The CJRA and Deportation (Part 2)

The New Jersey Supreme Court majority continued in relevant part: The Appellate Division consolidated the cases and reversed. See 464 N.J. Super. 274 (App. Div. 2020). The Court granted leave to appeal. 244 N.J. 187 (2020). Defendant Oscar Lopez-Carrera was charged with attempted sexual assault and criminal sexual contact in relation to an alleged attempted sexual assault of a minor. Like Molchor and Rios, Lopez-Carrera had no prior convictions or other pending charges, and no prior failures to appear. The PSA rated him at the lowest level of risk, 1 out of 6, for both failure to appear and new criminal activity. Pretrial Services recommended that Lopez-Carrera be released on his own recognizance. The State did not initially move for pretrial detention, and Lopez-Carrera was released on conditions. Immediately upon his release, ICE officials took him into federal custody. He was indicted months later. Eight months after that, ICE informed prosecutors of the following: Lopez-Carrera was the subject of a final removal order; his immigration appeals had been denied; and he would be removed from the country to Guatemala.

In his immigration appeal, Lopez-Carrera unsuccessfully sought a continuance to allow his criminal charges to be resolved. The State promptly moved to revoke Lopez-Carrera’s pretrial release based on the change in circumstances. The trial court denied the motion, relying on the Appellate Division’s recently published decision in Molchor. The Appellate Division affirmed. The State contacted ICE and asked for permission to apply for deferred action or an administrative stay of removal to delay Lopez-Carrera’s removal from the country. Counsel for ICE responded that the removal could not be delayed. The Court granted leave to appeal. 244 N.J. 189 (2020).

It is surprising that the pretrial service recommendation was for a release on personal recognizance with no conditions attached. Given that the charged offense calls for mandatory prison time with parole ineligibility and Megan’s Law registration upon conviction, it would be reasonable to attach some non-monetary conditions to the release.