Where an alien has been removed, illegally reenters the United States, and is later found by immigration or federal law enforcement authorities, he has violated federal immigration law found in 8 U.S.C. § 1326(a). Violators face two rolls of the dice depending on where they are convicted. If they are convicted in the Seventh Circuit, they lose on both rolls. Under the Seventh Circuit's actual discovery standard, the government can sustain a conviction brought long after the statute of limitations has tolled because they have no duty to locate an alien using reasonable diligence. Additionally, because districts in the Seventh Circuit do not employ fast-track sentencing programs, the alien will likely be sentenced more harshly than violators in fast-track districts. Not all circuits treat § 1326 violators this harshly. The majority of circuits require the government to use reasonable diligence under the constructive discovery standard when pursuing § 1326 convictions. Further, in some federal districts, cooperative defendants charged under § 1326 are given an expedited disposition of their case and a reduced sentence due to a fast-track program. The Seventh Circuit's approach to § 1326 should be changed to align prosecutorial, defense, congressional, and judicial policy. This Note examines the various approaches taken to § 1326 prosecutions and advocates adoption of the constructive discovery standard and fast-track sentencing programs in the Seventh Circuit.
Improving the Seventh Circuit's Approach to Illegal Reentry Prosecutions with a Constructive Discovery Standard and Fast-Track Sentencing,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol5/iss2/8