Alabama Illegal Entry/Reentry Lawyers: Federal Defense When ICE Brings Criminal Charges

| by Max Soni

Alabama Illegal Entry/Reentry Lawyers: Federal Defense When ICE Brings Criminal Charges

You’ve been arrested. ICE is involved. And federal prosecutors are telling you—you, who crossed the border years ago and have been living in Alabama ever since—that you’re looking at federal prison time. Not for what you did yesterday. For coming back after a deportation that might have happened five, ten, fifteen years ago. This isn’t immigration court, where the worst outcome is removal. This is federal criminal court under 8 U.S.C. § 1326, and if you have prior convictions on your record, you’re facing up to 20 years. Twenty years. In 2025, the Southern District of Alabama has filed more illegal reentry charges than in the entire year of 2024. The U.S. Attorney’s office has made a policy decision to prosecute every case ICE sends them—no exceptions, no discretion, no consideration of your family or how long you’ve been here or whether you’re a threat to anyone. You need a defense lawyer who understands federal sentencing guidelines, who knows how to challenge a prior deportation order, and who will fight the constitutional absurdities embedded in these prosecutions. The clock is already ticking.

What Is Illegal Reentry Under Federal Law?

Here’s the statute. Under 8 U.S.C. § 1326, it’s a federal felony to reenter the United States after you’ve been formally removed or deported. This is different from § 1325—that’s the misdemeanor for first-time unlawful entry. Section 1326 is the felony version, and it carries escalating penalties depending on your criminal history. Prosecutors have to prove three things: that you were previously deported or removed from the United States, that you came back without permission, and that you knew you’d been deported. (That last element is rarely contested—of course you knew.)

The statute creates a tiered sentencing structure. Baseline penalty: two years in prison. But if your prior removal happened after you were convicted of a felony, or three or more misdemeanors involving drugs or violence, the statutory maximum jumps to ten years. And if you were deported after a conviction for what immigration law calls an “aggravated felony”—and that term is much broader than it sounds—you’re facing up to 20 years in federal prison. That’s not a sentencing guideline. That’s the law.

Now here’s what confuses people. Alabama is not a border state. You didn’t cross into Alabama. Maybe you crossed in Texas, Arizona, California—doesn’t matter. Federal venue for illegal reentry attaches wherever you are found. If you were deported in Arizona in 2015 and ICE picks you up at a traffic stop in Mobile in 2025, you will be prosecuted in the Southern District of Alabama. The crime isn’t the crossing. It’s being here after removal. And that gives federal prosecutors in Birmingham, Montgomery, and Mobile complete authority to charge you.

Alabama Illegal Entry/Reentry Lawyers See Prosecution Surge Under New Federal Policy

Alabama has become—and I don’t think this is an exaggeration—one of the most aggressive jurisdictions in the country for illegal reentry prosecutions. Since January 2025, federal prosecutors in the Southern District have filed 24 illegal reentry cases. That’s more than the entire year of 2024. U.S. Attorney Sean Costello stated publicly that his office “accepts every viable re-entry case that agents refer.” Read that again. Every case. Zero prosecutorial discretion. No consideration of how long you’ve been in the country, whether you have U.S. citizen children, whether you’ve been employed and law-abiding for a decade. If ICE refers it, it gets charged.

Why the surge? Intensified ICE enforcement across Alabama. In March 2025, ICE agents working with the FBI, ATF, and DEA arrested 13 people in Huntsville. Eight of them had prior illegal reentry convictions—meaning they’d already served time for this offense—and were prosecuted again by the U.S. Attorney’s Office for the Northern District of Alabama. By May 2025, immigration arrests in southern Alabama had reached 500. Alabama has aggressively embraced what are called 287(g) agreements, which allow local law enforcement agencies to perform federal immigration enforcement functions. At least 12 Alabama agencies have signed these agreements. What that means in practice: a routine traffic stop by a county sheriff can turn into an ICE detention, which turns into a federal illegal reentry prosecution.

The results are predictable—and devastating. Kenny Fernando Castillo, 29 years old, was arrested for DUI in Foley in December 2024. ICE discovered he’d been removed in 2018. He was sentenced to 12 months in federal prison. Saul Cruz-Argueta, 39, was encountered during a Homeland Security Investigations labor site inspection. Agents found he’d been removed in 2016 and again in 2018. He received a time-served sentence with one year of supervised release. These aren’t cartel operatives or violent criminals. These are people who were living and working in Alabama, who got caught in a federal enforcement dragnet that treats every illegal reentry—regardless of context, regardless of individual circumstances—as worthy of prosecution. When a U.S. Attorney’s office categorically accepts every case with no exercise of discretion, it’s not performing the prosecutorial function anymore. It’s a conveyor belt. And Alabama illegal entry/reentry lawyers are seeing the consequences every day: clients with families, with jobs, with years of clean living, suddenly facing years in federal prison.

