Criminal Defense of Immigrants

If an immigrant comes into DHS custody, in one of the ways mentioned above, see § 6.26, supra, the DHS may refer the person to the federal criminal authorities for prosecution if there is reasonable cause to believe that the person has committed a federal criminal offense, particularly one relating to the immigration laws of the United States.  In particular, many noncitizens who have illegally re-entered the United States, after deportation, are prosecuted in federal court for this offense, which carries harsh sentence enhancements if the person was removed after being convicted of certain offenses.[142]  One quarter or more of all federal criminal defendants in some areas of the country are charged with this offense.  Persons with aggravated felony convictions, who are deported and illegally return to the United States, may suffer 4-level,[143] 8-level,[144] or 16-level[145] sentence enhancements for illegal re-entry, resulting in Guidelines minimum sentences of four to six years, depending on Criminal History Score, and a 20-year statutory maximum prison sentence.

          If the person commits the federal misdemeanor offense of illegal entry (as opposed to illegal re-entry after deportation), the statutory  maximum is only six months and this minor offense is rarely prosecuted in federal court except at the border.  A person convicted of illegal re-entry after deportation, without any prior qualifying convictions sufficient to trigger an enhancement, is subject only to a two-year maximum, so this offense, as well, is rarely prosecuted.  If a person has a prior felony conviction, the maximum is 10 years.  The authorities, however, are often so overwhelmed by the more significant 20-year maximum prosecutions for illegal re-entry after deportation after an aggravated felony conviction, that even these 10-year maximum offenses are often not prosecuted in federal criminal court.  The bulk of the prosecutions are for the latter, more serious offense, and the federal prisons, as well, are filling up with defendants sentenced to five or so years for illegal re-entry.

[142] See INA § 276(b), 8 U.S.C. § 1326(b); United States v. Pimentel-Flores, 339 F. 3d 959  (9th Cir. 2003).

[143] U.S.S.G. § § 2L1.2(b)(1)(D)–(E) (any other felony or three qualifying misdemeanors).

[144] See INA § 276(b)(2), 8 U.S.C. § 1326(b)(2); U.S.S.G. § 2L1.2(b)(1)(C) (aggravated felony prior).

[145] See INA § 276(b)(1), 8 U.S.C. § 1326(b)(1); U.S.S.G. § 2L1.2(b)(1)(A).