ACLU: Morris' battle over bail for illegal aliens unnecessary
Says federal law can prevent deportations for those facing charges
By Peggy Wright • May 17, 2009

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The American Civil Liberties Union said it has unearthed federal regulations it believes could be the solution for county prosecutors who want illegal immigrant defendants kept in the United States until criminal charges filed against them are resolved.


Acting on a case that stems from Morris County, the New Jersey Supreme Court on April 28 heard legal arguments and now is crafting its opinion on whether prosecutors may use the filing of immigration detainers against noncitizen criminal defendants as a factor in seeking higher bail.

Belatedly, but within days of the arguments, the national and New Jersey chapters of the ACLU sought to intervene in the case, but were denied by the Supreme Court.

State Judiciary spokeswoman Winnie Comfort said the denial does not mean the ACLU arguments are irrelevant; rather, no assumptions at all can be made by the denial, she said.

Still, Michael Fletcher, a Morris County public defender representing the illegal immigrant -- Manuel A. Fajardo-Santos -- who is at the heart of the case, said he will ask the state's high court to consider, or at least take judicial notice of, the regulations that the ACLU believes are germane.

In a brief to the Supreme Court, Edward Barocas, legal director of the ACLU of New Jersey, pointed out two federal regulations he said ensure the federal government will not carry out the deportation of a noncitizen who is either a witness or a criminal defendant, unless the prosecutor consents.

The regulation asserts that, at the request of any prosecuting authority, U.S. Immigration and Customs Enforcement will delay the removal of a noncitizen criminal defendant, Barocas contends.

Barocas wrote: "In summary, federal regulations provide for a clear and simple mechanism that entirely addresses this court's concern that the federal government might remove a noncitizen defendant from the United States before his New Jersey state criminal prosecution has been resolved. To the extent that any removals have taken place in past cases in New Jersey, the prosecuting authority evidently neglected to avail itself of the departure control mechanism...,"

If only it were that simple.

That is the stand of Morris County Prosecutor Robert A. Bianchi. After the ACLU's research, Bianchi's office sought the opinion of attorneys for U.S. Immigration and Customs Enforcement which, as part of its duties, files immigration detainers on illegal immigrants charged with crimes and lodged in jails.

"When the ACLU raised the issue, ICE advised us that it did not see this regulation as applying to the removal (deportation) process," Bianchi said. "The fact that it has removed defendants from the United States while charges are pending illustrates its position."

While an opinion by the state Supreme Court would not be binding on the federal government, Michael W. Gilhooly, Northeast regional communications director for ICE, said he could not comment.

"It is not appropriate for ICE to discuss issues currently pending before the New Jersey Supreme Court," Gilhooly said.

Another problem is that the regulation appears to say prosecutors have to consent before the removal of a criminal defendant whose charges haven't been resolved, but a separate federal immigration statute under Act 241 says that removal -- once a final order is signed -- will not be delayed by a person's parole, supervised release, probation or possibility of arrest or further imprisonment.

Bianchi, backed by 20 other county prosecutors in New Jersey, wants the state Supreme Court to permit the setting of high bails or allow increases of original bails on illegal immigrant defendants who, if released, could be deported before their charges are resolved.

It's not a phantom concern.

Carlos Ulloa-Murillo, accused last year of molesting a child in Morris Township, posted $50,000 bail, was plucked by ICE from the county jail on his immigration detainer, whisked through removal hearings and deported from the country. The prosecutor's office only learned in December that Ulloa-Murillo had been deported months earlier.

Prosecutors went into crisis mode in January when they learned that Manuel Fajardo-Santos, accused of molesting a child in Wharton, was picked up by ICE after he posted $75,000 bail, and was being readied for deportation. Citing the detainer as "a changed circumstance," they won a bail increase of $300,000 from a Superior Court judge and Fajardo-Santos now is back in the county jail. The appellate division reversed the increase, but stayed the amount, and the legal questions surrounding the bail now are in the hands of the Supreme Court.

"Our goal is to ensure that removal proceedings do not deprive our victims and the public of a meaningful day in court," Bianchi said. "Even if this law applied, legal principles prevent a state government from ordering federal agencies from doing anything, including forcing them to interpret rules and regulations in any particular way. In other words, we have no power over ICE and/or the removal process. Hence, we needed to take immediate action and address this issue from a state, legal point of view."

Peggy Wright can be reached at pwright@gannett.com.


http://www.dailyrecord.com/article/2009 ... nnecessary