Kansas court rules:Illegal Aliens arent Illegal

[Buckeye_Nut]

Of course...it's with stipulations....
http://www.cnsnews.com/ViewNation.asp?Page=/Nation/archive/200708/NAT20070821c.html

According to Kansas courts.......... it is illegal for an illegal alien to enter the country, but not illegal for an illegal alien to be in the country if the illegal alien can illegally make it past the Border Patrol without getting caught.

Isn't that special?

 

[sholling]

It's amazing how legal minds work.

 

[Johnd]

According to Kansas courts.......... it is illegal for an illegal alien to enter the country, but not illegal for an illegal alien to be in the country if the illegal alien can illegally make it past the Border Patrol without getting caught.

Buckeye_Nut: Did you read the decision, or just skim the article? The controlling law is as follows:

8 U.S.C. § 1325 (2000) 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. 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. Those persons who enter this country illegally are subject to deportation. 8 U.S.C. § 1227 (2000). Deportation may be based upon any number of factors, including the alien's initial entry into this country contrary to law or acts while in this country, such as the commission of certain crimes. However, 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.

While at first blush it may seem preposterous, but did it ever occur to you that the Legislature may have deliberated and pondered before writing the law? That there may be some actual reasoning in their law? A careful read of the appellate decision reeks of law and reasoning. A simple scan of the twice milked down version of the newspaper article is getting some writer's opinion, at best. However, to the paper's credit, they did provide a link to the appellate decision.

The simple fact is that there are 10+ million illegals in the country. The Legislature gave a "pass" (deportation) for the first offense in an effort to send a message to the miscreant, and so as to not fill up our prisons (and then some) with 10,000,000 illegals. Makes sense, doesn't it?

The appellate decision decided that the circuit court erred in disallowing probation for the reason that "the convict would immediately be in violation (of probation) of federal law by being here illegally." The law, as it is written, specifically addresses illegal "entry", not continued illegal presence. This does not mean that the illegal gets away scot free. Rather, instead of the one year sentence, the appellate decision is enforcing the plea agreement. That is the way the law is written, and my untrained eye tends to believe that the appellate decision is wholly correct.

If the law is further observed, upon the miscreant's release from jail or probation, he will be immediately handed over to INS, and cheerfully deported. If he illegally enters the US again, it is an automatic felony.

 

[mikeyj92]

Maybe there should be an addendum clarifying no probation option is available for those illegal aliens who break a jailable crime.

Automatic jail time for illegal criminal offenders, then deportation.

 

[Johnd]

Maybe there should be an addendum clarifying no probation option is available for those illegal aliens who break a jailable crime.

Automatic jail time for illegal criminal offenders, then deportation.

Well, that's a whole other issue mikeyj.

There is no provison for additional punishment for those illegals perpetrating a crime, all else being equal. "Equal Protection" (14th Amendment) specifically prohibits that type of thing.

Besides, I see that as a separate issue...and it is (separate). There are penalties for just about any type of crime...including illegal entry. Let us not fall into the trap of obfuscating justice and "piling it on" simply because one is an illegal. Mete out justice by convicting and sentencing per crime.

Like the Robin avatar btw.

 

[mikeyj92]

Well, that's a whole other issue mikeyj.

There is no provison for additional punishment for those illegals perpetrating a crime, all else being equal. "Equal Protection" (14th Amendment) specifically prohibits that type of thing.

Besides, I see that as a separate issue...and it is (separate). There are penalties for just about any type of crime...including illegal entry. Let us not fall into the trap of obfuscating justice and "piling it on" simply because one is an illegal. Mete out justice by convicting and sentencing per crime.

Like the Robin avatar btw.

I am not "piling on" here. Once a criminal is deemed an illegal alien, if they aren't given jail time, they will just get deported if probation is the recommended "sentence". Effectively getting away with the crime.

If they are illegal aliens, the only options for them once found guilty of a crime are jail time or deportation. There is no middle ground now. I am just stating to step it up to not allow them to get away with it. If they commit a crime in the U.S. as an illegal alien, they should do some time in the slammer before being deported.

So what you're saying is, this guy who is guilty of child endangerment and cocaine possession should just get deported and face no justice here?

 

[Johnd]

I am not "piling on" here. Once a criminal is deemed an illegal alien, if they aren't given jail time, they will just get deported if probation is the recommended "sentence". Effectively getting away with the crime.

