What are the penalties and legal processes under 8 U.S.C. §1326 for illegal reentry after deportation?

1. What the statute criminalizes and the key exception

Section 1326(a) creates the offense when a person “has been denied admission, excluded, deported, or removed … and thereafter enters, attempts to enter, or is at any time found in the United States,” unless the Attorney General has expressly consented to reentry or the defendant can show they were not required to obtain that advance consent under the Immigration and Nationality Act or prior law ^{[1] [5]}. The Justice Department guidance explains the scope of covered removal categories and how IIRIRA amendments broadened the statute’s reach to include denied admission and departures while an order is outstanding ^[1].

2. The penalty tiers Congress wrote into the statute

Congress set tiered maximum terms in subsection (b): the baseline illegal reentry offense generally carries up to two years’ imprisonment, but if the prior deportation occurred after convictions for specified crimes the maximum increases — up to 10 years where the prior removal followed three or more qualifying misdemeanors or a non‑aggravated felony, and up to 20 years where the prior removal followed conviction for an aggravated felony ^{[3] [5]}. Numerous practitioner and defense sources repeat these statutory maxima and note corresponding fines may apply under Title 18 ^{[4] [6]}.

3. Special rule for deportations before completion of a prior sentence

A distinct statutory provision requires that an alien deported before completing a term of imprisonment who reenters be incarcerated to serve the remainder of the original term “without any reduction for parole or supervised release,” and remain subject to other penalties in §1326 or elsewhere ^{[7] [8]}. The rule effectively converts an unlawful reentry into a mechanism for resuming unfinished criminal time in addition to any new sentence ^[2].

4. How federal prosecution and sentencing typically proceed

Prosecutions under §1326 are federal matters pursued by U.S. Attorneys; charging decisions and application of statutory enhancements rely on the criminal record that preceded removal and on the factual proofs about the prior removal and any required consent, while federal sentencing guidelines and prosecutorial charging choices shape final punishment within the statutory caps ^{[1] [6]}. Defense counsel and legal clinics note that evidentiary issues, proof of identity, and the government’s record about the prior removal are central to case strength ^[9].

5. Defenses, collateral attacks, and practical immigration consequences

Common defenses include showing prior Attorney General consent, lack of required consent, or that the underlying removal was legally defective — a “collateral attack” on the removal order that, if successful, can defeat the §1326 charge — and defense advocates emphasize procedural and constitutional challenges as routine lines of defense ^{[4] [10]}. Conviction under §1326 also compounds immigration consequences: it carries criminal penalties and typically leads to renewed removal and long bars to lawful reentry unless a limited waiver is obtained ^{[10] [11]}.

6. Critiques, racial impact claims, and policy context

Advocacy groups and public-interest networks characterize §§1325/1326 prosecutions as tools that criminalize migration and disproportionately affect Latinx and Central American populations, arguing the statutes have origins and effects that perpetuate racialized enforcement; the National Immigration Project and similar organizations document disparities and call the prosecutions harmful to families and communities ^[12]. At the same time, the Justice Department’s manual frames §1326 as an enforcement authority responding to criminality tied to prior convictions and incomplete sentences, reflecting competing institutional agendas between prosecutors and critics ^{[1] [12]}.