How Prior Convictions Trigger Draconian Sentencing Enhancements

If you have any kind of criminal history, the sentencing exposure in an illegal reentry case can be—there’s no other word for it—catastrophic. The statutory penalties I just mentioned are the ceiling. The real damage comes from the federal sentencing guidelines, specifically U.S.S.G. § 2L1.2, which governs sentencing for illegal reentry offenses. If you were previously deported after being convicted of an aggravated felony, the guidelines impose what’s called a 16-level enhancement to your offense level. In practical terms, that adds somewhere between four and six years to the guideline sentencing range.

Aggravated felonies include drug trafficking offenses where the sentence imposed was more than 13 months, crimes of violence, firearms offenses, child pornography, terrorism-related crimes, human trafficking. The term “aggravated felony” is far broader than it sounds—it includes offenses most people would consider mid-level felonies—and it applies even if the conviction occurred decades ago. You could have a drug conviction from 2005. You served your time, you’ve been clean for 20 years, you’ve rebuilt your life. Doesn’t matter. The 16-level enhancement still applies.

And here’s the crisis: the 16-level enhancement is so severe that federal judges refuse to apply it. This is not speculation. According to the United States Sentencing Commission, only 31.3 percent of defendants who received the 16-level enhancement in fiscal year 2024 were sentenced within the applicable guideline range. Compare that to 92.7 percent for defendants who received no enhancement. In other words, when judges look at the guideline range produced by the 16-level bump, they conclude—overwhelmingly—that it’s unjust, and they depart downward. The Sentencing Commission itself has publicly acknowledged that the enhancement is “overly severe.”

But here’s what that means for you, if you’re facing one of these charges: you are at the mercy of the individual judge. If you draw a judge who follows the guidelines rigidly—and there are still some who do—you could be looking at eight to ten years in federal prison for reentering the country after a drug conviction from 2008. If you draw a judge who exercises discretion, you might get time served. That’s not a justice system. That’s a lottery.

The national average sentence for illegal reentry in fiscal year 2024 was 12 months. But averages obscure the reality of individual cases. Forty percent of illegal reentry defendants had criminal histories serious enough to trigger the 20-year statutory maximum under § 1326(b)(2). Many of those defendants are being sentenced to five years, seven years, ten years in federal prison—not because they committed a violent crime, but because they came back to the United States after being deported following a decades-old felony conviction. This is sentencing policy that has become completely untethered from any principle of proportionality. A person who reenters the country to reunite with a U.S. citizen spouse and children receives the same charge—and faces the same draconian sentencing enhancements—as someone with a history of violent crime. The guidelines don’t distinguish. And that’s exactly why federal judges are rejecting them.

Legal Defenses Alabama Illegal Entry/Reentry Lawyers Can Assert

If you’re facing an illegal reentry charge in Alabama, you have defenses. Let me be clear about that. The most powerful defense—the one that can collapse the entire case—is a direct challenge to the validity of your prior deportation order. Here’s the law: if your prior removal was not lawful, the government cannot convict you under § 1326. To succeed, you have to show three things. First, that the deportation proceedings improperly deprived you of the opportunity for judicial review. Second, that the error caused you prejudice. Third, that there was a plausible ground for relief from removal—not that you necessarily would have won, but that you had a viable legal claim.

And this defense is more common than most people realize. Many of the deportations that were conducted in the 2000s and 2010s were procedurally defective. Defendants didn’t receive proper notice of their removal hearings. Immigration judges failed to inform defendants of their right to apply for various forms of relief. Removal orders were issued in absentia—meaning the defendant wasn’t present—without adequate proof that the defendant even knew about the hearing. If your deportation was invalid, the entire criminal case collapses. The predicate for the § 1326 charge disappears.

Even if the deportation itself was procedurally valid, the government still has the burden of proving that you are the person who was deported and that you reentered without permission. Administrative records can be incomplete, inaccurate, or ambiguous. Identity challenges are rare, but they’re viable when the government’s evidence is weak.

Another defense targets the sentencing enhancements. If the government is seeking a 16-level enhancement based on a prior aggravated felony conviction, your lawyer can challenge whether that conviction actually qualifies as an aggravated felony under current law. Immigration law definitions change—courts reinterpret statutes, precedent evolves. A conviction that was classified as an aggravated felony in 2010 may not qualify under the current state of the law. If the enhancement doesn’t apply, your guideline range drops dramatically.

