Illegally re-entering the U.S. after having been excluded, or ordered removed (deported), or denied admission, is a federal felony offense — and one that carries severe consequences.
When a foreign national wishes to re-enter 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.
The penalty for illegally re-entering 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 re-entered 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 of 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;
(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.
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.
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 re-entry 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 re-entry was unlawful, the immigration officer must consider the evidence relevant to the re-entry and attempt to verify any claim that the entry was lawful.
If the immigration officer determines that reinstatement of a prior order is appropriate, the non-citizen must be provided with a 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.
An immigration officer is not authorized to reinstate a prior removal order for a non-citizen who:
-is eligible to seek adjustment of status or legalization under § 245A of the Immigration and Nationality Act, or
– 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.
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.
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 when:
– 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.”