If You’re Detained For Illegal Reentry to the U.S.

Illegally re-entering the U.S. after having been denied admission, excluded, or ordered removed (deported) is a federal felony offense — and one that carries severe consequences.

When a foreign national reenters the U.S. after having been ordered removed, been granted voluntary departure, or after previous unlawful presence exceeding 180 days, he or she is barred from reentering the U.S. (inadmissible) for a number of years. The only remedy is to get special permission for readmission.

If you are currently being detained for illegally reentering the U.S., you are urged to contact an immigration attorney immediately.

Penalties for Illegal Reentry

The penalty for illegally reentering the U.S. without proper permission will sometimes simply involve reinstatement of the previous order of removal and the immediate carrying out of such. However, other serious consequences may be imposed, as follows:

1. In general, if you illegally reentered after previously accumulating unlawful presence, being granted voluntary departure, or being ordered removed by an immigration judge, you are subject to a fine and up to two years’ imprisonment.

2. If the order of removal was for committing three or more misdemeanor crimes involving drugs, crimes against a person, or a felony offense (other than an aggravated felony), you face a fine and up to ten years in prison, and

3. If you were ordered removed after a conviction for an aggravated felony, you face a fine and up to 20 years in prison, plus a permanent bar on reentry.

What It Means to Reinstate a Prior Removal Order

Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), when a non-citizen is ordered removed from the U.S. and illegally reenters, the prior order of removal is often reinstated. When that happens, the person will not be permitted to appear in immigration court to seek relief from removal. Instead, after serving any other sentence imposed, the person is removed on the basis of the prior order.

Procedures Before Reinstatement of a Removal Order

In determining whether or not someone is subject to reinstatement of a prior order, an immigration officer will:

  • obtain the prior order of removal
  • decide whether the person is actually the one who was previously removed or voluntarily departed, and
  • determine whether the person’s presence after reentry is actually unlawful.

If a person’s identity cannot be confirmed and identity is disputed, an immigration officer is not permitted to reinstate the prior order. Likewise, in determining whether the reentry was unlawful, the immigration officer must consider the evidence relevant to the reentry and attempt to verify any claim that the entry was lawful.

Receiving a Notice of Reinstatement

If the immigration officer determines that reinstatement of a prior order is appropriate, the non-citizen must be provided with notice of the determination and of his or her right to make a statement disputing the findings. If you then submit such a statement, the immigration officer must reconsider the determination whether to reinstate the order — but can still, of course, decide to go ahead and do  so.

Situations in Which a Previous Order of Removal Cannot Be Reinstated

An immigration officer is not authorized to reinstate a prior removal order for a non-citizen who:

  • is eligible to seek adjustment of status (a green card) or legalization under § 245A of the Immigration and Nationality Act
  • has applied for adjustment of status under the Haitian Refugee Immigrant Fairness Act (HRIFA) or the Nicaraguan Adjustment and Central American Relief Act (NACARA), or
  • expresses a fear of returning to the country that the order designated for removal (becomes an asylum applicant).

If an application for adjustment of status is granted, the prior order of removal, deportation, or exclusion no longer has any legal effect and is not enforceable. If the application for adjustment, legalization, or asylum is denied in a final decision, the immigration officer may then reinstate the prior order. To find out whether you might be eligible for one of the remedies described above, seek the advice of an experienced immigration attorney.

Is There Anything I Can Do After My Removal Order Is Reinstated?

Although the law holds that a non-citizen has no right to request relief from removal when a prior removal order is reinstated, all hope is not lost.

If the previous order of removal was rendered “in absentia,” because you failed to appear for a hearing in immigration court, you have the legal right to seek to a reopening of your case. The purpose is to give  you a chance to explain why you failed to appear and to request any relief available.

It is also possible to have prior removal proceedings reopened in cases where:

  • the person exhausted all administrative remedies available in connection with the prior removal order
  • the removal order improperly deprived the person of the opportunity for judicial review, or
  • the entry of the removal order was “fundamentally unfair.”

How to Get Help

If you are currently being detained because of an illegal re-entry into the U.S., it is critical that you consult with an immigration attorney. You are not only facing removal, but a federal felony charge, and a permanent bar to readmission. An immigration attorney will be invaluable to assessing your situation and to determining the best way to proceed based on the particular facts of your case.

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