INA: ACT 276 - REENTRY OF REMOVED ALIEN

Sec. 276. [8 U.S.C. 1326]

(a) Subject to subsection (b) any alien who- ,

(1) 1/ 2/ 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 3/ , unless such alien shall establish that he was not required to obtain such advance consent under this or any prior Act, shall be fined under title 18, United States Code, or imprisoned not more than 2 years, or both.

(b) Notwithstanding subsection (a), 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, United States Code, 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) 4/ who has been excluded from the United States pursuant to section 235(c) because the alien was excludable under section 212(a)(3)(B) or who has been removed from the United States pursuant to the provisions of title 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, United States Code, and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence; or

(4) 5/ who was removed from the United States pursuant to section 241(a)(4)(B) 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, United States Code, 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) 6/ Any alien deported pursuant to section 242 (h)(2) 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) 7/ In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) 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.

FOOTNOTES FOR SECTION 276

INA: ACT 276 FN 1

FN 1 Paragraph (1) is shown as rewritten by § 324 of IIRIRA . See next footnote for effective date and further explanation.

INA: ACT 276 FN 2

FN 2 Paragraph (1) was amended first by § 324 then a secondary amendment was made to the amended text by § 308(d)(4)(J) of IIRIRA (as shown here). The amendment by section 308(d)(40(J) notes that the amendment by § 324 must occur first. Since the amendments have different effective dates they must both be given effect. Section 324's amendments to subsection (a) apply to "departures that occurred before, on, or after the date of enactment of [IIRIRA], but only with respect to entries (and attempted entries) occurring on or after such date." IIRIRA, § 324(c) . Section 308's amendments are effective on April 1, 1997 at which time the amendment by section 324 is overwritten. Therefore, during the transition period, from September 30, 1996 to April 1, 1997, the first paragraph (1) shown above is in effect. On April 1, 1997 and thereafter the second paragraph (1) shown above will be in effect.

INA: ACT 276 FN 3

FN 3 Amended by § 308(d)(4)(J) of IIRIRA .

INA: ACT 276 FN 4

FN 4 Paragraph (3) was added by § 411 of AEDPA , effective on the date of enactment of AEDPA.

INA: ACT 276 FN 5

FN 5 Paragraph (4) was added by § 305(b)(3) of IIRIRA .

INA: ACT 276 FN 6

FN 6 Section 276(c) was added by § 438 of AEDPA , effective on the date of enactment of AEDPA.

INA: ACT 276 FN 7

FN 7 Section 276(d) was added by § 441 of AEDPA and "shall apply to criminal proceedings initiated after the date of enactment of [the AEDPA]."