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.
Ouch.
Ouch.
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).
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.
Trespassing comes to mind, and it’s been used by some communities to arrest illegals.
(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.
“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.”
The Kansas legislature rules like an omnipotent despot. There is no right to referendum or petition in Kansas. In other words, there’s not a dam thing anyone can do about the law and the judges interpretation of same.