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 ...
Just damn.
(b) Improper time or place; civil penalties Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of -
(1) at least $50 and not more than $250 for each such entry (or attempted entry); or
(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.
“But on appeal, a three-judge panel threw out the sentence, based on an apparent contradiction in U.S. law. While it is illegal to enter the country without the proper documents and permissions, it is not necessarily illegal to be in the country.
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.
The court also cited previous cases, including a 1958 Supreme Court case, which found that laws regarding illegal entry into the country “are not continuing ones, as ‘entry’ is limited to a particular locality and hardly suggests continuity.”
Because the judge hadn’t determined whether Martinez had been deported previously, the appeals court ruled she had no legal basis to deny probation, since simply being in the country isn’t necessarily a crime.
Prosecutors have 30 days to appeal the ruling to the Kansas Supreme Court.”
“Just damn.” Got that right!
God help us!
WTF????????
The plague of outcome based legal decisions by a politicized judiciary is exacerbated by the useful fools on the bench; it’s hard to tell the difference between the hard core leftists and the merely deluded or confused.
It’s a subtle distinction but I think you nailed it. If they are a visa overstay its not criminal, but if they entered illegally in the first place the offence continues.
The only questions would be A: Statue of limitations, and B: Venue, as the alien could only be prosecuted in the federal district where the crime was committed.
You don’t get it. Robbing the bank was a crime, going home and watching TV after is not a crime. You can prosecute him for the robbery, but not watching TV in his home while holding the loot.
The court ruled the law does not specifically address a continued presence in the country AFTER the initial crime was committed.
I don’t get it. Why wasn’t this perp handed over to federal authorities after his trial for prosecution of entering the country illegally?
This is the problem and why this decision is even considered.
No it's not. Go read the federal law on this. There is a loophole. Being in the country after entering illegally IS NOT a crime.
What the........?
No, but if you rob a bank and don’t get arrested for it, and then break another law and get put on probation for that, they cannot revoke your probation for robbing the bank because you didn’t break that law while you were on probation. They can only revoke your probation for violating the terms and condition of your probation while you are on probation. They can probably still charge you for robbing the bank though, if the statute of limitations hasn’t run. It would be a new charge for an old crime. But even if you are charged for robbing the bank before you were put on probation, the court cannot revoke your probation for that because it happened before you were put on probation. The question in this case is whether one is technically breaking the law by being here or if he just broke the law by coming into this country in the first place, or overstaying his visa. It may be that technically the only crime is overstaying a visa or entering this country illegally. I don’t know the answer to that one. I would think though that that just being here should at least be some form of trespassing. My gut tells me that it is still a crime to remain here after the initial crime of entering this country illegally or overstaying a visa. This case might make it all the way to the US Supreme Court. It will be interesting to see how it turns out. If it turns out that technically it is not a crime to just be here after illegal entry then the government can just make it a crime. It’s not that big of a deal.
“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.”
If there was evidence that the perp had committed almost any other federal crime, there wouldn't be a question. That local and state courts could care less about enforcing this particular federal crime is the basis of the problem we have with illegal immigration.
Local, State and federal law enforcement and justice couldn't care less.
There are exceptions, like being here after a deportation, but that does not seem to be the situation in this instance.
Let me try to wrap my mind around this argument, and the logical outcomes of it. If someone has entered this country illegally it’s a crime, but continued presence in the country of someone who entered illegally is not. Therefore, if an illegal alien manages to evade capture and prosecution until the statute of limitations runs out on the illegal entry (seven years?) he or she is automatically a legal resident? Common-law residency? A rolling amnesty?
I was thinking the same thing. It is illegal to rob the bank but not to have the money.
Not exactly what I would call implicit.
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