NATIONALLY RECOGNIZED FEDERAL LAWYERS
How serious is illegal entry
|Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek, with over 40 years of combined experience handling federal criminal cases across the country. We’ve represented clients in cases that captivated national attention – the Anna Delvey Netflix series, the Ghislaine Maxwell juror misconduct case, the Alec Baldwin stalking matter. If you’re reading this article, you probably already know that illegal entry charges are serious, you’re trying to understand what you’re actually facing.
The short answer – it depends entirely on whether this is your first time or whether you’ve been deported before. That distinction changes everything.
First-Time Illegal Entry Is a Misdemeanor, But Don’t Relax
Under 8 USC 1325, entering the United States without inspection at a port of entry is a federal misdemeanor for a first offense. Maximum penalty – six months in prison, a fine, or both. Sounds minor compared to other federal charges we handle, like drug trafficking or fraud cases that carry decades.
The problem isn’t the six months. The problem is what comes next.
In 2025, the enforcement landscape shifted dramatically. On January 20, President Trump signed executive orders directing DHS to detain anyone apprehended for immigration violations until removal – no more catch and release. Federal prosecutors received instructions to charge the most serious readily provable offense. DOJ policy memos from February 2025 make it clear that immigration prosecutions are a priority again, border encounters dropped from 189,000 in March 2024 to just over 11,000 in March 2025 because enforcement became real.
You get convicted of illegal entry, you serve your time, then you get deported. That removal order follows you forever.
Illegal Reentry After Deportation – That’s Where It Gets Brutal
Once you’ve been deported and you come back without permission, you’re no longer looking at a misdemeanor. You’re charged under 8 USC 1326 – illegal reentry after removal. This is a felony.
Base penalty – two years in federal prison. But that’s just the starting point, and almost nobody gets the base penalty.
If you were deported after a felony conviction (not an aggravated felony, just a regular felony), the maximum jumps to 10 years. If your prior deportation came after an aggravated felony conviction – drug trafficking, violent crime, firearms offense, sexual abuse of a minor – you’re facing up to 20 years in federal prison.
The federal sentencing guideline for illegal reentry is §2L1.2. In fiscal year 2024, illegal reentry made up 72% of all immigration prosecutions – over 17,000 cases. Average sentence was 18 months. That might sound manageable until you realize that 62% of illegal reentry defendants had committed at least one crime after reentering. When you stack a new criminal offense on top of the illegal reentry charge, the sentencing enhancements get severe fast.
§2L1.2 includes a 16-level enhancement if you committed certain felonies – drug trafficking with a sentence over 13 months, crime of violence, firearms offense, child pornography, terrorism, human trafficking, alien smuggling. Sixteen levels is enormous in the federal system, it’s the difference between probation and years in prison.
Your Criminal History Determines Everything
Federal sentencing works on a grid. One axis is your offense level (what you did), the other axis is your criminal history category (what you’ve done before). Both matter, but for illegal reentry cases, your criminal history is often the entire ballgame.
Let’s say you were deported in 2019 after a drug trafficking conviction. You served three years, got deported, came back in 2023. You get caught in 2025. Prosecutors charge you under 1326 – illegal reentry after deportation following a felony. Your base offense level under the guidelines might start at 8, but that prior drug conviction adds 12 to 16 levels depending on the sentence you received. Suddenly you’re looking at an offense level in the low 20s. If your criminal history category is III or IV because of multiple prior convictions, you’re facing 46 to 57 months under the guidelines. That’s four years minimum.
Judges in 2025 are taking these cases seriously again. The post-Booker era gave judges discretion to vary below the guidelines, and many did for immigration offenses. That discretion still exists legally, but the climate changed. When the executive branch signals that border enforcement is the priority, federal judges respond.
What Happens After You Serve Your Sentence
You might think – okay, I’ll do my time, then I’ll get another shot at fighting my case in immigration court. That’s not how it works.