And finally—even if the conviction stands, even if the deportation was valid—mitigation matters. Federal judges in Alabama are increasingly willing to impose time-served sentences or short terms followed by supervised release, particularly when the defendant can show strong family ties in the United States, a consistent record of employment, evidence of rehabilitation since the prior conviction. The key is presenting that evidence early and persuasively. Due process requires that the deportation order forming the basis of a criminal prosecution be constitutionally valid. If the government deported you without affording you a fair hearing, without proper notice, without an opportunity to present a claim for relief, it cannot now use that deportation order to send you to federal prison for 20 years. That is the argument Alabama illegal entry/reentry lawyers have to make—and it’s grounded in bedrock constitutional principles that courts are supposed to take seriously.

Immediate Steps and Why You Need Federal Defense Counsel

If you’ve been arrested for illegal reentry in Alabama, do not—and I cannot stress this enough—do not speak to ICE agents or federal investigators without a lawyer present. Everything you say about your prior deportation, your criminal history, how you reentered the United States, will be used against you in federal court. Invoke your right to counsel immediately.

You need a lawyer who is admitted to practice in federal court and who understands both federal criminal defense and immigration law. This is not a case for a general practitioner. The federal sentencing guidelines, the immigration law definitions of aggravated felonies, the procedural requirements for challenging a prior deportation order—these are highly specialized areas of law that require specific expertise.

Your lawyer’s first job is to obtain all of the records related to your prior deportation: the removal order itself, notices of hearing, immigration court transcripts, any applications for relief you may have filed. If you don’t have these records, your lawyer can request them through the Freedom of Information Act. These documents are absolutely critical to determining whether you have a viable challenge to the underlying removal.

Next, your lawyer will assess whether the government can actually prove its case. Can they establish your identity with certainty? Do they have competent evidence that you reentered without permission? Are there any Fourth Amendment issues with how you were arrested or detained? These are threshold questions that have to be answered before you even get to sentencing.

And then your lawyer will prepare mitigation evidence for sentencing: letters from family members, employment records, proof of rehabilitation, any other facts that demonstrate you are not a threat to public safety and that an extended prison sentence serves no legitimate purpose. Federal judges have discretion—they can depart from the guideline ranges—and in Alabama, judges are exercising that discretion with increasing frequency in illegal reentry cases. But you have to give the judge a reason to do it. You have to present the evidence.

Federal cases move quickly. You’ll have a detention hearing within days of your arrest. Arraignment shortly after that. Trial or plea within a few months. There is no time to wait.

The Constitutional Crisis in Immigration Prosecutions

Illegal reentry prosecutions represent the criminalization of immigration status. The federal government has taken what was historically a civil enforcement matter—the removal of a person without lawful immigration status—and transformed it into a criminal justice issue carrying decades of imprisonment. And the sentencing framework is so punitive, so disconnected from any rational penological goal, that federal judges across the country are systematically rejecting it. When more than two-thirds of defendants who receive a 16-level enhancement are sentenced below the applicable guideline range, the message from the judiciary is unmistakable: the guidelines are unjust.

The policy of accepting every viable illegal reentry case—the policy that Alabama federal prosecutors have embraced—is prosecutorial abdication. Discretion is not a luxury in criminal justice. It’s a requirement. Prosecutors are supposed to consider the individual circumstances of each case: the defendant’s ties to the United States, the nature and timing of the prior conviction, how long it’s been since the last removal, the reason for reentry. When a U.S. Attorney’s office categorically prosecutes every case that comes across the desk, it’s no longer exercising judgment. It’s executing policy. And that’s not what prosecutors are supposed to do.

And let’s talk about the foundation of these prosecutions—the prior deportation orders that form the predicate for § 1326 charges. Many of these removal orders are constitutionally suspect. They were issued during a period when immigration courts were overwhelmed, when defendants routinely appeared without counsel, when notice of hearings was haphazard at best. Using those defective removal orders as the legal basis for 20-year felony convictions is fundamentally unjust. It compounds one constitutional violation with another.

Alabama’s role in this system is particularly troubling. Alabama is not a border state. It is not a traditional destination for undocumented immigrants. And yet, through aggressive ICE enforcement operations and 287(g) partnership agreements with local police departments, Alabama has become one of the most active federal jurisdictions for illegal reentry prosecutions in the country. That’s not an accident. That reflects a policy choice—a deliberate decision to prioritize federal immigration prosecutions over prosecutorial discretion, over individual justice, over constitutional safeguards.

If you are facing illegal reentry charges in Alabama, you are up against federal prosecutors with unlimited resources and an institutional mandate to charge every case. You need defense counsel who will challenge the prior deportation order, who will contest the application of sentencing enhancements, who will assert every available constitutional defense. These cases are winnable. The law provides defenses. Federal judges are willing—increasingly willing—to depart from guideline ranges that they recognize as unjust. But only if you have Alabama illegal entry/reentry lawyers who know how to fight.