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OK, lawyers out there, explain this to me, please ...
Posted by: McQ on Tuesday, August 21, 2007

Seriously, this particular ruling just seems tortured:
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.
Does that make sense? If so why? As I understand it, illegal entry is a civil violation and not a criminal violation (even though the story has a statement claiming illegal entry has been "criminalized" by Congress)? If true, does that have a bearing on this ruling?

On it's face, it makes no sense to me, thus the questions.

UPDATE: Ask and ye shall receive. Michael Wade at A Second Hand Conjecture explains the law and the ruling.
 
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I didn’t read the opinion that closely, but here goes:

A little more context from the opinion may help
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."

While in this country one whose presence is unlawful remains subject to the full range of obligations imposed by our laws. However, 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. 8 U.S.C. § 1326 (2000) makes it a felony for an alien who has been deported to thereafter reenter the United States or at anytime thereafter be found in the United States.

Those persons who enter this country illegally are subject to deportation. 8 U.S.C. § 1227 (2000). Martinez’ counsel acknowledged this possibility at the plea hearing. Deportation may be based upon any number of factors, including the alien’s initial entry into this country contrary to law or acts while in this country, such as the commission of certain crimes. However, 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. See United States v. Rincon-Jimenez, 595 F.2d 1192, 1193-94 (9th Cir. 1979). As noted by the United States Supreme Court in United States v. Cores, 356 U.S. 405, 408 n.6, 2 L. Ed. 2d 873, 78 S. Ct. 875 (1958), when it commented on 8 U.S.C. § 1325 and similar statutes: "Those offenses are not continuing ones, as ’entry’ is limited to a particular locality and hardly suggests continuity."
A canon of statutory construction is that you have to read a statute as a whole (ie with consideration to the sister provisions). Here, you have one provision, call it the "First Time Entry provision", that makes crossing a crime. It provides for deportation as a remedy. Then you have a second provision, call it the "Re-entry provision" that provides that entering and staying in the country is a crime. Reading the neighboring provisions together, one can conclude that, had Congress intended remaining in the country to be a full violation for a first-time offender, it would have included similar language in the "First Time Entry provision."

This is pretty technical stuff, but then again, Congress is aware of these rules of statutory construction, with which any first year litigator becomes quickly aware (especially given that this court does not appear to be the first court to so rule, including a Supreme Court precedent from the 1950s). I’m not sure the conclusion is right, but I think it is supportable.
 
Written By: Sean
URL: http://www.myelectionanalysis.com
On the other hand, just how does Mr. Martinez support himself during his continued presence in the United States, as Congress has made it illegal for him to get a job under his current status ?
 
Written By: Neo
URL: http://
I meant to point this out on a previous thread when someone commented to me that illegal immigration is a serious crime. I understand that many people think it is a serious problem, and it ought to be considered a serious crime, but literally speaking it is not.

Your post confirmed my understanding of the issue, which I never got around to researching earlier: When an alien is caught crossing the border illegally the first time he or she is simply deported. It is not treated as a criminal offense. The alien is not sucked into the criminal justice system unless she has been deported and is caught re-entering.

In fact, I’ve known people who were repeatedly caught and returned to Mexico, leading me to suspect that there must be a legal deportation order before the re-entry is considered a criminal offense.

 
Written By: Aldo
URL: http://
Interesting. I guess that is why they call it law school, not justice school. The solution would seem to be to turn him over to the feds for deportation.
 
Written By: timactual
URL: http://
So can I then assume that while it may be illegal to break into your house, if no one catches me ’breaking in’, then it is perfectly legal for me to kick back in your favorite chair, drink your beer and basically make myself at home?

Great.
 
Written By: meagain
URL: http://
"So can I then assume that while it may be illegal to break into your house, if no one catches me ’breaking in’, then it is perfectly legal for me to kick back in your favorite chair, drink your beer and basically make myself at home?"

