Let’s Talk about Sentencing: Illegal Re-entry Into the US

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Living in the US comes with many benefits to those who live here. After all, it is the land of the free and the home of the brave. However not everyone is able to live in the US as freely as others, without the correct visas or travel documents, it could be quite tricky. And for foreigners from certain countries around the world, the obstacles are even greater.

There are those who seek asylum and then there are those who enter or re-enter, illegally. And once caught the proceedings will results in usually one of four different outcomes, but we’ll get to that in a minute.

Immigration Vs. Criminal Proceedings

An illegal re-entry carries two types of cases: a federal criminal case and an immigration case. We represent clients all over the State of Texas in illegal re-entry proceedings, for which the consequences can be very high. This kind of crime depends a lot on the circumstances surrounding the offense and the client’s criminal history, which in turn provide for an amount of prison time. What’s more, is that clients are typically held without a bond as they await sentencing. The government has the burden to prove the case against the defendant.

Elements of the Offense

  1. The defendant was removed and/or deported from the U.S.;
  2. The defendant had the conscious desire to enter the U.S. without consent;
  3. The defendant was an alien at the time of his attempted reentry into the U.S.;
  4. The defendant had not obtained consent from the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission to the U.S.; and
  5. The defendant did something that was a substantial step toward committing the crime.

Defendant’s Rights

As we know, every case is different, however an example of a defendant who believes they have the right to be in the US – let’s say they automatically derived citizenship through a parent, but are unable to convince the government, are able to request that a jury decides against the decision of the single judge.

This is because the government needs to prove these allegations against the defendant ‘beyond reasonable doubt’. It’s also worth noting that at this stage, the defendant would be looking at another punishment, other than their eventual deportation. Therefore, the government need to prove their case in this manner, and the defendant has the right to request this.


Sometimes the sentence a defendant could get varies and depends (often) on the reason for their prior removal – or their visa ineligibility. It could be that the government reinstates the previous order of removal, and the defendant is removed without a hearing (this is often a best-case scenario). But let’s look at those that are looking at a sentencing hearing. Defendants often face one or more of the following penalties:

• Imprisonment (can be up to 20 years)

• Deportation/removal

• Fine

• Indefinite ban from the United States

And once the sentence has been carried out, and the defendant deported, the individual in question would only ever be allowed to apply for a US visa again with special permission from the government.

What to do

The best piece of advice we could offer for anyone looking at an illegal re-entry sentencing is to see a qualified federal criminal defense attorney as soon as possible.

If you’re looking for an attorney who has experience in illegal reentry cases and willing to fight for their clients, call the Law Office of Mauricio Garcia today to find out how we may be able to help you in court at (956) 395-3314.

Source: https://www.cbsnews.com/news/biden-immigration-policy-agenda-trump-reversal-deportation-asylum/https://www.alllaw.com/articles/nolo/us-immigration/sentencing-illegal-reentry.html

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