1912
8 U.S.C. § 1326Reentry After Deportation
(Removal)
|
After the amendments made by the Illegal Immigration Reform and
Immigrant
Responsibility Act (IIRIRA), subsection 1326(a) now makes it an offense for
any
alien who has been denied admission, excluded, deported, or removed, or has
departed the United States while an order of exclusion, deportation or
removal
is outstanding and thereafter enters, attempts to enter, or is at any time
found
in the United States, unless prior to the alien's reembarkation at a place
outside the United States or his application from foreign contiguous
territory,
the Attorney General has expressly consented to such alien's for admission,
or
such alien shall establish that he was not required to obtain such advance
consent under the Immigration and Nationality Act or any prior Act.
The basic statutory maximum penalty for reentry after deportation is a
fine
under title 18, imprisonment for not more than 2 years, or both. However,
with
regard to an alien whose "removal" was subsequent to a conviction for
commission
of three or more misdemeanors involving drugs, crimes against the person, or
both, or a felony (other than an aggravated felony), the statutory maximum
term
of imprisonment is 10 years. Moreover, if deportation was subsequent to
conviction for an aggravated felony, the statutory maximum term of
imprisonment
is 20 years.
Although subsection 1326(a) now refers to any alien who has been
"denied
admission, excluded, deported, or removed, or has departed the United States
while an order of exclusion, deportation, or removal is outstanding,"
subsections
1326(b)(1) and (b)(2), relating to aliens with prior criminal convictions,
refer
only to aliens "whose removal was subsequent to a conviction." Read
together,
subsections 1326 (a) and (b) appear to suggest that the term "removal" in
subsections 1326(b)(1) and (b)(2) includes the terms "denied admission,"
"excluded ," "deported," "removed," and "departed the United States while an
order of exclusion, deportation, or removal is outstanding," as set forth in
subsection 1326(a). Section 309(d) of the IIRIRA seems to support this
conclusion, providing "any reference in law to an order of exclusion and
deportation or an order of deportation." Nevertheless, 8 U.S.C. § 1326
does
not define "removal," nor does do subsections 1326(b)(1) and (2)
specifically
provide that removal is synonymous with "denied admission," "excluded ,"
"deported," and "departed the United States while an order of exclusion,
deportation, or removal is outstanding." In view of this apparent
uncertainty,
some United States Attorneys expressed concern that, for example, that a
criminal
alien prosecuted under § 1326(b) might argue that he is not subject to
enhanced punishment because he had been "deported," not "removed."
To foreclose possible litigation in this area, the Department is
considering proposing a technical amendment whereby the language in
subsections
1326(b)(1) and (2) would track the language in subsection 1326(a).
COMMENT: Further discussion of reentry after deportation offenses is
set
forth in Chapter 5 of Immigration Law, published as part of the
Office of
Legal Education's Litigation Series, and as part of the USABook computer
library.
[cited in USAM 9-73.200] | |