Rutgers Law Professor Joanne Gottesman, Director of the Immigrant Justice Clinic, recently successfully argued before the New Jersey Supreme Court, on behalf of a national group of amici immigration law professors.

In the consolidated cases of State v. Oscar Lopez-Carrera,State v. Juan C. Molchor, and  State v. Jose A. Rios, Gottesman argued that it is not  appropriate to detain non-citizens, who otherwise would qualify for release pending trial, because of the concern they might be deported by ICE before they can stand trial on charges.

The N.J. Supreme Court considered whether the Criminal Justice Reform Act allows judges to detain non-citizen defendants to prevent immigration officials from removing them from the United States before trial. In the court’s opinion, authored by Chief Justice Stuart Rabner, the court held that the reform act does not authorize judges to detain defendants to thwart their removal by ICE.

“A person’s immigration status alone cannot be dispositive,” the Court said. “Courts must engage in a fact-specific inquiry that looks beyond status because each person’s circumstances – citizens and non-citizens alike – are different. Non-citizens who have lived here for years, gone to school here, raised families here, and established roots in their communities may pose only a minimal risk of non-appearance.”

Gottesman co-authored the amicus brief with Professors Haiyun Damon-Feng from the University of Washington’s School of Law, Mauricio Norona from Cardozo Law and Reena Parikh from Boston College Law School. Out of many amici who filed briefs, only the professors and the ACLU of New Jersey were granted permission to argue at the state Supreme Court.

“Under the Criminal Justice Reform Act (CJRA), the presumption for most defendants is  that they should be released awaiting trial,” Gottesman explained. “But this case asked what about non-citizens?  Is risk  of removal an appropriate consideration in  a pre-trial  release determination? A lot of the brief was rebutting the assumptions by the state with regard to immigration law and procedure. Our goal was to provide the Court with a more nuanced understanding of immigration law.”

Significantly, in Fajardo-Santos 966 A.2d 1074 (N.J. 2009), decided before the CJRA was enacted, the court had previously held that it was permissible for a state court judge to increase a defendant’s bail after ICE lodged an immigration detainer against the non-citizen defendant.  As the court noted in its opinion, "In Fajardo-Santos, we did not have the benefit of the helpful briefs submitted in this appeal, and the decision overstated the significance of the filing of a detainer in the removal process."

The amicus brief explained that a trial court cannot accurately assess the risk of deportation for a non-citizen in detention, making it an inappropriate basis for denying pre-trial release.

According to the court’s summary, the state argued that pretrial detention is justified when a defendant’s risk of removal is certain and imminent. If that were the case, defendants could be detained no matter the nature and circumstances of their eligible offense, the strength of the evidence against them, their record of appearing in court in the past, their ties to and length of residence in the community, their past conduct, or other considerations the Legislature outlined. . . “Such an approach would effectively code decisions on pretrial release to an outside agency and remove that authority from judges.

“The Court finds evidence that the Legislature intended to authorize pretrial detention when there is clear and convincing evidence that individual defendants pose a serious risk of non-appearance based on their own conduct, not the acts of third parties like ICE.”