Court: Just being in U.S. isn't illegal

The Wichita Eagle via Kansas.com ^ | uesday, Aug 21, 2007 | BY DION LEFLER

[raybbr]

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.

[raybbr]

...and endangering a child by having his young son deliver drugs to an undercover officer, according to court documents.

Just training the anchor babies to do the jobs that Americans.... Wait. That makes him an American. Oh, jeez. See what I mean when I say, "You think it's bad now - wait till the anchor babies start to vote."

[Loyal Buckeye]

Congress...has not made the continued presence of an illegal alien in the United States a crime...

Insanity, if true.

[Wolfie]

Ok. Everybody now focusing on finding illegals already in the country should switch to finding and punishing the employers who hire them.

[Man50D]

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 Judge couldn't be more wrong. He should read up on the following federal law:


Federal Immigration and Nationality Act

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) Recruitment and Employment of Illegal Aliens Encouraging and Harboring Illegal Aliens Enforcement RICO —Citizen Recourse Tax Crimes Comment

Section 8 USC 1324(a)(1)(A)(iv)(b)(iii) "Any person who . . . encourages or induces an illegal alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each illegal alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 felonies under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (including a group of persons, business, organization, or local government) commits a federal felony when she or he:

· assists an illegal alien s/he should reasonably know is illegally in the U.S. or who lacks employment authorization, by transporting, sheltering, or assisting him or her to obtain employment, or · encourages that illegal alien to remain in the U.S. by referring him or her to an employer or by acting as employer or agent for an employer in any way, or · knowingly assists illegal aliens due to personal convictions. ·

Penalties upon conviction include criminal fines, imprisonment, and forfeiture of vehicles and real property used to commit the crime. Anyone employing or contracting with an illegal alien without verifying his or her work authorization status is guilty of a misdemeanor. Aliens and employers violating immigration laws are subject to arrest, detention, and seizure of their vehicles or property. In addition, individuals or entities who engage in racketeering enterprises that commit (or conspire to commit) immigration-related felonies are subject to private civil suits for treble damages and injunctive relief.

Recruitment and Employment of Illegal Aliens

It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work.

It is unlawful to hire any individual for employment in the United States without complying with employment eligibility verification requirements. Requirements include examination of identity documents and completion of Form I-9 for every employee hired. Employers must retain all I-9s, and, with three days' advance notice, the forms must be made available for inspection. Employment includes any service or labor performed for any type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. "Day laborers" or other casual workers engaged in any compensated activity (with the above exception) are employees for purposes of immigration law. An employer includes an agent or anyone acting directly or indirectly in the interest of the employer. For purposes of verification of authorization to work, employer also means an independent contractor, or a contractor other than the person using the illegal alien labor.

The use of temporary or short-term contracts cannot be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form must be completed immediately at the time of hire.

An employer has constructive knowledge that an employee is an illegal unauthorized worker if a reasonable person would infer it from the facts. Constructive knowledge constituting a violation of federal law has been found where (1) the I-9 employment eligibility form has not been properly completed, including supporting documentation, (2) the employer has learned from other individuals, media reports, or any source of information available to the employer that the alien is unauthorized to work, or (3) the employer acts with reckless disregard for the legal consequences of permitting a third party to provide or introduce an illegal alien into the employer's work force. Knowledge cannot be inferred solely on the basis of an individual's accent or foreign appearance.

Actual specific knowledge is not required. For example, a newspaper article stating that ballrooms depend on an illegal alien work force of dance hostesses was held by the courts to be a reasonable ground for suspicion that unlawful conduct had occurred.

It is illegal for nonprofit or religious organizations to knowingly assist an employer to violate employment sanctions, regardless of claims that their convictions require them to assist illegal aliens. Harboring or aiding illegal aliens is not protected by the First Amendment. It is a felony to establish a commercial enterprise for the purpose of evading any provision of federal immigration law. Violators may be fined or imprisoned for up to five years.

Encouraging and Harboring Illegal Aliens

It is a violation of law for any person to conceal, harbor, or shield from detection in any place, including any building or means of transportation, any illegal alien who is in the United States in violation of law. Harboring means any conduct that tends to substantially facilitate an alien to remain in the U.S. illegally. The sheltering need not be clandestine, and harboring covers aliens arrested outdoors, as well as in a building. This provision includes harboring an alien who entered the U.S. legally but has since lost his legal status.

