Skip to comments.Illegal Presence in US Not A Crime, Court Says
Posted on 08/21/2007 8:14:49 AM PDT by Sub-Driver
Illegal Presence in US Not A Crime, Court Says By Jeff Golimowski CNSNews.com Senior Staff Writer August 21, 2007
(CNSNews.com) - If you can get past the border guards and into the United States, you're no longer violating the law, according to a Kansas Court of Appeals decision.
The ruling comes after an illegal immigrant, Nicholas Martinez, was sentenced to a year in jail after pleading guilty to possession of cocaine and endangering a child. Court documents say Martinez was caught in an undercover sting by detectives in Barton County, Kansas (about 120 miles northwest of Wichita), using his young son to help sell cocaine.
Under Kansas law, the charges (and plea bargain) would have landed Martinez on probation. But the judge in the case said the defendant couldn't be put on probation because of his immigration status.
"Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I place him on probation," court documents quoted Judge Hannelore Kitts as saying. "He has to comply with all the conditions of the probation and he can't do that because he's in violation of the law not to violate any federal or state laws."
The judge then rejected the plea agreement's sentencing recommendation and ordered Martinez to spend a year in jail.
(Excerpt) Read more at cnsnews.com ...
Stealing money is illegal, but once you get the money, you are no longer and are no longer in the process of stealing.
This is like saying, sure it's illegal to rob a bank, but since it's not necessarily illegal to have money, you can keep the loot.
Where do they find these judges?
Next, if you rob a bank and return to your getaway car, you’re home free.
Good grief...rule of law and a judge is saying this...geezzz
At “Judges R Us”.
Being here, in and of itself is not a crime, but it is evidence of a crime.
What this court ruled is that while entering the country is a crime, a continued presence in the country is not a crime because the underlying law dos not address the continuing presence, only the initial act of entering the country.
And as we know, law enforcement can pick and choose what criminals it wishes to apprehend and the courts can pick and choose which apprehendees is wishes to prosecute.
“Next, if you rob a bank and return to your getaway car, youre home free.”
Robbing a bank is a crime but driving away is in itself not a crime. If law enforcement does not wish to apprehend the perp or if the court does not wish to prosecute, there is in effect no justice for the the crime committed.
The law is going to have to be changed to fix this...if the appellate court was correct in it’s findings.
By that logic, someone who overstays a visa violates the law by not exiting the country when the visa expires, but his continued presence in the country after the visa expired is not a crime -- only the initial act of overstaying the visa when it expired. If the continued presence after overstaying a visa is a crime, then the continued presence after illegally entering (without ever getting a visa) is also a crime. Continued presence after entering illegally is EXACTLY the same thing from an immigration status standpoint as overstaying a visa (aside from the fact that the criminal alien who overstays a visa was actually at some point in the country legally).
If you rob a bank, and get away, are you not guilty!
It appears the appellate court made up the distinction.
In its opinion, the court explained that Congress had implicitly created the distinction: "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," said the opinion.It appears the court is saying that since Congress didn't specifically state that staying in the country after entering illegally is a crime that it is implying (that's what an implicit distinction is) that staying after entering illegally is perfectly legal. That is a pretty stupid assumption to make. Unless Congress made an EXPLICIT distinction, the court doesn't have any business creating an implicit distinction out of whole cloth.
Furthermore, if Congress has explicitly stipulated that people who entered the country legally but then overstayed their visas are in the country illegally, then it goes to reason that the continuing presence of someone who entered the country illegally is by definition illegal until that person takes the necessary steps to obtain legal status.
Based on the information provided in the story, this is a terrible ruling and an example of extreme judicial activism.
This is just another in the long line of liberal "decisions" that are being decided in "Berkley on the Plains."
Note to Dorthy and Toto: "Stay in OZ, the Wizard is in charge of Auntie Em's and the rest of the State!"
This is a product of the plague of non-linear thinking that the left is indoctrinating our young people with.
They can’t even see the logical connection between being in the country illegally and the obvious fact that you had to illegally ENTER to BE here illegally.
Trespassing comes to mind, and it’s been used by some communities to arrest illegals.
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