Illegal Presence in US Not A Crime, Court Says

CNS News ^

[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.

[TKDietz]

What a lot of people don’t seem to understand is that it was really tough before to get the feds to actually do anything about illegal immigrants. It wasn’t so much the states not doing their jobs as it was the feds. The feds do seem to be doing a better job though now. Before we would have illegal aliens in our local jail all the time, INS would be notified, and in some cases they’d even put holds on these people, but they’d almost never come and get them when their cases were resolved. The jail would end up having to just let them go because they’d have no state charges to hold them on. If the illegal alien got a state prisons sentence INS was better about coming and getting them when their prison term was completed, but if they were just in a local jail on charges, you couldn’t hardly get INS to come out and pick these guys up. I’m a public defender and I’ve handled tons of cases involving illegal aliens. Local law enforcement don’t like illegal aliens. The jailers don’t care for them either and aren’t out to help these guys. They’d have been tickled to death to see INS actually come out and pick these people up and take them off their hands, but that wasn’t happening.

I am happy to report that at least in my area things have been changing with respect to illegal aliens arrested on state crimes. Those in our jail on pending felony charges will get ICE (used to be INS) holds placed on them and when their cases are resolved ICE will normally come and get them from our jail if they aren’t sentenced to prison on the underlying charges. They don’t mess with people in on misdemeanor charges very often, but it’s still a big improvement to see them come and take the felons away. Maybe some day they’ll actually start deporting all illegal aliens committing new crimes in this country. But since it’s been so hard to get the feds to do anything about the known criminals, the illegals out there breaking other laws besides coming here illegally in the first place, I have real doubts about them ever coming in trying to deport all those illegals who are just out there working and not committing new crimes.

[Stark_GOP]

It’s simple. Congress goofed on this law by not making it a crime to BE in the country illegally, only the act of entering illegally. In this case the appellate court ruled the trial judge was incorrect in his decision about tying the perps parole to his illegal status after the trial because there is no law that makes being in the country illegal.
There are exceptions, like being here after a deportation, but that does not seem to be the situation in this instance.

---

I was making a joke.

[coloradan]

Bingo. At the instant of crossing an arrest can be made. Once both feet are in this country, it’s no longer an “entry” but merely “presence,” which is no longer illegal.

[varyouga]

Being in the country illegally is evidence of committing a crime. Duh

[apocalypto]

that judge is in desperate need for psychiatric treatment.

[Kevmo]

For your AFIRE ping list. This is just plain nuts.

[bcsco]

This is a ping list promoting Immigration Enforcement and Congressional Reform.
If you wish to be added or removed from this ping list, please contact me.

[VOA]

I wouldn’t be surprised if Senator Brownback approves of the decision.

Of course, he might change his mind 10 minutes after voting for it...

[VOA]

This is a step on the road to “shamnesty” (de facto amensty).
Just what I expected after the “comprehensive immigration reform” got
b-tch-slapped twice due to the public outrage.

The lawyers and courts will eventually get a decision that is clearer...
if you break into the USA, don’t get caught, and the statute of
limitation runs...you can’t be deported.
Then automatic citizenship and benefits will be rationalized and
institutionalized in some further de facto scheme.

[r9etb]

It will be interesting to read the actual decision, as opposed to reporter Jeff Golimowski's attempts to report on it.

To his credit, Golimowski provides a link to the decision.

How many folks on this thread will read the decision before commenting on it, do you s'pose?

[cosine]

The answer is that state legislatures haven’t necessarily made it a state crime to be in the state illegally. As a local sheriff where I live pointed out, if I put all of the illegals I have in jail and put them on a bus for the border, I would be guilty of kidnapping.

States have always figured that the federal government is responsible for the who comes in and out. This is why it is perfectly fine for illegals to rent homes, have bank accounts, and so on.

[marron]

While it is illegal to enter the country without the proper documents and permissions, it is not necessarily illegal to be in the country.... "The mere fact that you're in Kansas illegally does not mean, at least according to this opinion, that one of our District Court judges can impose a prison sentence as opposed to probation after you've been convicted of a felony offense."

