Being In The U.S. Illegally Isn’t Illegal? By La Shawn Barber

The fools among us…

A three-judge panel of an appeals court in Kansas just held that an illegal alien’s “ongoing presence in the United States in and of itself is not a crime” unless the illegal alien reentered the country after a previous deportation. (Source)

Can you believe it? Entering the U.S. in violation of the law is illegal. Being in the U.S. in violation of the law may not be illegal. How and under what condition could that ever make sense? Isn’t it common sense that an illegal alien, by virtue of breaking the law, is a criminal? That’s why he’s called an illegal alien. His mere presence inside these borders makes him an outlaw.

But I’m jumping the border…I mean, the gun. The facts:

Some drug-dealing moron named Nicholas Martinez had his kid deliver drugs to an undercover cop (rotten luck!). He was arrested and charged with the sale of cocaine, possession of cocaine with intent to distribute, endangering a child, theft, and unlawful possession of an identification card. Under a plea agreement, he pled to possession and endangering a child.

Incredibly, the district court was going to give him probation — as was warranted under the sentencing guidelines — instead of throwing his sorry butt in jail. But there was a problem. The judge said (emphasis added):

Okay, . . . 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. . . . [H]e . . . 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. And so for that reason, I am going to have a big problem following these guidelines, but is there any legal reason why I should not impose sentence at this time?

Because Martinez was in the country illegally, he already was breaking the law, which means the terms of probation already were violated, the district court correctly, in my opinion, reasoned. It departed from the guidelines and sentenced the drug-dealing criminal and criminal alien to eleven months in jail for the drug charge and a year for the child endangerment charge, to run concurrently.

Naturally, the drug-dealing illegal alien appealed. Among other things, he argued that his being an illegal alien was “not a substantial and compelling reason to deny him presumptive probation.”

The appeals court agreed. Here’s the opinion. This is the golden nugget that will be quoted far and wide in mainstream media and in the blogosphere (emphasis in original):

“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.”

In other words, the judge suspended logic — that illegal aliens obviously are in the country illegally — because Congress wasn’t explicit, and threw out the sentence.

Martinez also argued that it’s not the state court’s function to enforce federal immigration law. True, but as the appeals court pointed out, the district court wasn’t enforcing immigration law by recognizing that the drug-dealing thug was an illegal alien. I hope George Bush reads this part:

“The fact that our national leaders, for political, policy, or budgetary reasons, have chosen to ignore violations of our immigration laws does not prevent our courts from considering whether a defendant is engaging in an ongoing violation of law in determining that defendant’s amenability to probation. The sentencing court should not be compelled to impose a plan of probation which, by its very nature, cannot be successfully completed.”

The case goes back to the lower court for resentencing. Who knows what will happen after that. The prosecutors had accepted Martinez’s plea, so I don’t see them appealing the case to the Kansas Supreme Court.

The confusion and illogical conclusions of this opinion are the direct result of our federal government abdicating its role as enforcer of immigration laws. Now, states and local governments have to contend with the everyday messes the feds left us with. Murdering and drug-dealing illegal aliens, who shouldn’t even be here, are free to roam the streets, juicing off law-abiding taxpayers in perpetuity.

This content was used with the permission of La Shawn Barber’s Corner.

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