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Alien Reentry

8 U.S. Code § 1326 - Reentry of Aliens after Removal

Under federal immigration law, once an alien, who is not a citizen or national of the United States, has been deported and removed from the country, they cannot reenter without proper government authorization.

Under Title 8 U.S.C. 1326, any non-U.S. citizen who has been formally deported, excluded, or removed from the country, and attempts to come back without proper authority, commits a federal crime.

In other words, under 8 USC 1326(a), it is a federal crime for any alien excluded, deported, or removed to reenter or attempt to reenter the United States.

Reentry of Aliens after Removal - 8 U.S. Code § 1326
It's a federal crime for any alien who was deported or removed to reenter the United States.

Under this statute, there is a maximum 2-year sentence for reentry after deportation. However, suppose the removal of a non-citizen was caused by the alien's convictions to three or more misdemeanors involving drugs, crimes against the person, or a felony. In that case, they could face up to 10 years in prison.

Notably, a crime that is classified as a misdemeanor under state law could be considered an “aggravated felony” under United States immigration laws.

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 thereafter

(2) enters, attempts to enter, or is at any time found in, unless (A) prior to 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….”

Simply put, if you are a non-citizen accused of this crime and are convicted, you could face time in federal prison. If the reason for your removal was a prior crime committed, the length of time in prison could go up dramatically. Let's review this state law in more detail below.

Title 8 U.S.C. 1326 Explained

The statute of Title 8 U.S.C. 1326 makes it a crime for a non-U.S. citizen or national to reenter (or attempt to reenter) the country without proper authorization after being formally removed or deported from the United States by immigration officials, regardless of how long ago they were removed or what their current circumstances are.

The same is true for aliens denied entry to the U.S. (also known as "excluded") and those who departed the country while their deportation was in progress.

What Are the Exceptions to the Rule?

8 U.S.C. 1326 does allow for two exceptions. A previously removed alien may be exempt from prosecution for reentering the U.S. if either of the following is true:

  1. The Attorney General "expressly consented" to allow the non-citizen to re-apply for admission; or
  2. The non-citizen can prove they did not need such consent.

Other things to know about this law: 

  • Attempting to reenter is treated as the same crime as actual re-entry. In other words, if you attempt to enter after being deported and being stopped at the border, you can be arrested and charged with a crime—not just denied entry.
  • Being discovered in the U.S. is treated like attempting to reenter. In other words, if you have been deported and manage to avoid detection upon re-entry, you will be charged under 8 U.S.C. 1326 if officials find you inside the United States.

What Are the Related Federal Laws?

8 U.S. Code Part VIII General Penalty Provisions has several federal statutes that are related to 8 U.S.C. 1326 reentry of removed aliens, such as 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;
  • 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;
  • 18 U.S.C. 1427 – Selling citizenship papers; 
  • 18 U.S.C. 911 – False Claim of Citizenship.

What Are the Penalties for 8 U.S.C. 1326?

Violating 8 U.S.C. 1326 is a serious offense accompanied by stiff penalties. For general violations (e.g., with no prior crime committed), you could be sentenced to up to two years in prison and fined up to $250,000. However, if you were deported after being convicted, the sentencing requirements go much higher. Some examples include:

  • If you were convicted of any felony offense (or three misdemeanors involving drugs or bodily harm): up to 10 years in prison.
  • If you were convicted of an aggravated felony offense: up to 20 years in prison.
  • If you were excluded from the U.S. over your involvement in terrorist activity: up to 10 years in prison.
  • If you were voluntarily removed from the U.S. before completing a sentence for a non-violent crime: up to 10 years in prison.

In addition, if you were deported before you completed any other prison sentence and you attempt to reenter, not only could you be charged and sentenced under this law, but you may have to resume serving your unfinished sentence, as well.

What Are the Defenses for 8 U.S.C. 1326?

While the consequences of a conviction under 8 U.S.C. 1326 can be severe, a skilled federal criminal defense attorney can still implement specific strategies to defend you against the charges. The common defenses for federal immigration crimes are discussed below.

Defenses for Reentry of Aliens after Removal
Contact our federal defense attorneys for help.

Perhaps we can argue that you qualified legally for one of the abovementioned exceptions. If you can show that you obtained specific consent from the Attorney General before reentering the country, or if you can show that you legally did not need that consent, you should be exempt from prosecution under this law.

Perhaps we can challenge the validity of your deportation. While 8 U.S.C. 1326 limits your ability to challenge the validity of your initial deportation order, you may do so as a defense if you can prove certain factors.

These include that you exhausted all "administrative remedies" to seek relief from the deportation order and were deprived of lawful judicial review during your deportation hearing, and your deportation order was fundamentally unfair.

You can contact our law firm by phone or using the contact form to review the case details. Eisner Gorin LLP is based in Los Angeles, CA.

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