Sentencing for Illegal Reentry Into the U.S.

Find out what happens at a sentencing hearing following illegal reentry, what the penalties might be, and how a defense can be raised.

A sentencing hearing will follow illegal reentry into the U.S. - we will assume here that either you, or a loved one, was previously deported (removed) or accumulated previous unlawful presence in the U.S. and are now in a federal detention center awaiting sentencing.

This article will discuss the differences between immigration court proceedings and federal court proceedings after illegally reentering, or attempting to reenter. Then we will discuss your rights under federal law and the possible penalties you face at your sentencing hearing.

Deportation/Removal Versus Illegal Reentry Criminal Proceedings

Deportation and illegal reentry cases both involve violating U.S. immigration laws. However, while initial deportation cases are resolved by judges in immigration court (the Executive Office for Immigration Review, or EOIR), illegal reentry cases are resolved by judges in the higher federal court system. The reason for this difference is that illegal reentry is not only an immigration violation, but a federal crime (a felony) that can carry severe consequences.

Federal Court Versus Immigration Court

In addition to the difference in the level of authority of the judges in immigration court and federal court, there are vast differences in the way in which these two types of proceedings are carried out, the penalties imposed, and even the burden placed on the government to prove its case against you.

Defendants' Rights in Federal Court Versus Immigration Court

Because you are facing conviction for a federal crime, the government has a heavy burden to prove any allegations against you. Unlike in immigration court, you have the right to demand a jury trial if your situation is one that might benefit from that.

For example, if you believe you are entitled to be in the U.S. legally, perhaps as a U.S. citizen who automatically derived citizenship through a relative, but you are having trouble convincing the government of this, you can demand that a jury decide that issue based on the law and the evidence presented versus the decision of a single judge.

Because you not only face deportation but other punishment meted out by the federal court (an important distinction, because deportation is not considered by the government to be "punishment"), federal law entitles you to demand the government prove its allegations as to your illegal reentry "beyond a reasonable doubt."

An experienced attorney can help you to understand your options and evaluate the facts of your situation to possibly to dispute the government's allegations and evidence against you.

Possible Penalties at Sentencing

The sentence imposed for illegally reentering the U.S. often depends on the reason for the prior removal or inadmissibility (visa ineligibility). Sometimes when someone reenters illegally, the government simply reinstates the prior order of removal immediately and the person is deported without a hearing. However, since you are facing a sentencing hearing, we will assume that is not the case here. So, you face some combination of the following:

1. a fine
2. imprisonment
3. deportation/removal, and
4. a permanent bar from future admission to the United States.

Typically, the sentences for illegal reentry are:

1. a fine and up to two years' imprisonment for reentering after previous unlawful presence, or after being granted voluntary departure or ordered deported by an immigration judge,
2. a fine and up to ten years in prison if you were deported for committing three or more misdemeanor crimes involving drugs, crimes against a person, or a felony (other than an aggravated felony), and
3. a fine and up to 20 years in prison if you were deported for an aggravated felony conviction.

Of course, in addition to any criminal penalty, after you serve the sentence imposed, you will be again be deported from the U.S. with a permanent bar on future admission. This means that in order to ever apply for a visa to return to the U.S. in the future, you will need special permission to do so. See "Reentry to the United States After Deportation and Removal" for details.

See an Immigration Attorney

These types of cases are complicated, and you'll want to hire an immigration lawyer with experience defending them. See our article on finding the right lawyer to learn what to look for.


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