Tooby's California Post-Conviction Relief for Immigrants

It is a federal felony to illegally re-enter or be “found” in the United States after having been deported or removed.[85]  The penalties for such an offense vary depending on the basis for removal.  An illegal entry after a simple deportation or removal carries a two-year maximum penalty; after a conviction for “three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony),” the offense has a ten-year maximum period of incarceration; and if the noncitizen has been deported after suffering a conviction for an aggravated felony, the offense carries a possible 20-year federal prison sentence.[86]   In addition, the U.S. Sentencing Guidelines impose a 16-level upward departure in the offense level for illegal re-entry if a defendant has previously been convicted of an aggravated felony.[87]

The 20-year maximum penalty applies even to persons whose aggravated felonies were minor offenses, such as possession for sale of marijuana.  Illegal re-entry cases are being prosecuted in record numbers in federal district courts throughout the country.  Immigration and criminal defense counsel must warn their clients of the severe penalty for re-entry.  Although most illegal re-entrants are discovered while in jail on a new offense, or when applying to the DHS for some benefit, such as naturalization, in some cases the DHS has affirmatively sought out people with old convictions for arrest at their homes when their presence within the United States is known to the DHS.

[85] 8 U.S.C. § 1326(a). 

[86] INA § 276(b)(2); 8 U.S.C. § 1326(b)(2) (sentence enhancement for illegal re-entry after conviction of an aggravated felony and deportation or removal).  Regarding the variation of the offense of being “found” in the United States, see, e.g., United States v. Ayala, 35 F.3d 423 (9th Cir. 1994).

[87] U.S.S.G. § 2L1.2(b)(1)(A).