Being charged under 8 U.S.C. § 1326 after a prior removal is frightening, and it often happens fast. One contact with immigration or border agents can turn into a federal felony case with prison time and another deportation on the other side.
The exposure is real, but a § 1326 charge is not automatic. The government still has to prove its case, the old removal order can sometimes be challenged, and the sentence is not fixed until it is litigated.
Our firm defends federal illegal reentry cases, and our team is led by a former federal prosecutor who knows how these cases are built and where they break. We represent clients in federal courts across the country, and federal law applies the same way nationwide.
If you or a loved one is facing a reentry charge, speak with our federal immigration defense team before making any decision that could affect both your criminal case and your future in the United States.
The illegal reentry cases we defend
“Illegal reentry” covers more situations than most people expect. We handle the full range of charges tied to returning after removal.
- Illegal reentry after removal — 8 U.S.C. § 1326: The core felony. It applies when someone who was previously removed, deported, or excluded is later found in, enters, or attempts to enter the United States without permission.
- Reentry with prior-conviction enhancements: The same statute, but with a prior felony or “aggravated felony” driving the maximum penalty much higher.
- Improper entry — 8 U.S.C. § 1325: The lesser charge for entering at the wrong time or place or by false statement. A first offense is a misdemeanor, but it can be charged alongside or instead of § 1326.
- Related smuggling and document charges: Cases that involve harboring or transporting under 8 U.S.C. § 1324, or false or misused immigration documents under 8 U.S.C. § 1546 and 18 U.S.C. § 1028.
Many of these cases start with an investigation by Homeland Security Investigations (HSI), the criminal arm of ICE. If agents are already involved, our ICE/HSI investigation defense team can step in early, control contact with the government, and protect your options before charges are locked in.
Why an 8 U.S.C. § 1326 charge is so serious
The base offense is a felony, but the real danger is how much the penalty can grow. A prior removal is only the starting point.
To convict, the government generally must prove three things: that you are not a U.S. citizen, that you were previously removed or deported, and that you later reentered or were found in the country without permission. That sounds simple, but each element can be contested.
The maximum sentence climbs sharply based on your history:
- No qualifying prior: the lowest exposure tier under the statute.
- A prior felony conviction: raises the statutory maximum substantially.
- A prior “aggravated felony”: raises it much further. “Aggravated felony” is defined broadly in immigration law and can include offenses that do not sound “aggravated” at all.
The number that usually matters most is not the statutory maximum — it is the advisory U.S. Sentencing Guidelines range. For reentry, that range is driven by your prior record and the nature of any prior removal or conviction. Two people charged under the same statute can face very different Guidelines ranges.
There are also collateral consequences. A conviction typically leads to another removal, and it can make any future lawful return far harder. On sentencing, you don’t just plead — you litigate the math.
Reach out to our team if you want to understand your specific exposure before anything is decided.
How we defend illegal reentry charges
A strong defense starts early and works on several fronts at once. We look at whether the charge can be beaten, whether the old removal order was valid, and whether the sentence can be reduced.
Attacking the underlying removal order (the § 1326(d) collateral attack)
A § 1326 charge depends on a valid prior removal. If that earlier removal order was fundamentally unfair, we may be able to challenge it inside the criminal case — this is called a collateral attack under 8 U.S.C. § 1326(d).
To succeed, the law generally requires showing three things: that you exhausted the administrative remedies that were available, that the earlier removal proceeding improperly deprived you of judicial review, and that the order’s entry was fundamentally unfair. When a collateral attack works, it can knock out an essential element of the government’s case.
Litigating the sentencing math
Because the Guidelines range drives the real outcome, we treat sentencing as something to fight, not accept. We scrutinize how the government classifies your prior record, whether a prior truly qualifies as an “aggravated felony,” and whether any enhancement is properly supported.
We also pursue mitigation — acceptance of responsibility, personal history, and arguments for a sentence below the range where the facts support it. You can read more about how federal sentences are calculated and what to expect at a federal sentencing hearing.
Fast-track and early-disposition programs
Some border districts run fast-track (early-disposition) programs that offer a reduced sentence in exchange for an early guilty plea and waiver of certain rights. These programs are district-specific and are common in high-volume border courts.
Fast-track can be the right move in some cases and the wrong move in others. We evaluate whether a program actually benefits you before you give up defenses that might win.
Talk to a federal defense lawyer about which of these paths fits your situation.
§ 1325 vs. § 1326: improper entry and reentry after removal
These two statutes are often confused, but the difference matters a great deal.
- 8 U.S.C. § 1325 (improper entry): Entering at the wrong place or time, or by fraud. A first offense is a misdemeanor.
- 8 U.S.C. § 1326 (reentry after removal): Coming back after a prior removal or deportation. This is a felony, and it carries far greater exposure.
Which statute the government charges and whether it stacks prior convictions on top has a direct effect on the penalties you face. Part of our job is pushing for the least serious accurate charge and disputing enhancements that inflate the sentence.
