JOSE RIOS AND STATE VERSUS OS KOR LOPEZ KRAR AN CAN WE PLEASE HAVE ANSWER OF COUNSEL?
DANA R. ANTON: GOOD MORNING YOUR HONOR DAN AN ARE AND TON,
SPECIAL DEPUTY ATTORNEY GENERAL ACTING SENIOR ASSISTANT ASSISTANT PROSECUTOR FOR
CROSS GOER COUNSEL I ON BEHALF OF THE STUJ. A. TA NATURE WHY HERE SIFRT
PROSECUTOR ON THE. A. YOUR HONORS GOOD MORNING CREASE AEN AN SDRAS QUESTIONS
APPEARING ONLY BEHALF OF WAN MOLCHOR. A. GOOD MORNING YOUR HONOR PAUL HIENS
SIFRT SONL PROSECUTOR ON BAVR OF THE STALT AND LOPEZ CONTRARY AN. A. GOOD
MORNING YOUR HONOR AND DREW BUR ROSE ON BEHALF OF THE RERESPOND END COST DAR LOPEZ
KRARZ AN. A. GOOD MORNING YOUR HONOR. DEPUTY ATTORNEY GENERAL SARA
C HUNLT ON BEHALF OF THE ATTORNEY GENERAL OF NEW JERSEY, WHO IS A FRIEND OF THE
COURT IN BOTH MATTERS. A. GNLAL COMBANL EAR SHA LOJ FWR TS AMERICAN CIVIL
LIBLTS UNION OF NEW JERSEY ALSO AS A FRIEND FTD COURT. A. GOOD MORNING
JOE AN GOTHS DIRECTOR OF THE I AM GRENLTS CENTER ON BEHALF OF A MEEK KEY IMMIGRATION
LAW PROVES ORS. CHIEF JUSTICE RABNER: WELCOME COUNSEL. AS
YOU CAN TELL BY THE WAY THAT WE HAVE ORDERED THIS WE ARE ATTEMPTING TO
ENABLE YOU TO ADOPT ARGUMENTS THAT HAVE COME BEFORE YOU A MEEK KEY WILL GO LAST
AND THERE WILL BE SOME REPUTATION OF COURSE BUT YOU ARE FROO E TO
INCORPORATE WHAT YOU HAVE HEARD BEFORE AS YOU MAKE YOUR PRESENTATIONS WE WILL START
WITH MISS AND TON PLEASE PROCEED. DANA R. ANTON: YOUR HONOR
IF I MAY RESERVE A FEW MINUTES OF REBUTTAL. CHIEF JUSTICE
RABNER: THAT'S FINE. DANA R. ANTON: THANK YOU VERY MUCH.
MAY IT PLEASE THE COURT, WE ARE HERE TODAY TO ADDRESS THE QUESTION OF WHEN
A DEFENDANT OR I AM SORRY WHEN A COURT MAY CONSIDER THE RIFSHG OF A DEFENDANT'S
REMOVAL BY FEDERAL IMMIGRATION OFFICIALS. THAT DEFENDANT UNDER THE CRIMINAL JUSTICE
REFORM ACT. IN RESPONSE TO THAT QUESTION THE STATE WILL RECOMMEND TO THIS
COURT A FRAMEWORK WITHIN WHICH TRIAL COURTS SHOULD MAKE THOSE DETERMINATIONS.
IN ORDER TO BEST BALANCE THE RIGHTS OF ALL INVOLVED. AT THE
OUTSET, IT IS IMPORTANT TO NOTE THAT THE SOLE PURPOSE OF A GOVERNMENT IS TO PROTECT
THOSE THAT LIVE WITHIN ITS BORDERS. IN CARRYING OUT THAT DUTY, THE PREVENTION
AND PROSECUTION OF CRIME IS ONE OF A GOVERNMENT'S MOST FUMENTAL FUNCTIONS. IN
SHURG THAT A DEFENDANT APPEARS IN COURT AS REQUIRED TO ANSWER THE CRIMINAL
CHARGES IS AN ESSENTIAL FUNCTION TO THE FAIR ADMINISTRATION OF JUSTICE. THE PERMANENT
REMOVAL OF A CRIMINAL DEFENDANT FROM THE UNITED STATES PRIOR TO BEING A
DJUDICATED OR SERIOUS CRIMINAL CHARGES IS IMPORTANT TO JUSTICE AND WOULD BE A COMPLETE
FAILURE OF A GOVERNMENT TO PROTECT ITS PEOPLE. THERE MUST BE A WORKABLE ^ SHRUGS ^ SOLUTION TO PREVENT THE STATE FROM LOGSING ITS EXECUTIVE POWERS. THAT
REFORM ACT WHEN A DEFENDANT'S REMOVAL IS IMMINENT. THE STATE RECOGNIZES THE LENTD
I AND COMPLICATED PROCESS OF IMMIGRATION HERE IN DEE IMPORTANT TAGS THE
STATE ALSO RECOGNIZES THAT A DETAINER IS NOT A GUARANTEE OF REMOVAL. BUT THE FACT
REMAINS THE VIOLENT FENDERS IN NEW JERSEY ARE IN A VOIDING CRIMINAL PROSECUTION.
