Illegal Reentry into Texas: Crimes Under Federal Statute and Texas Law
Posted on by Michael Lowe.
There are lots of names for people crossing the border into Texas without authority, including migrants, immigrants, illegals, undocumented noncitizens, illegal entrants. See, “Illegal Alien” Is One of Many Correct Legal Terms for “Illegal Immigrant,” written by Alex Nowrasteh and published by Cato on October 14, 2019.
However, the legal terminology pursuant to federal statute is these non-citizens are defined as “aliens.” By statute, aliens are defined to be anyone who is “…not a citizen or national of the United States.” 8 USC § 1101(a)(3). A “national of the United States” is defined as “(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 8 USC § 1101(a)(22).
In 8 U.S.C. §1326, Congress has declared it to be a federal crime for anyone who is not a citizen to come into the United States, or to even try to enter the country, if they have been:
(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.
Illegal Reentry into the United States: Federal Felony Charge
It is a federal crime for someone to return to the United States after their removal or deportation, or they have been otherwise denied entry, unless they have been given specific governmental approval to do so. This is a felony charge.
If someone is discovered to be within the borders of the United States after they had been removed or deported, or otherwise denied entry, then they can be arrested and charged with the crime of “illegal reentry.” These charges may be compounded with other criminal allegations, including trafficking, various drug charges, weapons charges, or even money laundering. Upon conviction, they can lose years of their lives in sentences of imprisonment.
Of course, more people are at risk here in Texas for arrests on charges of federal illegal reentry crimes than in other parts of the country. Particularly in South Texas and along the IH35 corridor through North Texas and the Dallas-Fort Worth metroplex, the danger of illegal re-entry charges is real for a growing number of people.
Federal Penalties for Illegal Reentry
For someone prosecuted for illegal reentry in the federal courts, the penalties they face will hinge upon the bases for their prior removal or deportation. The judge will refer to the United States Sentencing Guidelines (USSG) as propounded by the United States Sentencing Commission.
- For details on how the USSG work in calculating the particular sentence to be imposed upon a convicted defendant, using criminal history and offense levels, read our earlier discussions (complete with examples using the Sentencing Tables) in Money Laundering and Federal Sentencing Guidelines; Heroin Trafficking in Texas and Federal Sentencing Guidelines; Methamphetamine Trafficking and Federal Sentencing; and Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.
Sometimes, the government will decide to reinstate the removal order and simply deport the person without a hearing. However, if the individual has a pending sentencing case, the penalties become more serious. These people may be sentenced to punishment that include:
- A fine and up to 20 years in prison for reentry if their prior deportation was because of an aggravated felony;
- A fine and up to 10 years in prison for reentry if their prior deportation was because of three or more misdemeanor crimes involving (a) drugs, (b) crimes against a person, or (c) a non-aggravated felony;
- A fine and 2 years in prison for reentry if they were caught reentering the United States after being found here (a) in an unlawful presence; or (b) after being granted voluntary departure; or (c) an ordered deportation.
The statute itself explains the punishment ranges for violation of the federal illegal reentry law as:
(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, 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; 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.
Read, 8 U.S.C. §1326(b).
Punishment under the federal law also includes immediate deportation once the term of imprisonment is finished. This is followed with a permanent bar on this person ever reentering the country.
USSC Statistics for Federal Illegal Reentry Charges
As Texas criminal defense attorneys are well aware, these are federal felony cases that are being filed and prosecuted in significant numbers in our local federal courthouses, even though the national total of illegal reentry case prosecutions is decreasing. According to a report published in June 2023 by the United States Sentencing Commission (USSC):
In fiscal year 2022, there were 11,978 offenders convicted of illegal reentry, accounting for 71.4% of all immigration offenders sentenced under the guidelines. Illegal reentry convictions have decreased by 34.3% since fiscal year 2018.
These are the national numbers. Read, United States Sentencing Commission. “Quick Facts — Illegal Reentry Offenses.” (2023). (“USSC Report”).
According to the USSC Report, federal districts in the State of Texas make up two of the top five districts where these illegal reentry cases are being prosecuted. From the USSC Report, page 1:
The top five districts where illegal reentry offenses comprised the highest proportion of the overall caseload were: District of Arizona (59.7%); Southern District of Texas (52.4%); District of New Mexico (49.8%); Western District of Texas (44.6%); District of Delaware (20.3%).
And in the total number of illegal reentry cases filed by federal prosecutors, the AUSAs in Texas filed more than any other district in the country. The highest number was 3551 cases in the Southern District of Texas (think Corpus Christi) and 2646 in the Western District of Texas (think San Antonio). USSC Report, page 1.
Of particular importance in any criminal defense of these federal illegal reentry cases: according to the USSC, almost every single person prosecuted for this federal crime lost their freedom: “… 99.3% were sentenced to prison.” USSC Report, page 3.
Also of note, the majority (77.1%) of these federal illegal reentry defendants did have to deal with the impact of a prior criminal history in sentencing under the USSG Sentencing Tables.