Why choose Keith & Lorfing
Federal immigration crime cases are decided on details — the validity of a removal order, the classification of a prior, the Guidelines math. Our team is built for exactly that kind of fight.
- A former federal prosecutor leads the team. Managing partner Russell Lorfing is a former Assistant U.S. Attorney who prosecuted federal cases before he defended them. He was selected in 2024 as Co-Chair of the Federal Criminal Defense Committee for the Texas Criminal Defense Lawyers Association.
- A retired federal judge of counsel. The Honorable E. Scott Frost (Ret.) brings more than 30 years of federal courtroom experience.
- Deep trial experience. Founding partner Trey Keith has spent 20+ years defending the accused, with many “Not Guilty” verdicts.
- The right admissions and reach. Our attorneys are admitted across the federal system — including the Southern District of Texas (which covers Houston and the Laredo border division), the Northern and Western Districts of Texas, the U.S. Court of Appeals for the Fifth Circuit, and the U.S. Supreme Court — and represent clients in federal courts across the country.
- Former-insider backgrounds. Our team includes former federal prosecutors and defenders and former federal agents.
Every case is different, and past results do not guarantee a particular outcome. What we offer is judgment built from both sides of the federal courtroom.
If you want that experience on your side, contact our firm for a confidential review.
What to expect in a federal illegal reentry case
Knowing the path ahead makes a stressful situation more manageable. Most § 1326 cases follow a similar route.
- Arrest or detainer. Many cases begin with an immigration hold or an HSI referral, followed by an initial appearance in federal court.
- Charging and detention. The government files the charge, and the court decides on custody. Immigration detainers can complicate release.
- Investigation and motions. This is where we examine the removal order for a § 1326(d) challenge and test the government’s proof of identity and prior removal.
- Resolution. The case moves toward a negotiated plea (sometimes through a fast-track program), a motion that resolves it, or trial.
- Sentencing. If there is a conviction, we litigate the Guidelines and argue for the lowest supportable sentence.
These cases don’t move fast on the surface, but underneath they’re moving the entire time — by the time it feels real, the case is usually much further along than you think. Early action protects your options.
The two costliest early mistakes
How you react in the first days can matter as much as the facts of the case. Two mistakes cause the most damage.
- Putting your head in the sand. Federal cases are built quietly, and ignoring contact from agents only lets the government keep building while your options shrink. If ICE, HSI, or another agency reaches out, take it seriously and call a lawyer.
- Trying to “fix” things yourself. Deleting messages, altering documents, or hiding a phone can create a new obstruction charge that is often easier to prove than the underlying offense. That kind of cleanup doesn’t fix the problem — it creates a new one.
The safer path is to preserve everything and let counsel control contact with the government.
Federal immigration matters do not always follow the same rules as a stop by local police. You still keep the right to remain silent and the right to a lawyer, and it is smart to use both before answering questions.
One more warning: lying to a federal agent is its own crime under 18 U.S.C. § 1001. That is why our first step is simple — get experienced federal counsel involved early, and let us make first contact for you.
Talk to an illegal reentry defense lawyer
A § 1326 charge is serious, but it is defensible. The sooner we look at the removal order, the priors, and the charging decision, the more options you may have.
Our team includes a former federal prosecutor and a retired federal judge, and we defend these cases from investigation through sentencing.
Learn more about our federal immigration defense practice, or schedule a free confidential consultation to talk about your case.
Frequently Asked Questions
What is the difference between 8 U.S.C. § 1325 and § 1326?
Section 1325 is improper entry, and a first offense is a misdemeanor. Section 1326 is reentry after a prior removal, and it is a felony with much higher penalties.
How much prison time can I face for illegal reentry?
It depends on your history. The statutory maximum rises with a prior felony and rises further with a prior “aggravated felony,” but the advisory Sentencing Guidelines usually drive the actual sentence.
Can the old deportation order be challenged?
Sometimes. Under 8 U.S.C. § 1326(d), a fundamentally unfair prior removal can be challenged inside the criminal case, which may undercut the charge. Whether it applies depends on the facts of your case.
What is a fast-track or early-disposition program?
It is a district-specific program that offers a reduced sentence for an early guilty plea and certain waivers. These programs are common in border districts, but they are not always in your best interest.
Does a prior conviction really make it worse?
Yes. A prior felony — and especially an “aggravated felony” — can sharply increase both the statutory maximum and the Guidelines range. We often dispute whether a prior truly qualifies.
What if I did not know I could not come back?
The government still has to prove the elements of the offense. Your knowledge, the validity of the prior removal, and how you were treated in that proceeding can all matter.
Which court will hear my case?
Federal illegal reentry cases are prosecuted in U.S. District Court. In Texas that often means the Southern District of Texas, including the Houston and Laredo divisions.
Should I talk to agents before hiring a lawyer?
No. Anything you say can be used to prove the case, and even a false statement to a federal agent is a separate crime under 18 U.S.C. § 1001. If federal agents want to talk, stay silent and speak with a lawyer first.
