§ 3705 : REENTRY OF REMOVED ALIEN

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

SEC. 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 more than 2 years.

b.

REENTRY OF CRIMINAL OFFENDERS.—Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection—

1.

was convicted for 3 or more misdemeanors, with the convictions occurring on different dates, before such removal or departure, the alien shall be fined under title 18, United States Code, and imprisoned not more than 10 years, or both;

2.

was 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, the alien shall be fined under such title, and imprisoned not more than 15 years, or both;

3.

was 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, the alien shall be fined under such title, and imprisoned not more than 20 years, or both;

4.

was convicted for 3 felonies, with the convictions occurring on different dates before such removal or departure, the alien shall be fined under such title, and imprisoned not more than 20 years, or both; or

5.

was convicted, before such removal or departure, for murder, rape, kidnapping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, the alien shall be fined under such title, and imprisoned not more than 20 years, or both.

c.

REENTRY AFTER REPEATED REMOVAL.—Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter 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 more than 10 years, or both.

d.

PROOF OF PRIOR CONVICTIONS.—The prior convictions described in subsection (b) are elements of the offenses described in that subsection, and the penalties in such 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 under oath as part of a plea agreement.

e.

AFFIRMATIVE DEFENSES.—It shall be an affirmative defense to a violation of this section that—

1.

prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States; or

2.

at the time of the prior exclusion, deportation, removal, or denial of admission alleged in the violation, the alien had not yet reached 18 years of age and 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 DEPORTATION ORDER.—In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a) or subsection (c) 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.

g.

REENTRY OF ALIEN REMOVED PRIOR TO COMPLETION OF 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 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 unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien’s reentry or the alien is prima facie eligible for protection from removal. Such alien shall be 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.—It is not aiding and abetting a violation of this section for an individual to provide an alien with emergency humanitarian assistance, including emergency medical care and food, or to transport the alien to a location where such assistance can be rendered without compensation or the expectation of compensation.

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, any State, or a foreign government.

2.

MISDEMEANOR.—The term misdemeanor means any criminal offense punishable by a term of imprisonment of not more than 1 year under the applicable laws of the United States, any State, or 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 a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.