No, that is NOT what the judge said. Not even close. Read the decision: it's linked above, and also in the article.
The judge cites a 1958 US Supreme Court decision which differentiates between the singular criminal act of illegally crossing the border; and the continued presence of an illegal immigrant after he has arrived.
The court noted that illegal immigrants are subject to punishment (i.e., deportation) for the singular criminal act. They are not subject to additional punishment just for being here, unless they've already been deported in the past.
As noted above the judge made a distinction based on whether or not Martinez was subject to USC 1325 if he hadn't been previously deported; and USC 1326 if he had been previously deported.
This may well highlight a loophole in USC 1325 with regard to granting probation to convicted felons in Kansas.
However, if you tried to close that loophole by making it a felony just to be here, even if you haven't been previously deported ... you'd end up swamping the criminal courts; and besides that, in most cases the response would be no different from what it's supposed to be now: deportation. Imprisonment would be utterly impractical.
I have read the decision of the appellate judge several times and agree that in his mind he believes that this alien broke the law by crossing the border illegally but no by being here (illegally in my opinion).
However, it is my contention that the trial judge believes that he is here illegally and had to factor that into his decision on probation vs jail time.
IMO the appellate judge negates the illegal border crossing act by overruling the trial judge. I am trying to split hairs (in reverse) here to show the appellate judge’s decision to split hairs to be flawed.
I do believe u and I agree more on this issue than disagree.