The American Dream often drives individuals to seek opportunities in the U.S. However, for those who have been deported, reentering the country unlawfully can turn that dream into a nightmare. Once deported, returning to the country unlawfully becomes a federal crime. People could attempt to return to the U.S. for various reasons. Some include for family reasons, work or out of economic necessity, or because they believe their deportation was unfair. Others may feel a deep bond with the country where they once built their lives. In any case, the consequences of illegally reentering the country are rather severe.
An illegal attempt to reenter the country upon deportation exposes you to arrest, imprisonment, and further deportation. Besides fines and imprisonment, you may be barred indefinitely from returning to the country. Understanding these risks and consulting with an expert in immigration law is crucial for navigating this complex situation.
Illegal Reentry After Deportation
Under 8 U.S.C.§ 1326(a), reentering the country after being deported, excluded, or removed is unlawful. What does it mean to be deported, excluded, or removed from America?
- Being deported — Deportation is being forced to leave the country either because you have violated immigration laws or are an immigrant convicted of a crime. Deportation takes place after you are discovered to be in the country unlawfully. After being deported, you will be barred from entering the country.
- Being excluded — When you are excluded, you are barred from entering the country. You will likely be barred at the port of entry if you do not qualify for admission or experience problems with the visa or other entry papers. Refusal means you cannot come to the country. This rule usually applies to first-time travelers or those who have not complied with visa requirements.
- Being removed — Deportation and exclusion are both subcategories of removal. Removal is a general term that covers both deportation and exclusion. It means you must depart from the country once it is established that you have violated immigration laws. This may be due to a violation of the visa conditions, violating the conditions of admission, or engaging in criminal activities.
Despite the strict reentry regulations, there are two exceptions to this rule, namely:
- If you got permission from the Attorney General to reapply for admission before coming to the country
- If you can prove that you did not require this permission under the existing or prior laws.
If you fail to meet the above-stated exceptions, you risk being subjected to a fine under Title 18 of the U.S. Code or imprisonment for two years or both. You must follow the reentry procedures since the two-year imprisonment and the penalty seek to punish those who bypass these rules.
Federal law regarding reentry into the United States after deportation is well stipulated under 8 U.S.C. 1326(b), where the punishment depends on your criminal history, specifically:
- If you were deported because of convictions for three or more misdemeanors related to drugs or crimes against people or for a felony other than an aggravated felony, you can be imprisoned for up to 10 years, and you will have to pay a fine.
- If you were deported after a conviction of an aggravated felony, the situation is worse. You might spend 20 years in prison and be liable to hefty fines.
- The law also requires 10 years imprisonment if you were deported under certain circumstances. You must serve this 10-year sentence in full. This section usually applies if you were deported because you threatened national security.
Further, if your removal was under these provisions, you could be imprisoned for up to 10 years and fined unless you had prior authorization to reenter the United States.
Reentry After You Voluntarily Depart the Country
When you voluntarily leave the United States with the government’s permission, you avoid a formal court-ordered deportation or removal. People usually encounter this option during immigration or criminal cases, which allows for departure without the strict enforcement of a removal order. Voluntary departure can also help to maintain the chance to apply for reentry without severe legal consequences.
However, if you return to the country without permission after leaving voluntarily, you will commit an immigration violation. Per 8 U.S.C. § 1326(a), this unlawful reentry attracts criminal consequences, including up to 2 years imprisonment. The law does not differentiate between those who left willingly and those whom the immigration officials expelled when it comes to reentry without permission. What matters is that you entered without authorization or approval.
What Does It Mean to Be in the Country Illegally?
Being unlawfully in the country means staying in the United States without legal authorization or violating your visa terms. Several situations can lead to this status, particularly:
- Overstaying a visa — If you arrive in the U.S. with a non-immigrant visa, like a tourist or student visa, and remain in the country after the visa expires without adjusting your status or applying for an extension, you are unlawfully present.
- Violating visa conditions — If you arrive in the country legally and then violate your visa status, for example, if you are in the country on a tourist visa but work, or if you are a full-time student on a visa but fail to attend classes full time, you become unlawfully present.
However, being unlawfully present is a civil offense rather than a criminal offense, although it can result in deportation, fines, and/or barring reentry.
If you enter the country unlawfully for the first time, you will be liable to imprisonment that does not exceed six months, and you will also be required to pay a fine. This penalty is intended to prevent further initial violations of these unauthorized entries, but it also has some tolerance for first-time offenders. The penalties are severe if you attempt another entry without authorization after the first or subsequent entry. You may have to spend up to two years in prison if you are a repeat offender.
The penalties are even higher for those who come to the country through fraud, including using fake documents or marriage fraud. You can be jailed for up to 5 years and/or fined up to $250,000.
Being Deported Before You Finish Serving the Original Sentence
After being deported, you will face serious legal consequences if you re-enter the United States without authorization. This means that the deportation order that was issued and resulted in your removal will be restored, and you will not be able to appeal or even apply for any relief from an immigration judge. This reinstatement seals your deportation and does not offer any chance of appealing, stopping, or preventing your deportation.
Also, if you had an incomplete criminal sentence at the time of deportation, you will have to complete the same sentence in full without any possibility of parole or supervised release in order to re-enter the United States. Reentry is considered another violation. Thus, this new violation is grounds to ensure you complete all the legal requirements of the initial crime.
Can I Contest My Deportation During Criminal Proceedings?
Certain conditions must be met to challenge a deportation order during criminal proceedings for illegal reentry. Here is how your attorney can approach this challenging process:
a) Exhausting Administrative Remedies
To appeal a deportation order to the criminal court, you must go through all the available legal procedures in the immigration system. This means you have had to exhaust all the immigration appeals through the immigration courts, the Board of Immigration Appeals (BIA), and possibly the federal court.
