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CITE

    8 USC Sec. 1326                                             01/05/2009

EXPCITE

    TITLE 8 - ALIENS AND NATIONALITY
    CHAPTER 12 - IMMIGRATION AND NATIONALITY
    SUBCHAPTER II - IMMIGRATION
    Part VIII - General Penalty Provisions

HEAD

    Sec. 1326. Reentry of removed aliens

STATUTE

    (a) In general
      Subject to subsection (b) of this section, any alien who -
        (1) 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
        (2) enters, attempts to enter, or is at any time found in, the
      United States, unless (A) prior to his reembarkation at a place
      outside the United States or his application for admission from
      foreign contiguous territory, the Attorney General has expressly
      consented to such alien's reapplying for admission; or (B) with
      respect to an alien previously denied admission and removed,
      unless such alien shall establish that he was not required to
      obtain such advance consent under this chapter or any prior Act,
    shall be fined under title 18, or imprisoned not more than 2 years,
    or both.
    (b) Criminal penalties for reentry of certain removed aliens
      Notwithstanding subsection (a) of this section, in the case of
    any alien described in such subsection -
        (1) whose removal was subsequent to a conviction for commission
      of three or more misdemeanors involving drugs, crimes against the
      person, or both, or a felony (other than an aggravated felony),
      such alien shall be fined under title 18, imprisoned not more
      than 10 years, or both;
        (2) whose removal was subsequent to a conviction for commission
      of an aggravated felony, such alien shall be fined under such
      title, imprisoned not more than 20 years, or both;
        (3) who has been excluded from the United States pursuant to
      section 1225(c) of this title because the alien was excludable
      under section 1182(a)(3)(B) of this title or who has been removed
      from the United States pursuant to the provisions of subchapter V
      of this chapter, and who thereafter, without the permission of
      the Attorney General, enters the United States, or attempts to do
      so, shall be fined under title 18 and imprisoned for a period of
      10 years, which sentence shall not run concurrently with any
      other sentence.(!1) or
        (4) who was removed from the United States pursuant to section
      1231(a)(4)(B) of this title who thereafter, without the
      permission of the Attorney General, enters, attempts to enter, or
      is at any time found in, the United States (unless the Attorney
      General has expressly consented to such alien's reentry) shall be
      fined under title 18, imprisoned for not more than 10 years, or
      both.
    For the purposes of this subsection, the term "removal" includes
    any agreement in which an alien stipulates to removal during (or
    not during) a criminal trial under either Federal or State law.
    (c) Reentry of alien deported prior to completion of term of
      imprisonment
      Any alien deported pursuant to section 1252(h)(2) (!2) of this
    title who enters, attempts to enter, or is at any time found in,
    the United States (unless the Attorney General has expressly
    consented to such alien's reentry) shall be incarcerated for the
    remainder of the sentence of imprisonment which was pending at the
    time of deportation without any reduction for parole or supervised
    release. Such alien shall be subject to such other penalties
    relating to the reentry of deported aliens as may be available
    under this section or any other provision of law.
    (d) Limitation on collateral attack on underlying deportation order
      In a criminal proceeding under this section, an alien may not
    challenge the validity of the deportation order described in
    subsection (a)(1) of this section or subsection (b) of this section
    unless the alien demonstrates that -
        (1) the alien exhausted any administrative remedies that may
      have been available to seek relief against the order;
        (2) the deportation proceedings at which the order was issued
      improperly deprived the alien of the opportunity for judicial
      review; and
        (3) the entry of the order was fundamentally unfair.

SOURCE

    (June 27, 1952, ch. 477, title II, ch. 8, Sec. 276, 66 Stat. 229;
    Pub. L. 100-690, title VII, Sec. 7345(a), Nov. 18, 1988, 102 Stat.
    4471; Pub. L. 101-649, title V, Sec. 543(b)(3), Nov. 29, 1990, 104
    Stat. 5059; Pub. L. 103-322, title XIII, Sec. 130001(b), Sept. 13,
    1994, 108 Stat. 2023; Pub. L. 104-132, title IV, Secs. 401(c),
    438(b), 441(a), Apr. 24, 1996, 110 Stat. 1267, 1276, 1279; Pub. L.
    104-208, div. C, title III, Secs. 305(b), 308(d)(4)(J), (e)(1)(K),
    (14)(A), 324(a), (b), Sept. 30, 1996, 110 Stat. 3009-606, 3009-618
    to 3009-620, 3009-629.)

REFERENCES IN TEXT

      Section 1252 of this title, referred to in subsec. (c), was
    amended generally by Pub. L. 104-208, div. C, title III, Sec.
    306(a)(2), Sept. 30, 1996, 110 Stat. 3009-607, and, as so amended,
    does not contain a subsec. (h). For provisions similar to those
    formerly contained in section 1252(h)(2) of this title, see section
    1231(a)(4) of this title.