An employer can be convicted of the felony of harboring illegal aliens who are his employees if he takes actions in reckless disregard of their illegal status, such as ordering them to obtain false documents, altering records, obstructing INS inspections, or taking other actions that facilitate the alien's illegal employment. Any person who within any 12-month period hires ten or more individuals with actual knowledge that they are illegal aliens or unauthorized workers is guilty of felony harboring. It is also a felony to encourage or induce an alien to come to or reside in the U.S. knowing or recklessly disregarding the fact that the alien's entry or residence is in violation of the law. This crime applies to any person, rather than just employers of illegal aliens. Courts have ruled that "encouraging" includes counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors. The fact that the alien is a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that a refugee must report to immigration authorities without delay upon entry to the U.S.

The penalty for felony harboring is a fine and imprisonment for up to five years. The penalty for felony alien smuggling is a fine and up to ten years' imprisonment. Where the crime causes serious bodily injury or places the life of any person in jeopardy, the penalty is a fine and up to twenty years' imprisonment. If the criminal smuggling or harboring results in the death of any person, the penalty can include life imprisonment. Convictions for aiding, abetting, or conspiracy to commit alien smuggling or harboring, carry the same penalties. Courts can impose consecutive prison sentences for each alien smuggled or harbored. A court may order a convicted smuggler to pay restitution if the illegal alien smuggled qualifies as a victim under the Victim and Witness Protection Act. Conspiracy to commit crimes of sheltering, harboring, or employing illegal aliens is a separate federal offense punishable by a fine of up to $10,000 or five years' imprisonment.

Enforcement

A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.

State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.

RICO —Citizen Recourse

Private persons and entities may initiate civil suits to obtain injunctions and treble damages against enterprises that conspire to or actually violate federal alien smuggling, harboring, or document fraud statutes, under the Racketeer-Influenced and Corrupt Organizations (RICO). The pattern of racketeering activity is defined as commission of two or more of the listed crimes. A RICO enterprise can be any individual legal entity, or a group of individuals who are not a legal entity but are associated in fact, and can include nonprofit associations.

Tax Crimes

Employers who aid or abet the preparation of false tax returns by failing to pay income or Social Security taxes for illegal alien employees, or who knowingly make payments using false names or Social Security numbers, are subject to IRS criminal and civil sanctions. U.S. nationals who have suffered intentional discrimination because of citizenship or national origin by an employer with more than three employees may file a complaint within 180 days of the discriminatory act with the Special Counsel for Immigration-Related Unfair Employment Practices, U.S. Department of Justice. In addition to the federal statutes summarized, state laws and local ordinances controlling fair labor practices, workers compensation, zoning, safe housing and rental property, nuisance, licensing, street vending, and solicitations by contractors may also apply to activities that involve illegal aliens.

Comment:

A comment and a published quote by Robert Gaffney, Attorney and County Executive of Suffolk County, LI, NY:

The statutory foundation of United States immigration law has always been the jurisdiction of the federal government, Congress and the federal courts. The preeminent laws concerning the employment of illegal aliens are found in the Immigration and Nationality Act (8 U.S.C. §~ 1101-1503), as amended by the Immigration Reform and Control Act of 1986 CIRCA).

The law states it is a crime to assist an illegal alien who lacks employment authorization by referring him to an employer, or by acting as his or her employer, or as an agent for an employer. 8 U.S.C.S. § 1324a(a)(1)(A) (Lexis 1997). Furthermore, it is unlawful to hire an individual for employment without complying with the employment eligibility requirements for every person hired. 8 U.S.C.S. § 1324a(a)(l)(B) (Lexis 1997). Moreover, conduct tending substantially to facilitate illegal aliens remaining in the United States illegally, where there is knowledge or a reckless disregard of an illegal alien s unlawful status, is a crime, with escalating penalties, encompassed within the provisions of 1324. 8 U.S.C.S. § 1324(a)(l)(A)(iii) (Lexis 1997); United States v. Kim. 193 F-3d 567 (2d Cir. 1999), are considered employees for purposes of immigration law.

[Conservative Infidel]

"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..."
WHAAAT?!? This is almost analogous to saying something like, Just because congress has made bank robbery a federal crime, since you were able to walk out of the bank with all that money, you should be allowed to keep it."

[NoControllingLegalAuthority]

A Kansas Court of Appeals is not the final authority on federal law.

If entering the U.S. illegally is a crime, when does the perpetrator become absolved of that crime? What amount of time having passed brings immunity from prosecution of the original crime?

