Court Says: Illegal Presence in US Not a Crime

Illegal Presence in US Not a Crime,
Court SaysBy Jeff Golimowski
CNSNews.com Senior Staff WriterAugust 21, 2007

(2nd Add: Includes comments from Janine Cox of the Kansas Appellate Defender's Office.)

(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. Martinez's appellate attorney, Janine Cox of the Kansas Appellate Defender's Office, said she and her client are happy with the ruling, but she said the case is far from over. "The case is still alive. The sentence has been vacated … (prosecutors) have 30 days to make a decision" about an appeal, said Cox.

"If the Supreme Court takes it up we'll do it all over again."Perhaps the most interesting aspect of the opinion is the way the court arrived at its conclusion. Cox noted neither she nor the prosecutor had made an argument saying Martinez's presence in the country was not a crime.

"We argued that (immigration) status wasn't enough of a reason to depart from sentencing guidelines," said Cox. "The determination of status is solely a federal government determination." Cox declined to comment on the potential ramifications of the ruling on other immigration cases.

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.
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