Illegal Reentry After Deportation Defense In Phoenix, AZ

What is Illegal Reentry?

Under 8 U.S.C. § 1326, illegal reentry after deportation or removal is a crime in which someone enters the United States after being denied admission, deported, or removed from the U.S. Anyone who is issued an order of exclusion, deportation, or removal cannot enter, attempt to enter, or reside in the U.S. without getting proper authorization.

If someone has already been issued an order of removal, and they violate that order by reentering the U.S., they could be deported from the country without seeing an immigration judge first. Additionally, they could be barred from the country for a period of time, or even permanently. They may also face criminal punishments, like fines or prison time. 

It’s important to note that this offense does not apply to anyone who has authorization from the Attorney General to reapply for entry into the country.

Illegal Entry vs. Illegal Reentry

Illegal entry (8 U.S.C. § 1325) refers to entering the United States without inspection or approval, such as crossing the border without going through a checkpoint. Illegal reentry, on the other hand, happens when someone who has already been deported or removed comes back to the U.S. without permission. 

In order to be convicted of illegal reentry, you must have been previously deported or removed from the country. Additionally, illegal reentry is treated as a much more serious criminal offense than illegal entry.

Is Illegal Reentry a Federal Crime?

Yes, illegal reentry is a federal offense in the United States. Someone convicted of illegal reentry could be fined, incarcerated in a federal prison, or both.

Are There Defenses to Illegal Re-entry After Deportation Charges?

Yes, but they are extremely difficult cases to win. The statute does allow for a challenge to the underlying removal order, but in very limited circumstances. According to 8 U.S.C. 1326(d), a person charged with illegal re-entry can challenge the underlying removal order if:

• The person has exhausted any administrative remedies, 
• The proceedings improperly deprived the person of judicial review, and 
• If the entry of the order was fundamentally unfair. 

An experienced criminal and immigration attorney can review if this might be an option for you or your loved one. 

If charged with illegal re-entry, the government must still prove all of the elements of the offense beyond a reasonable doubt. However, the elements of having been deported and then subsequently found back in the United States can be extremely difficult to overcome. The vast majority of people charged with illegal entry or illegal re-entry will end up being convicted and, quite honestly, probably should not spend money hiring a private attorney. 

However, if you are one of the few cases who could be the exception to the rule, then we invite you to contact our office to speak with one of our experienced illegal re-entry defense attorneys. We have attorneys on staff who have gone to trial on illegal re-entry cases and won arguments at the 9th Circuit Court of Appeals. More specifically, we’ve won cases where someone charged with illegal re-entry had their Constitutional Rights violated at some point in their case. 

Can Someone Stay in the Country After an Illegal Re-entry Charge?

Only under very specific circumstances. The vast majority of people charged with illegal re-entry eventually end up getting deported again without ever seeing an immigration judge. In order for the person to be charged with illegal re-entry, they need to already have a prior order of removal in their immigration file. This means they no longer have a right to see an immigration judge. 

However, there are a few limited exceptions in which someone may be able to stay in the country after an illegal re-entry charge. Someone with a prior order of removal does have a right to express fear of returning to their country of origin. If they do so, then they should be given a reasonable fear interview. If they are found by an asylum officer to have a reasonable fear, then they can see an immigration judge for the sole purpose of determining if they can potentially be granted a withholding of removal or the Convention against Torture. 

Another possibility could be a motion to reopen the underlying removal order. The law is very strict and only allows for one attempt to reopen the prior removal order. If the order was an expedited order of removal, then an attorney could reach out to Customs and Border Protection and ask them to rescind the prior order. In practice, these types of victories are extremely rare, but attorneys at Ybarra Maldonado Law Group have been successful in the past at winning reasonable fear interviews and motions to reopen.