Illegal Reentry Defense — 8 U.S.C. § 1326

Illegal reentry looks like a strict-liability case and is usually treated as one. It is not. The government must prove a valid prior removal, and removal proceedings are not always valid.

That is the defense nobody looks for, partly because the fast-track waiver signs it away before anyone reads the old file.

What the statute says

8 U.S.C. § 1326(a) punishes any alien who has been denied admission, excluded, deported, or removed, and who thereafter enters, attempts to enter, or is at any time found in the United States, without the express consent of the Attorney General or the Secretary of Homeland Security.

The elements

1. The defendant is an alien — not a United States citizen or national;
2. The defendant was previously denied admission, excluded, deported, or removed;
3. The defendant thereafter entered, attempted to enter, or was found in the United States; and
4. The defendant did not have the consent of the appropriate authority to reapply for admission.

"Found in" matters. The offense is complete on discovery, which affects the statute of limitations — the clock runs from when immigration authorities discovered the presence, not from entry.

The tiered penalty structure

• § 1326(a) — up to 2 years
• § 1326(b)(1) — up to 10 years where the removal followed a conviction for three or more misdemeanours involving drugs or crimes against the person, or a felony other than an aggravated felony
• § 1326(b)(2) — up to 20 years where the removal followed an aggravated felony conviction

These are maximums, not minimums. There is no mandatory minimum under § 1326, which means the realistic exposure is driven almost entirely by the Guidelines.

Sentencing under § 2L1.2 after the 2016 rewrite

Before November 2016, § 2L1.2 applied large enhancements based on whether a prior conviction fell into a category such as "crime of violence" or "aggravated felony," which produced years of categorical-approach litigation.

The Sentencing Commission restructured it. The current guideline keys enhancements to the sentence actually imposed for prior convictions and when they occurred relative to the first removal order — distinguishing convictions before the first order from those sustained afterwards.

This changed the defense work. The fight is now much less about categorical characterisation and much more about the documentary record: what sentence was actually imposed, when it was imposed, and whether the government's records accurately reflect it. Errors in that record are common and they move the range.

Attacking the prior removal order

Because the prior removal is an element, a defendant may challenge it — but only within the framework of § 1326(d), which requires all three of the following:

1. The defendant exhausted any administrative remedies available to seek relief from the order;
2. The proceedings deprived the defendant of the opportunity for judicial review; and
3. The entry of the order was fundamentally unfair.

The constitutional foundation is United States v. Mendoza-Lopez, 481 U.S. 828 (1987), which held that using a removal order as an element of a criminal offense requires that the order have been subject to meaningful judicial review.

Palomar-Santiago: all three requirements are mandatory

In United States v. Palomar-Santiago, 593 U.S. 321 (2021), the Supreme Court held that each of the three § 1326(d) requirements is mandatory and none can be excused.

The defendant had been removed on the basis of a conviction that was later held not to be a deportable offense. The Ninth Circuit had excused the first two requirements on the reasoning that the removal was substantively invalid. The Supreme Court reversed: substantive invalidity does not excuse the procedural prerequisites.

What that means practically: the collateral attack survives, but it now depends on the procedural history of the old immigration case. The strongest cases are those where the defendant was never advised of a right to appeal, was given no meaningful opportunity to seek relief, went through an expedited or in-absentia proceeding, was misadvised about eligibility for relief, or where a stipulated removal was accepted without an adequate waiver of rights.

Other defenses worth investigating

Derivative citizenship. If the defendant is in fact a United States citizen through a parent, alienage fails entirely and there is no offense. This is missed more often than it should be, particularly with older acquisition-of-citizenship rules.

Official restraint. An "entry" requires freedom from official restraint. A person under continuous surveillance from the moment of crossing may have attempted entry rather than entered — which matters for how the offense is charged.

Consent. Documented permission to reapply for admission defeats the fourth element.

Duress and necessity. Narrow, but occasionally real where a person reentered fleeing an immediate threat.

Related pages

Federal immigration crimes overview · Human smuggling · Southern District of Texas · Western District of Texas