If the legislature in your state makes breaking in as a first-time offense a crime punishable with removal from the house, and then makes a second-time offense a crime for staying in the house, yes. Fortunately, no legislature has so acted to my knowledge.
 
Written By: Sean
URL: http://www.myelectionanalysis.com
So can I then assume that while it may be illegal to break into your house, if no one catches me ’breaking in’, then it is perfectly legal for me to kick back in your favorite chair, drink your beer and basically make myself at home?

Great.
Wasn’t that pretty much the point of the "vigilante" posts?
 
Written By: Bithead
URL: http://bitsblog.florack.us
Illegal entry is an act. Being present illegally is a status. In general, acts are subject to proscription; while statuses are not. It’s like this: possessing or ingesting illegal drugs is punishable; being under the influence is generally not, unless one is performing some other act such as driving a car.
 
Written By: David Shaughnessy
URL: http://
On the other hand, just how does Mr. Martinez support himself during his continued presence in the United States, as Congress has made it illegal for him to get a job under his current status ?
Shh, don’t tell anyone, but Congress knows he can get work, and employers want him in the labor market, that’s why they talk about pointless, ineffective, and very expensive border security while not actually doing anything to make employing illegal immigrants too expensive to be worthwhile.

You’re going to blow the whole thing if you keep thinking clearly.

 
Written By: Captin Sarcastic
URL: http://
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
"but Congress knows he can get work, and employers want him in the labor market"

Endanger children Americans won’t endanger? Nice.
 
Written By: jpm100
URL: http://
Illegal entry is an act. Being present illegally is a status.
The conflict for most people being that the common man, using common sense, realizes that you can only achieve the status by having committed the act.

Sounds like Timactual has it right, turn him over to the feds and deport him (oh no! What about his poor little boy who he was using as a mule, what about his family life? Oh dear!!!!).

One wonders why we call it ’illegal entry’, clearly it’s not illegal, it can apparently be thought of more as a suggestion until they make a note that we’ve already suggested once that you don’t wander across the border without permission.
One would think that pretty much every person wandering across our border already knows they don’t have premission....malice aforethought be damned it would seem.
 
Written By: looker
URL: http://
On the other hand, just how does Mr. Martinez support himself during his continued presence in the United States, as Congress has made it illegal for him to get a job under his current status ?
Because, silly- he’s just doing those jobs Americans won’t do!
 
Written By: shark
URL: http://
...possessing or ingesting illegal drugs is punishable; being under the influence is generally not...

Once, when I was underage and drunk, I actually had a police officer explain this to me. I really appreciated that he was willing to take the time to let me know why I wasn’t getting into trouble. In gratitude, I fell away from him before throwing up.
 
Written By: Wulf
URL: http://www.atlasblogged.com
In gratitude, I fell away from him before throwing up.
And then he arrested you for littering?
 
Written By: David Shaughnessy
URL: http://
Endanger children Americans won’t endanger? Nice.
I was obviously speaking in terms of our general policy toward illegals, not about this specific individual.

 
Written By: Captin Sarcastic
URL: http://
Once, when I was underage and drunk, I actually had a police officer explain this to me. I really appreciated that he was willing to take the time to let me know why I wasn’t getting into trouble. In gratitude, I fell away from him before throwing up.
I’ve seen the police arrest people drinking in bars for public drunkeness, but I suspect that the police wanted to detain those particular individuals for other reasons, and were just looking for any pretext to get them into custody.

Many years ago I observed a platoon of police officers storm into a notoriously dangerous bar to arrest one man. Most of the people in the crowded bar spoke little or no English, and no one but the police officers was sober. After they arrested their target, the Chicano officer turned around and made a general announcement in a loud voice and very bad Spanish: This man is DRUNK!!
 
Written By: Aldo
URL: http://
This has nothing to do with status crimes. The Court made clear it wasn’t considering the due process argument.

Wulf, I’m surprised you weren’t arrested for appearing drunk in public (which you can be arrested for) or drunk and disorderly.
 
