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.
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.
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.