U.S. Re-Entry for a Deported Alien

8 USC 1326

Common violations that could lead to deportation include visa overstay and criminal activity. Depending on the circumstances leading up to removal, deportees are not allowed to re-enter the U.S for a period of five, ten, or 20 years. Sometimes a permanent ban is imposed.

If you return to the U.S. without consent after a removal order, that order may be reinstated. In this case, an immigration officer can send you back to the country to which you were previously deported without the opportunity for an immigration judge to hear your case. Moreover, you may be charged with the crime of illegal reentry under 8 USC § 1326. If convicted, you may face a maximum of two years in federal jail and/or a fine.

What constitutes illegal re-entry?

Under the Immigration and Nationality ACT (INA), it is not solely illegal re-entry after removal that constitutes the crime. Comparatively, the law applies to any individual who re-enters the U.S. or is found within the country, without government approval, after having been:

  • Excluded from the United States;
  • Deported from the United States;
  • Denied admission to the United States;
  • Removed from the United States;
  • Departed from the U.S. while an order of exclusion, deportation, or removal is outstanding.

Penalties for Illegal Re-Entry

There are a series of penalties for illegal reentry under 8 USC 1326. In fact, under relevant federal statutes, an alien who commits illegal re-entry will be punished with:

  • A fine or imprisonment for not more than two years, or both.

Moreover, if an alien re-enters or is found in the U.S. without proper government approval, after a criminal felony conviction for a non-aggravated felony, or after three or more violations for drug-related crimes or crimes against persons, he or she is subject punishment by:

  • A fine or imprisonment for not more than 10 years, or both.
  • The statutory maximum term of imprisonment is 20 years.

Legal Reentry and Form I-212

If you find a legitimate basis to petition for a visa or green card as in through work or family, you may apply to proceed using the Form I-212, Permission to Reapply for Admission into the United States After Deportation or Removal. This form is basically a waiver request. If approved, immigration officers may overlook the inadmissibility based on your past removal and grant a second opportunity at residency.

Who can file this form?

  • Anyone who has been previously removed from the U.S.
  • Anyone who has entered the U.S. unlawfully after a prior removal order
  • Anyone who has lived in the U.S. for at least one year without authorization can apply for the I-212

The immigration official handling your case will consider several factors before approving an I-212. These include moral character of applicant, family obligations, reason for deportation, criminal status, etc. If you choose to file, you should also submit a statement detailing the reason you were deported and information regarding your current status in life. Evidence presenting you in a favorable light increases the chance of approval.

You are NOT required to file this form if:

  • You have been denied admission and ordered removed, and were inadmissible under INA section 212 (a)(9((A), but you have remained outside the US per the entire period specified in INA section 212 (a)(9)(A);
  • You are an applicant for non-immigrant visa (other than K and V non-immigrant visa), or an applicant for Non-resident Border Crossing Card. In this case, the U.S. consulate with jurisdiction over your visa application will advise you about how to request consent to reapply. Consent to reapply may be requested online electronically in conjunction with the visa application;
  • You were allowed to withdraw your application for admission at the border, and you departed the U.S. within the time specified for your departure;
  • You were refused entry at the border, but not formally removed;
  • You were refused admission as an applicant under the Visa Waiver program;
  • You had previously been unlawfully present in the U.S. in the aggregate of more than 1 year, or you were previously removed but when coming to the border again, were paroled into the United States;
  • You received an order of voluntary departure from the immigration judge and departed the United States during the time period specified in the voluntary departure order; or
  • You are an applicant for Registry under INA section 249.

Hardship and Special Cases

Form I-212 may not be enough to gain a waiver from immigration officials if you were deported for a serious crime or for being in the United States illegally. In these cases, it may be required to prove that not being admitted to the country would cause extreme hardship to a family member who is a permanent resident or a U.S. Citizen.

The following is necessary to apply for an extreme hardship Waiver:

  • Complete and submit Form I-212 and Form I-601 Waiver of Grounds of Inadmissibility Application‎;
  • Submit supporting documentation that demonstrates the extreme hardship being suffered by a relative such as a spouse, parent, or child;
  • An interview is conducted by a U.S. consular official.

Using Form I-601 to Request a Waiver of Inadmissibility

If you are severally inadmissible to the U.S., you may also need to submit USCIS Form I-601 along with your application for reentry. The name of this form is the "Application for Waiver of Grounds of Inadmissibility." Because there are many grounds for inadmissibility, the requirements for obtaining the waiver will vary depending on the reason you were removed.

If this form is approved, the waiver that is granted will apply only for those grounds of inadmissibility and those crimes, incidents, events, or conditions that you have included in your application. For this reason, it is important that you disclose all grounds of inadmissibility for which you seek a waiver.

Obtaining the Legal Defense You Need in New Jersey

Attempting an illegal reentry into the U.S. is dangerous and unscrupulous. At the same time, finding your way in legally can be a complicated issue and it is therefore recommended that you seek professional advice. As a New Jersey Immigration Attorney, I have experience handling a variety of cases, such as Visas, Green Card, Waivers, and Criminal Immigration matters.

If you have been charged with illegally reentering the United States after being deported, you need to contact us by phone or submit a case evaluation form from our website.

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