Illegal Reentry Charges After Deportation
If you or a family member is under federal investigation or has been arrested in Arizona for illegal reentry after deportation, you’re dealing with a serious federal crime that moves fast. Federal agents, prosecutors, and the court will focus on three core questions: whether there was a prior deportation order, whether you reentered or were found in the United States without permission, and whether any previous criminal convictions increase the potential sentence. This article explains what those terms mean and how cases are typically built in the District of Arizona.
Why does this matter? A conviction under 8 U.S.C. § 1326—often abbreviated as “1326”—can result in significant penalties, including time in federal prison, as well as collateral consequences related to immigration. The law also includes enhanced punishments for people with certain prior convictions or repeated immigration violations. Understanding the elements, the role of your immigration history, and the options for defending the case can make a real difference.
This article discusses the following:
- Understanding Illegal Reentry After Deportation Under 8 U.S.C. § 1326
- What Prosecutors Must Prove in Federal Court
- Penalties for Illegal Reentry and How Sentencing Works in 2025
- Real-World Arizona Examples: How Reentry Cases Arise
- Defense Strategies a Criminal Defense Attorney May Use
- FAQs About Reentry and Federal Immigration Charges
- Important Things to Remember
- How Kolsrud Law Offices Can Help
At Kolsrud Law Offices, we defend reentry charges in federal court across Arizona. Founding attorney Josh Kolsrud is a former Assistant United States Attorney who worked closely with federal agencies on immigration, drug trafficking, illegal reentry, and other complex cases. That background helps clients see the likely path of the case—and the pressure points where a strong legal challenge can change the outcome.
Understanding Illegal Reentry After Deportation Under 8 U.S.C. § 1326
The federal illegal reentry statute—8 U.S.C. § 1326—makes it a crime to reenter, attempt to enter, or be found in the United States after a prior deportation or removal, without the government's consent to return. In plain English: if you were removed from the U.S. and then come back or are discovered inside the country without permission, you can be charged in federal court. Legal Information Institute
The law covers several situations, including illegal entry and reentry of removed aliens. It applies if you reenter at a port of entry or between ports, and it also applies if agents later discover you living or working in Arizona long after crossing the border. The government doesn’t have to prove how you crossed; it’s enough to show that removal is outstanding or that you were previously deported and later found in the United States after deportation proceedings. The case can also be charged if you attempted to return but were stopped at or near the border—attempt offenses are included in the statute. Legal Information Institute
Federal immigration prosecutions often start with a fingerprint hit or immigration database check. For example, a traffic stop in Maricopa County can lead to a referral if fingerprints or an Alien Registration Number match a prior removal record. In other matters, Border Patrol or Homeland Security Investigations discovers someone at a workplace or during a checkpoint operation. These routine encounters can quickly escalate into a reentry charge, which is a federal crime handled by the United States Attorney's Office in the District of Arizona.
Because the statute includes multiple penalty tiers tied to criminal history and prior removals, the difference between a basic reentry offense and one with enhancements can be significant. That’s one reason it’s essential to have a defense lawyer who is familiar with both immigration law and the federal criminal process.
What Prosecutors Must Prove in Federal Court
In a typical charging document, federal prosecutors allege four core elements: (1) you are not a citizen of the United States; (2) you were removed from the country under a deportation order; (3) after that prior deportation, you either reentered, attempted to reenter, or were found in the United States; and (4) you did so without permission from the Attorney General or the Secretary of Homeland Security. If the government wants enhanced penalties, it will also allege qualifying criminal convictions or specific prior removal events. Legal Information Institute
Two details often determine how a case proceeds. First, the validity of the initial deportation order: If the earlier removal was due to a process violation, lacked proper notice, or denied the right to seek relief, there may be grounds to challenge it. Second, whether DHS ever gave consent to return. Some people apply for lawful re-entry and genuinely believe they have approval; others are denied admission and later re-enter the United States after being removed without realizing the legal risks. These facts matter because they directly relate to what the government must prove.
In the District of Arizona, the United States Attorney’s Office has been publicly reporting surges in immigration-related federal charges in 2025, including many illegal reentry cases under § 1326. While each case is different, public DOJ updates show how quickly these prosecutions can be filed after an arrest near the border or in Phoenix and Tucson. Department of Justice+1
Penalties for Illegal Reentry and How Sentencing Works in 2025
The base offense under § 1326 carries a maximum penalty of up to two years in prison for those convicted of illegal re-entry. But Congress created higher maximums—up to 10 or 20 years—based on certain prior convictions or multiple prior removals. In other words, the law ties the potential sentence to criminal history and the circumstances of the prior removal. The text of § 1326 describes these tiers and includes language about three or more misdemeanors involving drugs or crimes against the person, as well as prior felony convictions and aggravated felonies. GovInfo+1
Judges also consult the U.S. Sentencing Guidelines. For illegal reentry offenses, §2L1.2 of the 2024 Guidelines Manual uses your past convictions and prior removals to set an advisory range. The guideline can assign offense levels for specific prior felonies or for three or more qualifying misdemeanors, and it can adjust based on the recency of those convictions. While the Guidelines are advisory—not mandatory—courts in Arizona refer to them in almost every case, along with arguments from both sides about what is fair. United States Sentencing Commission+2United States Sentencing Commission+2
Here’s what that means in practice for individuals charged with illegal re-entry. Someone with no prior criminal history beyond immigration violations may face a relatively low guidelines range, and the court could consider a time-served outcome. By contrast, a person with prior aggravated felonies can face a much higher advisory range and a statutory maximum that is significantly longer. These are precisely the types of distinctions your defense lawyer will analyze before negotiating or preparing for a criminal trial.
