
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 8USC1326]

 
                     TITLE 8--ALIENS AND NATIONALITY
 
                 CHAPTER 12--IMMIGRATION AND NATIONALITY
 
                       SUBCHAPTER II--IMMIGRATION
 
                  Part VIII--General Penalty Provisions
 
Sec. 1326. Reentry of removed aliens


(a) In general

    Subject to subsection (b) of this section, any alien who--
        (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,

shall be fined under title 18, or imprisoned not more than 2 years, or 
both.

(b) Criminal penalties for reentry of certain removed aliens

    Notwithstanding subsection (a) of this section, 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, 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 of this 
    chapter, 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.\1\ or
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    \1\ So in original. The period probably should be a semicolon.
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        (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.

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) Reentry of alien deported prior to completion of term of 
        imprisonment

    Any alien deported pursuant to section 1252(h)(2) \2\ of this title 
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.
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    \2\ See References in Text note below.
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(d) Limitation on collateral attack on underlying deportation order

    In a criminal proceeding under this section, an alien may not 
challenge the validity of the deportation order described in subsection 
(a)(1) of this section or subsection (b) of this section 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.

(June 27, 1952, ch. 477, title II, ch. 8, Sec. 276, 66 Stat. 229; Pub. 
L. 100-690, title VII, Sec. 7345(a), Nov. 18, 1988, 102 Stat. 4471; Pub. 
L. 101-649, title V, Sec. 543(b)(3), Nov. 29, 1990, 104 Stat. 5059; Pub. 
L. 103-322, title XIII, Sec. 130001(b), Sept. 13, 1994, 108 Stat. 2023; 
Pub. L. 104-132, title IV, Secs. 401(c), 438(b), 441(a), Apr. 24, 1996, 
110 Stat. 1267, 1276, 1279; Pub. L. 104-208, div. C, title III, 
Secs. 305(b), 308(d)(4)(J), (e)(1)(K), (14)(A), 324(a), (b), Sept. 30, 
1996, 110 Stat. 3009-606, 3009-618 to 3009-620, 3009-629.)

                       References in Text

    Section 1252 of this title, referred to in subsec. (c), was amended 
generally by Pub. L. 104-208, div. C, title III, Sec. 306(a)(2), Sept. 
30, 1996, 110 Stat. 3009-607, and, as so amended, does not contain a 
subsec. (h). For provisions similar to those formerly contained in 
section 1252(h)(2) of this title, see section 1231(a)(4) of this title.


                               Amendments

    1996--Pub. L. 104-208, Sec. 308(e)(14)(A), amended section 
catchline.
    Subsec. (a)(1). Pub. L. 104-208, Sec. 308(d)(4)(J)(i), substituted 
``denied admission, excluded, deported, or removed'' for ``arrested and 
deported, has been excluded and deported,'' and ``exclusion, 
deportation, or removal'' for ``exclusion or deportation''.
    Pub. L. 104-208, Sec. 324(a), amended par. (1) generally. Prior to 
amendment, par. (1) read as follows: ``has been arrested and deported or 
excluded and deported, and thereafter''.
    Subsec. (a)(2)(B). Pub. L. 104-208, Sec. 308(d)(4)(J)(ii), 
substituted ``denied admission and removed'' for ``excluded and 
deported''.
    Subsec. (b). Pub. L. 104-208, Sec. 324(b), inserted ``(or not 
during)'' after ``during'' in concluding provisions.
    Pub. L. 104-208, Sec. 308(e)(1)(K), substituted ``removal'' for 
``deportation'' wherever appearing in pars. (1) and (2) and in 
concluding provisions.
    Subsec. (b)(2). Pub. L. 104-208, Sec. 305(b)(1), struck out ``or'' 
at end.
    Subsec. (b)(3). Pub. L. 104-208, Sec. 305(b)(2), inserted ``or'' at 
end.
    Pub. L. 104-132, Sec. 401(c), added par. (3).
    Subsec. (b)(4). Pub. L. 104-208, Sec. 305(b)(3), added par. (4).
    Subsec. (c). Pub. L. 104-132, Sec. 438(b), added subsec. (c).
    Subsec. (d). Pub. L. 104-132, Sec. 441(a), added subsec. (d).
    1994--Subsec. (b). Pub. L. 103-322, in par. (1), inserted ``three or 
more misdemeanors involving drugs, crimes against the person, or both, 
or'' after ``commission of'' and substituted ``10'' for ``5'', in par. 
(2), substituted ``20'' for ``15'', and added concluding sentence.
    1990--Subsec. (a). Pub. L. 101-649 substituted ``shall be fined 
under title 18, or imprisoned not more than 2 years'' for ``shall be 
guilty of a felony, and upon conviction thereof, be punished by 
imprisonment of not more than two years, or by a fine of not more than 
$1,000''.
    1988--Pub. L. 100-690 designated existing provisions as subsec. (a), 
substituted ``Subject to subsection (b) of this section, any alien'' for 
``Any alien'', and added subsec. (b).


                    Effective Date of 1996 Amendments

    Amendment by sections 305(b) and 308(d)(4)(J), (e)(1)(K), (14)(A) of 
Pub. L. 104-208 effective, with certain transitional provisions, on the 
first day of the first month beginning more than 180 days after Sept. 
30, 1996, see section 309 of Pub. L. 104-208, set out as a note under 
section 1101 of this title.
    Section 324(c) of div. C of Pub. L. 104-208 provided that: ``The 
amendment made by subsection (a) [amending this section] shall apply to 
departures that occurred before, on, or after the date of the enactment 
of this Act [Sept. 30, 1996], but only with respect to entries (and 
attempted entries) occurring on or after such date.''
    Section 401(f) of Pub. L. 104-132 provided that: ``The amendments 
made by this section [enacting sections 1531 to 1537 of this title and 
amending this section and section 1105a of this title] shall take effect 
on the date of enactment of this Act [Apr. 24, 1996] and shall apply to 
all aliens without regard to the date of entry or attempted entry into 
the United States.''
    Section 441(b) of Pub. L. 104-132 provided that: ``The amendment 
made by subsection (a) [amending this section] shall apply to criminal 
proceedings initiated after the date of enactment of this Act [Apr. 24, 
1996].''


                    Effective Date of 1990 Amendment

    Amendment by Pub. L. 101-649 applicable to actions taken after Nov. 
29, 1990, see section 543(c) of Pub. L. 101-649, set out as a note under 
section 1221 of this title.


                    Effective Date of 1988 Amendment

    Section 7345(b) of Pub. L. 100-690 provided that: ``The amendments 
made by subsection (a) [amending this section] shall apply to any alien 
who enters, attempts to enter, or is found in, the United States on or 
after the date of the enactment of this Act [Nov. 18, 1988].''


References to Order of Removal Deemed To Include Order of Exclusion and 
                               Deportation

    For purposes of carrying out this chapter, any reference in law to 
an order of removal is deemed to include a reference to an order of 
exclusion and deportation or an order of deportation, see section 
309(d)(2) of Pub. L. 104-208, set out in an Effective Date of 1996 
Amendments note under section 1101 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 1101, 1225, 1329, 1537 of 
this title; title 10 section 374.
