Court: Just being in U.S. isn't illegal

BY DION LEFLER
The Wichita Eagle


While unauthorized entry into the United States is illegal, being in the country after having entered illegally is not necessarily a crime, according to a new ruling by the Kansas Court of Appeals.

In a Barton County case, a three-judge panel issued an opinion Friday that a judge could not deny probation and order jail time for convicted drug dealer Nicholas L. Martinez based solely on the grounds that Martinez is an unauthorized immigrant.

"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 and has again entered this country illegally," Judge Patrick McAnany wrote for the court majority.

Barton County Attorney Douglas Matthews said courts in Oregon and Minnesota have issued similar rulings. But he said, "My research tells me this is the first time this has come up in this state."

Martinez's lawyer, Janine Cox of the Kansas appellate defender's office, declined to comment because prosecutors have not decided whether to appeal the decision to the state Supreme Court.

The case arose from the sentencing of Martinez, who pleaded guilty to felony possession of cocaine and endangering a child by having his young son deliver drugs to an undercover officer, according to court documents.

Although the prosecution recommended probation -- the presumptive sentence for the crimes in state sentencing guidelines -- Barton County District Judge Hannelore Kitts sentenced Martinez to serve as much as a year in jail because he is an illegal immigrant, the records said.

"The problem that arises for me is to follow the guidelines here, is because Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I were to place him on probation," Kitts said, according to transcripts quoted in the appeal ruling.

Kitts said Martinez "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."

"While an illegal alien is subject to deportation, that person's ongoing presence in the United States in and of itself is not a crime, unless that person had been previously deported and regained illegal entry into this country," McAnany wrote.

Matthews said his office is researching immigration records to determine whether Martinez had been deported in the past and returned to the United States, which would make his day-to-day presence in Kansas illegal.

He said initial background research earlier in the case had not indicated any deportations on Martinez's record, but he wants to make sure.

That will never fly. The house already passed a bill to go after these liberal cities/states that are a haven for these illegal aliens. And if they dont comply federal funding will be pulled from them. So i dont see this being a problem much longer.

Until the borders are secure who is here illegal already is a non-issue. Why won't CONGRESS do something and follow through with it!!?? Probably because they don't want to lose the voting block of illegals. And before you all go off I know illegals can not legally vote. But they can't legally work here either. If they can find the papers to work you can bet your bottom they are registering to vote! How else are they going to protect them status here if they don't put people in office to support them and keep the border open.

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Congress does not need to do anything, current laws need to be enforced. Illegal = Criminal.

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The Three Amigo's
Herbert Hoover, Jimmy Carter, George W. Bush