Illegal Presence in US Not A Crime, Court Says

**Elle** · 08-21-07, 12:59 PM

Illegal Presence in US Not A Crime, Court Says
By Jeff Golimowski
CNSNews.com Senior Staff Writer
August 21, 2007

(1st Add: Includes comments from Barton County Attorney Douglas Matthews.)

(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.

If you enter illegally, then you're here illegally plain and simple in my book. Just my 2 cents worth.

**lewisipso** · 08-21-07, 02:35 PM

WTF? Someone help me with this please. How is a person on American soil illegally able to have the same rights as I do?

**rob84** · 08-21-07, 02:35 PM

Reminds me of that shirt " What part of ILLEGAL don't you understand?"

**BigDawg** · 08-21-07, 02:44 PM

All I can say is WOW!!!

**Motorwaycop** · 08-21-07, 02:45 PM

Looks like I can move to Kansas then, who needs them green card thingies anyway!

**Elle** · 08-21-07, 02:55 PM

This made me wonder, why the hell do we have the immigration process anyway? Come on over people!

**SaraJ** · 08-21-07, 02:57 PM

I don't get this at all!! Why wasn't he deported? Why wasn't he deported the minute it was discovered he was illegal thus saving the US the court and jail costs? How can it be illegal to cross the border without documents but not illegal to live in the US without documents? And if that's the law, then all the "illegals" aren't illegal, are they? What a mess!!

**Star Man** · 08-21-07, 05:10 PM

So by that logic,,,,,, if you rob a bank and make it home, and manage to spend the money before it's found on you then your free. Nothing illegal. So what do we call them now? The people formerly known as illegals?? I'll bet Prince would not like anybody else going by the "formerly known as" moniker.

Oly Oly Oxen Free.... I touched base and I'm home safe! You can't get me!

**jmur5074** · 08-21-07, 06:20 PM

The United States of America - AKA - "The Sanctuary"

**countybear** · 08-21-07, 09:00 PM

I'm thinking Federal Courts are going to have a field day with this. By the time they are finished, these judges will be wiping their ass with their robes.

**Ducky** · 08-21-07, 09:38 PM

Originally Posted by countybear

I'm thinking Federal Courts are going to have a field day with this. By the time they are finished, these judges will be wiping their ass with their robes.

Not only that, but there may be some serious immigration reform to come of it. We can hope, at least.

**adroitcuffs** · 08-21-07, 09:45 PM

Originally Posted by countybear

I'm thinking Federal Courts are going to have a field day with this. By the time they are finished, these judges will be wiping their ass with their robes.

We can only hope!! Reading the decision, I would have thought it came from the 9th Circuit Court in California. This is absolutely insane. It is a slap in the face to all of the law abiding people in the US who are living within the law to seek out the "American Dream". Sadly, because of the negative impact of illegal immigration, I'd say it's becoming more the "American Nightmare".

**Big Sexy** · 08-21-07, 11:20 PM

Originally Posted by lewisipso

WTF? Someone help me with this please. How is a person on American soil illegally able to have the same rights as I do?

Fourteenth Amendment of the Constitution: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This represented Congress's reversal of that portion of the Dred Scott v. Sandford decision that declared that African Americans were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. The Civil Rights Act of 1866 had already granted U.S. citizenship to all people born in the United States; the framers of the Fourteenth Amendment enshrined this principle in the Constitution in order to stop the Supreme Court from ruling it unconstitutional for want of congressional authority to pass such a law, or from a future Congress altering it by a bare majority vote.

However, the phrase and subject to the jurisdiction thereof indicates that there are some exceptions to the universal rule that birth on U.S. soil automatically grants citizenship. The following persons born in the United States are not considered "subject to the jurisdiction [of the United States]", and thus do not qualify for automatic citizenship under the Fourteenth Amendment:
Children born to foreign diplomats;
Children born to enemy forces in hostile occupation of the United States;
Children born to Native Americans who are members of tribes not taxed (these were later given full citizenship by the Indian Citizenship Act of 1924).
The following persons born in the United States are explicitly citizens:
Children born to US citizens;
Children born to aliens who are lawfully inside the United States (resident or visitor), with the intention of amicably interacting with its people and obeying its laws.
The Supreme Court's ruling in Plyler v. Doe[3] stated that illegal immigrants are "within the jurisdiction" of the states in which they reside, and added in a footnote that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." Some legislators, reacting to illegal immigration, have proposed that this be changed, either through legislation or a constitutional amendment.

**Terminator** · 08-21-07, 11:25 PM

ATTENTION ILLEGALS: MOVE TO KANSAS!!!!

**Big Sexy** · 08-21-07, 11:26 PM

Originally Posted by Elle

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.

While this court may be versed in Kansas law, the really don't seem to have a grip on this aspect of federal law. Once a person enters illegally, they remain illegal, unless given some sort of relief, if they qualify by either the EOIR, (Executive office of Immigration Review) or they qualify for a benefit, benefit meaning a permanent resident card, as determined by USCIS.

They do not, by their lack of proximity from a border of the United States, magically become legal on their own or by this or any other courts decision.