Federal Immigration Crimes Under 8 USC 1326: Illegal Reentry After Deportation
So your probably facing federal illegal reentry charges and your ABSOLUTELY CONFUSED because you thought immigration was civil matter. Maybe you were deported years ago and came back to be with family. Maybe there’s allegations you reentered after being removed. Or maybe your just accused of being found in United States without permission after deportation. Look, we get it. Your COMPLETELY OVERWHELMED by criminal immigration charges. And you should be! Because illegal reentry under 8 USC 1326 carries up to 20 YEARS in federal prison if you have aggravated felony and automatic deportation after sentence with NO immigration hearing!
What Is Illegal Reentry Under 8 USC 1326?
Let me explain how immigration violations become federal crimes. Section 1326 criminalizes reentering or being found in United States after being deported, excluded, or removed! Most commonly charged immigration crime in federal courts – especially near southern border!
The statute requires THREE elements: (1) defendant is noncitizen, (2) was previously removed or deported from United States, (3) reentered or was found in United States without permission! Government must prove you’re not US citizen and you were previously formally deported!
Here’s what’s really scary – conviction results in automatic reinstatement of removal order! After prison sentence, immediately deported without new hearing! No opportunity to apply for relief! No consideration of family ties or changed circumstances!
Penalties vary WILDLY based on criminal history! Basic illegal reentry: 2 years maximum! Reentry after felony conviction: 10 years! Reentry after aggravated felony: 20 years! One prior drug conviction can multiply sentence tenfold!
What Are the Different Penalty Tiers?
Three penalty levels based on prior criminal record!
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(212) 300-5196Tier 1 – Basic illegal reentry: Up to 2 years prison if no significant criminal history! This applies to people who were deported for immigration violations only – overstays, illegal entries, document fraud! First-time reentry usually gets under 2 years!
Tier 2 – Reentry after felony: Up to 10 years if reentered after deportation following felony conviction! ANY felony counts – drug possession, theft, assault, fraud! Even if felony was from years ago! One old felony conviction multiplies sentence from 2 to 10 years!
Tier 3 – Reentry after aggravated felony: Up to 20 years if reentered after deportation for aggravated felony! Aggravated felonies include murder, rape, sexual abuse of minor, drug trafficking, firearms trafficking, money laundering over $10,000, theft/burglary with sentence over one year!
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
You were deported to Guatemala three years ago after an aggravated felony conviction, but you crossed back into the United States to reunite with your U.S. citizen children. Border Patrol arrested you 40 miles from the border and federal prosecutors are now charging you with illegal reentry under 8 USC § 1326.
What kind of penalties am I facing for coming back after deportation, and does it matter that I came back for my kids?
Under 8 USC § 1326(a), illegal reentry after deportation carries up to 2 years in federal prison, but because your original removal followed an aggravated felony conviction, § 1326(b)(2) increases that maximum to 20 years. Family reunification is not a statutory defense to reentry charges, though it can be a powerful mitigating factor at sentencing under the federal guidelines. We would also examine whether your original deportation order was legally valid — if there were due process violations in that removal proceeding, we can mount a collateral attack on the underlying order under § 1326(d), which could result in dismissal of the entire case. Every detail of your prior removal and the circumstances of your return matters, so we need to review your full immigration history immediately.
This is general information only. Contact us for advice specific to your situation.
“Aggravated felony” is immigration law term – doesn’t require actual aggravated offense! Simple drug possession can be aggravated felony if sentence was over one year! Shoplifting is aggravated felony if sentenced to 365+ days! Term is BROADLY defined!
Sentencing guidelines add points based on number of prior deportations! One prior removal adds levels, multiple removals add more levels! We’ve seen defendants with 4+ prior removals face guidelines calling for 5+ years!