Mikeyj: I did not accuse you of piling it on...don't take it so personally. As the law stands: 1st offense deportation, 2nd offense felony. This is of course, notwithstanding any extraneous crimes. They are not "getting away" with the crime.

If they are illegal aliens, the only options for them once found guilty of a crime are jail time or deportation. There is no middle ground now. I am just stating to step it up to not allow them to get away with it. If they commit a crime in the U.S. as an illegal alien, they should do some time in the slammer before being deported.

No. As the case at bar shows, there is a middle ground of probation...the penalty is not limited to jail time (or deportation). The perp did serve some time, and was about to serve a year before the appellate court overturned the circuit court's decision. The appellate decision was correct (as I read it). I think that you're missing the point. It is not that the courts are precluded from sentencing illegals to jail time. In the instant case, a plea deal was arrived at, which the judge totally ignored. That is the crux of the appellate decision. The plea deal was upheld because the judge misinterpreted the law.

So what you're saying is, this guy who is guilty of child endangerment and cocaine possession should just get deported and face no justice here?

No, I did not say that at all. I've read the statute (code) governing this case, and the circuit judge misinterpeted the code by disallowing probation. It's that simple. And the appellate court was correct in overturning his decision. I don't write the law, I just try to follow it. If you do not like the law as it stands, talk to the Legislature.

So the avatar compliment didn't soften you up mikeyj? The case at bar is about a circuit judge's misinterpretation of the law, and his subsequent refusal to allow a plea agreement based on that misinterpretation. Again, you seem to be under the impression that we cannot sentence illegals to prison time or probation...that is simply not the case.

 

[mikeyj92]

I am not taking it personally. If you are interpreting my posts that way, I'm sorry. I am by no means heated or irate or even miffed.

As I understand it, and correct me if I'm wrong...if the punishment for an illegal is deemed to be probation, once they walk out of the court house, aren't they just deported?

When are they actually on probation if they are immediately deported? How are they serving their probation if they would have been deported if they'd have been found out without committing a crime?

Am I misunderstanding this? Does a probation officer follow them to Mexico to make sure they are being law-abiding citizens down there?

 

[Johnd]

I am not taking it personally. If you are interpreting my posts that way, I'm sorry. I am by no means heated or irate or even miffed.

Good.

As I understand it, and correct me if I'm wrong...if the punishment for an illegal is deemed to be probation, once they walk out of the court house, aren't they just deported?

No. Probation is a punishment that must be served. Only when a sentence is commuted by a judge or the governor does it not have to be served.

When are they actually on probation if they are immediately deported? How are they serving their probation if they would have been deported if they'd have been found out without committing a crime?

?

Am I misunderstanding this? Does a probation officer follow them to Mexico to make sure they are being law-abiding citizens down there?

Of course not...lack of jurisdiction. As stated above, the probation sentence must be served (in the state of jurisdiction).

 

[mikeyj92]

No. Probation is a punishment that must be served. Only when a sentence is commuted by a judge or the governor does it not have to be served.

So, how does the illegal immigrant serve probation? Since "the jig is up" for them, won't they just run and hide somewhere else in the country once given the opportunity?

 

[Johnd]

So, how does the illegal immigrant serve probation?

By following those rules and regulations handed out by the probation/parole department.

Since "the jig is up" for them, won't they just run and hide somewhere else in the country once given the opportunity?

That I cannot speak to. But if they just run and hide they have absconded and violated their probation.

 

[mikeyj92]

Doesn't the deportation order override the probation sentence, thus negating the probation as if it never happened?

I ask again, how does a deported illegal alien serve his probation?

 

[Johnd]

Well, that's a different question. And you are talking about two different agencies (federal and state).

If the INS just scoops up the illegal in order to deport, the state has every right to seek an injuction delaying the deportation until the sentence is served in order to mete out justice. Would the state do that? I do not know.

 

[mikeyj92]

Well, that's a different question. And you are talking about two different agencies (federal and state).

If the INS just scoops up the illegal in order to deport, the state has every right to seek an injuction delaying the deportation until the sentence is served in order to mete out justice. Would the state do that? I do not know.

So, IF they do that, isn't it in the illegal aliens best interest to commit minor crimes to recieve probation just to stay here longer? What to they have to lose?

Delaying deportation to allow the illegals to "live free" on probation for a year or 2 is not in our best interests. It gives them incentive to break laws...doesn't it?

