Illegal re-entry after deportation is a federal crime under 8 U.S.C. § 1326. San Diego is located in the Southern District of California (U.S. District Court for the Southern District of California). The number of criminal prosecutions for illegal entry into the United States is up 7.7 percent for the first eight months of Fiscal Year 2016. Being one of the busiest border districts in the US, the federal court in San Diego sees a large number of these cases. In order to convict a defendant of illegal re-entry, the government must prove beyond a reasonable doubt that the defendant is a deported alien and that the defendant was in the United States without permission.
The stakes are very high for those accused of illegal re-entry. The current federal law punishes an individual up to 20 years in federal prison. In our current administration, we are hearing many concerns over immigration. The attitudes towards those illegally in the country have become more hostile over the last couple of years. If you or your loved one is charged with illegal re-entry in federal court, it is crucial that you retain an experienced criminal defense lawyer. Attorneys at LAWSTACHE™ LAW FIRM have experience successfully negotiating with federal prosecutors or presenting a solid defense at trial.
There are certain defenses that can be used against an illegal re-entry charge. The crime of illegal reentry, 8 USC 1326, consists of four elements:
- An alien;
- Who has been formally removed or excluded;
- Who thereafter has entered, attempted to enter or has been found in the United States;
- And did not have consent from the Attorney General to reapply for admission.
On its face, the elements to the illegal re-entry seem to be rather simple. When you look closer, there are many defenses to those elements. Some of our past clients did not know their true immigration status, and some had plausible claims to U.S. citizenship through their relatives.
With respect to the second element, defendants might argue that the deportation was unlawful. Your attorney needs to carefully look whether the deportation followed the protocol.
The term “found in the US” has been extensively litigated in the Southern District of California. A mistake of fact may provide a defense if a person did not realize he was entering United States territory. Let’s be realistic, most people do not have GPS crossing the border and may not know whether they are still in Mexico or if they crossed over to the US.
Finally, defendants might argue that he had permission to re-enter the United States. For example, if the defendant was waived through a checkpoint by a border patrol agent. In that situation, the defendant might think that he has permission to enter.
There are also a number of unique defenses to the illegal entry. If a person was spotted by immigration officers before crossing the border, and the officers apprehended him immediately, he may argue that he was in constructive custody and under official restraint prior to the crossing, and never “entered,” as the immigration laws define that term. “[F]or the purposes of § 1326, ‘enter’ has a narrower meaning than its colloquial usage. An alien has not entered the United States under § 1326 unless he does so ‘free from official restraint.’” United States v. Lombera-Valdovinos, 429 F.3d 927, 928 (9 Cir. 2005). “An alien who is under official restraint from the moment of crossing, and who never intended to avoid or change that status, cannot therefore have the necessary intent to be guilty of attempted illegal reentry.” Id. at 930.
There are a number of other affirmative defenses to the illegal re-entry that may be available in your case. If you or your loved one has been charged with illegal re-entry, you should speak with us as soon as possible. We understand that there are many reasons why someone may cross the border. Whether you were crossing for work or to be reunited with your family, we understand. Being a border district and city, many families are split between San Diego and Mexico by the border and the federal law.
If you have been charged with illegal re-entry in San Diego federal court, contact LAWSTACHE™ LAW FIRM. Attorney Anton Vialtsin has years of experience defending those accused of federal and California crimes. Our office is conveniently located in downtown San Diego. You can reach our office by calling (619) 357-6677 or by sending an e-mail.
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