Illegal Reentry Into the U.S. After Removal or Deportation

The possibility of facing illegal reentry may heighten your worries. This article offers a comprehensive understanding of what makes up illegal reentry after deportation, the penalties involved, and possible means to reenter the country legally. It aims to clarify the process and make it less intimidating for those who find themselves going through these challenging times.

What Does 'Illegal Reentry' Mean?

"Illegal reentry" is the act of returning or attempting to return to the U.S. after the government has ordered you to stay outside the United States. It is a federal offense, and the 8 U.S.C. § 1326 criminalizes this action. People who enter or attempt to enter the U.S. after someone ordered them to leave are guilty of illegal reentry:

• Denied admission to the U.S.
• Excluded from the U.S.
• Deported from the U.S.
• Removed from the U.S.
• Departed from the U.S. while an order of exclusion, deportation, or removal is outstanding

Unlawful Presence and Inadmissibility

Unlawful presence is when your stay in the United States is outside the period authorized by the U.S. government. Or if you are in the U.S. without lawful admission or parole. You are inadmissible if the following condition applies:

• If you intend to reenter the U.S. within three years after leaving and were unlawfully staying in the U.S. for over 180 days but less than one year during your last stay and before any formal removal or deportation proceeding was initiated.
• If you intend to come back to the U.S. within 10 years of leaving or of undergoing removal proceedings after you were unlawfully staying in the country for one year or more during your last stay. This is regardless of whether you left the U.S. before, after, or during the removal proceedings.
• If you were permanently barred from reentering the U.S. and you tried to reenter without the proper admission or parole.

Note that there are different grounds for inadmissibility under the Immigration and Nationality Act. The following are the grounds for inadmissibility to enter the United States:

• Health-related grounds
• Criminal and related grounds
• National security and related grounds
• Public charge
• Illegal entrants and immigration violators
• Foreign nationals previously removed

How Do You Accrue Unlawful Presence?

According to the Immigration and Nationality Act (INA), unlawful presence accrues if:

• You are in the United States without parole or lawful admission; or
• You stayed in the United States after the end of a lawful period of stay as authorized by the Secretary of DHS.

In general, if you are in the United States without parole or lawful admission by an immigration authority, you start accruing unlawful presence on the day you enter the country. The immigration officer often issues Form I-94 Arrival or Departure Record if you were paroled or admitted into the United States. The form will show a specific date about when you should leave the country.

If you stay in the U.S. after the date specified on your Form I-94, you also start accruing unlawful presence. But, if your Form I-94 has the “D/S" stamp, you can stay in the U.S. for the whole duration of the purpose of your trip. For instance, you may get authorization for the duration of your course of study, program, or temporary work in the United States. This includes any grace periods.

What Is the Three-Year Unlawful Presence Grounds of Inadmissibility

If you are a foreign national and are not a lawful permanent resident of the U.S., you are inadmissible to enter the country if:

• You've accumulated over 180 days by but less than one year of unlawful presence in the U.S. during a single stay on or after April 1, 1997
• You voluntarily left the U.S. before the U.S. Department of Homeland Security started either removal proceedings with an immigration judge or expedited removal proceedings
• You again sought admission in the U.S. within three years after your last departure following your accrual of unlawful presence

The three-year period starts once you leave the United States.

What Is the 10-Year Unlawful Presence Grounds of Inadmissibility

If you are a foreign national who does not have a permanent resident status in the U.S., you are inadmissible to enter the country if:

• You unlawfully stayed in the U.S. for one year or more during a single stay on or before April 1, 1997
• You left the U.S. or were removed from the country under any rule of law, and
• You again asked for admission within 10 years of your last departure from the country or after you accrued unlawful presence.

The 10-year unlawful presence as a ground for inadmissibility applies regardless of whether you leave the U.S. before, during, or after the DHS starts the removal proceedings. Your 10-year period starts after the removal proceeding or after you leave the country.

You may still seek permission to reapply for admission into the United States. But, this is only possible after being physically out of the U.S. for at least ten years since you left the United States. You should file for your consent to reapply for admission outside the United States. If authorities deny your application, you remain inadmissible to reenter the country.