Another "if"...where does an illegal alien on probation live and how do they then earn a living legally? Or do we just put them on some sort of welfare until their probation runs out and then deport them?

 

[Johnd]

So, IF they do that, isn't it in the illegal aliens best interest to commit minor crimes to recieve probation just to stay here longer? What to they have to lose?

Delaying deportation to allow the illegals to "live free" on probation for a year or 2 is not in our best interests. It gives them incentive to break laws...doesn't it?

Another "if"...where does an illegal alien on probation live and how do they then earn a living legally? Or do we just put them on some sort of welfare until their probation runs out and then deport them?

Haaa.

That's one argument. You ought to run for the Legislature.

To counter: I would argue if one's position in life is so aggrieved that they need to commit petty crimes in order to receive probation so as to remain in this country, then that is perhaps a perfect candidate for fast track citizenship for humanitarian reasons.

 

[mikeyj92]

Haaa.

That's one argument. You ought to run for the Legislature.

No Thanks!

To counter: I would argue if one's position in life is so aggrieved that they need to commit petty crimes in order to receive probation so as to remain in this country, then that is perhaps a perfect candidate for fast track citizenship for humanitarian reasons.

So, those who illegaly come into the US, who commit crimes on purpose to stay here, should get rewarded with citizenry faster than those who petition for citizenry via the proper channels?

Wow.

Who is to judge if the criminal actions taken were out of aggrieved desperation or just pure deliquency? And does that even matter? How do you prove a life situation that an illegal alien has "escaped" from in their home country that doesn't come from their own word?

As you can see, it is basically impossible to give probation to an illegal alien...because of their status, which is a result of their own prior actions. They've already shown blatent disregard for US laws by being here, if they then in turn commit more crimes while being here...why should they be afforded the same laws/rights as a US citizen? Maybe taking away probation as a punishment option is fair in this case? I think it is...

 

[Johnd]

No Thanks!

So, those who illegaly come into the US, who commit crimes on purpose to stay here, should get rewarded with citizenry faster than those who petition for citizenry via the proper channels?

Wow.

Not necessarily. In fact, I did not write that. I wrote an argument could be made for aggrieved status. Obviously, one then needs to look at the life from which they are escaping in order to substantiate any claim of persecution.

Who is to judge if the criminal actions taken were out of aggrieved desperation or just pure deliquency? And does that even matter? How do you prove a life situation that an illegal alien has "escaped" from in their home country that doesn't come from their own word?

That provence belongs solely to the INS, and the attorneys that argue these cases.

As you can see, it is basically impossible to give probation to an illegal alien...because of their status, which is a result of their own prior actions. They've already shown blatent disregard for US laws by being here, if they then in turn commit more crimes while being here...why should they be afforded the same laws/rights as a US citizen? Maybe taking away probation as a punishment option is fair in this case? I think it is...

No, it does not follow.

Firstly, you are the one that made the case of the illegal intentionally committing crimes in order to remain in the US. Ironically, it then turns out to be far less a blatant disregard for our laws, and it becomes a blatant regard and understanding of our laws.

Secondly, as an illegal they are not "afforded the same laws/rights as a US citizen."

Thirdly, as a criminal they are afforded even fewer rights.

Fourthly, the only way I see probation being taken off the table for illegals is if they abscond en masse, thus making a farce of the probation/parole system.

Finally, you obviously have decided that the punishment received is far lighter than the punishment deserved...without seeing any court documents, talking to any witnesses, or seeing any evidence. But the key players (the DA and defendant's counsel) deemed the (plea out) sentence appropriate. I am not so well-informed as to make such a guess.

 

[stratman]

Well, that's a different question. And you are talking about two different agencies (federal and state).

If the INS just scoops up the illegal in order to deport, the state has every right to seek an injuction delaying the deportation until the sentence is served in order to mete out justice. Would the state do that? I do not know.

Hey! Wait a minute! You said there's no justice, remember?

 

[Johnd]

Haaa.

You sir, are correct. Not really, because I wrote it, I did not speak it.

But you are paraphrasing. I wrote there is no justice, at least not in this life. And that was written in the context if all those sue happy people (as well as crime victims seeking retribution).

And those are my words. I do not speak for the state. It is the state's provence to say 5 years is justice...that is their prerogative.

 

[Tomorrow]

Haaa.

You sir, are correct. Not really, because I wrote it, I did not speak it.

I wonder, John. Do you argue with yourself when no one is around?

Just checking.