Understanding Federal Criminal Law for Illegal Re-entry or Illegal Immigration: Key Facts, Conviction Elements, and Penalties by a Federal Immigration Defense Attorney.
If you or a loved one is facing charges for illegal re-entry into the United States, it’s essential to understand the federal laws that apply, the elements the government must prove to secure a conviction, and the range of penalties that may be imposed. Here, we will break down the critical components of federal criminal law related to illegal re-entry, as well as the potential consequences.
Federal Government’s New Aggressive Policies to Prosecutions
With a shift it the United States’ immigration criminal policies forthcoming, it is important to note that the federal government will be far more aggressive in pursuing illegal re-entry cases. The U.S. Department of Justice and federal prosecutors treat these cases seriously, often seeking lengthy prison sentences for those convicted. Immigration law enforcement agencies such as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) work closely to identify individuals who have re-entered the country illegally and build criminal cases against them. Due to the increased focus on immigration enforcement, the prosecution of illegal re-entry cases will become more stringent and punitive.
What Is Illegal Re-entry Under Federal Law?
Illegal re-entry is governed by 8 U.S.C. § 1326, a statute that criminalizes the act of an alien (non-citizen) re-entering or being found in the United States after being denied admission, excluded, deported, or removed from the country. Simply put, if someone who has been previously removed from the U.S. attempts to re-enter without the proper authorization, they may be charged under this statute.
What Must the Government Prove for a Conviction?
To secure a conviction under 8 U.S.C. § 1326, the government must prove several key elements beyond a reasonable doubt:
- The Defendant Is an Alien: This means the individual is not a U.S. citizen or lawful permanent resident.
- Prior Denial, Exclusion, Deportation, or Removal: The defendant must have been previously denied entry, excluded from the country, or formally removed through deportation or another legal process.
- Subsequent Re-entry or Presence: The defendant must have re-entered the U.S. or been found in the country without proper authorization after their removal.
- No Authorization to Re-enter: The individual did not have the consent of the Attorney General or the Secretary of the Department of Homeland Security to re-enter the U.S. or be found in the country.
What Are the Penalties for Illegal Re-entry?
The penalties for illegal re-entry depend on the circumstances, including the individual’s criminal history. Under 8 U.S.C. § 1326(b), the punishment can range from a fine to a lengthy prison sentence:
Generally, for a first-time offense with no criminal history, the maximum term of imprisonment is 2 years.
For re-entry after a conviction for certain misdemeanors or non-aggravated felonies, the maximum punishment includes a fine and up to 10 years in prison. These felonies may involve crimes such as drug offenses or violent crimes.
For re-entry after an aggravated felony conviction, the penalty is much more severe, with a maximum sentence of 20 years in prison.
Quite possibly the most significant and substantial punishment is deportation or removal from the United States.
I have been arrested or a family member has been arrested for illegal re-entry, what do I do?
Illegal re-entry charges under 8 U.S.C. § 1326 carries serious consequences. If you are facing such charges, it is critical to have an experienced criminal defense attorney who can help you understand the elements of the case, explore potential defenses, and advocate for the best possible outcome in light of the charges and your criminal history. When the stakes are high, you want a former federal prosecutor with a deep understanding of federal criminal law on your side.
If you have been charged under 8 U.S.C. § 1326 for illegal re-entry into the United States, it is crucial to take immediate action, as the consequences can be severe, including lengthy prison sentences, fines, and deportation. Here’s what you should do if facing charges under this law:
- Contact an Experienced Federal Criminal Defense Attorney
The first and most important step is to hire an attorney who specializes in federal criminal defense, particularly one with experience in federal immigration-related criminal cases. Illegal re-entry is a federal crime and the federal government aggressively prosecutes these cases. An experienced attorney will help you understand your rights, explain the charges against you, and begin building a defense strategy.
- Do Not Discuss Your Case Without Your Attorney
It’s important to remain silent and not discuss your case with anyone other than your attorney. Any statements you make to law enforcement, even if you believe they are helpful, can be used against you in court. Your attorney will advise you on what to say and how to handle questioning by law enforcement.
- Gather Relevant Documentation
Work with your attorney to collect any documents related to your immigration status, prior deportation or removal, and any criminal history. This information is crucial to evaluating the case against you and building a defense. For example, if there were any errors in your removal process or if you were granted permission to re-enter in some way, this could be a key part of your defense.
- Understand the Elements of the Charge
Under 8 U.S.C. § 1326, the prosecution must prove the following to secure a conviction:
– You are an alien (not a U.S. citizen or lawful permanent resident).
– You were previously denied admission, excluded, deported, or removed from the U.S.
– You re-entered or were found in the U.S. without proper authorization.
– You did not have the consent of the Attorney General or the Secretary of Homeland Security to re-enter the U.S.
- Consider Possible Defenses
There may be legal defenses available depending on the facts of your case. Some common defenses include:
– Improper or unlawful deportation/removal. If the deportation process was flawed or violated your rights, it may serve as a defense.
– Lack of knowledge: In some cases, a defendant may not know they were subject to a prior removal order, especially if they had no notice of the order.
– Re-entry with permission: If you were granted permission to re-enter the U.S. and the government fails to recognize this, it could lead to the dismissal of the charge.
- Prepare for Possible Sentencing
If the prosecution successfully proves the elements of the charge, you could face serious penalties, including up to 10 years in prison (for re-entry after certain crimes) or up to 20 years for re-entry after an aggravated felony conviction. Your attorney can negotiate for a reduced sentence, and in some cases, they may be able to help you secure a more favorable outcome through plea bargaining.
- Understand the Immigration Consequences
In addition to criminal penalties, being charged with illegal re-entry can have serious immigration consequences. You may face deportation or be barred from returning to the U.S. for a long period of time. Your attorney will explain the potential immigration consequences and work to minimize the impact on your ability to remain in or return to the U.S.
Being charged with illegal re-entry under 8 U.S.C. § 1326 is a serious matter, and the federal government’s aggressive stance on prosecuting these cases means that your defense must be handled with care. Hiring an experienced federal criminal defense attorney immediately is your best chance at protecting your rights and minimizing the potential consequences. At Almonte Law, we will guide you through the legal process, help you explore possible defenses, and work to achieve the most favorable outcome possible.