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Court: Just being in U.S. isn't illegal
The Wichita Eagle via Kansas.com ^ | uesday, Aug 21, 2007 | BY DION LEFLER

Posted on 08/21/2007 4:27:35 AM PDT by 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.

(Excerpt) Read more at kansas.com ...


TOPICS: Crime/Corruption; Culture/Society
KEYWORDS: aliens; blackrobedtyrants; illegalimmigration; immigrantlist; immigration; judicialactivism; liberalism; liberals; obl
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To: raybbr
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.

I have to agree with the ruling. It seems like a nice ty by the prosecutor or probation office, but one that should fail. The way I read it, they wanted to say he violated probation, but the only thing they could find was that he was still in America after the illegal crossing. His probation must obviously be connected to a crime committed after he crossed illegally, so they're trying to pin a probation violation on him for something he did before he was ever placed on probation. That's not a good can of worms to open, in my opinion. Only the sanctimonious punish-everyone-for-anything-you-can crowd could really support an idea like that.

Now, if the legislatures wanted to make it a crime to stay here and simply breathe, that would be a different story... but I'm not terribly sure that they should. Remember, any time they open a new kind of rule, they expand on it until it becomes nearly universal. Government never contracts its scope of authority.

61 posted on 08/21/2007 6:16:49 AM PDT by Teacher317
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To: raybbr
Amazing.

I've sent this up a bit here.

62 posted on 08/21/2007 6:22:23 AM PDT by BibChr ("...behold, they have rejected the word of the LORD, so what wisdom is in them?" [Jer. 8:9])
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To: raybbr

Robbing the bank is illegal -

however, if you just HAVE the money stolen from the bank, that’s not illegal.


63 posted on 08/21/2007 6:25:31 AM PDT by MrB (You can't reason people out of a position that they didn't use reason to get into in the first place)
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To: raybbr


64 posted on 08/21/2007 6:46:28 AM PDT by lowbridge ("We control this House, not the parliamentarians!” -Congressman Steny Hoyer (D))
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To: Stallone

Your point about a home break in is well taken. But allow me to play devil’s advocate for just a moment (no, not the video game). Is a bigamist breaking the law when he lives with his second concurrent wife, or just when he marries her?

Not trying to stir up a hornets nest here!


65 posted on 08/21/2007 6:54:48 AM PDT by wolfinator
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To: raybbr

Thanks for the PING


66 posted on 08/21/2007 7:27:51 AM PDT by hedgetrimmer (I'm a billionaire! Thanks WTO and the "free trade" system!--Hu Jintao top 10 worst dictators)
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To: Man50D
"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."

I think you are missing the point. Where in the above does it say that the guy's mere presence is itself a crime? It says it's illegal to hire an illegal alien. Yes, he committed a crime to get here. Yes, he can be prosecuted for that. But no, his presence in the U.S. isn't a separate crime (according to the appeals court's interpretation of the law).

BUT as I said, that's irrelevant. They aren't enforcing or failing to enforce Federal law. They are ruling on a state drug case and nothing more.

67 posted on 08/21/2007 7:30:34 AM PDT by BearCub
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To: raybbr

“While unauthorized bank withdrawals are illegal, having the stolen money after a bank robbery is not necessarily a crime, according to a new ruling by the Kansas Court of Appeals.”


68 posted on 08/21/2007 7:35:11 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: Travis McGee
“While unauthorized bank withdrawals are illegal, having the stolen money after a bank robbery is not necessarily a crime, according to a new ruling by the Kansas Court of Appeals.”

Actually, stealing and possession of stolen property are two separate crimes. If possession wasn't made illegal by a specific law it wouldn't be, um, illegal.

69 posted on 08/21/2007 7:37:36 AM PDT by BearCub
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To: MrB
however, if you just HAVE the money stolen from the bank, that’s not illegal.

You would of course be wrong about that.

