Thread: Morris County bail, deportation case breaks legal ground

by Jim Lockwood/The Star-Ledger Tuesday February 17, 2009, 8:49 PM
A court battle arising out of Morris County over bail for an illegal immigrant facing deportation before his local criminal case is resolved has broken new legal ground between the state and federal governments.

The debate centers on whether bail for illegal immigrants held in county jails on indictable offenses can be significantly raised solely because the federal Immigration and Customs Enforcement, or ICE, has placed detainers on them. Because an ICE detainer likely could quickly result in deportation, a defendant could essentially avoid prosecution on criminal charges by consenting to, or not fighting, deportation, according to Morris County Prosecutor Robert Bianchi.

That happened in December in a case that spotlighted the issue. It now is headed to the state Supreme Court, which first would have to decide whether to hear the case.

The Supreme Court motion filed last week by the prosecutor's office argues: "The solution is remarkably simple and does not require this (Supreme) court to wade into the political maelstrom surrounding immigration policy. All that this court has to do is to allow (state) trial courts to consider an ICE detainer as a factor that may justify an increase in bail."

The issue stems from a case involving Carlos Ulloa-Murillo, an illegal immigrant from Honduras who was charged last year with sexually assaulting a child. He posted bail and was picked up by ICE and deported -- even though his criminal charges in Morris were pending.

Then, last month, Manuel Fajardo-Santos, another illegal immigrant from Honduras charged last year with sexually assaulting a child, posted bail of $75,000 and also was detained by ICE. But this time, before he was deported, the Morris County prosecutor sought a higher bail, and Superior Court Judge John Dangler granted it, raising his bail to $300,000.

An attorney with the state Public Defender's Office, Michael Fletcher, appealed that bail, arguing there must be a new circumstance to warrant a new bail, and an ICE detainer alone is not grounds for a bail hike.

The state Appellate Division agreed and reversed the bail. Last week, the Supreme Court suspended the appellate decision to give the prosecutor time to appeal.

The problem is a jurisdictional one between federal deportation and state criminal proceedings, the prosecutor's motion states. The purpose of bail is to ensure a defendant shows up in court. Deportations used to be rare, but they increased after a state attorney general's directive in 2007 led to "more aggressive" enforcement by ICE, Bianchi has said in court.

On Aug. 22, 2007, the state attorney general issued a directive requiring police to report to ICE those charged with indictable crimes who are suspected of being illegal immigrants. The directive came after police learned a suspect in the Aug. 4, 2007, execution-style killings of three college students in Newark was illegally in the country from Peru and out on bail after previously being charged with sexually assaulting a child. State officials had argued that if ICE was notified the suspect was in custody, he may not have been released on bail.

Under the directive, once a suspect is reported to ICE, that agency determines if the person is an illegal immigrant subject to deportation. If so, ICE then may decide to file a detainer seeking custody of the defendant upon release from a county jail.

In addition to the Fajardo-Santos case, on Feb. 6 the prosecutor's office sought and received from Dangler similar bail increases on some eight other illegal immigrants because they, too, had ICE detainers placed on them. Bianchi argued that when judges initially set bails, they were not contemplating deportation was an option.

Characterizing the situation as a "tug-of-war" between state and federal agencies, Dangler decided ICE's detainers and stepped-up enforcement meant "the process has changed." He raised the bails or converted them to cash-only.

ICE spokesman Harold Ort said there is no "tug-of-war," adding, "Once we place a detainer on someone, they are going to be removed from the U.S. That's what we do. It's pretty much understood."

Previous coverage from The Star-Ledger:

2/9/09: Morris prosecutor asks high court to consider bail increase for illegal alien

2/11/09: Supreme Court delays bail reversal of illegal alien in Morris County


See more in Court news, Crime/Courts, Editors' Picks, Immigration, Morris County, News, Politics, Supreme Court Tags: Star-Ledger Send To A Friend | Print this | Permalink
Reddit Digg del.icio.us Google Facebook Buzz up!COMMENTS (2)Post a commentPosted by dbanker on 02/17/09 at 8:59PM
Can't wait to see the racist comments on this story!

Inappropriate? Alert us. Post a commentPosted by hellokitty14 on 02/17/09 at 9:18PM
First of all, why aren't all illegal immigrants deported? Second of all, if it's sexual assault against a child, why is there a question?

Inappropriate? Alert us. Post a comment


http://www.nj.com/news/index.ssf/2009/0 ... ation.html

The Supreme Court motion filed last week by the prosecutor's office argues: "The solution is remarkably simple and does not require this (Supreme) court to wade into the political maelstrom surrounding immigration policy. All that this court has to do is to allow (state) trial courts to consider an ICE detainer as a factor that may justify an increase in bail."

There doesn't need to be an increase in bail..........there should be NO BAIL option at all

Originally Posted by cvangel

The Supreme Court motion filed last week by the prosecutor's office argues: "The solution is remarkably simple and does not require this (Supreme) court to wade into the political maelstrom surrounding immigration policy. All that this court has to do is to allow (state) trial courts to consider an ICE detainer as a factor that may justify an increase in bail."

There doesn't need to be an increase in bail..........there should be NO BAIL option at all

That's right!