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.

In 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”.

In 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 deprived the

alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

In 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 favorable considerations.

As a 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.

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