps we can show you obtained consent from the Attorney General before reentering the country or that you legally did not need that consent.

Maybe we can challenge the validity of your deportation. While there are limits to your ability to challenge the validity of your initial deportation order, you may do so as a defense if you can prove certain factors.

One of these factors is that you exhausted all "administrative remedies" available to challenge the original removal order. Another is that deportation proceedings deprived you of the opportunity for judicial review, and the entry of the removal order was fundamentally unfair. Contact our law firm for a free case evaluation. The Hedding Law Firm is located in Los Angeles, California.

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