Kansas Court: Illegal Immigrants Not Really Illegal; Media Outcry Pending

By Craig Bannister (Bio | Archive)
August 21, 2007 - 15:31 ET

A Kansas court of appeals has ruled that it's illegal for an illegal alien to enter the country, but not illegal for an illegal alien to be in the country if the illegal alien can illegally make it past the Border Patrol without getting caught.

Huh? What? I like to think I can wield the mighty power of semantics with the best of them - but, huh? What? I thought the "illegal" in illegal alien spoke for itself. Apparently not.

Ruling that it is illegal to enter the country without the proper documents and permissions, but it is not necessarily illegal to be in the country if you don't get caught upon entry, the court threw out the sentence of an illegal immigrant who pleaded guilty to possession of cocaine and endangering a child.

So, does this mean that it's now illegal to rob a bank, but not illegal to have and spend the money if you can get past the bank guards without being caught? It's illegal to commit a crime, but you're not a criminal if you get away with it, I guess the appeals judges reasoned.

I'm waiting on the outcry from the mainstream establishment media over this leap of legal logic that has put our country's safety at risk, put an admitted drug possessing child threatener back on the street, and set a dubious precedent.

Any second now...


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W T F

August 21, 2007 - 15:40 ET by PK

nuff said.

C

Craig, you beat me to it. 

August 21, 2007 - 15:42 ET by TheConservativeChemist

Craig, you beat me to it.  So now, I can murder someone and if the cops never catch me, it wasn't "ilegal".  Got it.

More nuttiness from the Communist America-hating lefty Democrats.

 

"Yesterday's Communists are Today's Democrats....

Yesterday's Democrats are Today's Republicans..." - An analogy made by *ME*

Get away with murder

August 21, 2007 - 16:05 ET by tpmintx

So now, I can murder someone and if the cops never catch me, it wasn't "ilegal".

Only if they stay dead....

Cop1: There's a dead guy here.
Cop2: Yeah, somebody got away with murder.

"Mr. Martinez is illegally

August 22, 2007 - 11:43 ET by kg

"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.

Ok... so if I can sneak

August 21, 2007 - 15:44 ET by MightyMouth

Ok... so if I can sneak into your house without you knowing it, I have a legal right to be there and you can't force me out?

Are todays Judges all romper room rejects?!?!

"There are two types of people in this country; those who provide freedom and those who enjoy it." MM says...

Mighty...great example

August 21, 2007 - 15:45 ET by LionKing

MM...great analogy. Hopefully the prosecutors will use your very example when they appeal this decision. This is PERFECT!

Confounding...

August 21, 2007 - 15:43 ET by LionKing

All I can say is that the good people of Kansas might want to start an investigation into the qualifications of these judges. I mean, seriously, they seem to lack even common-sense.

I wonder what their party affiliations are.

If conservatives are RIGHT, then liberals must be WRONG.
Thompson/Rice

One word. "Impeach!" Save

August 21, 2007 - 15:48 ET by bassndude

One word. "Impeach!"

Save a SeAL, club a liberal!!

Look at the charges

August 21, 2007 - 15:50 ET by landshark

Illegal alien pleads guilty to cocaine possession and endangering a child, and the court tosses the sentence because it's not illegal to be in the country illegally?!

 What does one have to do with the other?

wackos

August 21, 2007 - 15:56 ET by iveseenitall

When I worked in the world of education, I would scatch my head every day as I listened to the illogical, liberal wackos. I knew the sickness was contagious and would someday be unleashed in the world. Here it is. God help us.

NEVER,NEVER trust a "liberal"

I'm sure it was found to be

August 21, 2007 - 15:58 ET by ErgoDyne

I'm sure it was found to be illegal to prosecute an illegal immigrant that is here legally. :P 

"If you don't read the newspaper you are uninformed, if you do read the newspaper you are misinformed." - Mark Twain

partial retraction

August 21, 2007 - 16:05 ET by landshark

Okay, based on the content of the article, I'll concede that it makes sense to vacate the sentence if (and that's a BIG if) you can swallow the premise that being in the country illegally is not illegal.

This decision is bizarre enough to have come from the 9th Circuit.

Ninth Circuit

August 22, 2007 - 10:50 ET by Kansas Flyer

The decision is nutty enough for the 9th Circuit becasue of the following (taken from an article in the Wichita Eagle):

"McAnany cited a 1958 U.S. Supreme Court decision and a 1979 ruling by the U.S. 9th Circuit Court of Appeals, both of which separated the act of entering the country from the act of being in the country."

