Returning to the United States after a deportation, denial of admission or exclusion is a federal crime. Under 8 U.S. Code § 1326 it is a crime to enter, re-enter or attempt to re-enter the United States after a person has been removed from the country or deported. The term itself is simple, the definition and what constitutes an illegal re-entry, however, can be quite confusing.
As the term implies illegal re-entry applies to those who have been in the United States previously, whether legally or illegally, and ordered in one way or another not to return to the United States. The ways in which a court can order a foreign citizen not to enter the country can vary greatly. A voluntary departure occurs when a foreign national, rather than remaining in custody or following through with the court process, elects to return to their country of origin voluntarily. A person may choose to voluntarily leave the country if they know there is no form of relief available to them that would permit a federal Judge to allow them to stay lawfully in the U.S. A voluntary departure requires approval from a federal judge and allows the person to return to their country of origin at their own expense within a set time period. A voluntary departure requires a person to sign documents agreeing that they will not return to the United States without special permission from the federal government. Returning to the U.S. without this permission can result in a criminal charge of illegal re-entry.
Illegal re-entry isn’t always the result of initial unlawful entry into the United States. Sometimes a person can be charged with illegal re-entry after having been in the country legally with a valid stay, temporary permit, visa, or even permanent residency. When a person is charged with a crime, even a misdemeanor or overstays the length of their visa or permit they may be detained or requested to appear in court for unlawful entry or deportation proceedings. This process can result in a Judge ordering the person removed or deported from the country. A person returning to the United States without permission following an order of removal or deportation is guilty of illegal re-entry.
Illegal re-entry is generally punishable by a fine and up to two years in federal prison. Penalties can increase based on the initial reason for removal. For example, if a person was deported for committing a felony or three misdemeanor convictions involving drugs or crimes of moral turpitude, then the re-entry is punishable by up to twenty years in federal prison.
If you’ve been charged with illegal re-entry, there are defenses available to you. A skilled, experienced attorney can review your original deportation documents and proceedings to evaluate possible challenges to the underlying deportation. Specifically, the U.S. Supreme Court in U.S. v Mendez-Lopez identified a three-part test in determining in whether the initial deportation was valid.
The three parts of the test include:
- Defendant exhausted all other administrative remedies that were available to seek relief against the order
- Deportation proceedings improperly deprived defendant of the chance for appropriate judicial review
- Fundamental unfairness of initial order
Other defenses include challenging a person’s understanding of the documents they signed, the reason for removal, and even the identity of the deported person.
If you’ve been charged with illegal re-entry call us today to find out what options are available to you at 323-655-5700.