In addition to a violation of immigration law, it is a federal crime to reenter the United States after a previous removal (without permission to reenter). When caught at the border or port of entry, without permission to reenter, you are likely to face prosecution and significant prison time.
It is always important to obtain the assistance of an experienced federal CrImmigration defense attorney when charged with any federal crime, but it’s especially important when charged with a criminal immigration offense because it is a very specialized area of law.
Illegal Reentry (8 U.S.C. § 1326)
If someone who has been deported, removed, or excluded from the United States returns or attempts to return without permission, that person is usually charged with Illegal Reentry. Illegal Reentry can result in serious, long-term punishment.
The penalty for this crime largely depends on a defendant’s criminal history:
If removal was after a conviction for a felony, or three or more misdemeanors involving drugs or crimes against a person — 10 YEARS
If removal was after a conviction for an aggravated felony — 20 YEARS
If removed after being released early from a sentence of imprisonment — 10 YEARS
If excluded because of terrorist activities — 10 YEARS
Otherwise — 2 YEARS
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Again, the maximum sentences are rarely imposed and the actual sentence depends on a person’s criminal history. Under the Sentencing Guidelines, sentences are highest for people who were removed from the U.S. after a felony conviction for: a drug trafficking offense for which the sentence imposed exceeded 13 months; a crime of violence, a firearms offense; a child pornography offense; a national security or terrorism offense; a human trafficking offense; or an alien smuggling offense. Sentences can also be enhanced, to a lesser extent, if removed after: a felony drug trafficking offense for which the sentence imposed was less than 13 months; an aggravated felony; any other felony, or three or more misdemeanor convictions that are crimes of violence or drug trafficking crimes. There are very specific definitions of each of these prior convictions.
Although there are defenses to this crime, they are rarely applicable. Because it is so difficult to prevail at trial on an illegal reentry charge, the defense usually revolves around sentencing. The law regarding sentencing in this area is very complex and sentencing arguments, which usually revolve around whether certain types of convictions qualify for particular sentence enhancements, can make a huge difference in the amount of time imposed.
Depending on the type of prior conviction, a person charged with illegal reentry can end up with an even longer sentence than the coyote responsible for bringing them across the border. There are also downward departures and adjustments that may apply to reduce a sentence.(a)(48)(A).