Normally, they are changed with an administrative offense and returned to there home country and barred from reentry for 1 to 5 years. On subsequent entries they may be prosecuted for a criminal offense.
Below is a long article, but it is highly informative.
As the Immigration and Naturalization Service (INS) begins removing more and more aliens, a growing number are reentering illegally after their removal. Many do not realize that by doing so, they are committing a crime. The case law in this area is quite complex, and fraught with constitutional considerations. This article provides an overview of the crime of illegal reentry under Immigration and Nationality Act (INA) § 276.
Illegal Reentry in General
INA § 276 provides that an 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 reenters the United States or is at any time found in the United States, without prior approval by the Attorney General (when such approval is required), can be fined under title 18 of the U.S. Code, imprisoned up to two years, or both. If such reentry follows removal subsequent to a conviction for a felony, other than an aggravated felony, or three or more misdemeanors involving drugs or crimes against persons, or both, it is punishable by a fine under Title 18, imprisonment for up to 10 years, or both. If such reentry follows a conviction for an aggravated felony, the penalty is increased to a fine under Title 18, imprisonment for up to 20 years, or both. In addition, 1996 legislation created specific penalties for those aliens who: (1) illegally reenter after being excluded pursuant to INA § 235(c) because the alien was suspected of terrorist activity under INA § 212(a)(3)(B); (2) has been removed from the United States pursuant to the alien terrorist provisions of INA §§ 501-07; or (3) was released from incarceration by the Attorney General to be removed pursuant to INA § 241(a)(4)(B). Such aliens can be fined under Title 18, imprisoned for up to 10 years, or both.
This penalty originated in 1929 and was carried forward in the 1952 codification of the Immigration and Nationality Act (INA). The 1952 Act, however, added the language punishing such an alien who is "found" in the United States, thus avoiding the need for proving the unlawful reentry. In addition, the 1952 Act imposed the criminal penalty on one who reentered improperly after exclusion or deportation, while the 1929 Act applied only to one who had been arrested and deported. As mentioned above, subsequent amendments have increased the penalties for improper reentry following conviction of a felony.
The statute effectively limits judicial review of one of the underlying elements that establishes this crime--removal. Nor can an alien collaterally attack the validity of his or her prior deportation or removal order unless all administrative remedies were exhausted, the proceedings deprived the alien of judicial review, and the entry of the order was "fundamentally unfair." This has caused concern about using a civil deportation or removal proceeding, or an "expedited removal" by an individual border patrol agent to establish an element of a crime, which by statute has a limited opportunity for judicial review.
Constitutional challenges to INA § 276 have not succeeded. As a result, successfully defending an individual against an unlawful reentry charge is quite difficult.
Elements of the Crime of Illegal Reentry
In General
To prove a violation of INA § 276, the government must establish the following four elements: the defendant (1) is an alien; (2) who previously was denied admission, was excluded, deported or removed, or has departed the United States while an order of exclusion, deportation, or removal is outstanding; (3) and subsequently attempted to, reentered, or was found in the United States; (4) without having the express consent of the Attorney General.
Alienage
Alienage is an essential element of the crime. Although a prior deportation or removal order, without more, is insufficient to establish alienage, adequate proof can consist of a prior deportation or removal and the alien’s oral admission that he or she is an alien.
When alienage has been established in a prior criminal prosecution and judgment, the principle of collateral estoppel may preclude the defendant or the government from relitigating the defendant’s citizenship status. But such estoppel may not result from a finding of alienage in a deportation or removal proceeding, in which the "clear, unequivocal, and convincing" burden of proof is not as exacting as the "beyond a reasonable doubt" standard applicable in criminal cases. Although a prior guilty plea and other admissions of alienage may be used as evidence to establish this element, the circuits treat prior guilty pleas in criminal cases differently when applying collateral estoppel. Of the three circuits that have addressed this specific issue so far, only one court has prohibited the government from using a prior guilty plea to collaterally estop a defendant from relitigating his or her alienage in a § 276 prosecution. This prohibition seems prudent, since many aliens may plead guilty to receive voluntary departure or a lesser sentence, and may not be fully aware that their guilty plea may preclude them from litigating their alienage status in the future. Those who are fully aware of being collaterally estopped at some future date may refrain from pleading guilty. Another consideration is the fact that there need only be a "factual basis" for a guilty plea, a lesser standard than the "proof beyond a reasonable doubt" burden in criminal trials.
