Illegal reentry charges: 8 U.S.C. § 1326

What does the law make illegal?

Reentry after removal, 8 U.S.C. § 1326

The law is 8 U.S.C. § 1326. Federal immigration law uses the word "alien" for any person who is not a U.S. citizen or national (8 U.S.C. § 1101(a)(3)). To convict, the government must prove each of these things beyond a reasonable doubt:

• Not a citizen. The person is not a U.S. citizen or national.
• A prior removal. The person was denied admission, excluded, deported or removed, or left the country while an order of exclusion, deportation or removal was in place (§ 1326(a)(1)).
• A return. Afterward, the person entered, tried to enter, or was "found in" the United States (§ 1326(a)(2)).
• No permission. The government had not expressly agreed in advance to let the person reapply for admission.

"Found in" matters. A person who came back years ago without being caught can be charged when immigration officers later find them, for example after a fingerprint check following an unrelated arrest. Under § 1326(b), a "removal" also includes an agreement to be removed, such as a stipulated removal signed during a criminal case.

Someone who was removed before finishing a prison sentence and then comes back can also be ordered to serve the rest of that sentence, with no parole or supervised release credit (§ 1326(c)).

Challenging the old removal order, 8 U.S.C. § 1326(d)

The prior removal order is part of the crime, so its fairness can matter. In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court held that when the removal hearing effectively took away the chance for a court to review the order, due process requires some meaningful review before that order can be used in a criminal case. Congress then wrote the test into the statute. The person must show all three of these things:

• Exhaustion. They used any administrative remedies that were available to challenge the order (§ 1326(d)(1)).
• No real chance at court review. The removal proceedings improperly took away the opportunity for judicial review (§ 1326(d)(2)).
• Fundamental unfairness. The order was fundamentally unfair (§ 1326(d)(3)).

In United States v. Palomar-Santiago, 593 U.S. 321 (2021), the Court held that all three requirements are mandatory. A court can't excuse the first two just because the removal was based on a conviction that later turned out not to be a removable offense. These challenges are hard to win, but in the right case the records of the old removal are worth getting and reading closely.

Related charges

Entering without inspection the first time is a separate, lesser crime under 8 U.S.C. § 1325(a). Using a fake green card, visa or other immigration document is charged under 18 U.S.C. § 1546. Both are explained on our page on smuggling and other immigration crimes.

What are the penalties?

• "Aggravated felony" is broader than it sounds. The list includes drug trafficking, many theft and violent offenses with a sentence of at least one year, fraud with a loss over $10,000, and a prior reentry after removal for an aggravated felony (8 U.S.C. § 1101(a)(43)). A state misdemeanor can sometimes count. Whether an old conviction fits is a technical question and often a key issue.
• The prior conviction doesn't have to be in the indictment. In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court held that § 1326(b)(2) is a penalty provision, not a separate crime, so the government doesn't have to charge the earlier conviction in the indictment.
• Fine: up to $250,000 for a felony (18 U.S.C. § 3571(b)).
• Supervised release: up to 1 year for a 2-year offense and up to 3 years for a 10- or 20-year offense (18 U.S.C. §§ 3559(a), 3583(b)). The guidelines say a court ordinarily should not impose supervised release when the statute doesn't require it and the person will likely be deported after prison (USSG §5D1.1(c)).
• Time limit: generally 5 years (18 U.S.C. § 3282). When the clock starts in a "found in" case can be a real question.

How does sentencing work for this charge?

Illegal reentry is sentenced under USSG §2L1.2. The base offense level is 8. The guideline then adds levels based on the person's record, in three separate steps. Only convictions that receive criminal history points count, and convictions for offenses committed before age 18 count only if they were adult convictions (§2L1.2, Application Notes 1(B) and 3).

• Prior reentry (§2L1.2(b)(1)): +4 for a prior felony illegal reentry conviction, or +2 for two or more misdemeanor illegal entry convictions under § 1325(a).
• Convictions before the first removal order (§2L1.2(b)(2)): see the table below.
• Convictions after the first removal order (§2L1.2(b)(3)): the same table, applied separately to crimes committed after the person was first ordered removed.

The same prior convictions also count toward the criminal history score, so a record can raise both the offense level and the criminal history category. Other common adjustments include up to 3 levels off for acceptance of responsibility (USSG §3E1.1) and 2 levels off for some people with no criminal history points (USSG §4C1.1).

Fast-track (early disposition) programs

On the government's motion, the court may lower the offense level by up to 4 levels under an early disposition program approved by the Attorney General and the U.S. Attorney for that district (USSG §3F1.1). This policy statement used to be §5K3.1; it moved to §3F1.1 on November 1, 2025. A 2012 Justice Department memo directed districts that prosecute felony reentry cases to offer these programs, subject to limits for people with certain prior violent convictions or many prior removals. Under that memo, the person usually must agree to plead within 30 days of being taken into federal custody, admit the prior conviction and removal, and give up pretrial motions. If the U.S. Attorney requires it, the person must also give up the right to ask for a lower sentence under § 3553(a) and most appeal and § 2255 rights. As of October 2026, that memo is still the Justice Department's published fast-track policy; the Attorney General's February 5, 2025 charging memo calls for more immigration prosecutions but does not set new fast-track terms. Terms vary by district and can change, so the offer has to be weighed against the defenses in the case.

For context only: the Sentencing Commission reports that 18,204 people were sentenced for illegal reentry in fiscal year 2025, about 80% of all federal immigration cases, and the average sentence was 10 months; 11% of those sentences included an early disposition reduction (USSC Quick Facts, FY 2025). Averages don't predict the sentence in any one case.

