Immigration & Naturalization Law
There are an estimated 11 million undocumented immigrants in the U.S., with those of working age making up more than 5 percent of the country's labor force, according to a 2012 study. Unauthorized immigrants pay more than 11 billion dollars in various state and local taxes on an annual basis but they do not get a lot of the rights and protections of permanent residents or U.S. citizens. The federal government has deported about 3 million immigrants between 2009 and 2016. The majority of deportees have no history of a criminal conviction and are deported only for unlawful presence in the country.
Under federal law, Title 8 U.S. Code §1326, any person who “has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding" is not permitted to enter, try to enter, or be found in the U.S. This makes it a federal crime to be in the U.S. after a removal action.
Illegal reentry is a felony criminal offense. Felony criminal offenses are generally more severe than misdemeanors and there may be greater consequences for a felony criminal record. Even if the individual is later eligible for lawful status in the U.S., a felony offense could make it more difficult to get a job or housing, and could make you ineligible for some federal programs.
Some people interchange the terms return and removal and both refer to transporting immigrants out of the United States. However, there are critical differences between a return and formal removal.
Formal removal is the process used by the U.S. government to send undocumented immigrants back to their country of origin. This process generally requires lengthy immigration court proceedings and pays for the immigrant's return trip. Removal also results in a ban on legally reentering the United States for 5 to 20 years. The immigrant generally has a chance to form a defense against the removal.
An immigration return means that an immigrant is apprehended, often when crossing the border, and is prevented from entering the country. Many of these individuals do not go through the formal court process in return for reduced penalties. Returned individuals are generally not prohibited from re-entry at a later time. A return is also a much shorter process, and can take as little as a few hours to a few days.
Illegal reentry is subject to immediate removal proceedings. Any prior removal orders can be reinstated and the individual may be removed without trial. There are also statutory penalties for reentry after deportation proceedings. Improper entry is subject to a fine and imprisonment for up to 2 years in federal prison.
If prior removal was based on criminal convictions or commission of three or more misdemeanors involving drug-related crimes, crimes against the person, or a felony, the penalties include a maximum prison term of 10 years. If the individual was reported for a prior conviction of an aggravated felony, the maximum penalty includes up to a 20-year term of imprisonment.
There are situations in which a previous removal order may not be automatically reinstated, including where the immigrant:
There may be strong legal defenses to criminal charges for reentry after removal. Border patrol agents, immigration officials, and even the immigration judge can make mistakes. If there was a problem with your prior removal proceeding or deportation orders, the prior removal may have been issued in error. Talk to your immigration lawyer about legal defense strategies for your case.
Over the years, the majority opinion on immigrants has changed in the U.S. According to a Pew Research study, in 1994, 63% of Americans thought immigrants were a burden by taking jobs, housing, and healthcare and only 31% said immigrants strengthened the country. However, in 2019, 66% of Americans surveyed say immigrants strengthen the country because of their hard work and talents, while 24% have the opposite opinion.
An immigrant who is detained for unlawful reentry into the United States can seek legal representation from an experienced and knowledgeable immigration attorney. However, you do not have to wait until removal proceedings before seeking legal advice. Talking to a lawyer sooner rather than later may give you more options to get lawful immigration status or avoid deportation. An immigration attorney can help build a strong legal defense against removal and help make complicated immigration laws easier to understand.