United States immigration policies have been scrutinized in the media in the lead up to the 2016 presidential elections. Most of the discussions have revolved around the action or inaction of the federal government when it comes to deporting people who come into the United States unlawfully. In a 2013 report, Human Rights Watch cited the federal crimes of illegal entry and illegal re-entry as the most federally prosecuted crimes. Many people who try to enter the United States do so to be re-united with family members or in order to escape bad conditions in their home country. Therefore, even after facing deportation and being removed from the country, many people take a risk to return unlawfully, and this could lead to being criminally prosecuted.

While illegal entry into the United State is a misdemeanor, illegal re-entry after deportation is prosecuted as a felony. In felony cases, a person found re-entering the United States or in the country without legal authority after having been removed or denied admission can receive a sentence of up to two years. The sentence may be increased to 10 years for persons removed or excluded for certain reasons, including for certain prior convictions, and up to 20 years if the person was removed after conviction for an aggravated felony.

Challenging the Deportation

One way to defend an illegal re-entry charge is to challenge the original order of removal that caused the defendant to be removed from the country in the first place. This is because the prosecution has to show that the person was deported as one element of the illegal re-entry charge. However, the law limits the instances in which the deportation order may be challenged.  In order to successfully challenge the deportation order, the defense must show that:

  • The person charged sought all administrative remedies that were available to fight the deportation order;

  • The deportation hearing that resulted in the issuance of the deportation order improperly kept the person charged from judicial review of their case; and

  • The issuance of the deportation order was fundamentally unfair.

A determination of whether or not a person has shown the above, and therefore has successfully challenged the deportation, depends on the facts of each case. If a person had prior felony convictions before deportation, it could be more difficult to challenge the deportation.  Several federal cases have held that once these three elements are met, and the deportation order is found to have been invalid, the illegal re-entry charge has to be dismissed.

Contact a Syracuse Criminal Defense Attorney

There are additional steps that may be taken to defend against an illegal re-entry charge, and you can best decide which approach works for you after consulting with an experienced attorney. If you are a facing federal misdemeanor or felony charges for entering the United States unlawfully, you need an experienced criminal defense attorney representing you. Contact Syracuse criminal defense attorney George F. Hildebrandt for a consultation.