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.

[PEACE ENFORCER]

"I believe the 14th Amendment says that illegals charged with such a felony would have a right to trial, etc."

WOW it's broken thinking like this that has blurred the line of our Constitution that liberals have twisted to the current rule of law. Illegals should have No legal standing under the Constitution and they DEFINATLY don't get ANY under the 14th Amendment. Period (this is just my opinion though....:))

[Sub-Driver]

mind boggling isn’t it....

[r9etb]

WOW it's broken thinking like this that has blurred the line of our Constitution that liberals have twisted to the current rule of law.

Don't shoot the messenger: it's been that way since the US Supreme Court decided that way, back in 1898.

Now look at what you're really saying ... put yourself in a different country -- let's say England, just to keep things somewhat familiar -- and assume that a cop decides to look askance at you.

As you know, an English citizen enjoys certain protections from the excesses of government, especially including its law enforcement arm. I'm sure that you, a non-citizen, would be all in favor of those protections being extended to you as well, once you were placed into their legal system.

If you were to make an argument that you deserved such rights, I think you -- like most of us -- would start out by stating the principle that a person has certain inherent and unalienable rights, and that any valid system of law is bound to recognize them. That would include things like the right to due process of law. A person doesn't lose those unalienable rights simply because he crossed the border illegally, and we should not suppose that we can abrogate them.

I really don't like the idea that those unalienable rights can abrogated "because that person is illegal." It's too easy, once you do that, to think up other "becauses."

But again, the whole idea of making "being here" a felony, would simply swamp the legal system, to no good end. We can already deport illegals, and it's already a felony to come back once you've been deported.

[metmom]

I agree, but it probably means it’s the least likely thing to happen, then.

[JasonC]

Nope, first judge was right and second is a jackass. There is no such thing as a law abiding illegal alien. And that is the category the second judge is magically trying to conjure into existence. Like a round square, it is a contradiction in terms, and trying to wish it into existence is futile sophistry.

[Revolting cat!]

Where is Joe Palooka when we need ‘im?!

[dragnet2]

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

So people that enter illegally are criminals, but if they stay for a few seconds, they are no longer criminals or here illegally...

It makes perfect sense to me

[Starstruck]

An activist judge would have ruled differently using common sense rather than interpreting the law. That is why people on Free Republic are always calling for activist judges to be placed on the SCOTUS. /s

[PEACE ENFORCER]

This is the twisted ruling this foundation is built on:
.
A 3 Panel Appellate Court said entering the Country was Illegal but being in the country illegally is not necessarily a crime based on a 1958 Court Case. bla bla bla bla, our court system sucks (this is beyond broken)

[supercat]

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.

If the INS were to deport him, federal supremacy would render any state charges of violating his probation moot: a state cannot forbid someone from doing something the federal government requires.

On the other hand, if he leaves the state without leaving the country, federal supremacy shouldn't protect him. He can't very well argue that federal law requires him to go some other state unless the government explicitly directs or forces him to do so (e.g. to attend court or prison in another state).

[supercat]

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.

Do Kansas and the federal government have catch-all unjust enrichment statutes? I would think they do. If that is the case, what basis is there for inferring this "implicit distinction"?

To my mind, part of the reason for not having existence in this country be a felony in and of itself is that, for the most part, we don't want to chase after illegal aliens who go home of their own accord. If merely being an illegal alien were a felony, that would suggest that the federal government must either expend considerable effort trying to identify everyone who has been here illegally--even if they've already left--or else overtly ignore millions of felons. Neither approach would particularly favor the rule of law.

[edsheppa]

I prefer non-activists judges who read the law as written and leave it to the legislature to write the law and repair loopholes. I should have thought you would too.

The full article mentions a 1958 case that addresses a very similar issue. Now maybe that decision and others are in error, but don't you think if Congress disagreed with that ruling it would have acted in the fifty years since?

[JasonC]

No, I think sophists are splitting hairs and bending themselves into pretzels because they will say anything and do anything rather than admit that illegals are here illegally, and that their ideological winking at it, is utterly lawless. And an utterly lawless judge is a pontificating absurdity with no authority over anything.

[edsheppa]

No, I think sophists are splitting hairs ...

The appeals court is just upholding precedents like that 1958 case I mentioned. I read part of it and it seemed very relevant. Do you think the appeals court should simply ignore those past decisions?

[JasonC]

I think the appeals court should uphold the clear common sense of the lower, and shut the heck up.

And I think the reason they don't has nothing whatever to do with hunting through 50 years of law books seeking the stupidest decision they could find, and everything to do with maintaining the Party Central Committee line on the matter, that no law or obstacle or barrier shall run, between a potential Party Voter and the booth.

And when judges ignore law, which is all they are doing, they are not judges and we should all flat ignore them.

[Cacique]

btt

[rmlew]

Sadly you would have to bar every member of the Bar.
This type of lunacy is the cornerstone of modern American law.

[2ndDivisionVet]

Demand a border fence! Build it NOW!! Beef up the border patrol and close our borders! Stop the DREAM Act!!

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[Edgerunner]

At the heart of almost every absurdity, lies a liberal.

[r9etb]

And when judges ignore law, which is all they are doing, they are not judges and we should all flat ignore them.

And yet the decision spent a lot of time examining relevant law and precedent as they related to the specifics of this case.

Did you read the decision? If not, how can you say what the judges did or did not do? And if so ... well, I don't know what to say, then.