[raybbr]

ping

[Diogenesis]

[AD from SpringBay]

Bull Crap - mini-fiefdoms under the black-robes! Obey and all will be well.

[Guenevere]

Say what?

[Stallone]

Yes, my breaking into your home IS illegal.

But my continuing presence in your house of course, is NOT. Pass the chips.

Only a so-called ‘educated’ moron, far removed from the real world, could even conceive of such a distinction.

That judges make such rulings should tell you something about how they adjudicate more complex cases.

[raybbr]

Only a so-called ‘educated’ moron, far removed from the real world, could even conceive of such a distinction.

"That depends on what the definition of "is" is."

[Dahoser]

"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.

This is exactly the liberal mindset and why the legal system is so broken: every single instance of every single occurrence of every single application of every single law has to be explicitly covered otherwise there is no crime, and by extension, if another law spells out a specific instance, that can be construed as obviating a previous instance if the previous instance wasn't explicitly spelled out. In this case, the judges are saying that because a law makes continued presence a crime in the event that an illegal gets deported and returns, it means that continued presence subsequent to entering illegally the first time is not a crime because that was not spelled out as a condition for a continued presence violation.

Makes your hair hurt.

[LIConFem]

Common sense is dead.

[pas]

So the 3 judge panel is in violation of Federal law and should be punished accordingly.

[relictele]

This “judge” is all over the shop.

He calls a “one-crossing” alien an illegal, yet they are not illegal in his eyes for being here?

Also, he says they must cross TWICE in order to be considered criminals.

???????

Does this mean I’ll have to be clocked at 85 mph twice in order to have a chance of getting a ticket?

[BuffaloJack]

“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.”

What kind of nonsense is this? If you entered illegally then of course being here is illegal. Whoever precided at the Kansas Court of Appeals has his head up his butt.

[traditional1]

"Insanity, if true."

This is unquestionably intentional, to benefit corporate donors who rely on the millions of cheap laborers. This was not an oversight, but a means to legalize 20 million+ illegal invaders, and assure Democrat voterbase growth (and entitlements' spending up the wazzoo)

[WayneM]

Judge Patrick McAnany - He is a former Chamber of Commerce president and was appointed to his throne by a Democrat governor.

It figures.

[Hacklehead]

That judge should be tarred and feathered.

[sergeantdave]

If I break into a house, that’s illegal. But If I decide to live in that house, that’s not necessarily illegal.

Is that about right?

[CholeraJoe]

No state court may rule on the legality of or invalidate a Federal Law. The Kansas court is headed for a smackdown, just like Oregon.

[Puppage]

What amount of time having passed brings immunity from prosecution of the original crime?

This is where ones skill at playing Hide & Seek really pays off.

[G Larry]

OK, forget deportation.
Let’s build sufficient prison space for all felons to serve their full sentence.

[BearCub]

No state court may rule on the legality of or invalidate a Federal Law. The Kansas court is headed for a smackdown, just like Oregon.

That's not what this court did. Read the story again.

[aruanan]

"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.

Notice his wording "while Congress has criminalized the illegal entry". Is he saying that the entry was already illegal and that Congress did something subsequent to that which he terms "criminalized"? I guarantee that a federal law controlling whether or not an entry into the US is illegal is not so narrowly defining things that it means "the act of crossing the border into U.S. territory without proper authorization is a crime, but being on U.S. territory without proper authorization is not a crime." This is a judge abusing language to make it mean something he wants it to mean. It's on the level of "Hey, this law doesn't specifically mention this particular man by name or even his nationality, so it doesn't specifically apply to him."

[txdoda]

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."

WOW....what good 'family values', to train your children to push dope.

Although the prosecution recommended probation

Hmmmm.....does the *prosecution* recommend probation for ALL the dope dealers in Kansas or only the illegal ones ??

[aruanan]

So, according to the federal law, the judge is committing a felony by his ruling.

[BearCub]

Man50D - None of the laws you quoted up there apply to the individual illegal alien. They all deal with people aiding & abetting them.

[BearCub]

So, according to the federal law, the judge is committing a felony by his ruling.

LOL. I thought the same thing: If they put him in jail would that be sheltering him?

[Red_Devil 232]

Let’s see ... just because this judge was appointed does not make him a judge. By his thinking the moment the appointment ceremony was over he is no longer legally a judge.

[R.W.Ratikal]

this headline pretty well sums up our screwed up immigration mess:

“It’s illegal for non-citizens to enter the U. S. but it is not illegal for non-citizens to enter the U. S.”

