1912. 8 U.S.C. 1326 -- Reentry 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).

[cited in JM 9-73.200] [updated September 2008]