If you are capable of drawing those kinds of distinctions and conclusions, you aren't fit to serve as a judge.

[AliVeritas]

ping

[r9etb]

Good grief...rule of law and a judge is saying this...geezzz

Read the decision. He discusses the seeming incongruity:

Those persons who enter this country illegally are subject to deportation. 8 U.S.C. § 1227 (2000). Martinez' counsel acknowledged this possibility at the plea hearing. Deportation may be based upon any number of factors, including the alien's initial entry into this country contrary to law or acts while in this country, such as the commission of certain crimes. However, while an illegal alien is subject to deportation, that person's ongoing presence in the United States in and of itself is not a crime unless that person had been previously deported and regained illegal entry into this country. See United States v. Rincon-Jimenez, 595 F.2d 1192, 1193-94 (9th Cir. 1979). As noted by the United States Supreme Court in United States v. Cores, 356 U.S. 405, 408 n.6, 2 L. Ed. 2d 873, 78 S. Ct. 875 (1958), when it commented on 8 U.S.C. § 1325 and similar statutes: "Those offenses are not continuing ones, as 'entry' is limited to a particular locality and hardly suggests continuity."

Look at the dates on those cited decisions: the judge isn't doing anything particularly new or novel here. The relevant USSC decision dates back to the Eisenhower administration.

One might reasonably conclude that the existing law is flawed and needs to be changed.

However, the judge appears to be following the law and the previous decisions that apply. Rule of law, indeed.

[r9etb]

The answer is that state legislatures haven’t necessarily made it a state crime to be in the state illegally.

I don't think that states have jurisdiction on the matter. I can't provide any cites, but I have to think the issue has been resolved by the courts at some point.

[sanjacjake]

Any comments yet from Rush or O’Reilly yet? Must
be a Clinton appointee...JK

[penowa]

Kirsten Powers and the Democrats are correct then. All illegal aliens have human rights to be here and stay here if they can get here until the SC says otherwise (good luck on that one.)

http://www.freerepublic.com/focus/f-news/1884268/posts

And I thought Soros and the "open borders" agenda he and the UN promotes were just B.S. and it's already more than likely "settled" law. We're farther along the path to all those illegal aliens with their Mexican flags who marched in our streets recently being legally declared voters!

[Jabba the Nutt]

Bingo!

[penowa]

"Where do they find these judges?"

Jimmy Carter, Bill Clinton, George Bush the Elder, Ronald Reagan (some), George Bush the Younger (some more). They are being mass produced by every law school in this country (save 2 or 3 max.)

[marron]

The judge's ruling is incoherent.

Interestingly, one of the recommended probation conditions was a travel restriction, i.e., Martinez would have been required to remain within a 100-mile radius of his residence in Kansas unless he had the permission of his court services officer. Further, he would have been prohibited from leaving Kansas without the written permission of his court services officer. Thus, it is readily apparent that fulfillment of the statutorily mandated and additional recommended probation terms would have been inconsistent with Martinez continuing to reside in this country as an illegal alien throughout the term of his probation if he had previously been deported and had since reentered this country illegally.

The judge points out that, if he were in the country illegally, it would be impossible for him to fulfill the requirement that he not leave the state. Lets leave aside the laughable notion that, having entered illegally, he is no longer here illegally (if he's not here illegally, by what right does INS deport him?). The requirement is that he remain in Kansas during his probation. This means that being deported would itself violate the terms of his probation, as it would remove him from the state of Kansas. He would be unable to keep in contact with his court-appointed minders, and would now be subject to arrest for violating his probation except that he can't be arrested... he's out of the country. So is he now a fugitive from Kansas law?

The right answer would be for the court to offer to suspend his sentence and remand him to INS custody, but somehow that probably would not pass muster with the appellate court. If you don't want to enforce the law, there are a thousand reasons for not enforcing it.