Are There Defenses to Illegal Re-entry After Deportation Charges?

Yes, but they are extremely difficult cases to win. The statute does allow for a challenge to the underlying removal order, but in very limited circumstances. According to 8 U.S.C. 1326(d), a person charged with illegal re-entry can challenge the underlying removal order if:

• The person has exhausted any administrative remedies, 
• The proceedings improperly deprived the person of judicial review, and 
• If the entry of the order was fundamentally unfair. 

An experienced criminal and immigration attorney can review if this might be an option for you or your loved one. 

If charged with illegal re-entry, the government must still prove all of the elements of the offense beyond a reasonable doubt. However, the elements of having been deported and then subsequently found back in the United States can be extremely difficult to overcome. The vast majority of people charged with illegal entry or illegal re-entry will end up being convicted and, quite honestly, probably should not spend money hiring a private attorney. 

However, if you are one of the few cases who could be the exception to the rule, then we invite you to contact our office to speak with one of our experienced illegal re-entry defense attorneys. We have attorneys on staff who have gone to trial on illegal re-entry cases and won arguments at the 9th Circuit Court of Appeals. More specifically, we’ve won cases where someone charged with illegal re-entry had their Constitutional Rights violated at some point in their case. 

Can Someone Stay in the Country After an Illegal Re-entry Charge?

Only under very specific circumstances. The vast majority of people charged with illegal re-entry eventually end up getting deported again without ever seeing an immigration judge. In order for the person to be charged with illegal re-entry, they need to already have a prior order of removal in their immigration file. This means they no longer have a right to see an immigration judge. 

However, there are a few limited exceptions in which someone may be able to stay in the country after an illegal re-entry charge. Someone with a prior order of removal does have a right to express fear of returning to their country of origin. If they do so, then they should be given a reasonable fear interview. If they are found by an asylum officer to have a reasonable fear, then they can see an immigration judge for the sole purpose of determining if they can potentially be granted a withholding of removal or the Convention against Torture. 

Another possibility could be a motion to reopen the underlying removal order. The law is very strict and only allows for one attempt to reopen the prior removal order. If the order was an expedited order of removal, then an attorney could reach out to Customs and Border Protection and ask them to rescind the prior order. In practice, these types of victories are extremely rare, but attorneys at Ybarra Maldonado Law Group have been successful in the past at winning reasonable fear interviews and motions to reopen. 

What to Do After Deportation

After being deported, it’s important not to return to the United States without legal permission. Reentering without approval can lead to criminal charges and make it harder to come back in the future. Instead, speak with an immigration attorney in Miami or Phoenix who can review your case and explain your options. 

Depending on your situation, you may be able to apply for a waiver, request legal reentry through U.S. Citizenship and Immigration Services (USCIS), or pursue another form of relief. 

How to Legally Reenter After Deportation

After being deported or denied admission to the U.S., you may still be able to reenter the country, depending on the circumstances of your case. Before you can come back, you may be required to wait for a set waiting period. After that, you must first request approval from U.S. immigration authorities. This usually involves applying for permission to reapply for admission through a Form I-212.

In some cases, you may also need a waiver for certain immigration violations, such as unlawful presence (a Form I-601, the Application for Waiver of Grounds of Inadmissibility). Not everyone qualifies for a waiver, and approval depends on your specific situation, including family ties, hardship to U.S. citizen relatives, or other factors.

You must submit these applications through USCIS and wait for a decision. From there, you can apply for an immigrant visa. If you try to reenter without approval and a visa, you could face criminal charges and be permanently barred from returning. A qualified immigration attorney can help you understand which forms you need, whether you qualify, and how to improve your chances of success. Taking the legal path is the safest way to return to the U.S. after deportation.

Criminal Penalties for Illegal Re-Entry After Deportation

If someone is convicted of illegal reentry after deportation, they could face up to 2 years in prison, up to $250,000 in fines, or both. However, someone can face additional penalties based on their criminal record. 

If someone has been convicted of three or more misdemeanors involving drugs, crimes against people, or both, or if they have been convicted of one felony, they could face up to 10 years in prison for illegal reentry. If someone has one aggravated felony on their record, they could face up to 20 years in prison for illegal reentry.

If you have been accused of illegal reentry, the immigration criminal defense lawyers at Ybarra Maldonado Law Group can help you understand what punishments you may be facing. 

Immigration Consequences for Illegal Re-Entry

In addition to fines and jail time, being arrested or convicted of illegal reentry can also affect your immigration status. A criminal conviction can lead to a new deportation order, additional time in immigration detention, and a permanent bar from returning to the United States. Even if you are not charged with a crime, if you are caught in the U.S. after deportation, you could be immediately removed from the country.

In many cases, illegal reentry offenses can make it much harder to apply for legal status in the future. Working with an experienced immigration attorney can help you understand your options and fight to protect your rights.