The CJRA and Deportation (Part 1)

by | May 30, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On March 30, 2021, the New Jersey Supreme Court decided the consolidated Somerset County cases of State v. Oscar Lopez-Carrera, State v. Juan C. Molchor, and State v. Jose A. Rios. The principal issue involved whether the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, empowers judges to detain non-citizen defendants to prevent immigration officials from removing them from the country before trial.

Chief Just Rabner wrote for the 5-2 majority of the Court in relevant part: Defendants Juan Molchor and Jose Rios were arrested and charged with aggravated assault and criminal mischief. They allegedly punched and struck an acquaintance over the head with beer bottles at a party and damaged two cars as they left the party. Pretrial Services prepared Public Safety Assessments (PSAs) for both defendants. The PSAs rated both defendants 1 out of 6 for failure to appear, the lowest level of risk, and 2 out of 6 for new criminal activity. Neither defendant had any pending charges, prior convictions, prior failures to appear, or prior juvenile adjudications. Pretrial Services recommended that both be released with monthly reporting. The State moved for pretrial detention, claiming defendants posed a flight risk because they were undocumented immigrants. The State presented no evidence that U.S. Immigration and Customs Enforcement (ICE) was interested in either defendant. The court ordered both defendants detained pretrial, noting that, but for their immigration status, both would likely have been released. In both detention orders, the court included a single finding to justify detention: “Particular circumstances, specifically, defendant is an illegal alien.”

The State’s hardline position here is consistent with the reputation of the Somerset County Prosecutor’s Office. The judge’ use of the term “illegal alien” as opposed to the more common and preferred “undocumented immigrant” is consistent with the State’s hardline position. Our caselaw recognizes that it is only a federal crime for an undocumented immigrant to re-enter the country illegally after having previously been deported. There is no indication that an unlawful re-entry applied to the defendants in these cases.