An appeals court has concluded that just being an illegal alien in the United States doesn’t necessarily violate the law, so a judge cannot deny probation and require a jail sentence for a convicted drug dealer who is an illegal alien.

The opinion from the Kansas Court of Appeals came in the Barton County case involving convicted drug dealer Nicholas L. Martinez.

The ruling found that while the laws of the United States make it illegal to enter the United States without authorization, being in the United States after entering illegally is “not necessarily a crime.”

The trial court judge had ordered Martinez to jail on the grounds he is an illegal alien, the report said.

But the appeals court overturned that decision.

“[Federal law] declares an alien’s unsanctioned entry into the United States to be a crime. While Congress has criminalized 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,” the court opinion said. “[Federal law] 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.”

The court ruling explained that those entering the United States illegally are subject to deportation, which can be based on “any number of factors.”

Judge Patrick McAnany, who wrote the opinion

“However, while an illegal alien is subject to deportation, that person’s ongoing presence in the United States is and of itself is not a crime unless that person had been previously deported and regained illegal entry into this country,” the ruling, written by Judge Patrick McAnany, said.

Barton County Attorney Douglas Matthews told the Wichita Eagle that courts in at least two other states – Oregon and Minnesota – have come to similar conclusions.

It was not immediately announced whether prosecutors would appeal the conclusion to the state Supreme Court.

The defendant, court documents show, had pleaded guilty to possession of cocaine, a felony, and endangering a child, because he had his young son deliver drugs to a law enforcement officer working under cover.

The facts of the case were not in dispute, the ruling said.

“Det. Terry L. Millard arranged for a controlled buy of illegal drugs from Martinez. The first transaction was concluded with the transfer of powered (sic) cocaine from Martinez’ young son. The second transaction was consummated by Martinez delivering the drugs,” the opinion noted.

Prosecutors had recommended probation, but Barton County District Judge Hannelore Kitts ordered Martinez to jail for as long as year because of his status as an illegal alien.

In court transcripts, Kitts 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.”

Those probation rules forbid the defendant from violating any law while on probation. The judge said the defendant would have to comply with those conditions, but he couldn’t do that because he violated the law by being an illegal alien.

It was clear throughout the case that any legal status in the United States for the defendant couldn’t be substantiated.

His lawyer said, “I believe Mr. Martinez, because of his citizenship and status, may or may not be eligible under Senate Bill 123 for the mandatory treatment. He may or may not be here. I think – and I have explained to Mr. Martinez that he risks the fate of his brother that I represented on similar charges who was deported, and Mr. Martinez – if the INS continues, both Mr. McPherson and I expect that that’s what’s going to happen. We certainly have not guaranteed Mr. Martinez that’s not going to happen.”

During sentencing, the trial court judge explained his process.

“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…,” the judge said.

The appellate ruling cited a 1958 conclusion from the U.S. Supreme Court and another ruling, from 1979, in the 9th U.S. Circuit Court of Appeals in California. Both cited the distinction between entering the U.S. illegally and being in the U.S. illegally.

The Supreme Court has found “entry” is done only at “a particular locality” and therefore “hardly suggests continuity.”

Matthews said his staff is researching whether Martinez ever has been deported.

The appellate ruling returned the case to district court for a corrected sentencing.

Several folks who joined in a comment forum on the website for ALIPAC, the organization of Americans for Legal Immigration PAC, weren’t too understanding of the legal logic.

“The last word is, illegal aliens are …. ILLEGAL!”” wrote MinutemanCDC_SC.

“So let’s see: While unauthorized entry into the United States is illegal, being in the country after having entered illegally is not illegal so therefore there is no crime. DUH…What????????” asked “zeezil.”

The ruling came just days after WND reported the Census Bureau’s Deputy Director Preston Jay Waite told Associated Press in an interview that immigration enforcement raids were suspended for several months during the time the 2000 Census was assembled, and it would help if that happens again in 2010

He said such enforcement, including raids to round up illegal aliens, would just make a segment of the population that already distrusts the government even less likely to cooperate with those who are supposed to count those living in the United States that year.

Enforcement agents “have a job to do,” Waite told the news service. “They may not be able to give us as much of a break” in 2010.

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