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."

Not necessarily so, said the appeals court.

"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.

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.

"Entry is limited to a particular locality and hardly suggests continuity," the Supreme Court ruling said.

The appellate court ordered that Martinez's case be returned to Kitts for resentencing.

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.

Matthews has 30 days to decide whether to appeal the appellate court ruling to the state Supreme Court.

http://www.kansas.com/news/local/story/153645.html