That would explain the "nuttiness" of the decision.

Depends on what is IS.

August 22, 2007 - 10:52 ET by Sergeant ROCK

Depends on what is IS.

Ninth Circus...

August 22, 2007 - 10:55 ET by LionKing

So, they based their decision on the Ninth Circus, the most overturned Court of Appeals.

As I said yesterday, I hope the good people of Kansas investigate these judges.

MighyMouth had a good analogy yesterday also...If I break into your house, I do not have to leave once I am there, right?

 

If conservatives are RIGHT, then liberals must be WRONG.
Thompson/Rice

Ninth Circus

August 22, 2007 - 18:40 ET by Kansas Flyer

<<As I said yesterday, I hope the good people of Kansas investigate these judges>>

 I intend to do that very thing!!!!

Let's have a little fun, and chew this over

August 21, 2007 - 16:20 ET by KC Mulville

Well, it's a bit complicated, but it's not as ridiculous as it sounds. It does point, however, to how difficult it is for the law to deal with the circumstances we find ourselves in.

  • Start with an illegal alien coming into the country. He has broken the law. That's one strike.
  • Now suppose that he's in the country for awhile. Is his continued presence in the country a second strike? Does he commit a new crime every morning that he wakes up?
    • The law says no. If you steal a loaf of bread, for example, that's only one crime. Having the loaf of bread .. after you steal it ... isn't a second crime.
    • If you get deported and come back, that's different. Then, your continued presence is itself a crime. (Note: I'm not sure what the logic is for this, but it's how the statute reads.)
  • In this case, Martinez was caught with drugs and found to be in the country illegally. In processing the drug case, Martinez was hoping to get probation. Instead, the judge read the sentencing guidelines, and decided that Martinez's continued presence in the country was itself a crime (the second strike), and denied the probation. The appellate court said that under the text of the law, Martinez had a point: he hadn't committed a second crime by merely being in the country.

In my opinion (and I'm no lawyer), the problem is with the sentencing guidelines. Martinez was convicted on cocaine, and he was an illegal alien. He should have expected to be deported for that alone. While he does have rights, he shouldn't enjoy the privilege of exploiting what looks like a loophole.

Concerning having the loaf

August 21, 2007 - 16:42 ET by ErgoDyne

Concerning having the loaf of bread, is that not considered possession of stolen goods?  I think that's illegal, right?

As for the other, yes, I think that everyday an illegal immigrant wakes up in the US is a crime.  Anything they do that day will violate the law, right?  Sure there are a few exceptions, but for the most part no matter what they do, they will break a law (or 30).

"If you don't read the newspaper you are uninformed, if you do read the newspaper you are misinformed." - Mark Twain

The Kansas text disagrees

August 21, 2007 - 16:54 ET by KC Mulville

Mind you, I'm not agreeing with Kansas. But that seems to be how the law reads, at least on immigration.

It does raise some philosophical issues, most of which I find comical. For example, if you eat the bread that you stole, are you guilty of destroying evidence? If you keep the bread for five days and it goes stale, does that count against you? I can see the wisdom of separating the 'crimes.'

And they scoffed at the monks who debated how many angels danced on the head of a pin ... at least the monks didn't charge $500 an hour for their speculations ...

 "Destroying evidence" 

August 21, 2007 - 17:44 ET by ErgoDyne

 "Destroying evidence"  That's great.  Yeah, I realize that you're not agreeing with them.  I think it would take a special person to do so, not that you're not special. :P

"If you don't read the newspaper you are uninformed, if you do read the newspaper you are misinformed." - Mark Twain

Thanks ... I think ...

August 22, 2007 - 03:22 ET by KC Mulville

Updated (*): Oooops - in the post below, I said that the judge had to follow the law as written. I should have said the appellate judges who remanded the case for re-sentencing, not the judge from the original case.  

No, I will say that if the *judge comes out and says, yeah I know it's goofy, but that's the law ... I respect that. After all, that's exactly what I want from the *judge. If the law says X, that's what the *judge has to follow, not his own vision. This is where the rubber of judicial originalism hits the pavement. If that's how the law reads, then I applaud the *judge for following it.

