McQ notices a strange outcome from The Court of Appeals of the State of Kansas regarding an illegal immigrant, and asks for an explanation of the ruling:
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.
Although it seems like backwards thinking, the Kansas Appeals Court gets it right here. In order to understand the appellate ruling, you first need to understand what is at issue in the lower court decision:
Nicholas L. Martinez appeals the district court’s imposition of an upward dispositional departure sentence following his guilty plea to possession of cocaine and endangering a child. He raises two main issues: (1) whether the fact that he is an illegal alien justifies the denial of presumptive probation and (2) whether the district judge gave him fair notice of her intention to impose a departure sentence.
In the lower court decision, “Martinez was charged with the sale of cocaine, possession of cocaine with intent to distribute, endangering a child, theft, and unlawful possession of an identification card.” So, right off the bat, we know that this is not a case about immigration or illegal entry into the United States. Indeed, Mr. Martinez pleaded guilty to the charges in exchange for a reduced sentence. The problem arose when the lower court was asked to order probation for Martinez, which the judge was uncomfortable with for a good reason (my emphasis):
“THE COURT: Okay. Well, the first question that arises here is that whether–Mr. Martinez is not legally in this country if I remember right–correctly; is that right?
“THE INTERPRETER: That’s correct, Your Honor.
“THE COURT: 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?”
If the potential probationee is currently in violation of the law simply by virtue of his status, then the judge cannot in good conscience or administration of the law allow that person to be on probation. As soon as the order is passed, the probation would violated, and there would be no way to cure it. Accordingly, the Judge decided that probation was not appropriate and therefore ordered imprisonment (which is a departure from the sentencing guidelines, and thus why the reasons for a “departure” are discussed in the appellate decision).
However, in handing down the sentence and departing from the guidelines, the judge made two mistakes : (1) he assumed, incorrectly, that the status of Martinez as an illegal immigrant automatically put him in violation of the law, and (2) he did not conduct any fact-finding to ascertain whether Martinez’s status was in fact currently violating any law.
The Kansas Appeals Court reviewed the federal immigration law germane to the matter and surmised that, while the status of a repeat offender illegal immigrant is indeed an ongoing offense — i.e. the status of being a repeat-offender illegal is itself a violation of law — if Martinez had never been deported before, then his illegal entry was simply an illegal act, which has no ongoing force — i.e. it does not create an illegal status. Therefore, unless and until the lower court judge establishes that Martinez is a repeat-offender illegal, his status as an illegal immigrant does not inform the decision to depart from the sentencing guidelines one way or the other. If Martinez has never been charged or deported before, then he may still be subject to such punishments, but the act of entering the country does not make his presence here illegal. In that case, he would not currently be breaking the law simply by being in Kansas, and probation in accordance with the sentencing guidelines is an appropriate punishment.
Some will raise the fact that Martinez cannot work legally, or do many other things legal because of his immigration status, all of which may be true. However, the decision to depart from the customary probation was not based on any of those considerations, and the appellate court can only decide the issues before it.
That being said, it is usually the case that an appeals court will affirm an otherwise incorrect lower court decision if there are other legal grounds on which the decision could have been based that would have resulted in the same outcome. I suspect, but do not know, that the reasons the Kansas Appeals Court did not avail itself of this rule are twofold.
The first reason is because of the procedural precedent being set, which the appellate court wanted to get straight. That is, it wanted to make sure that lower courts fully develop the factual record and base their decisions on a thorough accounting of the laws affecting the case. Here, the lower court failed to do those things.
Secondly, the whole process involved in this case is highly regulated by statute. The appellate court may be wary of getting too fancy where there is clearly a great deal of legislative intent and direction. The Kansas legislature created a highly structured regime for carrying out sentencing and the Kansas Appeals Court seems to be mindful about adhering closely to those legislative demands.
In the end, Martinez is still very likely to be deported (as apparently was his brother) and the lower court may still decide that probation is not appropriate after further development of the factual record and all the legal implications thereof. Irrespective of that, however, the appellate court’s decision was on the nose.
[tags] Kansas law, illegal immigration, legal status, sentencing guidelines, appeals court [/tags]
Very nice explanation.
Thanks, Hoss
By your reasoning and that of the court, a child rapist could not be prosecuted as only the act of raping the child was illegal and the ongoing status of the rapist is only a condition, not a crime. The appeals court wrapped itself up like a pretzel to produce a decision which, surprise, surprise, made a criminal’s life easier at the expense of everyone else. The decision is not counterintuitive, it is ridiculous. We are on our way to judicial tyranny where judges invent whatever law they prefer and totally ignore the political branches and the will of the people. Lawyers will love that but it is the bleakest future imaginable.