Below is a quick visual summary of the statutory penalty tiers and common enhancements referenced in § 1326 and the Guidelines.
| Scenario | Statutory Maximum | Key Authority | Notes / Enhancements |
| Basic reentry after prior removal without permission | Up to 2 years | 8 U.S.C. § 1326(a) | Entry, attempted entry, or being “found in” the U.S. after removal. :contentReference[oaicite:6]{index=6} |
| Prior removal after conviction for three or more misdemeanors involving drugs or crimes against the person, or a non-aggravated felony | Up to 10 years | 8 U.S.C. § 1326(b)(1) | Statutory enhancement for certain prior convictions. :contentReference[oaicite:7]{index=7} |
| Prior removal after conviction for an aggravated felony | Up to 20 years | 8 U.S.C. § 1326(b)(2) | Highest statutory maximum; “aggravated felony” defined in immigration statutes. :contentReference[oaicite:8]{index=8} |
| Guidelines: prior felony (other than illegal reentry) or three qualifying misdemeanors | Advisory; varies | USSG §2L1.2 (2024) | Adds 2–4 levels depending on the convictions and recency. :contentReference[oaicite:9]{index=9} |
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Real-World Arizona Examples: How Reentry Cases Arise
Example 1 (Phoenix workplace contact). During a multi-agency operation at a Phoenix construction site, agents request identification from several workers. One person presents no papers and provides a name that returns a prior deportation order from five years ago. He is arrested, fingerprinted, and later charged in federal court with reentry after deportation. Because he has no other criminal convictions, the case may focus on whether he had consent to return and whether the earlier removal process met due process requirements. In situations like this, Josh Kolsrud’s experience as a former federal prosecutor helps evaluate whether the government can prove each element and whether the sentencing range should be low, given a limited criminal history.
Example 2 (Tucson traffic stop and “found in” case). A driver is pulled over for a minor traffic violation south of Tucson. During the stop, biometric checks reveal a prior removal and a denied admission from years earlier. Agents determine that the person reentered the United States without permission, and the United States Attorney files a § 1326 charge. If the person also has three or more misdemeanors involving drugs or a prior felony, the maximum penalty increases. Your defense lawyer can challenge the stop, the database links, and whether the earlier removal was valid.
The Department of Justice frequently reports public outcomes in cases of illegal reentry across the country. DOJ press releases in 2025 include several matters that mention February 25, 2025, as the date of discovery or enforcement action, reflecting active nationwide enforcement that same day. These include a labor-site operation leading to an illegal reentry plea in the Southern District of Alabama and a complaint in the Middle District of Florida stating the defendant was found in the U.S. on February 25, 2025. While outside Arizona, they illustrate how these cases can start with routine encounters and quickly progress to charges. Department of Justice+1
Closer to home, the District of Arizona reported large-scale immigration enforcement weeks in early and mid-2025, with dozens of illegal reentry filings each week. Those public updates underscore how rapidly charges can be brought after an arrest near the border or in Maricopa County. Department of Justice+2Department of Justice+2
Defense Strategies a Criminal Defense Attorney May Use
- Challenge the underlying deportation order
If the original removal violated due process—for example, if you never received proper notice, were misadvised about eligibility for relief, or were denied the right to seek protection—your attorney can attack the prior order. A successful challenge can undermine an element of the offense or collapse an enhancement, which can significantly reduce the sentence. This is often central in unlawful reentry defenses because § 1326 requires a valid prior removal. Legal Information Institute - Argue the lack of proof on “without permission” in cases involving the reentry of removed aliens.
The government must prove you did not have consent to return. People sometimes apply to reenter the United States and misunderstand a denial or conditional approval, which can lead to illegal re-entry charges. Your attorney can request records from DHS and U.S. Citizenship and Immigration Services to determine whether any consent was granted or pending, and whether the government can actually show “without permission.” - Suppress statements or evidence after an unlawful stop or arrest
If agents or officers stopped or detained you without a lawful basis—such as a traffic stop without probable cause or a seizure based on race—your lawyer can move to suppress statements and records. Evidence suppression can weaken the case to the point where federal prosecutors consider a better resolution. - Dispute identity or database matches
Reentry prosecutions rely heavily on fingerprints and immigration files. Mistakes happen—files can be merged or names mixed up. Your defense may include challenging the fingerprint chain of custody, questioning file accuracy, or requesting expert review of biometric matches. - Seek a lower sentence with mitigation and guideline advocacy.