70 posted on 08/21/2007 7:46:24 AM PDT by BearCub
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To: BearCub
Actually, stealing and possession of stolen property are two separate crimes. If possession wasn't made illegal by a specific law it wouldn't be, um, illegal.

Possession is a separate crime to cover fences and others. A bank robber is not absloved of the robbery, and cannot keep the money.

71 posted on 08/21/2007 7:48:54 AM PDT by Travis McGee (--- www.EnemiesForeignAndDomestic.com ---)
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To: Travis McGee
A bank robber is not absloved of the robbery, and cannot keep the money.

That's right. I'm not sure how that applies here.

The trial court sentenced the guy to jail specifically because "being here" is illegal. Well "being here" isn't a crime. That's what the appeals court is saying. The trial court should have sentenced him to jail because he committed the crime of illegal entry. Or "just because". By citing a specific and invalid reason, the trial court screwed up.

72 posted on 08/21/2007 7:53:53 AM PDT by BearCub
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To: BearCub

I think we’re seeing the results of a public schooling.

Let’s see, it’s illegal to enter an area, but “being in” the area isn’t illegal,

but somehow, being in the area can’t directly be used as evidence to the act of entering illegally?

This would be called “non-linear thinking”.


73 posted on 08/21/2007 7:57:48 AM PDT by MrB (You can't reason people out of a position that they didn't use reason to get into in the first place)
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To: raybbr
A Court of babbling d*mn fools.

The act of trespassing is a crime, but remaining on the premises forever there after is not a crime?

TSK! TSK! TSK!

74 posted on 08/21/2007 8:06:05 AM PDT by F.J. Mitchell (Will some genius please invent beer containers, that self destruct ten seconds after being emptied?)
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To: MrB
Let’s see, it’s illegal to enter an area, but “being in” the area isn’t illegal, but somehow, being in the area can’t directly be used as evidence to the act of entering illegally? This would be called “non-linear thinking”.

From a legal standpoint you are simply wrong.

Congress made it illegal to make unsanctioned entry into the country (8 U.S.C. §1325).

Congress made it illegal to be in the country after being deported for entering illegally (8 U.S.C. §1326).

If Congress had wanted to, it could have made presence in the country a crime after illegal entry. Instead, it only made it a crime if you have once been deported. Your interpretation of the law (that I'm quite sure you haven't read) would make 8 U.S.C. §1326 superfluous. As I'm sure you know, laws are to be read so as to not conflict with each other or make each other nonsensical or meaningless.

75 posted on 08/21/2007 8:06:54 AM PDT by BearCub
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To: MrB
but somehow, being in the area can’t directly be used as evidence to the act of entering illegally?

I never said that. In addition, he isn't being charged with entering illegally. If he was, then OF COURSE "being here" is evidence of illegal entry.

76 posted on 08/21/2007 8:08:46 AM PDT by BearCub
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To: Loyal Buckeye
Insanity, if true.

Alas, true.

77 posted on 08/21/2007 8:10:49 AM PDT by Non-Sequitur (Save Fredericksburg. Support CVBT.)
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To: Man50D

None of that contradicts what the court said. It’s a crime to assist illegal aliens to stay here, but the act of being here is not a crime in and of itself. Quite a loophole which Congress should rectify in the next session.


78 posted on 08/21/2007 8:13:45 AM PDT by Non-Sequitur (Save Fredericksburg. Support CVBT.)
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To: Non-Sequitur
You're right.

I think these guys haven't read the opinion or the laws that apply in this case. Perhaps they can go read the opinion before making silly arguments.

79 posted on 08/21/2007 8:17:32 AM PDT by BearCub
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To: raybbr

So robbing a bank is illegal, but spending the money is OK? Is that how this logic works?


80 posted on 08/21/2007 8:19:29 AM PDT by toddlintown (Six bullets and Lennon goes down. Yet not one hit Yoko. Discuss.)
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