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KS Court: Illegal Presence In US Not A Crime

From CNS News:

Illegal Presence in US Not A Crime, Court Says

By Jeff Golimowski
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.

“I don’t want to speak for her, but the judge obviously believed there was an inconsistency in placing him on probation when one of the first things he would have been told was to obey the law,” said Barton County Attorney Douglas Matthews.

But on appeal, a three-judge panel threw out the sentence, based on an apparent contradiction in U.S. law. While it is illegal to enter the country without the proper documents and permissions, it is not necessarily illegal to be in the country.

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.

The court also cited previous cases, including a 1958 Supreme Court case, which found that laws regarding illegal entry into the country “are not continuing ones, as ‘entry’ is limited to a particular locality and hardly suggests continuity.”

Because the judge hadn’t determined whether Martinez had been deported previously, the appeals court ruled she had no legal basis to deny probation, since simply being in the country isn’t necessarily a crime.

A pre-sentence investigation by the court did not find any evidence Martinez had been previously deported.

Matthews said this is one of if not the first time this issue has been brought before a Kansas court, though similar cases have been heard in Oregon and Minnesota with similar results. He said he doesn’t necessarily believe the ruling will have far-reaching effects, as the language of the opinion was extremely narrow.

“The Court narrowed the conditions under which (Martinez) could be imprisoned for his violation of Kansas law,” said Matthews. “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.”

Prosecutors have 30 days to appeal the ruling to the Kansas Supreme Court.

This is simply insane.

… Isn’t it?

This article was posted by Steve on Tuesday, August 21st, 2007. Comments are currently closed.

16 Responses to “KS Court: Illegal Presence In US Not A Crime”

  1. richardsmith says:

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  2. crosspatch says:

    It isn’t a crime until you have had a hearing. If you are here and didn’t follow procedure, you are entitled to a hearing. Simply being here is not a crime. At that hearing a judge can determine if you are allowed to stay or must leave. If it is determined that you must leave (a deportation order is issued) and you don’t leave, THEN you have committed a crime. Or, if you have been deported and show up again, you are a criminal. But just being here isn’t a crime, no.

    Actually, I have been trying to tell people this for a couple of years now. It isn’t a crime until you are told to leave and don’t or you are deported and come back without following channels. Also, the judge at the hearing has the power to allow the immigrant to stay. So it is possible to be “caught”, go before a judge at an immigration hearing, and have the judge allow you to stay with no penalty.

    That is one of the reasons why it is impossible to deport the X million number of illegals we have here. If every single one of them requested a hearing, it would take 50 years to clear the backlog of cases just from the number of illegals here today. Deporting all the illegals in this country today is a physical impossibility. Besides wrecking the economy even more, it would simply not be possible to process that many people in our lifetimes. And I believe that is how Ronald Reagan intended it to work when that process was made law.

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