Previously Denied Admission, Excluded, Deported, or Removed
The defendant also must have been previously denied admission, excluded, deported, or removed, or have departed the United States while an order of exclusion, deportation, or removal is outstanding. Until April 1997, the alien had to have been "arrested" as well. For cases begun before April 1997, the issuance of an arrest or deportation warrant may be sufficient restraint to constitute arrest for this purpose. The failure to issue a warrant of deportation has been held to preclude criminal liability under this statute. The statute’s penalty does not extend to one who has voluntarily left the United States when not subject to a final deportation or removal order. No court has yet decided whether a crewman who is deported after his or her conditional landing permit has been revoked has been "arrested and deported" for the purposes of this statute.
In cases involving removal orders, the government must also prove that the defendant actually was removed. This can be accomplished by introducing the warrant of deportation or removal order containing an endorsement showing its execution, or a statement of the defendant admitting the facts, or by other evidence. One who leaves the United States while an order of deportation or removal is outstanding against him or her is deemed to have been deported or removed. Thus, a seaman under order of deportation who left the United States on a round trip voyage to a foreign port was found to have reentered the United States after deportation even though he did not leave the vessel at the foreign port.
The alien must have been removed according to law. For example, when the INS removed an alien while his deportation appeal was pending, as a matter of law he was not "deported" for purposes of INA § 276.
Resolving a conflict in the lower courts, the Supreme Court ruled in 1987 that while the lawfulness of the prior deportation was not an essential element of proof in the criminal proceeding, a defendant could mount a collateral challenge to the deportation order in a pretrial application to determine whether there was a violation of due process. Since then all circuits have held that to mount a successful collateral attack, it is not enough simply to show that procedural due process was violated; the defendant must show that the violation "prejudiced" him or her. One court has defined prejudice in this context as "[a] reasonable likelihood that the result would have been different if the error in the deportation proceeding had not occurred." So despite telephonic hearings, "mass silent waivers" and other due process violations, a defendant may be convicted of an INA § 276 violation if he or she fails to prove prejudice as a result. In fact, Congress amended the INA in 1996 to prohibit collateral attacks on the underlying deportation or removal order unless the alien could prove that all other administrative remedies for relief have been sought, the deportation proceedings deprived the alien of judicial review, and the entry of the order was fundamentally unfair. If the alien does not meet all these factors, a collateral attack will be unsuccessful.
At least one commentator has expressed concern that making it more difficult to mount a collateral attack on a prior deportation or removal order, combined with the statutory limitation on an alien’s opportunity for judicial review of the deportation or removal order violates an alien’s due process rights. Also, since deportation is a civil proceeding, the alien has no Sixth Amendment right to counsel. This concern is heightened when an alien was previously subjected to expedited removal. Under INA § 235(b), individual immigration officers (with some exceptions) may expeditiously remove certain aliens from the United States without further hearing or review. Furthermore, this section prohibits collateral attacks in subsequent INA § 276 proceedings by stripping jurisdiction from a court. Though there have been no cases on this matter to date, we express grave concern that an alien prosecuted for illegal reentry after being expeditiously removed is effectively denied due process since an element of the offense, prior removal, is statutorily void of judicial review.
Attempted to Reenter, Reentered, or Found in the United States
The government must also prove that the alien attempted to reenter, did reenter, or was at any time "found in" the United States. Since the statute punishes unlawful presence in the United States separately, the government does not have to charge or prove willfulness or a specific intent to commit a crime for § 276 purposes. Apparently the only requirement in this regard is that there be a general intent to do the prohibited act; in other words, that the reentry was voluntary.
An alien can be deemed to have attempted a reentry despite never attaining freedom from official restraint at the border. An alien who improperly reenters without permission after deportation is also subject to removal. However, since removal proceedings are not criminal, his or her amenability to removal does not preclude a criminal prosecution for illegal reentry.
The statute makes a deportee’s unauthorized presence in the United States a crime in itself. This provision facilitates the prosecution of a deportee who returns to the United States without permission.
Being "found" in the United States is an independent basis for prosecution under INA § 276. One court has ruled that the "found in" language applies to "aliens who have entered surreptitiously, bypassing a recognized immigration port of entry," among other illegal means. However, the impact of the statute of limitations may be different for one who entered through normal immigration channels than for one who entered surreptitiously.
Attorney General’s Consent
The government must also establish that the Attorney General did not consent to the deportee’s reentry. An official certificate that no such consent was found in INS records will be received in evidence for this purpose.
