Court: Just being in U.S. isn't illegal

The Wichita Eagle via Kansas.com ^ | uesday, Aug 21, 2007 | BY DION LEFLER

[raybbr]

While unauthorized entry into the United States is illegal, being in the country after having entered illegally is not necessarily a crime, according to a new ruling by the Kansas Court of Appeals.

In a Barton County case, a three-judge panel issued an opinion Friday that a judge could not deny probation and order jail time for convicted drug dealer Nicholas L. Martinez based solely on the grounds that Martinez is an unauthorized immigrant.

"While Congress has criminalized the illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless the illegal alien has previously been deported and has again entered this country illegally," Judge Patrick McAnany wrote for the court majority.

Barton County Attorney Douglas Matthews said courts in Oregon and Minnesota have issued similar rulings. But he said, "My research tells me this is the first time this has come up in this state."

Martinez's lawyer, Janine Cox of the Kansas appellate defender's office, declined to comment because prosecutors have not decided whether to appeal the decision to the state Supreme Court.

The case arose from the sentencing of Martinez, who pleaded guilty to felony possession of cocaine and endangering a child by having his young son deliver drugs to an undercover officer, according to court documents.

[sergeantdave]

If I break into a house, that’s illegal. But If I decide to live in that house, that’s not necessarily illegal.

Is that about right?

[CholeraJoe]

No state court may rule on the legality of or invalidate a Federal Law. The Kansas court is headed for a smackdown, just like Oregon.

[Puppage]

What amount of time having passed brings immunity from prosecution of the original crime?

This is where ones skill at playing Hide & Seek really pays off.

[G Larry]

OK, forget deportation.
Let’s build sufficient prison space for all felons to serve their full sentence.

[BearCub]

No state court may rule on the legality of or invalidate a Federal Law. The Kansas court is headed for a smackdown, just like Oregon.

That's not what this court did. Read the story again.

[aruanan]

"While Congress has criminalized the illegal entry into this country, it has not made the continued presence of an illegal alien in the United States a crime unless the illegal alien has previously been deported and has again entered this country illegally," Judge Patrick McAnany wrote for the court majority.

Notice his wording "while Congress has criminalized the illegal entry". Is he saying that the entry was already illegal and that Congress did something subsequent to that which he terms "criminalized"? I guarantee that a federal law controlling whether or not an entry into the US is illegal is not so narrowly defining things that it means "the act of crossing the border into U.S. territory without proper authorization is a crime, but being on U.S. territory without proper authorization is not a crime." This is a judge abusing language to make it mean something he wants it to mean. It's on the level of "Hey, this law doesn't specifically mention this particular man by name or even his nationality, so it doesn't specifically apply to him."

[txdoda]

Martinez "who pleaded guilty to felony possession of cocaine and endangering a child by having his young son deliver drugs to an undercover officer, according to court documents."

WOW....what good 'family values', to train your children to push dope.

Although the prosecution recommended probation

Hmmmm.....does the *prosecution* recommend probation for ALL the dope dealers in Kansas or only the illegal ones ??

[aruanan]

So, according to the federal law, the judge is committing a felony by his ruling.

[BearCub]

Man50D - None of the laws you quoted up there apply to the individual illegal alien. They all deal with people aiding & abetting them.

[BearCub]

So, according to the federal law, the judge is committing a felony by his ruling.

LOL. I thought the same thing: If they put him in jail would that be sheltering him?

[Red_Devil 232]

Let’s see ... just because this judge was appointed does not make him a judge. By his thinking the moment the appointment ceremony was over he is no longer legally a judge.

[R.W.Ratikal]

this headline pretty well sums up our screwed up immigration mess:

“It’s illegal for non-citizens to enter the U. S. but it is not illegal for non-citizens to enter the U. S.”

The inmates are running the insane asylum.

[doodad]

Does this mean I’ll have to be clocked at 85 mph twice in order to have a chance of getting a ticket?

No, because by this logic, once you have reached 85, your continued traveling at that speed is no longer a violation. I think. So hard to understand the logic in this idiot.

[BearCub]

A Kansas Court of Appeals is not the final authority on federal law.

I don't think you guys understand what happened here. The court isn't invalidating federal law. The guy isn't on trial for violating federal law - he's on trial for drug crimes.

The appeals court simply said that the trial court can't use the guy's illegal presence in the U.S. as the sole basis for sentencing him to jail instead of probation, because in its interpretation, simply being here isn't illegal. The trial court must have written something to that effect in its ruling. Whether that is correct or not is largely irrelevant.

What the trial court should have done is either cite the involvement of the child - or the defendant's past crime of illegal entry into the country as the reason for sentencing him to jail instead of probation. Case closed.

[Man50D]

You are missing a very important point. The judge stated a person can only be illegal if they were previously deported. The Federal Immigration and Nationality Act does not make that distinction. To quote:

"It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work."

As you can see the considers anyone who enters the country illegally is an alien. That criteria alone makes them illegal aliens regardless if they have been previously deported. This Socialist judge is trying to split hairs by playing fast and loose with the law.

[Blood of Tyrants]

No, just a stupid ruling by stupid judges. That is like saying that BEING in a house that you are burglarizing is not illegal.

[longtermmemmory]

These judges must not have much experience. They are thinking of stealing and criminal possession.

Apples and oranges.

If a criminal breaks into a house the continued presense in the house is not less criminal following in the breaking.

[sono]

Yogi Berra would have authored a more coherent decision. Sheesh!

[Robert A Cook PE]

So who is the idiot who appointed THIS beautiful excuse of a lawyer?

[relictele]

Kewl. So I’m legal at 100 mph as long as my gas holds out.