Reentry After Deportation
Federal Criminal Defense Attorney
Under 8 USC 1326(a), it is a crime for any alien who was excluded, deported,
or removed, to reenter, or attempt to reenter the United States.
Under the statute, there is a maximum 2-year sentence for reentry after
deportation. However, if removal of a non-citizen was caused by the alien’s
convictions to three or more misdemeanors involving drugs, crimes against
the person, or to a felony, the penalty is imprisonment to up to 10 years.
In addition, if the alien was deported after a conviction to an “aggravated
felony”, the term of imprisonment is up to 20 years.
It is important to note that even a crime that is classified as a misdemeanor
under State law could be considered an “aggravated felony”
under U.S. immigration laws.
U.S. v. Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court addressed the issue of what the
government has to prove in a reentry prosecution under 8 USC 1326. Does
government only have to prove beyond a reasonable doubt that the defendant
reentered (or attempted to reenter) and that he or she was previously
removed? Or, does the government also have to prove beyond a reasonable
doubt the validity of the underlying deportation order? The problem is
that deportation proceedings are civil in nature, and therefore the government’s
burden of proof is “preponderance of the evidence”. While
in a criminal prosecution, the government must prove all the elements
of a crime “beyond a reasonable doubt”.
Mendoza-Lopez, the Court addressed the question of whether in a federal prosecution
under 8 USC 1326, a court must always accept as conclusive the facts of
a deportation order, even if proceedings were not conducted in conformity
with Due Process. The majority of the Justices concluded that “if
the statute envisions that a court may impose a criminal penalty for reentry
after any deportation, regardless of how violative of the rights of the
alien the deportation may have been, the statute does not comport with
the constitutional requirements of due process.
Defenses to a charge of Reentry after Deportation
After the Mendoza-Lopez decision, Congress amended 8 USC § 1326(a)
to expressly allow a defendant to collaterally attack a prior deportation order if:
(1) the alien exhausted any administrative remedies that may have been
available to seek
relief against the order;
(2) the deportation proceedings at which the order was issued improperly
alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
United States v. Copeland, 376 F.3d 61 (2d Cir. 2004), defendant-appellee was charged with illegal
reentry and collaterally attacked the validity of his deportation order
as provided under § 1326(d). The court of appeals agreed that most
of the requirements of § 1326(d) had been met, but remanded for a
hearing and findings on whether defects in defendant-appellee's deportation
hearing caused him prejudice. Notably, the court held that defendant-appellee
exhausted his administrative remedies by filing a motion to reopen, appealing
the denial of that motion, and was denied the opportunity for judicial
review because direct review was unavailable and he never had a realistic
opportunity to seek habeas review.
More importantly, the court determined that the immigration judge's
failure to inform defendant-appellee of his right to seek discretionary
relief was a procedural error sufficient to render the deportation order
fundamentally unfair if that failure prejudiced defendant-appellee, but remanded for a hearing
and findings on whether the district court's conclusion that there
was no prejudice was based on an incomplete review of the relevant factors,
such as defendant-appellee's family relationships or other potentially
criminal immigration lawyer in New York, I represented dozens of clients in criminal (State and Federal) and deportation
matters. I have experience defending federal immigration crimes, including
marriage fraud, passport fraud, and reentry after deportation.
If you or a loved one has been charged with reentry after deportation,
contact my office
immediately so that I can prepare the best defense possible.