The Court concluded in relevant part: The Appellate Division correctly remanded the cases involving defendants Molchor and Rios to the trial court. At a hearing on remand, just as at an initial detention hearing, trial courts consider a host of factors to assess whether a defendant presents a risk of nonappearance. N.J.S.A. 2A:162-20. A defendant’s family ties, length of residence in the community, and community ties all bear on the risk that an individual might choose not to appear in court. Ties to another country can likewise inform a court’s decision. But a person’s immigration status alone cannot be dispositive. Courts must engage in a 5 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. Other non-citizens who arrived recently and have no such connections may pose a much greater risk of non-appearance. In State v. Fajardo-Santos, 199 N.J. 520, 531-32 (2009), the Court invited an inquiry into how non-citizen defendants facing immigration action will decide to respond to their obligation to appear in court, a question that status alone does not answer. But Fajardo-Santos pre-dates the CJRA and is not an interpretive aid for either the Act or the issue now on appeal.
The Attorney General could not estimate how many non-citizen defendants who are not detained are deported each year. The State conceded the concern involves “a relatively small total number of cases” in the overall context of pretrial release. Prosecutors can and do seek to defer action and stay removal in appropriate cases so that the criminal process can be completed. It would be preferable for ICE to refrain from deporting defendants while they await trial for many reasons. If removal proceedings occur while a case is pending, the Court urges ICE officials to work with prosecutors to allow pending criminal charges to be resolved. The judgment of the Appellate Division is affirmed in both matters.
Justice Albin, joined by Justice Pierre-Louis dissented in relevant part: He disagrees with the Court’s holding on the grounds that it preempts the State’s sovereign authority to prosecute certain defendant aliens for offenses committed in New Jersey and denies crime victims their rights. Justice Albin does not suggest that a detention order can be entered solely because of an alien’s status but finds it a different matter when a final order of removal has been entered, no appeals are pending, and ICE has reported that a defendant’s removal from the country is certain and imminent. In those circumstances, Justice Albin writes, the State has met its burden that no condition of release “would reasonably assure the eligible defendant’s appearance in court when required.” N.J.S.A. 2A:162-18(a)(1). In Justice Albin’s view, that commonsense interpretation is consistent with the objectives of the CJRA, the State’s exercise of its sovereign power, and New Jersey’s Victim’s Rights Amendment and Crime Victim’s Bill of Rights. Justice Albin concludes that it is now for the Legislature to determine whether, in passing the CJRA, it intended to strip state courts of the power to enter detention orders that would prevent the removal of defendant aliens charged with committing crimes in New Jerseys.
The majority’s reference to the Attorney General’s concessions refers to what was said during oral argument. Oral argument is usually optional in Appellate Division cases. It is almost always required in subsequent appeals to the New Jersey Supreme Court.
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