Even if the offense is proven, the court still decides the sentence. Under the Guidelines for illegal re-entry, the judge can weigh family ties, humanitarian reasons for returning, medical needs, and the nonviolent nature of the conduct. Your lawyer can present a strong mitigation package and argue for a reduction based on the least severe applicable guideline enhancements. United States Sentencing Commission+1
Throughout these steps, having an advocate who understands how the Department of Justice builds an illegal reentry charge is critical. As a former federal prosecutor, Josh Kolsrud knows how cases are screened, what evidence AUSAs rely on, and which weaknesses matter at sentencing or trial.
FAQs About Reentry and Federal Immigration Charges
Is illegal reentry a felony?
Yes. In federal court, § 1326 is generally treated as a felony offense, with higher statutory maximums for certain prior convictions. The exact maximum depends on criminal history and prior removal circumstances. GovInfo
What is the typical sentence for a basic case?
It varies. The advisory Guidelines consider prior convictions and prior removals. Some people receive time served; others face months or years in federal prison, especially with aggravated felonies in their past. Judges in Arizona look closely at the individual factors surrounding illegal re-entry charges. United States Sentencing Commission+1
I was previously deported but came back for family reasons. Does that help?
Humanitarian reasons don’t erase the charge, but they can be persuasive at sentencing and in negotiations. A documented reason for returning, such as caring for a U.S. citizen child, can support a request for a lower sentence.
Can I fight the prior deportation in my criminal case?
Sometimes. If the prior deportation order was unlawful and you meet specific requirements, you may be able to attack it collaterally. This is fact-intensive and one of the first things a defense lawyer will analyze. Legal Information Institute
What if agents say I “attempted to enter,” but I never crossed?
The statute also covers attempted entry. However, the government must still prove the attempt and the lack of permission. The facts at the border or checkpoint matter and can be challenged. Legal Information Institute
Are there any 2025 enforcement trends regarding illegal reentry cases I should be aware of?
Public DOJ updates show active 2025 enforcement on the border and nationwide, including specific weeks where the District of Arizona filed large numbers of immigration cases and multiple press releases referencing February 25, 2025, events in other districts. That means cases can move quickly from arrest to indictment. Department of Justice+3Department of Justice+3Department of Justice+3
Do I need an immigration lawyer or a criminal defense lawyer?
Reentry is prosecuted in federal court, so you need a criminal defense attorney experienced with federal immigration offenses who can also coordinate with immigration lawyers when required. Kolsrud Law Offices handles the criminal case strategy and, when appropriate, works alongside immigration counsel.
Important Things to Remember
- Illegal reentry under 8 U.S.C. § 1326 is a federal crime prosecuted in U.S. District Court.
- The government must prove a prior deportation, presence, or re-entry without permission, and any enhancements tied to criminal convictions, particularly in cases involving charges of illegal re-entry.
- Statutory maximums increase with certain prior convictions; advisory Guidelines can add levels based on criminal history, particularly for those convicted of illegal re-entry. GovInfo
- Arizona federal prosecutors have been filing many reentry cases in 2025; cases can move from arrest to indictment quickly. Department of Justice
- Early legal work—challenging the deportation order, the stop, and database evidence—can change both the outcome and the sentence.
How Kolsrud Law Offices Can Help
When you’re facing criminal charges for unlawful re-entry or related immigration violations, experience matters. Josh Kolsrud has handled over 3,500 cases and more than 100 jury trials, including years as a federal prosecutor working with Border Patrol, Homeland Security Investigations, and the U.S. Attorney’s Office. That insight helps us anticipate how a § 1326 case will be charged and what levers can be used to reduce exposure.
Our approach is hands-on. We obtain the full immigration file, analyze the prior deportation order, and evaluate whether DHS consent was ever requested or granted. We scrutinize fingerprints, A-files, and the circumstances of the stop or arrest. If suppression or a collateral attack is viable, we raise it early. If the proof is strong, we shift to negotiating for the lowest lawful sentence—focusing on your individual story, family ties, employment, medical needs, and the nonviolent nature of the offense.
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Why Choose Josh Kolsrud
With over 100 trials to his name, and years of experience as a state and federal prosecutor, Josh understands the law, the legal process, and your rights. Josh is also committed to representing every client with utmost integrity and dedication
Experience
Josh has prosecuted major crimes on the state and federal level, led a successful anti-human sex trafficking operation that saved lives, and argued before countless juries and justices for his clients
Expertise
Josh is an expert in both Arizona and federal criminal law, and is ready to put that expertise to work for you.
Dedication
As a prosecutor, Josh saw far too many defendants lose their livelihood due to poor representation. Josh will always give every client his complete attention and effort
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