According to the USSC:
- 9% had little or no prior criminal history (Criminal History Category I);
- 7% were CHC II;
- 8% were CHC III;
- 2% were CHC IV;
- 5% were CHC V;
- 9% were CHC VI.
Illegal Entry into Texas: State Criminal Charge
Of course, there is an independent criminal justice system from the federal one, built upon Texas statutes and Texas court case precedent. People can get investigated, arrested, charged, prosecuted, convicted, sentenced and punished in the state system without the federal system ever being involved.
Which brings us to a new piece of legislation passed by the Texas Legislature and signed into law by Governor Abbott, to be effective on March 5, 2024. Known as Texas Senate Bill 4, it adds a new chapter to Title 1 of the Texas Code of Criminal Procedure.
New Chapter 5B to Title 1 of the Texas Code of Criminal Procedure
New Chapter 5B, entitled “PROCEDURES FOR CERTAIN OFFENSES INVOLVING ILLEGAL ENTRY INTO THIS STATE,” creates the state criminal offense of illegal entry into the State of Texas from a foreign nation.
The new Texas Illegal Entry Law will allow any law enforcement officer in Texas to arrest a person suspected of illegally being within the Texas borders. Once arrested, the statute provides that the person can (1) agree to leave the United States pursuant to court order; or (2) face criminal charges of illegal entry as defined by the new statute.
Under the new TCCP Chapter 5B, the person can be charged with a Class B misdemeanor and face up to 6 months in jail upon conviction. If the person is a repeat offender, the punishment is greater. Then, sentencing can be as a second-degree felony which carries a 2 to 20-year imprisonment range.
- For details on felony punishments, read Felony Charges under Texas and Federal Law: Criminal Defense Overview.
Relating to prohibitions on the illegal entry into or illegal presence in this state by a person who is an alien, the enforcement of those prohibitions and certain related orders, including immunity from liability and indemnification for enforcement actions, and authorizing or requiring under certain circumstances the removal of persons who violate those prohibitions; creating criminal offenses.
In the news release accompanying the governor’s signing ceremony in Brownsville, Texas, the Governor’s Office explains:
Senate Bill 4 from Special Session #4 (Perry/Spiller) creates a criminal offense for illegal entry into this state from a foreign nation. The law cracks down on repeated attempts to enter Texas by creating the offense of illegal reentry and penalizes offenders with up to 20 years in prison. It also provides the mechanism to order an offender to return to the foreign nation from which the person entered or attempted to enter this state. The law provides civil immunity and indemnification for local and state government officials, employees, and contractors for lawsuits resulting from the enforcement of these provisions.
Constitutional Challenges to the New Texas Illegal Entry Law
Obviously, this new law raises the hackles of those who posit that laws dealing with immigration issues should be solely within the realm of the federal government. That there will be court actions challenging the validity of the statute must be expected and should be no surprise to anyone, including those who passed it.
As one news article opined, this is “… a new law that is likely to force a legal showdown with the federal government.” Read, “Gov. Greg Abbott signs bill making illegal immigration a state crime,” written by Uriel J. García and published by the Texas Tribune on December 18, 2023.
Is immigration something that is entirely within the confines of federal authority? In a formal statement signed by thirty (30) former federal immigration judges, the argument is that Texas cannot pass laws that deal with immigration into the United States, with the judges opining that the new Texas Illegal Entry law is unconstitutional.
From the November 2023 Statement of Former Immigration Judges and Appellate Immigration Judges regarding H.B. 4/S.B.4 comes their argument:
The proposed Texas legislation, which would allow a state court magistrate judge to issue a removal order, is not lawful. Immigration is plainly a federal function. State legislators cannot enact immigration laws for the same reasons that the United States Congress cannot enact Texas state legislation. State magistrate judges cannot conduct immigration proceedings for the same reason that federal Immigration Judges cannot adjudicate Texas state criminal cases. As the bill’s sponsors must know this, the point of the exercise is unclear. Furthermore, persons in the United States who entered unlawfully have rights and protections under federal law, including the right to apply for asylum. To the extent that the proposed state “law” conflicts with these rights, it is unconstitutional and in violation of our nation’s treaty obligations.
Lawsuits Filed to Block 2024 Texas Illegal Entry Law
Criminal defense lawyers waiting to see legal action and read the briefs can look to two lawsuits that have already been filed to block this law and stop anyone from facing arrest based upon its provisions.
January 2024: Justice Department Lawsuit
In January 2024, a lawsuit was filed by the Justice Department against the State of Texas. From the press release accompanying that lawsuit is the following summary of their argument:
The Justice Department today filed suit against the State of Texas to challenge Senate Bill 4 (SB 4) under the U.S. Constitution’s Supremacy Clause and Foreign Commerce Clause. The Constitution assigns the federal government the authority to regulate immigration and manage our international borders. Pursuant to this authority, Congress has established a comprehensive framework governing the entry of noncitizens into the United States and the removal of noncitizens from the country. Because SB 4 is preempted by federal law and violates the U.S. Constitution, the Justice Department seeks a declaration that SB 4 is invalid and an order preliminarily and permanently enjoining the state from enforcing the law.