The law requires you to resolve these administrative issues before seeking judicial review in criminal proceedings.
b) Denial of Judicial Review
If the deportation proceedings denied you a fair hearing, you will be able to challenge the order because it was unjust. This situation arises when procedural mistakes or inadequate representation prevent you from presenting your case effectively. Proving that the proceedings were unfair and that this unfairness affected your case could enable you to challenge the deportation order in your criminal case.
c) Fundamental Unfairness
You can also contest the deportation order if the deportation process was, in essence, prejudicial. This also includes situations where procedural mistakes or a violation of your due process rights were made. For example, if the deportation was due to some wrong information or if you were denied a fair opportunity to argue your case, you could probably claim the process was unjust. To challenge such fundamental unfairness, you should provide tangible and material mistakes that would put into question the legal basis of the deportation order.
Addressing these issues requires careful legal work and thorough documentation. The courts require proper substantiation of allegations of bias or other improper process. Seeking the services of an immigration lawyer is, therefore, very important. They can explain the legal procedures, assess whether you qualify to appeal against a deportation order, and recommend the best approach.
Deportation Relief for Non-Citizens
However, there are some benefits that non-citizens can apply for. Nevertheless, whether you are eligible for deportation relief depends on your circumstances and eligibility for various forms of relief. Some of the reliefs you can explore include:
a) Applying for Asylum or Refugee Status
If you fear persecution in your home country due to race, religion, nationality, membership in a particular social group, or political opinion, you can apply for asylum in the United States. This application provides you with safety and protection from the threats you face. To be granted asylum, you must demonstrate that you are a genuine refugee and face persecution for one of the reasons listed above. You must apply for it within one year of your arrival in the country. However, significant changes occur in your home country or if you face extraordinary circumstances that delay your application.
You can reside in the country and not be deported when granted asylum. After living in the country for one year, you can apply for legal permanent residency through the green card process. This status enables you to reside and work in that country indefinitely.
Further, as an asylum seeker, you may be eligible for a work permit, social services, and other support that will enable you to live a better life in the country.
b) Withholding of Removal
If you believe you will likely be tortured or persecuted if you go back to your home country, you can be granted withholding of removal. This form of relief enables you to remain in the U.S. if you are likely to be in danger if you have to go back to your home country. It is consistent with the United Nations Convention Against Torture, which requires persons to be protected from being returned to countries where their lives are in danger.
Withholding of removal prevents your deportation to a country where you face significant threats, but it does not grant the benefits of asylum. While asylum grants you, the applicant, a chance to acquire a green card and citizenship, withholding removal only halts deportation without offering you a way to legally reside in the United States.
To qualify, you must demonstrate that there is a reasonable possibility that you will face persecution or torture if repatriated to your home country. This means that the evidence presented should be compelling, and there should be compliance with the legal standards. You have to submit an application and go to a hearing, where you have to present your case to a judge. The judge will only rule in your favor if you present convincing evidence.
While applying for withholding of removal enables you to remain in the country and work, it is only temporary and does not grant you permanent residency.
c) Convention Against Torture (CAT) Protection
If you can demonstrate that there is a serious possibility that you will be tortured in your home country if you go back, you might qualify for protection under CAT. The Convention Against Torture Protection is an international treaty that the United States has ratified to ensure that people cannot be returned to countries where they are likely to be persecuted. To qualify for the CAT protection, you must prove a well-founded fear that you will be tortured if repatriated. Unlike other forms of relief, CAT focuses solely on the threat of torture rather than broader categories of persecution.
CAT protection is different from asylum and withholding of removal since it specifically addresses the risk of torture. Although asylum and withholding of removal afford protection against other forms of persecution, including those that amount to the risk of death or risk to liberty because of race, religion, nationality, membership in a particular social group, or political opinion, CAT specifically addresses torture only.
Torture under CAT involves the intentional infliction of severe physical or mental pain or suffering for purposes like obtaining information, punishment, intimidation, or coercion, or for reasons based on discrimination. This mistreatment must be done by, with the permission of, or in the presence of a government official.
For you to win the CAT claim, you have to provide enough evidence that you would be tortured if repatriated to your country. It could include the victim’s testimony, the reports from human rights organizations, the testimonies of expert witnesses, and other documents that establish the risk of being tortured. You have the burden to prove this likelihood, which requires showing more than a 50% chance of torture occurring.
The protection you get under CAT means that the U.S. government will not expel you to a country where you will be tortured. However, CAT does not guarantee you a chance to be granted permanent residence or citizenship, which is possible in the case of asylum. CAT beneficiaries can remain in the country and may apply for work permits. However, they are in the country legally only temporarily and with no absolute assurance of their right to remain there indefinitely. Further, there is no derivative status for family members under CAT protection.
Find an Immigration Attorney Near Me
Facing deportation or arrest after reentering the United States is not easy and can be incredibly challenging and emotionally overwhelming. These circumstances do not only introduce legal complications but also social and psychological ones if you have friends or family in the country or if you are afraid of the conditions in your home country. You may feel justified in wanting to return to your family, to get a job, or to find safety. However, unlawfully returning to the country can attract severe penalties, as pointed out above.
Instead of taking risks with unlawful reentry, you should navigate these challenges through legal channels. It is always advisable to seek the services of an immigration attorney who will explain your rights and the available options to you.
At California Immigration Attorney, we provide assistance tailored to your circumstances. Our experience ensures that you avoid costly mistakes and increase your chances of success. Do not let uncertainty push you toward illegal actions. Call us at 424-789-8809 and let us protect your immigration status.