Written By: Sean
URL: http://www.myelectionanalysis.com
I’ve seen the police arrest people drinking in bars for public drunkeness, but I suspect that the police wanted to detain those particular individuals for other reasons, and were just looking for any pretext to get them into custody.
They tried to start doing this in Texas a year or so ago. I heard stories of them trying to trick drunk guys into going outside by having a female cop in plane clothes wave to him. Also heard of a guy getting arrested for being drunk at a hotel bar even though he had a room at the hotel.

There was a pretty big public outcry and the arrests stopped pretty quickly.
 
Written By: ChrisB
URL: http://
Wulf, I’m surprised you weren’t arrested for appearing drunk in public (which you can be arrested for) or drunk and disorderly.

Hey now, I was not disorderly. Even the part about me getting sick was pretty peaceful. We were just unknowingly very close to a spot that had a lot of drug and vandalism issues, and he seemed satisfied to discover that we were not involved in that stuff. I suppose he was a nice guy who didn’t want the hassle of dealing with four teens who were just stargazing at the beach with some beer. I’m very thankful he didn’t have something to prove.

Aldo’s comment, of course, reminds me of that famous Ron White routine... "I don’t want to be drunk in public, I want to be drunk in a bar!"
 
Written By: Wulf
URL: http://www.atlasblogged.com
This has nothing to do with status crimes.
Well, I agree that it is not an immigration case. But it is all about the defendant’s immigration status.
There is no question that Martinez’ status as an illegal alien was the fact which prompted the court to depart and to not grant him probation.
In determining whether Martinez’ departure sentence was justified, we must decide whether there is an incongruity between Martinez serving his probation in Kansas and his ongoing presence in this country as an illegal alien. The district court believed that there was.
The district court viewed Martinez’ continued presence in the United States during a term of probation to be incompatible with his status as an illegal alien. The court observed: "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." This is true if Martinez had previously been deported and thereafter reentered the country illegally. 8 U.S.C. § 1326 would make his mere ongoing presence here a felony. On the other hand, if Martinez entered the country in violation of 8 U.S.C. § 1325 but has not previously been deported, his ongoing presence is not a crime though he is subject to deportation. Since the district court made no finding that 8 U.S.C. § 1326 applies to Martinez, we must set aside the departure sentence and remand for resentencing. If Martinez has not previously been deported, then the mere fact of his illegal alien status does not in itself render him unamenable to probation.
On remand, the trial court is required to make a status determination, which will determine the defendant’s amenability to (or eligibility for) probation:
Martinez was not singled out by the sentencing court because of his race or nationality. It is possible for a resident alien lawfully in this country to successfully complete a plan of probation. So could an illegal alien who is not in violation of 8 U.S.C. § 1326. On the other hand, an illegal alien whose presence violates 8 U.S.C. § 1326 could not. The issue left unresolved is which category applies to Martinez.
If at resentencing he is determined to be illegally in the country (after removal), then he cannot comply with the probation terms, and he will be imprisoned, presumably. Is he then being punished for his immigration status? I don’t know. But I hope his lawyer doesn’t forget to make the argument next time around.

By that way, the fact that simply being in the country "without papers" is not a crime illustrates the point I was making. Presence (status) is not a crime generally. The exception is that presence after removal is a status crime. How it plays out in this particular case remains to be seen.
 
Written By: David Shaughnessy
URL: http://
The solution would seem to be to turn him over to the feds for deportation.
As the federal judge pointed out in the "Hazelton" case, only the federal government can enforce immigration law, so the best they could do is call the feds and hope they come over an pick Mr. Martinez up when he is released.
 
Written By: Neo
URL: http://
"Illegal entry is an act. Being present illegally is a status."

Ah, claro. Gracias.
 
Written By: timactual
URL: http://
Yeah, Bithead, and one of the prime factors for the rise of vigilantism is when the law and common sense are as far apart as they are today.
 
Written By: SDN
URL: http://

 
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