What Is Permanent Unlawful Presence Ground of Inadmissibility

If you are a foreign national, you may be permanently barred from entering the United States if:

• You accumulated more than one year of unlawful presence in the country on or after April 1, 1997. And you left or were removed from the United States; and
• You entered or tried to reenter the U.S. on or after April 1, 1997, without a DHS officer paroling or admitting you into the United States.

If this ground applies to you, you are permanently barred from:

• Adjustment of status to permanent resident (green card holder) or
• Receive an immigrant or nonimmigrant visa to travel to the United States
• Be admitted to the U.S. at a port of entry

What Are the Exceptions for Accrual of Unlawful Presence?

INA gives certain exceptions for the accrual of unlawful presence. These exceptions apply to the following noncitizens:

• Minors. Children do not accrue unlawful presence in the U.S. while they are under 18.
• Asylees. The length of time when the asylum application is pending does not count as an unlawful presence.
• Family unity beneficiaries. Those protected under the Family Unity Program do not accrue unlawful presence while the protection is in effect.

INA also gives exceptions to the three-year and 10-year unlawful presence grounds for inadmissibility for the following:

• Battered spouses and children. The three and 10-year unlawful presence grounds for inadmissibility do not apply to people who were victims under the Violence Against Women Act (VAWA). But, they should establish a substantial connection between the basis of the VAWA claim and the reason for violating the nonimmigrant visa.
• Victims of human trafficking. The three and 10-year unlawful presence grounds of inadmissibility likewise do not apply to victims of human trafficking. But, they should show proof that the trafficking was at least one of the main reasons for their unlawful presence in the United States.

Note that these exceptions only apply to three and 10-year unlawful presence grounds of inadmissibility. It does not apply to permanent unlawful presence grounds.

What Are the Criminal Penalties for Illegal Reentry?

The U.S. government imposes strict penalties on those attempting to reenter or who reentered after removal. This applies in particular when the reason for removal was due to a criminal offense. The penalties for illegal reentry include imprisonment, fines, and deportation.

The following outlines the scenarios in which someone could face a criminal penalty. It details the nature of the conviction and the legal consequences of the act:

Plan for Reentering the U.S. After Removal or Deportation

If the U.S. removes or deports you, you must follow several steps before reentering the country. The following are some of the things that you have to consider:

• Suppose you are subject to an order of removal or deportation. In that case, you may have to wait for 5, 10, or 20 years before getting approval for a new U.S. visa or reentry permit.
• You may be eligible for exceptions after filing permission to reenter the U.S. early. And after showing favorable actions. This may include rehabilitation for those convicted of crimes, good moral character, or U.S. family ties.
• You may file a request for early reentry and waiver of inadmissibility. You may file the request for early reentry, along with other supporting documents.

Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212)

You can apply Form I-212 with the U.S. Citizenship and Immigration Services (USCIS). You should file this application with other supporting documents and the filing fee. You can also ask the U.S. government for permission to reenter the country before the end of the required waiting time. When filing for Form I-212, you must also support your application by providing supporting documents or facts. Included among them are as follows:

• Rehabilitation after criminal conviction
• Good moral character
• Family ties in the United States

Application for Waiver of Grounds of Inadmissibility (Form I-601)

If on top of the time bar based on your removal proceeding, you are also inadmissible for specific grounds of inadmissibility, you may also submit Form I-601. Because there are various grounds for inadmissibility, the requirements for the waiver will also depend on why you got removed.

Seek Legal Advice from an Immigration Attorney

Suppose you or your family members are facing the complex situation of illegal reentry into the United States after removal or deportation. In that case, remember that you are not alone. You can consult an immigration attorney near you.

They can help you understand U.S. immigration laws. With their expertise, they can help you file necessary documents, appeals, or waivers to allow you to reenter the United States. They can also appear in immigration court if you are facing an order of deportation.

Given the consequences of illegal reentry, from fines to imprisonment, seek legal advice from an experienced immigration attorney. They can also give you the latest information on changes in laws and regulations that may affect your immigration case. You don't have to go through this process alone. Seek professional help from an immigration lawyer.

Illegal Reentry: More Resources

• Extreme Hardship and the 601 Waiver: Can I Avoid Deportation?
• How Does a Felony Affect Immigration Status?
• The Role of an Immigration Attorney