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Reentry of removed aliens

Title 8 U.S.C. § 1326 authorizes the felony prosecution of aliens who enter, attempt to enter, or are found in the United States after having been removed or denied admission to the United States.

The criminal penalty can be significantly enhanced by the defendant's criminal history, and/or the reason for the removal.

The Q&A that discusses the elements, enhancements, and common defenses. An overview is provided by the infographic on the right (click on it for a full size PDF).

Start the Q&A

 
 

startalienage

The government must prove "alienage" (that the defendant was not a citizen or national of the United States) at the time of the offense. 8 U.S.C. § 1101(a)(3), (22). This is typically done with court records of the prior removal proceeding, corroborated by the defendant's statements.

The government

 
 

startalienageremoved or denied admission

The government must show that the defendant had been denied admission, excluded, deported, or removed, or had departed the United States while an order of exclusion, deportation, or removal was outstanding. 8 U.S.C. § 1326(a)(1).

"Deportation" and "exclusion" are processes that were replaced by the "removal" process in 1997, and most cases today involve reentry after removal. The prior removal is typically shown by having an agent or other custodian authenticate documents from the defendant's "A-file."

The government

 
 

startalienageremovedconduct

The government must prove that the defendant subsequently entered, attempted to enter, or was "found in" in the United States.

The defendant was charged with

 
 

startalienageremovedentry

The government must show:

  1. The general intent to reenter (the defendant is here voluntarily)
  2. Physical presence in the United States and freedom from official restraint

Pattern Criminal Jury Instructions 5th Cir. 2.03.

"Official restraint" occurs where aliens are deprived of liberty and prevented from going at large within the United States. Official restraint may be found in circumstances where the alien is being surveilled, and is not aware of the surveillance. See Model Crim. Jury Instr. 9th Cir. 9.8.

The government

 
 

startalienageremovedattempted entry

In attempted entry cases, the government must show that the defendant committed an overt act qualifying as a substantial step towards completion of the crime. See United States v. Resendiz-Ponce, 549 U.S. 102 (2007) (overt act need not be specified in the indictment). It might occur, for example, where a previously deported alien approaches a port of entry and makes a false claim of citizenship or non-resident alien status. See Pattern Criminal Jury Instructions 5th Cir. 2.03.

Some courts also require proof of specific intent to enter the country free from official constraint. See Model Crim. Jury Instr. 9th Cir. 9.7. "Official restraint" occurs where aliens are deprived of liberty and prevented from going at large within the United States. Official restraint may be found in circumstances where the alien is being surveilled, and is not aware of the surveillance. See Model Crim. Jury Instr. 9th Cir. 9.8.

The defendant

 
 

startalienageremovedfound in

Aliens are "found" if they

  • entered voluntarily
  • were not under constant "official restraint"

Some courts may require proof of knowledge that they were committing the underlying act that made the conduct illegal. See generally Model Crim. Jury Instr. 9th Cir. 9.8.

They would not, for example, be "found" if they voluntarily present themselves to immigration authorities when seeking entry into the United States. Id.

"Official restraint" occurs where aliens are deprived of liberty and prevented from going at large within the United States. Official restraint may be found in circumstances where the alien is being surveilled, and is not aware of the surveillance. Id.

The government

 
 

startalienageremoved → ... consent

A defense is available where the Attorney General has expressly consented to to alien's reapplication for admission. 8 U.S.C. § 1326(a)(2). These authority for these consents have, since 2003, been switched to the Secretary of the Department of Homeland Security. See 6 U.S.C. § 202.

The government typically establishes the absence of consent with documents from the alien's "A-file. See Pattern Criminal Jury Instructions 5th Cir. 2.03.

The government is

 
 

startalienageremovedcollateral attack

The imposition of criminal penalties based on a prior administrative proceeding violates due process where the administrative proceeding did not provide meaningful review. United States v. Mendoza-Lopez, 481 U.S. 828 (1987). Accordingly, 8 U.S.C. § 1326(d) authorizes collateral attacks on underlying removal orders in illegal reentry prosecutions where the aliens show:

  1. Exhaustion of any administrative remedies that may have been available to seek relief against the order;
  2. That the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
  3. That the entry of the order was fundamentally unfair

Courts take differing approaches in applying this statute. See United States v. Ochoa, 861 F.3d 1010, 1019-24 (9th Cir. 2017) (Graber, J., concurring). In any event, the entry of the order is only "fundamentally unfair" where the defendant can show prejudice. Id.

The defense

 
 

startalienageremovedconsentaggravated felony or terrorism

Section 1326(b)(2) enhancement. Aliens who had been removed subsequent to an "aggravated felony" conviction may be sentenced to up to 20 years. 8 U.S.C. § 1326(b)(2). Aggravated felonies are listed at 8 U.S.C. § 1101(a)(43). See Torres v. Lynch, 136 S.Ct. 1619 (2016).

This is a sentencing factor, not an element, and does not have to be pleaded in the indictment or submitted to the jury. Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Section 1326(b)(3) enhancement. Aliens who have been excluded from the United States pursuant to 8 U.S.C. § 1225(c) ("Removal of aliens inadmissible on security and related grounds") because they were excludable under 8 U.S.C. § 1182(a)(3)(B) ("Terrorist activities"), or who has been removed from the United States pursuant to the provisions of Title 8 subchapter V ("Alien terrorist removal procedures"), may be subject to a 10 years sentence which "shall not run concurrently with any other sentence." 8 U.S.C. § 1326(b)(3).

The underlying removal or exclusion

 
 

The defendant may be convicted for illegal reentry after removal, and faces a maximum sentence of 20 years.

The defendant's criminal history and other circumstances determine the Sentencing Guidelines range. See the sentencing guidelines calculator at Sentencing.us.

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The defendant may be convicted for illegal reentry after removal, and faces a maximum sentence of 10 years, which shall not run concurrently with any other sentence.

The defendant's criminal history and other circumstances determine the Sentencing Guidelines range. See the sentencing guidelines calculator at Sentencing.us.

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startalienageremovedconsentother enhancements

If the defendant was removed subsequent to a conviction for commission of three or more misdemeanors involving drugs or crimes against the person, or a felony, the maximum term of incarceration is 10 years. 8 U.S.C. § 1326(b)(1).

This is a sentencing factor, not an element, and does not have to be pleaded in the indictment or submitted to the jury. Almendarez-Torres v. United States, 523 U.S. 224 (1998).

The underlying removal was

 
 

The defendant may be convicted for illegal reentry after removal, and faces a maximum sentence of 2 years.

The defendant's criminal history and other circumstances determine the Sentencing Guidelines range. See the sentencing guidelines calculator at Sentencing.us.

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The defendant may be convicted for illegal reentry after removal, and faces a maximum sentence of 10 years.

The defendant's criminal history and other circumstances determine the Sentencing Guidelines range. See the sentencing guidelines calculator at Sentencing.us.

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The defendant cannot be convicted under § 1326.

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