One court has suggested that § 276, in view of § 212(a)(6)(B), may allow a defense to a charge of illegal reentry if the alien waited five years after his or her deportation to reenter even without obtaining the consent of the Attorney General.
Constitutional Attacks
As previously mentioned, INA § 276 has been laden with constitutional challenges, many stemming from the due process mandate of the U.S. Constitution. In 1987, the Supreme Court ruled that where there is a violation of due process, the government may not rely on the prior deportation order as conclusive proof of an element of a criminal offense. However, as noted above, an alien must show that the due process violation prejudiced him or her. Proving such prejudice is very difficult.
Some aliens have challenged INA § 276 on Eighth Amendment, vagueness, double jeopardy, and other grounds. To date the statute has withstood these constitutional challenges.
Prosecution After a Prior Criminal Conviction
The provision of INA § 276 regarding aliens who illegally reenter the United States after a conviction for an aggravated felony has created a few problems. First, courts have differed on defining aggravated felonies for INA § 276 purposes because the definition of aggravated felony in the INA differs slightly from that provided in the U.S. Sentencing Guidelines. Second, the effective dates of amendments to the INA have created confusion on how to treat aliens who committed a crime that was not an aggravated felony when committed but because of later amendments was subsequently defined as an aggravated felony by statute when the alien was charged with illegal reentry. Congress attempted to resolve this problem in 1996 by adding that the term "aggravated felony" applies regardless of whether the underlying criminal conviction was entered before, on, or after the enactment date of the definition paragraph.
Third, until recently, there was a circuit split on whether INA § 276(b) is merely a penalty enhancing provision or an offense separate and independent from § 276(a). Of the ten circuits that addressed the question, all but the Ninth Circuit declared that § 276(b) was in fact a sentencing enhancing provision, and thus the fact of the alien’s earlier aggravated felony conviction did not have to be charged in the indictment.
The Supreme Court resolved this split in 1998 in Almendarez-Torres v. United States. A 5-4 majority of the Court agreed with the majority of the circuits that neither the statute nor the Constitution requires the government to charge an earlier conviction in the indictment. The majority claimed that INA § 276(b)(2) is a typical sentencing factor, and asserted that a contrary interpretation "risks unfairness" by introducing factors that may prejudice a jury. The majority rejected the arguments that courts have a tradition of treating recidivism as an element of related crimes, and that the Court simply adopt a rule that any significant increase in a statutory maximum sentence triggers a Constitutional "elements" requirement. The majority expressed no view on whether a heightened standard of proof is required for sentencing determinations bearing significantly on the severity of sentence.
The dissent maintained that INA § 276(a) and INA § 276(b)(2) are separate criminal offenses, and that a prior conviction of an aggravated felony must be charged as an element of the latter offense. Criticizing the majority for its failure to invoke the doctrine of Constitutional doubt, the dissent stated that the constitutional question was not clear. Moreover, according to the dissent, even if this doctrine did not apply the rule of lenity dictated that the criminal defendant’s right to jury findings should be preserved. The dissent also argued that it was not clear that the majority’s view that possibly tainting the jury with prejudice was any more unfair than denying the defendant a jury determination beyond a reasonable doubt on the critical question of a prior conviction.
This ruling has implications for the admissibility of any evidence that may refer to an alien’s previous criminal record. One court interpreting Almendarez-Torres has held that while the Court only interpreted INA § 276(b)(2) (addressing aggravated felonies) to be a sentence enhancing provision, INA § 276(b)(1) (addressing previous crimes other than aggravated felonies) is also a sentence enhancing provision.
One court has ruled that an alien who was previously deported can have his or her sentence enhanced under INA § 276(b)(2) even though the section only mentions "removal," not "deported." A final issue to consider occurs when an alien receives probation instead of jail time for a § 276 violation. When a convicting court grants probation to an alien found guilty of illegal reentry on condition that the alien would not attempt to reenter for three years, such probation can be revoked upon a subsequent illegal entry to the United States.
Conclusion
As denials of admission and removals at the border increase, and as the INS gains more enforcement resources, the number of prosecutions for illegal reentry will continue to rise. The complex case law in this area suggests that defending an alien against such a charge is growing increasingly difficult. For some, the only defense is a constitutional attack. But because courts are hostile to such claims, and since the INS is more zealously finding illegal reentrants, more and more aliens will face prison in the United States for a conviction under INA § 276.