What are the differences between 8 U.S.C. §1325 (illegal entry) and §1326 (illegal reentry)?

1. What the statutes cover: misdemeanor “illegal entry” versus felony “illegal reentry”

8 U.S.C. §1325 makes it a crime to unlawfully enter the United States without proper inspection at a port of entry, including entering between ports of entry, avoiding examination, or making false statements during entry; that offense is typically prosecuted as a misdemeanor for a first offense ^{[1] [4]}. By contrast, 8 U.S.C. §1326 targets aliens who have been denied admission, excluded, deported, or removed and then enter, attempt to enter, or are found in the country without the Attorney General’s consent; §1326 is prosecuted as a felony and focuses on reentry after a prior removal order ^{[5] [6]}.

2. Elemental differences and prosecutorial mechanics

Proving §1325 generally requires showing unlawful entry or attempted entry—an act and its timing tied to inspection/port-of-entry rules—whereas §1326 requires proving a prior removal or denial of admission and the defendant’s subsequent presence in or attempted return to the United States; importantly, §1326’s text and DOJ guidance treat being “found” in the country as a continuing offense while §1325 does not include that continuing-offense language, a structural distinction courts and the Office of Legal Counsel have emphasized ^{[7] [5]}.

3. Sentences and sentencing enhancements: a gulf in exposure

A basic conviction under §1325 carries potential penalties including fines and up to six months’ imprisonment for a first offense, whereas §1326’s statutory and guideline structure exposes defendants to escalating terms—statutory baseline and Guidelines provisions commonly yield 2 years for simple reentry, 10 years with a prior felony, and up to 20 years where the prior removal followed an “aggravated felony” or under other enhancements ^{[2] [3] [1]}.

4. How the laws function in practice and in court dockets

Together §§1325 and 1326 havecome to dominate federal immigration prosecutions—accounting for a large share of immigration-related criminal filings—and have been used in waves by different administrations, with §1326 producing many more felony prosecutions and longer incarcerations than §1325’s misdemeanor caseload ^{[1] [8]}. Advocates and defense groups argue this criminal overlay converts civil immigration violations into punitive federal sentences and increases the chances of family separation and mass incarceration ^{[9] [10]}.

5. History, constitutional challenges, and competing narratives

Both provisions have roots in early 20th-century legislation and have been criticized as carrying racist origins; defense coalitions and immigrant-rights groups contend §§1325 and 1326 were designed and applied discriminatorily and some courts have entertained constitutional challenges—most recently, trial courts have produced rulings holding §1326 unconstitutional in certain contexts even as the DOJ appeals those decisions ^{[9] [8]}. The government’s rationale emphasizes deterrence and enforcement; critics point to research and advocacy showing limited deterrent evidence and disproportionate harms ^{[2] [1]}.

6. Practical consequences, defenses, and limits of available reporting

In practice, a §1325 conviction can bar or complicate future immigration relief and label asylum seekers as criminally culpable, but a §1326 conviction carries far greater collateral consequences, longer imprisonment, and often triggers immediate post‑sentence immigration custody and deportation; defense strategies differ accordingly, with challenges to the validity of prior removal orders sometimes raised under §1326 and selective prosecution or statutory interpretation arguments more common under §1325 and §1326 alike ^{[10] [11] [5]}. Reporting sources here document trends, sentencing ranges, and legal arguments, but do not provide exhaustive case-law outcomes for every circuit or the latest appellate rulings, so some dispute-resolution details remain outside the cited material ^{[9] [5]}.