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This Logic Will Make You Want to Wrap Your Head in Duct Tape

Of course, I borrowed that line from Glenn Beck. According to a Kansas judge, an illegal immigrant's unauthorized entry into this country is illegal, but his continued presence once he's here isn't illegal. Huh? Here's the story:

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.

This is how the court justified its ruling:

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.

So, as one Freeper noted, by extension, does that mean that a criminal's breaking into your house is illegal, but his continued presence in your house is not?


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Comments (19)

"While Congress ha... (Below threshold)
_Mike_:
"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.

The argument stated is bizarre at least, flawed at best. It amounts to 'the first illegal entry is free, but the second carries consequences'. To fully apply it to the example of home invasion, the intruder's presence in your home is illegal only if they entered previously and were ordered out by the court. The first time they're only in violation of the law when one foot is within the property and one foot is outside the property (i.e. the moment of entry). It's nonsense.

Now, if the wankers (i.e. Congress) will simply act on and fix this 'loophole' (I don't believe it to be such but if the bastardized judiciary does, it's remediable).

As much as it pains me thou... (Below threshold)
Paul:

As much as it pains me though... it sounds like they got the law right. Sorta.

And the outrage should be aimed at Congress, not the judicial branch. Sorta.

If there is no law against an illegal alien "trespassing" then there is no law. (blame Congress) We use the fact the alien is here "undocumented" to prove that he broke the law by entering.

Clearly we need a second law.

But having said all the above, why was he not convicted of entering the country illegally?

This (unfortunately valid) legal distinction never should have come up. He should have been convicted and deported. Problem solved.

But Congress really needs to fix this.

"So, as one Freeper noted, ... (Below threshold)

"So, as one Freeper noted, by extension, does that mean that a criminal's breaking into your house is illegal, but his continued presence in your house is not?"

Actually, no. There is a law against criminal trespass on private property. However, apparently the analogy does not carry over, because there is no equivalent law for the world outside your home and business. Tricky!

"Words. It's what we do ar... (Below threshold)
Steve:

"Words. It's what we do around here."

'Adam Schiff,' fictional DA of NYC in the TV series "Law and Order."

Actually, no. There is a... (Below threshold)
_Mike_:

Actually, no. There is a law against criminal trespass on private property.

Right. I think analogy was more to highlight an apparent inconsistency and to illustrate which of the conflicting sides should be 'corrected'.

Well, it's not as if the ju... (Below threshold)

Well, it's not as if the judges need fear ever meeting the likes of Nicholas L. Martinez from behind the walls of their gated community.

How about they deny probati... (Below threshold)
Matt:

How about they deny probation and give jail time because he is/was a drug dealer? I'd say he also poses significant risk of flight as well.

There is no loop hole in th... (Below threshold)
Scrapiron:

There is no loop hole in the law, there is a cancer in the brain of people called judges. The entire judicial system in the country has became a joke and deserves the respect it gets, none. It's taken 30 years but the liberals have managed to destroy the only thing that keeps people from killing them, fear of going to jail no longer exist. Kill a dozen, get a month or two in a mental health facility, released with a clean record.

Ah yes, in our wonderful "N... (Below threshold)

Ah yes, in our wonderful "New Enlightenment" era, where judges determine that the right to privacy "implies" the right to an abortion, but they can't seem to find that entering the country illegally implies that subsequently being here is illegal.

I'm not sure that the 9th "circus" has always been as ridiculously leftist in ideology as they are now, but it sure seems they have been since at least 1979.

If the legal reasoning is c... (Below threshold)
kim:

If the legal reasoning is correct even though the practical logic is not, why hasn't this been tested and corrected previously?

Seems like there are millions of possible test cases running around out there. Or some would have you believe.
==============================

Re: breaking and entering: ... (Below threshold)
jpe:

Re: breaking and entering: we don't charge two crimes (one for breaking, a second for remaining). In short, there's one crime: breaking and entering. By analogy, the court's reasoning makes sense (the crime is entering, not remaining)

It's kind of a conundrum. ... (Below threshold)

It's kind of a conundrum. The feds could step in and convict him of entering the country illegally and deport him, but then what if the Kansas court intervenes and says he has to serve his probation, which means he has to stay here?

I think they call it "feder... (Below threshold)

I think they call it "federalism."

What the story essentially says is that Kansas has nothing on the guy to violate his probation other than his immigration status. The precedents cited pretty clearly hold they can't use that as a parole/probation violation.

Sounds like the judge is entirely correct, so don't blame him.

So one assumes that althoug... (Below threshold)
Monty:

So one assumes that although driving onto the sidewalk is illegal, once there, it is quite acceptable to drive down the sidewalk at speed, mowing down the jaywalking pedestrians?

What about unlicensed firearms? Is it illegal to steal a gun, but the subsequent carnage is OK?

These judges are absolute dingbats. Let's all steal their houses and cars, because after that, keeping the loot must be legal....

And some day some idiot jud... (Below threshold)
spurwing plover:

And some day some idiot judge will rule that all us americans are here ilegaly and all those mexicans have the right to stay in which case the judge should be kicked of the bench

I just had a vision wherein... (Below threshold)

I just had a vision wherein O'Rielly was screaming into the camera about the above judge using his perverse logic as a reason to free a rapist.

Judge McAnany: "Well, technically the suspect broke the law when he allegedly entered the victim, but after that he was just 'hangin' around'." Gee, wonder who appointed this genious.

This asshole and the other ... (Below threshold)
Martin:

This asshole and the other so called justices that voted with him should be tried for impersonating a judge and accute stupidity. This is as clear as it can get - you come across the border, your illegal. Period. End of discussion ( as the libs love to say). Why are these idiots allowed to interject personal opinions instead of following the rule of law? Impeach, Impeach, Impeach.

I have said for decades tha... (Below threshold)
tyree Author Profile Page:

I have said for decades that some people in the US believe that illegal immigrants can only be stopped in the air as they leap across the border. It would seem that some of those that believe this are Barton County judges.

The judge is wrong. Even if... (Below threshold)
Richard:

The judge is wrong. Even if there is no crime for remaining, (contentious, unbelievable) the alien did break the law by entering and no evidence of a statutory limit is provided on that count. While one might argue that the continued presence is not a crime, the crime of entering is not absolved by later non-criminal activity, or time. The alien still broke the law of entering without permission. The prosecutor may have the burden of proving the illegal entry, but the act remains a crime even though the accused was not caught in the act. The prosecutor can enter into evidence the entire data bank of our immigration agencies showing that the accused was never granted permission to enter; and the defense can counter if the accused has proof that he was granted entry. Reasonable doubt will be erased, the alien is guilty of entering illegally.




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