Returning to the United States after being deported or removed is a violation of federal law. Alleged offenders could be sentenced to prison before being returned to their home countries—where they could face additional consequences as well.
Title 8 U.S. Code § 1326 states that is illegal for any person who “has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding” to enter, attempt to enter, or at any time be found in the United States. This means that it is a federal crime for an individual to be in the United States following any sort of removal action.
Being in the country without legal status is not grounds for removal, and removal proceedings themselves are civil matters. However, entering, attempting to enter, or being in the United States after being removed or deported is a criminal matter.
There may be several reasons why U.S. Immigration and Customs Enforcement (ICE) might initiate a removal process. Those who have been granted green cards or nonimmigrant visas are expected to be on their best behavior and avoid any violations of local, state, or federal laws.
A person can be subject to removal if he or she commits some form of fraud, such as falsifying immigration documents, committing marriage fraud, or falsely representing him or herself as a U.S. citizen. Certain criminal offenses can also be grounds for deportation or removal, including convictions for drug crimes, domestic violence offenses, aggravated felonies, or other “crimes involving moral turpitude.”
Under Title 8 U.S. Code § 1326, the “basic statutory maximum penalty for reentry after deportation is a fine under Title 18, imprisonment for not more than 2 years, or both.” However, if a person was removed because of a felony conviction or convictions for three or more misdemeanors, the penalty can be up to 10 years in prison as well as a possible fine. If the conviction was for an aggravated felony, then the possible punishment is a maximum sentence of 20 years in prison and/or a fine.
Generally, these types of cases are among the easiest for government prosecutors to handle. Very little investigation is required if there is proof that a person was subject to removal and then was found entering, attempting to enter, or being in the United States afterward.
This is not to say that an alleged offender who is accused of illegal reentry does not have any possible defenses. Depending on the specific circumstances of his or her case, there may be multiple ways to either challenge the original removal order or excuse you return.
These orders may be invalid if there were procedural errors in a person’s original removal proceeding or he or she was deprived of proper judicial review. It could also be possible that a person was incorrectly charged with a felony offense or did not understand the consequences of agreeing to enter a guilty plea in his or her case. The U.S. Attorney General or the Secretary of the Department of Homeland Security may have consented for the alleged offender to reapply for admission into the United States, or the Attorney General could have granted him or her asylum.
It is not uncommon for alleged offenders in these types of cases to simply be victims of basic misunderstandings of their rights. The absence of criminal intent will usually help people achieve the most favorable outcomes.