Mandatory minimum sentences for illegal reentry

Section 276 (8 U.S.C. 1326) is amended to read as follows:

276.

Reentry of removed alien

(a)

Reentry after removal

Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, and imprisoned not less than 90 days and not more than 2 years. (b)

Reentry of criminal offenders

Notwithstanding the penalty prescribed under subsection (a), an alien described in that subsection who was— (1)convicted for 3 or more misdemeanors or a felony before such removal or departure, shall be fined under title 18, United States Code, and imprisoned for not less than 1 year and not more than 10 years; (2)convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 30 months, shall be fined under such title, and imprisoned for not less than 2 years and not more than 15 years; (3)convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 60 months, shall be fined under such title and imprisoned for not less than 4 years and not more than 20 years; (4)convicted for 2 or more felonies before such removal or departure, shall be fined under such title and imprisoned for not less than 4 years and for not more than 20 years; or (5)convicted, before such removal or departure, for murder, rape, kidnapping, for a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, shall be fined under such title and imprisoned for not less than 5 years and not more than 20 years. (c)

Reentry after repeated removal

Any alien who, after having been denied admission, excluded, deported, or removed 2 or more times, enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, and imprisoned for not less than 2 years and not more than 10 years. (d)

Proof of prior convictions

The prior convictions described in subsection (b) are elements of the crimes described in that subsection, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are— (1)alleged in the indictment or information; and (2)proven beyond a reasonable doubt at trial or admitted by the defendant. (e)

Affirmative defenses

It shall be an affirmative defense to a violation of this section that— (1)the alien had sought and received, before the alleged violation, the express consent of the Secretary of Homeland Security to reapply for admission into the United States; (2)with respect to an alien previously denied admission and removed, the alien— (A)was not required to obtain such advance consent under the Immigration and Nationality Act or under any prior Act; and (B)had complied with all other laws and regulations governing the alien’s admission into the United States; or (3)at the time of the prior exclusion, deportation, removal, or denial of admission alleged in the violation, the alien— (A)was younger than 18 years of age; and (B)had not been convicted of a crime or adjudicated a delinquent minor by a court of the United States, or a court of a State or territory, for conduct that would constitute a felony if committed by an adult. (f)

Limitation on collateral attack on underlying removal order

In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order concerning the alien unless the alien demonstrates by clear and convincing evidence that— (1)the alien exhausted all administrative remedies that may have been available to seek relief against the order; (2)the removal 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. (g)

Reentry of alien removed before completing term of imprisonment

Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be— (1)incarcerated for the remainder of the term of imprisonment, which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien's reentry; and (2)subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law. (h)

Limitation

An individual who provides an alien with emergency humanitarian assistance, including emergency medical care and food, or transports the alien to a location where such assistance can be rendered without compensation or the expectation of compensation may not be prosecuted for aiding and abetting a violation of this section based on the provision of such humanitarian services . (i)

Definitions

In this section: (1)

Felony

The term felony means any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, of any State, or of a foreign government. (2)

Misdemeanor

The term misdemeanor means any criminal offense punishable by a maximum term of imprisonment of not more than 1 year under the applicable laws of the United States, of any State, or of a foreign government. (3)

Removal

The term removal includes any denial of admission, exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal. (4)

State

The term State means any of the several States of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.