Prior removal
Criminal Defense
Illegal Re-Entry (Federal)
Illegal re-entry under 8 U.S.C. § 1326 is one of the most frequently prosecuted federal offenses in the District of New Mexico. A prior removal or deportation order, combined with a subsequent return to the United States without permission, satisfies the basic elements. What drives the sentencing exposure is the nature of the prior criminal conviction — which can elevate a standard misdemeanor-level case into a felony carrying years in federal prison.
Important
This is general information, not legal advice. If an arrest happened recently or you believe you are under investigation, do not explain anything to law enforcement before speaking with counsel.
Overview
Prior removal and criminal history determine whether illegal re-entry is a minor or serious federal felony.
The core elements of § 1326 are: (1) the defendant is an alien; (2) who was previously removed or deported; (3) and was subsequently found in the United States without permission. These elements are straightforward, and the government's evidence typically consists of immigration records and fingerprint comparisons.
The sentencing exposure varies dramatically based on the defendant's prior criminal history. Without a prior conviction, the maximum is 2 years. With a prior felony, the maximum is 10 years. With a prior aggravated felony, the maximum is 20 years. The term "aggravated felony" has a specific, often counterintuitive meaning under immigration law.
Prior removal orders that are constitutionally defective or that were issued without proper procedural protections can be collaterally attacked in the criminal proceeding under United States v. Mendoza-Lopez. This is one of the most significant defenses available in § 1326 cases.
Charges are filed after an arrest by Border Patrol, ICE, or local law enforcement following a traffic stop or other encounter. The defendant is typically brought before a federal magistrate for initial appearance within hours of arrest.
Key points
Criminal history
Prior criminal convictions dramatically increase the sentencing exposure
Aggravated felony
"Aggravated felony" under immigration law is broader than under state law
Collateral attack
The prior removal order itself may be challengeable
Penalties & Exposure
Sentencing structure for § 1326
No prior conviction: maximum 2 years. Prior felony (other than aggravated felony): maximum 10 years. Prior aggravated felony: maximum 20 years. These are statutory maximums; actual guideline ranges depend on criminal history and offense level.
The sentencing guidelines for § 1326 (U.S.S.G. § 2L1.2) have been substantially revised. The base offense level is 8, but prior criminal convictions for certain offenses add 8 to 16 levels — producing guideline ranges far above the time most defendants have served on prior sentences.
Time-served sentences and probation are possible in straightforward cases without criminal history, but become increasingly unlikely as prior conviction severity increases.
In addition to incarceration, federal illegal re-entry convictions result in formal removal from the United States after sentence and create a permanent record of criminal conviction that affects any future immigration proceedings.
How These Cases Are Defended
Defense strategies
Collateral attack on the prior removal order (if constitutional defects existed); challenging whether prior convictions qualify as "aggravated felonies" under federal immigration law; disputing criminal history calculations; seeking below-guidelines sentences based on individual circumstances.
Whether a prior state conviction constitutes an "aggravated felony" under 8 U.S.C. § 1101(a)(43) is frequently litigated. Courts apply categorical and modified categorical approaches to determine if the state offense matches the federal definition. Successful challenges can significantly reduce the guideline range.
Common Questions
Frequently asked
Quick answers to the questions we hear most often. Every case is different — call for a private consultation.
Does voluntary departure count as "removal" for § 1326 purposes?
Voluntary departure alone does not trigger § 1326 liability. The statute requires a formal removal, deportation, or exclusion order. However, accepting a grant of voluntary departure after a formal removal order has been entered can satisfy the removal element.
Can a prior state misdemeanor be an "aggravated felony" under federal law?
Yes. The term "aggravated felony" under immigration law is defined by federal statute and does not depend on whether the offense was classified as a felony under state law. Certain misdemeanor-level state convictions — including some drug offenses and crimes of violence — can qualify as aggravated felonies under 8 U.S.C. § 1101(a)(43).
What happens after serving the federal sentence?
After completing the federal sentence, the defendant is formally removed from the United States by ICE. Any future re-entry after this point would be a new § 1326 offense with the prior aggravated felony enhancement already in place.
Talk to counsel before the state defines your case for you.
Early decisions often control everything that follows.
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