AMENDMENTS

      1996 - Pub. L. 104-208, Sec. 308(e)(14)(A), amended section
    catchline.
      Subsec. (a)(1). Pub. L. 104-208, Sec. 308(d)(4)(J)(i),
    substituted "denied admission, excluded, deported, or removed" for
    "arrested and deported, has been excluded and deported," and
    "exclusion, deportation, or removal" for "exclusion or
    deportation".
      Pub. L. 104-208, Sec. 324(a), amended par. (1) generally. Prior
    to amendment, par. (1) read as follows: "has been arrested and
    deported or excluded and deported, and thereafter".
      Subsec. (a)(2)(B). Pub. L. 104-208, Sec. 308(d)(4)(J)(ii),
    substituted "denied admission and removed" for "excluded and
    deported".
      Subsec. (b). Pub. L. 104-208, Sec. 324(b), inserted "(or not
    during)" after "during" in concluding provisions.
      Pub. L. 104-208, Sec. 308(e)(1)(K), substituted "removal" for
    "deportation" wherever appearing in pars. (1) and (2) and in
    concluding provisions.
      Subsec. (b)(2). Pub. L. 104-208, Sec. 305(b)(1), struck out "or"
    at end.
      Subsec. (b)(3). Pub. L. 104-208, Sec. 305(b)(2), inserted "or" at
    end.
      Pub. L. 104-132, Sec. 401(c), added par. (3).
      Subsec. (b)(4). Pub. L. 104-208, Sec. 305(b)(3), added par. (4).
      Subsec. (c). Pub. L. 104-132, Sec. 438(b), added subsec. (c).
      Subsec. (d). Pub. L. 104-132, Sec. 441(a), added subsec. (d).
      1994 - Subsec. (b). Pub. L. 103-322, in par. (1), inserted "three
    or more misdemeanors involving drugs, crimes against the person, or
    both, or" after "commission of" and substituted "10" for "5", in
    par. (2), substituted "20" for "15", and added concluding sentence.
      1990 - Subsec. (a). Pub. L. 101-649 substituted "shall be fined
    under title 18, or imprisoned not more than 2 years" for "shall be
    guilty of a felony, and upon conviction thereof, be punished by
    imprisonment of not more than two years, or by a fine of not more
    than $1,000".
      1988 - Pub. L. 100-690 designated existing provisions as subsec.
    (a), substituted "Subject to subsection (b) of this section, any
    alien" for "Any alien", and added subsec. (b).
                     EFFECTIVE DATE OF 1996 AMENDMENTS
      Amendment by sections 305(b) and 308(d)(4)(J), (e)(1)(K), (14)(A)
    of Pub. L. 104-208 effective, with certain transitional provisions,
    on the first day of the first month beginning more than 180 days
    after Sept. 30, 1996, see section 309 of Pub. L. 104-208, set out
    as a note under section 1101 of this title.
      Section 324(c) of div. C of Pub. L. 104-208 provided that: "The
    amendment made by subsection (a) [amending this section] shall
    apply to departures that occurred before, on, or after the date of
    the enactment of this Act [Sept. 30, 1996], but only with respect
    to entries (and attempted entries) occurring on or after such
    date."
      Section 401(f) of Pub. L. 104-132 provided that: "The amendments
    made by this section [enacting sections 1531 to 1537 of this title
    and amending this section and section 1105a of this title] shall
    take effect on the date of enactment of this Act [Apr. 24, 1996]
    and shall apply to all aliens without regard to the date of entry
    or attempted entry into the United States."
      Section 441(b) of Pub. L. 104-132 provided that: "The amendment
    made by subsection (a) [amending this section] shall apply to
    criminal proceedings initiated after the date of enactment of this
    Act [Apr. 24, 1996]."
                     EFFECTIVE DATE OF 1990 AMENDMENT
      Amendment by Pub. L. 101-649 applicable to actions taken after
    Nov. 29, 1990, see section 543(c) of Pub. L. 101-649, set out as a
    note under section 1221 of this title.
                     EFFECTIVE DATE OF 1988 AMENDMENT
      Section 7345(b) of Pub. L. 100-690 provided that: "The amendments
    made by subsection (a) [amending this section] shall apply to any
    alien who enters, attempts to enter, or is found in, the United
    States on or after the date of the enactment of this Act [Nov. 18,
    1988]."

ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS

      For abolition of Immigration and Naturalization Service, transfer
    of functions, and treatment of related references, see note set out
    under section 1551 of this title.

REFERENCES TO ORDER OF REMOVAL DEEMED TO INCLUDE ORDER OF EXCLUSION AND DEPORTATION

      For purposes of carrying out this chapter, any reference in law
    to an order of removal is deemed to include a reference to an order
    of exclusion and deportation or an order of deportation, see
    section 309(d)(2) of Pub. L. 104-208, set out in an Effective Date
    of 1996 Amendments note under section 1101 of this title.

FOOTNOTE

    (!1) So in original. The period probably should be a semicolon.
    (!2) See References in Text note below.