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Illegal Re-Entry: Am I Automatically Deported?

On Behalf of | Jun 24, 2015 | Criminal Law

New York shares a border with Canada over four hundred miles long. Syracuse is conveniently located a little more than an hour’s drive on Interstate 81 from the US-Canada border, which makes it a prime target for both legal and illegal immigration. The United States Sentencing Commission recently evaluated the crime of illegal re-entry and found that in 2013, most offenders convicted of this crime were apprehended by immigration officials at or near the U.S. border. While illegal re-entry is categorized as a border crime, whether or not you are guilty of that offense is entirely separate from immigration removal proceedings.

What is Illegal Re-entry?

Under the Immigration and Nationality Act, an alien is guilty of the crime of illegal re-entry if he returns to the United States, attempts to return, or is found within U.S. borders without government approval after being:

  • Denied admission to enter the U.S.
  • Excluded from the U.S. (being denied entry at a formal hearing upon arrival in the U.S.)
  • Deported from the U.S.
  • Removed from the U.S.
  • Otherwise departed from the U.S. while under an order of exclusion, deportation, or removal is outstanding

What are the Penalties?

Under 8 U.S.C. §1326, any alien convicted of illegally re-entering the country faces a penalty of up to two years in prison.

If, however, the defendant was previously deported after a felony conviction or three or more misdemeanor convictions involving drugs or crimes against a person, the defendant could face up to ten years in prison.

Finally, if the defendant was previously deported after an “aggravated felony” conviction, he could face up to twenty years in prison. What constitutes an “aggravated felony” is enumerated by Congress at 8 U.S.C. §1101(a)(43).

Criminal Liability vs. Removal Proceedings

The crime of illegal re-entry is not the same as deportation. Whether or not you can be deported or otherwise removed from the United States is determined by a removal hearing, not a criminal court. Removal proceedings are run by the Executive Office for Immigration Review; commonly referred to as immigration court.

Removal proceedings are entirely distinct from criminal proceedings and their processes are similar, but separate. Whereas federal criminal proceedings will begin with a criminal complaint or indictment, removal proceedings begin with a Notice to Appear. This document will notify the respondent (what criminal proceedings would call the defendant) of the date of his master hearing, during which the respondent will answer the charges against him. If there are additional issues to be presented, the respondent will then be scheduled for a merits hearing to determine if he will be removed.

Why an Experienced Criminal Defense Attorney is Critical for Illegal Re-Entry Crimes

Illegal re-entry is difficult to defend because the crime is relatively straightforward. Essentially, all the government has to prove is that the defendant was previously deported or otherwise denied admission, and that he returned voluntarily without permission of the Attorney General. Defenses to the crime of re-entry require an attorney who is experienced in both criminal and immigration procedure. Contact George Hildebrandt for a free consultation today.