Charged Under 8 U.S.C. § 1326: What Happens Next

An illegal reentry case follows a sequence that is largely predictable, even though the outcome is not. Knowing the sequence removes some of the uncertainty and shows where the defense can act. What follows is the ordinary path of a prosecution under 8 U.S.C. § 1326 in the Eastern District of Virginia, from the first appearance through resolution. Nothing here predicts what will happen in any particular case, and none of it replaces advice from counsel who has read the file.

On this page

Arrest, Initial Appearance, and Detention

Most of these cases begin with contact that had nothing to do with immigration. A traffic stop, a local arrest, or a booking generates a fingerprint submission, a match is returned against an existing record, and a detainer follows. The federal charge arrives afterwards, often while the client is already in custody.

At the initial appearance the charge is read, counsel is appointed or noted, and release is addressed. Detention in these cases is complicated by the presence of an immigration detainer, which can mean that even a favourable release ruling does not result in the client going home. That is a point counsel should explain plainly at the outset rather than allowing an expectation to form. Where release is genuinely available, what supports it is preparation: a verified address, a responsible person willing to appear, employment history, community ties, and a supervision plan that answers the specific concern raised.

Indictment and Arraignment

If the case began on a complaint, an indictment follows. At arraignment a plea of not guilty is entered and the court sets a schedule. Speedy trial protections attach and are calculated with exclusions that are easy to miscount, so the dates should be tracked deliberately rather than assumed. This is also the point at which the theory the government is proceeding on should be identified, because entry, attempted entry, and being found in the United States require different proof.

Discovery and the Immigration File

Government discovery in these cases usually arrives as a certified packet: the removal order, a warrant, a departure record, fingerprint comparisons, a certificate stating that no record of consent was found, and any statements the client made. That packet is a summary of a much larger file, and the larger file is where the defenses are.

The complete immigration record, and where it exists the recording or transcript of the removal hearing, are requested separately and do not arrive on their own. They take time to produce. Because a challenge to the underlying removal order cannot be framed without them, the request is made as early as possible. Where the case began with a local agency, part of the material may still sit with that department and has to be sought specifically. The defense is also entitled to information bearing on the credibility of government witnesses, and requests for it are made in writing and renewed.

Motions

The recurring motions fall into a small number of categories. The first is the collateral attack on the removal order, which the statute permits subject to the requirements it sets out, and which turns on what happened procedurally in the earlier proceeding: advice about counsel, the adequacy of interpretation, advice about available relief, and whether any waiver of appeal was knowing and voluntary. The second is suppression of statements, since admissions about place of birth, prior removals, and the manner of return are how the government commonly proves elements it would otherwise establish from documents alone.

Motions attacking the stop or arrest are also brought, though what they can achieve in this setting is narrower than in other federal cases, and counsel should say so rather than encourage expectations the law does not support. Filing generally excludes time under the speedy trial framework, which is a trade-off to discuss rather than a reason to avoid filing.

Resolution

Most of these cases resolve without a trial, and the negotiation usually concerns how the sentencing calculation will be treated rather than whether the elements can be proved. That is why the prior conviction analysis runs in parallel from the beginning: whether an old case falls within a defined category can matter more than anything else in the file. A written understanding about the calculation is worth more than an understanding about the charge.

Where the case is tried, the jury is instructed on each element and told that failure on any one requires acquittal. Where it resolves by plea, the presentence investigation follows, and written objections to the draft report are the main opportunity to correct the calculation before the judge sees a recommendation. Sentencing then applies the statutory factors, and the court is not bound by the range it has calculated. Removal proceedings or reinstatement of the prior order generally follow the criminal case, under separate rules.

Frequently Asked Questions

Why am I being prosecuted now for a removal that happened years ago?

Because the statute reaches being found in the United States after a removal, not only the act of crossing. A person can therefore be charged long after returning. It also means the government must prove the earlier removal and the absence of consent, which are documentary questions rather than questions about the day of the arrest.

Can I be released while the case is pending?

It depends on the showing made at the detention hearing, and it is complicated by any immigration detainer, which can mean that release from criminal custody does not mean going home. Your lawyer should explain how the two forms of custody interact in your situation before you form expectations about it.

Should I talk to the agents?

Not without counsel present. Interviews in these cases routinely supply the government with proof of alienage and of the manner of return, which it would otherwise have to establish from documents. Declining is not evidence of anything and cannot be argued to a jury as though it were.

What is the collateral attack and will it apply to me?

It is a challenge to the validity of the removal order the charge depends on, permitted by the statute subject to its requirements. Whether it applies depends on what happened in the earlier proceeding, which cannot be assessed until the record of that proceeding has been obtained. That is one reason the request for the immigration file goes out early.

Does an old conviction change my exposure?

It can change it substantially, because the statutory tiers and the guideline adjustments both turn on prior convictions. Whether a particular prior qualifies is a legal analysis comparing its elements to a federal definition, not a reading of the offense name, and it is frequently contestable.

How long will the case take?

This page offers no figure, because it depends on how quickly the immigration record is produced and whether a challenge to the prior order is filed. Those challenges take time because they rely on records held by another agency. Once the court enters a scheduling order your lawyer can describe the actual dates.

Is there anything I should be doing now?

Stop discussing the case with anyone but your lawyer, including on recorded jail calls, which are monitored and routinely used. Gather what family members can send: identity documents, birth and marriage records for you and your parents, old immigration paperwork, and any court records from prior cases. Those documents are frequently the fastest route to the defenses that exist.

Working With Law Offices Of SRIS, P.C.

The opening stage of an illegal reentry case is documentary: securing the complete immigration record, identifying the theory charged, and assessing how prior convictions will be classified.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

This page provides general information about federal illegal reentry charges under 8 U.S.C. § 1326 and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

Attorney advertising. Prior results do not guarantee a similar outcome.

Attorney responsible for this advertising: Mr. Sris.