Is Reentry After Deportation a Crime?
Yes. Entering, attempting to enter or being found in the US after being deported, without permission, is a federal felony under 8 U.S.C. 1326 with up to 2 years in prison, rising to 10 or 20 years for people with certain criminal records. The old removal order can also be reinstated without a new hearing. A lawful return usually requires waiting out the bar and getting permission to reapply.
Illegal reentry is one of the most frequently prosecuted federal crimes. It also has severe immigration consequences.
The crime
Under 8 U.S.C. 1326, a person who was removed, deported or denied admission and then enters, attempts to enter, or is found in the US without the government's consent commits a federal crime.
| Prior record | Maximum prison term |
|---|---|
| No qualifying prior conviction | 2 years |
| Three or more misdemeanors involving drugs or crimes against the person, or a felony | 10 years |
| Aggravated felony | 20 years |
Actual sentences depend on the federal sentencing guidelines and the person's history.
Reinstatement of removal
If someone returns illegally after removal, DHS can reinstate the prior removal order without a new hearing before a judge, and the person is generally ineligible for most forms of relief (8 U.S.C. 1231(a)(5)). People who fear persecution can still request a "reasonable fear" screening for withholding of removal or protection under the Convention Against Torture.
The permanent bar
People who were unlawfully present for more than one year in total, or who were ordered removed, and who then enter or try to enter without inspection are permanently inadmissible (8 U.S.C. 1182(a)(9)(C)). They generally must stay outside the US for at least 10 years before requesting permission to reapply.
Lawful ways to return
- Wait out the applicable bar: 5, 10 or 20 years after removal depending on the circumstances (8 U.S.C. 1182(a)(9)(A)).
- File Form I-212, permission to reapply for admission, sometimes before the bar ends.
- Qualify for a visa or green card and any needed waivers.
Defenses in a 1326 prosecution
Some defendants can challenge the underlying removal order in limited circumstances, or show they were not "found" in the US within the limitations period. These are narrow and fact-specific.
What to do
If you have a prior removal and are in the US, or are considering returning, talk to an immigration lawyer and, if charged, a criminal defense lawyer with federal experience.
Sources
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This article is general legal information, not legal advice, and reading it does not create an attorney-client relationship. Laws differ by state and change over time; talk to a licensed attorney in your state about your situation.