United States of America v. Evaristo Hernandez-Garduza

San Antonio, Texas criminal defense lawyer represented the Defendant charged with Illegal Re-entry into the United States.



Illegal reentry into the United States, as defined in 8 U.S.C. § 1326, is a crime that applies to individuals previously deported or removed who then reenter, attempt to reenter, or are found in the U.S. without authorization. This offense is a felony with a potential penalty of up to two years imprisonment and/or fines under Title 18. The penalties can increase significantly depending on the individual's prior criminal history, particularly if they were deported after a felony or aggravated felony conviction.

Here's a more detailed breakdown:

Key Elements of the Offense:



Previous Deportation or Removal:

The individual must have been previously deported, excluded, or removed from the United States.



Re-entry or Presence:

The individual must then enter, attempt to enter, or be found within the United States without proper authorization.

Lack of Consent:

The reentry must occur without the express consent of the Attorney General or other authorization required by immigration law.



Penalties:



General Offense:



A first offense typically carries a maximum penalty of two years imprisonment and/or fines under Title 18.



Aggravated Circumstances:



If the individual was previously deported after a felony conviction, the penalty can be up to 10 years in prison. If the prior conviction was for an aggravated felony, the penalty can be up to 20 years.



Other Considerations:



Sentences can also be affected by the specific circumstances of the case, such as the individual's prior criminal history, the nature of the prior removal, and whether they voluntarily left the U.S.



Immigration Consequences:



Further Deportation:



A conviction for illegal reentry can lead to further deportation proceedings.



Bars to Reentry:



A conviction can also trigger bars to future legal entry into the U.S. for a specified period (e.g., 3 years, 10 years, or permanently).



Challenges to Future Status:



A reentry charge can make it difficult to adjust to a lawful immigration status, obtain future visas, or become a lawful permanent resident.



Defense Strategies:



Lack of Prior Removal:



The government must prove the prior removal or deportation for the charge to stand.



Procedural Errors:



If the original deportation was flawed due to procedural errors, this could be a defense.



Fear of Persecution:



If the individual returned to the U.S. due to a credible fear of persecution, this could be a mitigating factor.



Important Notes:



Illegal reentry is a serious federal crime with potentially severe consequences.



Individuals facing such charges should seek legal counsel immediately.



The federal government is actively prosecuting illegal reentry cases.

1 year Supervised Release (Non-Reporting); S/A Waived; No Fine.