Under 8 USC 1231(a)(5), when you’re convicted of illegal reentry under 1326, your prior removal order automatically reinstates. The moment you finish your federal prison sentence, ICE takes you into custody and removes you. No immigration hearing, no asylum claim, no cancellation of removal, no bond. You go straight from federal prison to deportation.
There are extremely limited exceptions – withholding of removal under the Convention Against Torture if you can prove you’ll be tortured by the government in your home country. That’s an incredibly high standard. We’re talking about government-sponsored torture, not general danger or gang violence. Most people don’t qualify.
This is why illegal reentry convictions are devastating. It’s not just the prison time, it’s the fact that you lose every immigration remedy you might have had.
Can You Beat an Illegal Reentry Charge?
Sometimes. The government has to prove you were previously deported or removed, that the removal order was valid, that you reentered without permission, and that you’re the person named in that removal order. Each element creates potential defenses.
We’ve seen cases where the original removal hearing was fundamentally unfair – the defendant didn’t receive notice, wasn’t advised of the right to counsel, wasn’t informed of the right to appeal. If your underlying removal order was legally defective, the reentry charge can be challenged. This is called a collateral attack on the removal order. It’s difficult, but it’s possible.
We’ve also defended cases where identity was the issue. The government relies on fingerprints, photographs, A-numbers, biographical information. If there’s a genuine question about whether you’re actually the person named in the removal order, that’s a defense.
Timing matters too. If you were removed, came back, and ICE didn’t discover it for years while you lived openly in the United States – worked, paid taxes, built a life – that can create equitable arguments at sentencing even if you can’t beat the charge entirely.
The Consequences Go Beyond Prison
Illegal entry and illegal reentry convictions make you permanently inadmissible to the United States. Even if you later marry a U.S. citizen, even if your children are U.S. citizens, even if you qualify for every other immigration benefit, that conviction is a bar.
There’s a waiver process for some inadmissibility grounds, but it’s discretionary and difficult. USCIS doesn’t have to grant it just because you meet the technical requirements. They look at the totality of circumstances – how many times you entered illegally, what you did while you were here, whether you have U.S. citizen family members who would suffer extreme hardship without you.
Many people think – I’ll take the conviction, do my time, and figure out immigration later. That’s a catastrophic mistake. The conviction follows you forever, it forecloses options you don’t even know you have yet.
Why You Need a Federal Criminal Defense Attorney Who Understands Immigration Consequences
At Spodek Law Group – we handle these cases differently than most criminal defense attorneys. A lot of federal defenders focus only on the criminal case, they negotiate a plea, argue for a lower sentence, and call it a day. That’s not enough for immigration offenses.
We look at the immigration consequences of every possible outcome. If you plead to illegal reentry under 1326, what does that do to your future admissibility? If you go to trial and lose, what’s the sentencing exposure? If there’s a collateral attack available on the underlying removal order, is it worth litigating or does it create more risk?
These are strategic decisions that require understanding both federal criminal law and immigration law. You can’t evaluate a plea offer in an illegal reentry case without knowing what happens after you serve your sentence.
Our managing partner, Todd Spodek, is a second-generation criminal defense lawyer with many, many years of experience handling federal cases. We’ve defended clients in high-profile matters – Anna Delvey, Ghislaine Maxwell juror misconduct, cases that make national headlines. But we also handle cases that never make the news, cases where someone made a mistake and needs serious legal representation to protect their future.
We’re available 24/7 because federal arrests don’t happen on a convenient schedule. When ICE picks you up or the U.S. Marshals serve a warrant, you need a lawyer immediately – not next week.
If you’re facing illegal entry or illegal reentry charges, the worst thing you can do is assume it’s not serious because it’s “just immigration.” In 2025, these prosecutions are a federal priority, judges are imposing real sentences, and the consequences extend far beyond the prison term. We can help you understand what you’re actually facing and build a defense strategy that protects your future.