“SB 4 is clearly unconstitutional,” said Associate Attorney General Vanita Gupta. “Under the Supremacy Clause of the Constitution and longstanding Supreme Court precedent, states cannot adopt immigration laws that interfere with the framework enacted by Congress. The Justice Department will continue to fulfill its responsibility to uphold the Constitution and enforce federal law.”
“Texas cannot disregard the United States Constitution and settled Supreme Court precedent,” said Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division. “We have brought this action to ensure that Texas adheres to the framework adopted by Congress and the Constitution for regulation of immigration.”
Looking to the Complaint itself, filed in United States District Court for the Western District of Texas, Austin Division, as Case No. 1:24-cv-00008, the legal argument advanced against Texas has past SCOTUS precedent as its cornerstone in the recent decision of Arizona v. US, 567 U.S. 387, 132 S. Ct. 2492, 183 L. Ed. 2d 351 (2012).
December 2023: ACLU Lawsuit
In December 2023, a lawsuit was filed by the American Civil Liberties Union with formal plaintiffs in the lawsuit being Las Americas Immigrant Advocacy Center, American Gateways, and the County of El Paso, Texas. From the ACLU press release:
“We’re suing to block one of the most extreme anti-immigrant bills in the country,” said Adriana Piñon, legal director of the ACLU of Texas. “The bill overrides bedrock constitutional principles and flouts federal immigration law while harming Texans, in particular Brown and Black communities. Time and time again, elected officials in Texas have ignored their constituents and opted for white supremacist rhetoric and mass incarceration instead. The state wastes billions of taxpayer dollars on failed border policies and policing that we could spend on education, better infrastructure, and better health care. Texans deserve better and we’re holding Texas politicians accountable to make sure this law never goes into effect.”
The ACLU Complaint is filed in the United States District Court for the Western District of Texas, Austin Division, as Case 1:23-cv-01537, styled LAS AMERICAS IMMIGRANT ADVOCACY CENTER; AMERICAN GATEWAYS; and THE COUNTY OF EL PASO, TEXAS, Plaintiffs, v. STEVEN C. MCCRAW, in his official capacity as Director of the State of Texas Department of Public Safety, and BILL D. HICKS, in his official capacity as District Attorney for the 34th District.
It seeks a declaratory judgment that the law is unconstitutional and an injunction against its enforcement. Like the DOJ suit, the ACLU argument points to the SCOTUS decision in Arizona, where SCOTUS ruled against a 2010 Arizona law that made it a state crime for legal immigrants not to carry their immigration papers. SCOTUS ruled in that case local police didn’t have the legal authority to arrest someone solely based on their immigration status because that power fell within the responsibilities of the federal government.
Illegal Entry Arrests in Texas: Defending Either Federal or State Arrests
Here in Texas, anyone who is not legally in the country can face serious federal felony charges based upon the federal illegal reentry law. It’s an active basis for prosecution here, especially in the Southern and Western Districts of Texas.
These are difficult cases to defend, since the AUSA will have the prior deportation documentation in their evidence file. Added to that will be any past criminal history of the accused, which can escalate potential punishment under the USSG Sentencing Tables and complicate plea negotiations.
- For more on plea negotiation, read: Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview; and Categorical Approach: Longer Federal Sentences With Past Convictions.
These illegal reentry cases can happen to all sorts of people. Sometimes, it is a family matter, where there are immigrants wanting to bring all their family together here in Texas. Sometimes, it is someone who comes into Texas after they have been removed or deported from the United States. There are also defendants who have been denied a visa and who risk arrest anyway.
Each case is different and deserves its own individual analysis and respect. Federal arrests are being made here and a zealous criminal defense is needed in these cases.
However, beginning in March 2024, there may well be arrests made here in Texas under the new Texas entry law that criminal defense lawyers must be ready to advocate. Texas law enforcement is adamant that Texas will take action to defend its borders, and defense attorneys expect that stance to include arrests based upon the new Chapter 5B of the Texas Code of Criminal Procedure. The Texas law will be effective within a matter of weeks absent a judicial bar (injunction) to its enforcement that is respected by the Texas authorities.
Among other defenses, constitutional arguments will be an individual defense here, just as they are being made in the larger fights involving the DOJ and the ACLU.
For more on immigration issues and Texas state action overlapping with federal tradition, read:
- Are Texas Anti-Smuggling Laws Unconstitutional? Governor Abbott and Texas Penal Code §20.05 and §20.06
- Texas Governor’s Designation of Mexican Cartels As Terrorist Organizations: Criminal Defense Perspective
- Not A U.S. Citizen And Arrested In Dallas County? How To Get Bonded Out Even With I.C.E. Hold Or Immigration Bond
- ICE Holds, Bail Bonds, and Getting Freed from Jail in Texas.
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