Pending at the Supreme Court. In Beaird v. United States, No. 25-5343, set for argument on October 13, 2026, the Court agreed to decide whether Stinson v. United States (1993) still states the rule for how much weight courts must give the Guidelines’ commentary, the notes that follow each guideline. The answer could affect rules on this page that come from commentary rather than from the guideline text itself.

Guideline numbers on this page are from the Guidelines Manual in effect since November 1, 2025, which no longer uses “departures”: the judge calculates the range, then weighs the factors in 18 U.S.C. § 3553(a). For more depth, see How the federal Sentencing Guidelines work, at Sentencing.net, a Criminal Center site.

How do these cases usually start and move?

Many reentry cases start at or near the border, when Border Patrol stops someone and a fingerprint check shows a prior removal. Many others start far from the border: a person is arrested on an unrelated state charge, booked into jail, and fingerprinted, and immigration officers learn they are in the country. The federal case is often filed by complaint and then indictment within days or weeks.

These cases move fast, especially where a fast-track offer has a deadline. That makes the first weeks important: getting the prior removal file (often called the "A-file"), the records of the old convictions, and the facts about citizenship of parents or grandparents. Release before trial is decided under 18 U.S.C. § 3142, and an immigration hold can complicate release.

Immigration consequences, in general terms

A criminal judge sentences the person, but removal is decided separately, in the immigration system. People convicted of illegal reentry are commonly removed after serving their sentence, and a conviction can make it harder or impossible to return lawfully later. Defense lawyers must tell a non-citizen client whether a plea carries a risk of deportation (Padilla v. Kentucky, 559 U.S. 356 (2010)). Criminal Center handles the federal criminal case. For questions about immigration status, relief from removal or future visas, talk with an immigration lawyer.

The usual stages of a federal case

1. 1Investigation. Agents gather records and interview witnesses, often using grand jury subpoenas. Someone the prosecutor views as a "target" may get a target letter before an indictment (Justice Manual 9-11.151, 9-11.153).
2. 2Charges. A federal felony is usually charged by indictment: a grand jury decides in private whether there is probable cause (Fed. R. Crim. P. 6, 7). Some cases start with an arrest on a criminal complaint.
3. 3First appearance and detention. After an arrest, the person goes before a magistrate judge without unnecessary delay (Fed. R. Crim. P. 5). The judge decides whether they are released or held until trial (18 U.S.C. § 3142).
4. 4Evidence and motions. The government must turn over certain evidence (Fed. R. Crim. P. 16). The defense can ask the court to suppress evidence or dismiss charges (Fed. R. Crim. P. 12).
5. 5Plea or trial. Many federal cases end in a guilty plea, which the judge must find knowing and voluntary (Fed. R. Crim. P. 11). At trial, the government must prove every element beyond a reasonable doubt, and a jury verdict must be unanimous (Fed. R. Crim. P. 31(a)).
6. 6Sentencing. A probation officer writes a presentence report, and each side can object in writing within 14 days of receiving it (Fed. R. Crim. P. 32). The judge then decides the sentence under 18 U.S.C. § 3553(a).

More on what to do at each stage: Facing federal charges? What to do now.

What defense issues come up in these cases?

• Citizenship. Some people are U.S. citizens without knowing it, through a parent or grandparent (8 U.S.C. §§ 1401, 1431). A citizen can't be guilty of illegal reentry, so family history is worth checking early.
• The prior removal. Was there actually a removal order, and does the record prove it? Can the order be challenged under § 1326(d), keeping in mind that Palomar-Santiago requires all three conditions?
• Permission to return. Did the person get permission to reapply for admission?
• "Found in" and time limits. When did the government find, or have reason to find, the person? Was the case brought within 5 years?
• The prior record. Does an old conviction really make the case a 10- or 20-year case, or raise the §2L1.2 level? Questions include whether it is an "aggravated felony," the length of the sentence imposed, whether it receives criminal history points, and whether it happened before or after the first removal order.
• Fast-track. Is the person eligible, how many levels are offered, and what rights must be given up?
• The person's story. Why the person came back, how long they lived here, their family and work ties, and the conditions they fled are argued under § 3553(a). The guidelines no longer use departures.

Every case turns on its own facts. These are issues to look at, not predictions about how any case will turn out.

What happens after a conviction?

After a reentry sentence, the person is usually turned over to immigration authorities. Many fast-track plea agreements waive most appeal and § 2255 rights except claims of ineffective assistance of counsel, so the plea agreement itself controls which of the options below are still open.

• Appeal. A notice of appeal is usually due within 14 days after the judgment is entered (Fed. R. App. P. 4(b)(1)(A)). Many plea agreements waive the right to appeal, but in Hunter v. United States (2026) the Supreme Court held that a waiver can’t be enforced when doing so would cause a miscarriage of justice, a high bar. See federal appeals at Sentencing.net.
• A § 2255 motion. A motion asking the sentencing court to vacate, set aside or correct the sentence, for example for ineffective assistance of counsel. It is usually due within one year after the conviction becomes final (28 U.S.C. § 2255(f)). See 2255motion.com.
• Compassionate release. A motion asking the judge to reduce a prison sentence for extraordinary and compelling reasons, filed after the person asks the warden and either exhausts BOP appeals or waits 30 days (18 U.S.C. § 3582(c)(1)(A)). It can’t be used to attack the validity of the conviction itself (Fernandez v. United States (2026)). See CompassionateRelease.com.
• Clemency. The President can pardon a federal offense or commute (shorten) a federal sentence (U.S. Const. art. II, § 2). See Clemency.com.