Illegal Re-Entry

Illegal re-entry after deportation is a federal crime under 8 U.S.C. § 1326. In order to convict a defendant of illegal re-entry under that law, the government must prove beyond a reasonable doubt that the defendant is a deported alien and that the defendant was in the United States without permission.

The stakes are very high for those accused of illegal re-entry, as it is punishable by up to 20 years in federal prison. Furthermore, attitudes towards those illegally in the country have become more hostile over the years, creating an ever-increasing volume of illegal re-entry cases in federal courts. Some have attributed the staggering increase in illegal re-entry prosecutions to a policy among government agents to examine the deportation records of illegal aliens in local jails. Statutory amendments in recent decades have increased penalties for those who were deported based on felonies or aggravated felonies. The amendments have also expanded the list of crimes that are to be considered aggravated felonies.

In response to the growing number of illegal re-entry prosecutions, federal prosecutors introduced a “fast track” policy in 1995. Under this “fast track” policy, defendants facing illegal re-entry charges may enter a pre-indictment plea to a lesser offense carrying a sentence of two years in prison. Defendants who choose to take the so-called “fast track plea” waive indictment and enter the plea at their first court appearance. They also waive sentencing appeals, stipulate to the 2 year sentence and that the guidelines sentencing range is greater than 2 years, and agree that they will not seek a downward departure. While it may often be advisable to enter a “fast track” plea when it is offered, some federal prosecutors decline to offer the deal to defendants who have convictions of violent crimes and more serious drug crimes. If you have been charged with illegal re-entry in federal court, it is crucial that you retain an experienced criminal defense lawyer who can either successfully negotiate with federal prosecutors or present a solid defense at trial.

There are certain attacks that can be used to defend against illegal re-entry charges. One defense avenue, as in all criminal cases, is to undermine the elements that the government must prove beyond a reasonable doubt. In the context of illegal re-entry, the government must prove the following elements: (1) the defendant is an alien; (2) the defendant had been deported or “removed”; (3) after deportation or removal, the defendant had been “found” in the United States without permission. Although rare, some clients do not know their true immigration status, and sometimes they have plausible claims to U.S. citizenship. Other times, defendants may not understand their status as a “national,” and such status can be used as a defense because the statute refers only to “aliens.” The government cannot re-litigate the issue of citizenship if citizenship has been recognized in a prior court proceeding. With respect to the second element, defendants might argue, either at trial or collaterally, that the deportation was unlawful. Though federal courts have interpreted the third element of being “found in” the United States broadly, ambiguity in that element may leave room for creative argument. Finally, defendants might argue that they had permission to re-enter. For example, a defendant who was waived through a checkpoint by a border patrol agent might argue that the agent’s conduct amounted to consent of the Attorney General by delegation. Many constitutional challenges have been raised against the illegal re-entry statute on double jeopardy and equal protection based on selective prosecution grounds. Certain affirmative defenses may also be available. For instance, in the case of a defendant who has illegally re-entered but had not been discovered for a long period of time, a statute of limitations defense could theoretically be raised, although many courts view the crime as a continuing offense. In other example, a defendant might argue that he or she had a real and grounded fear of persecution, due to race, nationality, religion, or certain other factors, in the home country. If you have been charged with illegal re-entry, you should speak with a criminal attorney about all of your defense options.

If you have been charged with illegal re-entry in federal court, contact the Law Offices of Stephen Neyman, P.C. Attorney Neyman has decades of experience protecting the rights of those accused of federal and Massachusetts crimes. His office is conveniently located in downtown Boston. You can reach Attorney Neyman’s office by calling 617-263-6800 or by sending an e-mail.