Wednesday, August 22, 2007

Can't depart just for being in US illegally

Janine Cox won in State v. Martinez, No. 96,613 (Kan. App. Aug. 17, 2007), reversing a Barton County upward dispositional departure imposed because Mr. Martinez appeared to the district judge to be an illegal alien. The COA held that judge illegally being in the United States does not necessarily equate to nonamenability to probation:

The district court viewed Martinez' continued presence in the United States during a term of probation to be incompatible with his status as an illegal alien. The court observed: "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." This is true if Martinez had previously been deported and thereafter reentered the country illegally. 8 U.S.C. § 1326 would make his mere ongoing presence here a felony. On the other hand, if Martinez entered the country in violation of 8 U.S.C. § 1325 but has not previously been deported, his ongoing presence is not a crime though he is subject to deportation. Since the district court made no finding that 8 U.S.C. § 1326 applies to Martinez, we must set aside the departure sentence and remand for resentencing. If Martinez has not previously been deported, then the mere fact of his illegal alien status does not in itself render him unamenable to probation.

On the other hand, had Martinez previously been deported and reentered the country illegally, the district court's observations would be correct: Each day he served on probation would be a day on which he violated 8 U.S.C. § 1326.
On the flip side, the COA rejected Mr. Martinez' claim that the state district court was powerless to determine any fact about immigration status:

The district court did not engage in an adjudication of Martinez' immigration status. It simply recognized a fact about Martinez which his counsel volunteered during the course of the proceedings. On remand the district court is permitted to consider whether Martinez has been deported in the past in determining his amenability to probation.

Martinez correctly points out that it is not the function of the state courts to enforce our national immigration laws. The district court was not enforcing our national immigration laws by simply recognizing Martinez' immigration status for the purpose of deciding whether he is amenable to probation. The fact that our national leaders, for political, policy, or budgetary reasons, have chosen to ignore violations of our immigration laws does not prevent our courts from considering whether a defendant is engaging in an ongoing violation of law in determining that defendant's amenability to probation. The sentencing court should not be compelled to impose a plan of probation which, by its very nature, cannot be successfully completed.
Here is the Wichita Eagle article reporting on the case. Here is the CNSNews coverage and here is WorldNetDaily coverage of this case, which has also garnered some comment on other internet forums. (Here and here and here and here and here just to name a few). Here is a transcript of an interview on the O'Reilly Factor about the case. Given the current national debate on immigration, I won't be suprised to see this case talked about more in the future. And, on the practical side, I suspect this is a pretty recurrent issue in those parts of our state with lots of aliens.

[Update: the state did not file a PR and the mandate issued September 20, 2007].

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