Forgive me if this sounds simplistic…but if you came into this country illegally your status, as an illegal immigrant, doesn’t change because you’ve been here for a few days or haven’t already been deported. Just because you aren’t currently illegally crossing our borders doesn’t excuse you from that past crime because you aren’t currently doing so. That would be like granting someone who broke into your house while you were sleeping the right to stay there because he’s been there a few hours and is not currently engaging in breaking and entering.
This kind of asinine reasoning and complete lack of common sense is exactly the kind of insipid disease inflicting our courts and the reason why more and more Americans neither trust nor respect our lawyers and judges. I personally hate them all with a passion. They are more interested in padding their wallets than upholding the law or passing fair judgment.
I’ve been first hand witness to the ponzi scheme that is violations court here in NJ being a would be victim of police ginning up false “careless driving” charges on hundreds of people as some sort of fund raiser. Oh sure, you can hire a lawyer; fight the charge and plea bargain by paying a higher fine…which is exactly the desired outcome. The court gets more money, the lawyers get their fees, the cops make their quota and the victim is out $1200+ for the pleasure of doing business with “the authorities”.
The bottom line in this circumstance with this illegal alien is not an argument on whether he is currently violating a law by being here despite the fact that he isn’t supposed to be here in the first place. It’s to recycle this guy through the system in order to drop the bill on us taxpayers and soak more money out of us. The only people who are losing here are the good upstanding citizens.
Ken Hahn:
Tom:
This is a point that many people seem to get up on. The Kansas Appeals Court did not opine as to the legality of Martinez’s entry into the US. The record in the court below established that to be an uncontested fact — i.e. Martinez is an illegal immigrant.
Most importantly here, Martinez’s violation of our immigration laws was not at issue in the case. He was not being prosecuted or sentenced for that violation, but instead for cocaine-related charges.
The sole question in this case was whether the lower court judge could depart from the sentencing guidelines established by the Kansas legislature, and deny Martinez probation. The lower court judge mistakenly thought that Martinez would be in violation of probationary rules requiring him to refrain from violating any further state or federal laws. Martinez’s violation of the immigration laws was in the past and had no continuing effect, provided that he was a first-time offender of those laws and had not been previously convicted of such violation.
To look at it another way, if Martinez had also shoplifted some groceries from Wal-Mart a couple of years prior to pleading guilty to the drug charges, he would still be eligible for probation because the shoplifting offense was not a continuing offense. Therefore, he would not be violating his probation simply by virtue of the fact that he committed a crime in the past for which he was never charged or convicted.
The same reasoning applies to the decision to depart from the legislature’s demand here that Martinez be placed on probation for a first-time drug offense. His status as an illegal is only a violation of the immigration laws in certain circumstances. The lower court judge did not ascertain whether those circumstances had been met, so the appellate court remanded the case back to him to make that determination.
Michael:
That’s the whole point; continuing effect. If you broke our laws to get here, then every day you walk around inside the US it is a continuation of breaking our laws. It is not a one-time offense like shoplifting. We are not talking about possessions but rather trespassing. You can’t be continuously shoplifting; you can be continuously trespassing. It doesn’t matter whether or not he was convicted or deported already. The world only works that way in the eyes of the court magicians…in the real world breaking the law is breaking the law regardless of imaginary lines crossed and length of time. Everything he has done since being here should be looked at through the lens that he entered the country illegally and is therefore currently trespassing and currently breaking our laws ever second of every day he continues to be here.
Tom,
But that wasn’t the issue. Legal action can still be taken against him as an illegal immigrant, it just has no bearing on this case. His case wasn’t dismissed either, but remanded back to the lower court.
Except, yes it does according to the very law he violated:
The judges have to follow the law, and the law does not criminalize a first-time offender’s continued presence in the country, but instead a repeat offender’s presence only. The judges can’t simply decide to ignore that law, which would be, of course, judicial activism.
Here’s a link to the statute in question (8 U.S.C. § 1326) that makes an illegal’s presence in the country a continuing violation only upon a second offense.
To MichaelW:
I understand what you are saying. I not contesting the fact that the law is written this way but merely griping over it. The section you pointed out
is the sort of court sorcery I was referring to. They don’t make those stipulations without reason. Somebody or some thing is benefiting from it and it isn’t us.
Except it’s not the court’s fault, it’s the legislature (in this case, Congress) for writing the law the way it did.
And I appreciate your griping, but sometimes applying Occam’s Razor to situations like this make more sense — i.e. incompetence better explains the result than mal intent.
Fair enough, I just don’t think the blame lies with the court then. I am no fan of much of the legal profession (or my profession for that matter) but when they do follow the law rather than try to reinvent it, I have to give them slack, or even credit. Even when I don’t like the result in a particular instance. My beef is when judges and lawyers attempt to reinterpret the law because they can’t win the votes necessary to actually change it. Much mischief has been done in that fashion.