I'm not a lawyer, so I don't know about all of the other factors in the decision. But if that's how the *judge made the decision, then good for him. Judicial restraint means following the law, even if it leads to ridiculous conclusions. The *judge sent the case back for re-sentencing. What he should also do is write a letter to the local legislature, and say, "Look what your law made me do -- please rewrite the darned thing."

I don't agree with the result (I think Martinez should be deported). But if the *judge sent the case back on that principle, that's a good thing.

The law says no. If you

August 21, 2007 - 16:44 ET by Darth Dutch

The law says no. If you steal a loaf of bread, for example, that's only one crime. Having the loaf of bread .. after you steal it ... isn't a second crime.

Hi KC,

I can see the point you (or, maybe you are simply stating what they say, in which case they) are trying to make, but with most illegal immigrants, it isn't just a one time thing that they steal.  They "steal" every time they collect money from an employer without paying taxes, especially if they have used a stolen or fraudulent social security number to do so. 

As to that point (and I'm no lawyer), isn't possession of a stolen item itself a crime?  I may not have bought or stolen some drugs, but if I possess the drugs, it is a crime.

Dutch

Understood

August 21, 2007 - 16:59 ET by KC Mulville

See above. 

However, I think you're pointing out a very important point. I don't think our current laws grasp the many problems with illegal immigration, and amnesty simply postpones the problem. The more you think about what illegal immigration implies, you see how pervasive the problems are. Yes, it is a big deal.

Improper Entry

August 21, 2007 - 17:00 ET by allanf

Our  immigration laws are a mess.  Illegal entry to the United States is a crime (see below), but it is rarely prosecuted, except in the case of multiple offenses. Aliens who have entered the United States are deportable. So too are aliens who have committed drug offenses. However the deportation is not mandatory. The fault is not only with the Kansas Court but with an immigration system in chaos.      

I do take issue the appeals court statement. 

The district court does not engage in enforcing our national immigration laws by simply recognizing a defendant's immigration status for the purpose of deciding whether the defendant is amenable to probation.

 

The  fact that prima facie evidence that a  previous offense had been committed should be relevant for sentencing. 

It is clear that the defendant had previously violated the law:

From United States Code Section 1325(a)  

 Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
(2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.

Section 1226 of the US Code allows the Attorney General to arrest such individuals. Furthermore conviction on drugs is a deportable offense:  

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt  to  violate) any law or regulation of a State, the United  States, or a foreign country relating to a controlled  substance (as defined in section 802 of title 21), other  than a single offense involving possession for  one's      own use  of 30 grams or less of marijuana, is deportable  

But these laws are honored more in their breach. 

How long do you have to be here?

August 21, 2007 - 16:21 ET by ThisnThat

So, if I sneak into this country, and am here for, say, 2 seconds, and a Border Patrol agent sees me (but did not see me actually sneak in two seconds ago), am I legal or illegal?

According to this judge, I am legal.

What he's just done is to ban the word "illegal", which has been the objective of the Libs for years. I am now only "undocumented", which grants me all sorts of liberties, including free medical, job hunting, free housing, and wellfare checks for as long as it takes. And, according to this judge, I can also be a criminal.

Someone needs to explain this logic. This judge is clearly not qualified to change diapers, let alone sit in judgement.

___________________________________ 

If you can read this, thank a teacher. If it is in English, thank a Soldier. - My barber

So does this mean if I a

August 21, 2007 - 16:55 ET by dscott

So does this mean if I a natural born citizen go out of the country, then sneak back across the border (which is illegal to do) into the US and then commit another crime, that what I did was not illegal????  Utter nonsense.

At some point, logical fallacies aside, one has to uphold the law otherwise it becomes meaningless or archane.  Impeach the moron judge and send a message to the rest of the judges if they ever pull that stunt again, they are gone.  The judge is playing chicken with the law, just because you assert some drivel doesn't make it legal. If you don't impeach him now, that means his foolishness is acceptable in the future making all the citizens Kansas at fault for enabling.  This is the standard lib tactic of making an assertion in the hope no one challenges it thus making it truth, in the Law this is called Precedence (where else do you think the libs learned this crap).

The object of life is not to be on the side of the majority but to escape finding oneself in the ranks of the insane. Marcus Aurelius

Join the fray....be effective.

August 21, 2007 - 17:14 ET by Army Brat

Join NumbersUSA @ NumbersUSA.com Happy Trails...

An example...

August 22, 2007 - 08:14 ET by Sergeant ROCK

.. of how the activist courts are destroying America.