When an Illegal Alien is not Illegal

Mr. Bumble in Oliver Twist said “the law is an ass”.  I do know the law is often confusing.

In Kansas an illegal immigrant, Nicholas Martinez, was sentenced to a year in jail after pleading guilty to possession of cocaine and endangering a child.  A plea agreement was worked out where Mr. Martinez would get a year’s probation.  The trial judge tossed the agreement saying Martinez’s immigration status precluded probation.  Why?

“Mr. Martinez is illegally in the country and is in violation of the probation rules right from the start if I place him on probation…He 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.”

In other words, he has already violated federal law by being here, so putting him on probabation makes no sense as he will be violated on the probie charge as soon as he breaks a law-which in his mere presence here he is doing.

So Judge Hannelore Kitts decided to cut out the interm stage. The judge then sentenced Mr. Martinez to a year in jail.

Sound legal reasoning? Ah, not so fast!

Defense counsel appealed the ruling to the Kansas Appeals Court, where the ruling was http://www.kscourts.org/kscases/ctapp/2007/20070817/96613.htm“>reversed. The court said in its opinion

“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,”

Apparently the only way the judge could have done what he did was if the defendant had already been ordered to be deported, in which case his presence would be illegal. Since this was not done, the case was been sent back to the trial court for fact determination on this issue.

Let’s put aside the fact that the guy plead guilty, and that he pled guilty to possession of cocaine and child endangerment. Shoot, we will even move past court documents that indicate Martinez was caught using his son to help sell cocaine in Barton County, Kansas.

Let’s consider the language and the implications. If this holds up, then it doesn’t matter if you are here illegally, your presence is not actually illegal unless you have been adjudicated to having entered the country illegally and your deportation ordered.

It looks like the guys at BVBL.net have more work in store for them than they thought!

As for me, I remain amazed at how the law can turn a word that you think you know upside down and inside out. I feel like the Vizzini the Sicilian in The Princess Bride. After kidnapping the Buttercup, the fiance to Prince Humperdinck, Vizzini discovers he and his gang are being chased by man clad in black.

No, it was not Johnny Cash.

Time after time the mysterious man evades Vizzini’s efforts to stop him, and each time Vizzini reacts by saying “inconceivable”.

Finally, Inigo Montoya replies: “You keep using that word. I do not think it means what you think it means.”

Today, I think I understand how Vizzini feels.


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