The inmates are running the insane asylum.

[doodad]

Does this mean I’ll have to be clocked at 85 mph twice in order to have a chance of getting a ticket?

No, because by this logic, once you have reached 85, your continued traveling at that speed is no longer a violation. I think. So hard to understand the logic in this idiot.

[BearCub]

A Kansas Court of Appeals is not the final authority on federal law.

I don't think you guys understand what happened here. The court isn't invalidating federal law. The guy isn't on trial for violating federal law - he's on trial for drug crimes.

The appeals court simply said that the trial court can't use the guy's illegal presence in the U.S. as the sole basis for sentencing him to jail instead of probation, because in its interpretation, simply being here isn't illegal. The trial court must have written something to that effect in its ruling. Whether that is correct or not is largely irrelevant.

What the trial court should have done is either cite the involvement of the child - or the defendant's past crime of illegal entry into the country as the reason for sentencing him to jail instead of probation. Case closed.

[Man50D]

You are missing a very important point. The judge stated a person can only be illegal if they were previously deported. The Federal Immigration and Nationality Act does not make that distinction. To quote:

"It is unlawful to hire an alien, to recruit an alien, or to refer an illegal alien for a fee, knowing the illegal alien is unauthorized to work in the United States. It is equally unlawful to continue to employ an illegal alien knowing that the illegal alien is unauthorized to work."

As you can see the considers anyone who enters the country illegally is an alien. That criteria alone makes them illegal aliens regardless if they have been previously deported. This Socialist judge is trying to split hairs by playing fast and loose with the law.

[Blood of Tyrants]

No, just a stupid ruling by stupid judges. That is like saying that BEING in a house that you are burglarizing is not illegal.

[longtermmemmory]

These judges must not have much experience. They are thinking of stealing and criminal possession.

Apples and oranges.

If a criminal breaks into a house the continued presense in the house is not less criminal following in the breaking.

[sono]

Yogi Berra would have authored a more coherent decision. Sheesh!

[Robert A. Cook, PE]

So who is the idiot who appointed THIS beautiful excuse of a lawyer?

[relictele]

Kewl. So I’m legal at 100 mph as long as my gas holds out.

[RavenATB]

So, if someone were to violate the fence at your local military base, once they got past the perimeter fence where the signs say its illegal to enter, they’re no longer “illegally” on the base...it was just getting past the perimeter, that’s marked, that was the problem.

Once someone gets past the sign on the front of the judges front door, saying “private property, no entry,” and actually walk inside, I’m no longer in violation of the law...it was just getting past the sign that was the problem.

[longtermmemmory]

which is why these judges are wrong on this.

otherwise a statute of limitation would apply.

Consider that after 10 years illegals can apply for the current rolling amnesty.

[longtermmemmory]

This is results oriented legal interpritation.

[2ndDivisionVet]

Demand a border fence! Build it NOW!! Beef up the border patrol and close our borders! Stop the DREAM Act!!

U.S. Senate switchboard: (202) 224-3121

U.S. House switchboard: (202) 225-3121

White House comments: (202) 456-1111

Find your House Rep.: http://www.house.gov/writerep

Find your US Senators: http://www.senate.gov/general/contact_information/senators_cfm.cfm

Republican National Committee
310 First Street, SE Washington, D.C. 20003
phone: 202.863.8500 | fax: 202.863.8820 | e-mail: info@gop.com

Take a look at their hidden agenda: http://www.mexica-movement.org

[Carry_Okie]

Orwellian, isn't it?

[Samwise]

No, just a stupid ruling by stupid judges. That is like saying that BEING in a house that you are burglarizing is not illegal.

Rule 1 of liberalism:

Logic, consistency, and facts are irrelevant.

[Stallone]

Rule 2 of Liberalism:

If it makes perfect sense, it will never happen.

[longtermmemmory]

Does anyone believe Chertoff will file an amicus brief on behalf of Homeland Security to establish that a crime of illegal entry is a continuing crime?

This is an insane ruling not just defiant of legal logic.

Once you break into a house the crime is over?
Once a rapist enters continued remaining inside the victim is not a crime?

Judicial College failures.

[BibChr]

So, similarly...

...if someone breaks into my house, and I call the cops to get him out, will they say, "While breaking into your house was illegal, being in it is not"?

[pointsal]

Only a “lawyer” could make sense out this nonsense!