Reentry and deportation are terms that fall under the umbrella of immigration laws. Immigration laws are the set of laws in the United States that regulate how an individual from outside the United States may qualify for a visa. Immigration laws also deal with under which an individual may be deported or removed from the country.
If a non-citizen has been subjected to removal or deportation from the United States, such actions generally also carry an order that the individual is prohibited from returning to the United States to reenter the country. Thus, the term illegal reentry refers to any attempt by an individual to reenter the United States after that person has been removed or deported from the country.
It is important to note that the Immigration and Nationality Act defines illegal reentry very broadly. In general, reentry is considered to be illegal if a person attempts to enter the United States without government approval after:
- They have been denied admission into the country, such as a denial of a visa application;
- They have been excluded from entering the United States in immigration proceedings;
- They have been removed or deported from the United States; or
- They departed the United States while immigration proceedings for deportation, removal, or exclusion were pending or outstanding.
As can be seen, illegal reentry can occur even if the person has not previously been formally subjected to deportation or removal proceedings.
What Are the Consequences of Illegal Reentry After Deportation or Removal?
Illegal or improper reentry is considered a serious offense and can result in an individual receiving a felony charge. This is because illegal reentry after deportation is considered to be a form of illegal immigration. If an individual illegally re-entered the United States, they would likely face severe criminal penalties.
Examples of consequences for illegally reentering the United States after deportation or removal include, but are not limited to, the following:
- Possible bans on the individual’s ability to ever re-enter the United States legally. It is important to note that bans on an individual’s ability to re-enter may be temporary or permanent.
- For example, the first time an individual is charged with illegal immigration may result in the immigrant being banned from re-entering the country for a temporary number of years, such as five years.
- However, an individual who is repeatedly charged with illegal immigration or was deported due to serious criminal activity may be permanently banned from entering the country; and
- Other criminal consequences, such as criminal fines and imprisonment.
- In general, illegal reentry after deportation or removal is considered a felony, which may result in imprisonment of one year or more and heavy criminal fines.
What Effects Do Prior Criminal Convictions Have?
Because visa applications always require an individual to disclose any prior criminal convictions, as well as any violations connected with immigration proceedings, any mention of an illegal reentry may result in an application being denied.
Additionally, prior criminal convictions can result in penalty enhancement. Penalty enhancement means that if an individual is convicted of illegal reentry, they will be subject to greater legal penalties than if they had a clean criminal record. Penalty enhancement is especially possible when prior convictions involve a felony charge.
For example, if an individual re-enters the United States illegally and they have a prior aggravated felony conviction, then the maximum imprisonment term is 20 years rather than 10 years. Penalty enhancements also exist for aliens who have been removed due to terrorism charges, an aggravated felony conviction, or after special types of incarceration.
What Can Immigrants Do If Accused of Illegal Reentry?
If an immigrant has been accused of illegal reentry, then they may be able to have the charges dismissed if they can prove that the reentry was not illegal. This generally means they must demonstrate that they have relief from removal.
Relief from removal is an action taken by an individual going through the removal or deportation process that either delays their removal or prevents them from being removed altogether.
Relief from removal generally falls under one of two categories:
- Discretionary Relief; and
- Administrative/Judicial Relief.
Discretionary relief is a form of relief from removal that is available to an individual while removal proceedings are being conducted. Administrative and judicial relief is another form available after removal hearings have already been concluded. If an individual can show that they are entitled to relief, they may be able to have any charges concerning illegal reentry dismissed.
Examples of common forms of discretionary relief from removal include:
- Voluntary Departure: Voluntary departure is where the alien can leave the United States of their own free will rather than being deported.
- It is important to note that voluntary departure may allow non-U.S. citizens to re-enter the United States in the future after a certain amount of time has passed.
- It is also important to note that the broad definition of illegal reentry seemingly includes an individual voluntarily departing from the United States as deportation or removal proceedings were happening as illegal reentry if they leave and come back. As such, it is important to discuss any departure from the United States with an attorney before departing while proceedings are being conducted;
- Cancellation of Removal: Cancellation of removal is a relief from removal that is only granted to certain individuals who qualify by meeting all of the requirements for the relief, such as continuous residency requirements, no criminal record, and demonstration of extreme hardship;
- Adjustment of Status: An adjustment of status occurs when the immigration judge allows an individual to change their status from non-immigrant to lawful permanent resident; or
- Asylum: Asylum is another relief from removal granted in limited circumstances where the alien would face severe political persecution if they returned to their country of origin.
It is important to note that if an individual is unsuccessful in discretionary relief from removal, they may also appeal the removal decision. Whether or not a removal order can be appealed depends on the grounds on which the removal was ordered.
For example, if a person’s removal has been ordered because they committed a crime they have already been convicted of, then appealing a removal decision is impossible. Additionally, as discussed above, they may face penalty enhancement for their reentry.
If an appeal is possible, then a person who has been ordered removed must file an appeal to the United States Board of Immigration Appeals (“BIS”) within 30 days of the immigration judge’s decision in their case. Then, BIS will review the immigration court’s decision.
Do I Need a Lawyer for Illegal Reentry Issues?
As can be seen, relief from deportation or removal is a process that allows an alien to be excused from removal, but the process is often complicated. As such, if you or someone you know has been charged with an illegal re-entry or is having issues with a reentry while the removal or deportation proceedings are ongoing, it is important to consult with an experienced deportation lawyer immediately.
An experienced immigration lawyer will be able to assist you in defending the charges of illegal reentry that are being brought against you. An attorney will be able to raise any legal defenses that may be available in your case and help you have the charges brought against you dismissed. Additionally, an attorney will also be able to represent you at any in-person proceedings.