IMPORTANTLY, WHEN THE CITIZENS OF THIS STATE VOTED TO AMEND ITS COPS
SUBSTITUTION TO ALLOW FOR PRETRIAL DETENTION IN CERTAIN CASES, THEY ACKNOWLEDGEED
THAT DETENTION MAY SOMETIMES BE NECESSARY FOR THE ADMINISTRATION OF JUSTICE.
THE RESULTING CRIMINAL JUSTICE REFORM ACT ALLOWS THE STATE TO
SEEK DETENTION WHEN THE STATE FAILS IT IS NECESSARY TO REASONABLY ASSURE THE
DEFENDANT'S APPEARANCE IN COURT WHEN REQUIRED. THE CRIMINAL JUSTICE REFORM
ACT GIVES COURTS THE POWER WHEN THE COURT FINDS BY CLEAR AND CONVINCING EVIDENCE
THAT NO V CONDITIONS OR MONETARY BAMG WOULD REASONABLY ASSURE A DEFENDANT'S
APPEARANCE TO TRIAL. THERE IS NO MENTION OF A VOLITIONAL ACT AND ANY SUCH REQUIREMENT
AS ANNOUNCED BY THE APPELLATE DIVISION IS IMPROPERLY AS KRIEBD TO THE CRIMINAL
JUSTICE REFORM ACT. IF WE LOOK AT THE CONTINUUM OF THE REMOVAL PROCESS, THE KEY
EVENTS TO A DEE IMPORTANT TAGS ARE THE ISSUING OF A FINAL ORDER OF REMOVAL,
THE EXHAUST THANK YOU, YOUR HONOR. OF A PEELS, THE PRO KURMENTD OF AND THE SCHEDULING
OF FLIETD ULTIMATELY. AT THE VERY LEAST WE RESPECTFULLY REQUEST
THIS COURT PERMIT TRIAL COURTS TO DETAIN A DEFENDANT ONCE TRAVEL DOCUMENTS
HAVE BEEN PROCURED. AT THAT POINT REMOVAL IS IMMINENT AND TO WAIT ANY LONGER WOULD
INCREASE THE RISK EXPONENTIALLY THAT THE DEFENDANT WILL BE REMOVED AND FOREVER
RELIEVED OF THE BUSHD EVEN OF ANSWERING TO CRIMINAL CHARGES. CANDIDLY, THE STATE
ACKNOWLEDGES THAT THE DEFENDANTS IN TS MOLCHOR REOWES CASE DO NOT NECESSARILY
FIT WITHIN THE FRAMEWORK THAT THE STATE IS PREPOSING HERE TODAY. AND I'M SURE
THE COURT HAS NOTED THE STATE'S POSITION IN THIS CASE HAS EVOLVED THROUGHOUT
THE COURSE OF THE LITIGATION. IN FACT, THE STATE HAS MOVED FOR DETENTION IN THIS
CASE BEFORE IT WAS EVEN AWARE OF THE DEFENDANT'S IMMIGRATION STATUS. THE
STATD SOUGHT DETENTION ON OTHER FACTORS AND THEN A MEJTD THE ITS FILING AT THIS
HEARING. AS THIS CASE PROGRESSED IT BECAME CLEAR THAT THE
JUDGES DECISION BELOW MAY HAVE RELIED ON ERRONEOUS FACTORS. BUT THE STATE
RESPECTFULLY REQUESTS THIS COURT TO DEE NOUNS THE ARBITRARY AND UNNECESSARILY
BROAD RULE OF LAW IMPOSED BY THE APPELLATE DIVISION IN THIS CASE. IN ORDER TO
PREVENT A SUB VERSION OF THE STATE'S SKUF I HAVE POWERS WE ASK THIS COURT TO PERMIT
DETENTION AT THE VERY LEAVE THE WHEN A DEFENDANT'S REMOVAL IS ALL BUT CERTAIN
BASED ON THE ISSUANCE OF TRAVEL DOCUMENTS. YOUR HONORS THAT
CONCLUDES MY INTEREST DUKTS TRI STATEMENT. CHIEF JUSTICE RABNER:
MISS AND THON WE'RE INTERPRETING THE STACH OF COURSE AND THE CRITICAL LANG IN
THE STATUTE SPEAKS TO THE COURT ENTERING AN ORDER WHEN NO CONDITIONS OR ACCOMMODATION
OF CONDITIONS WOULD REASONABLY ASSURE THE ULTIMATE DEFENDANT'S APPEARANCE IN
COURT WHEN REQUIRED. THAT DOESN'T SPIFL ADDRESS THE ISSUE THAT IS IN FRONTS OF THE
COURT TODAY WOULD YOU AGREE? DANA R. ANTON: I DO AGREE WITH
THAT, YES. CHIEF JUSTICE RABNER: SO THEN WE NEED TO LOOK AT
THE LEGISLATE IF HISTORY TO SEE THE EXTENT TO WHICH THAT SHEDS LIGHT ON THINGS.
AND THIS COURT PREVIOUSLY NOTED THAT THE JOINT COMMITTEE ON
CRIMINAL JUSTICE RAPPORT WAS A SOURCE OF AUTHORITY THAT COULD BE CONSIDERED AS
PART OF THE LEGISLATIVE HISTORY, CORRECT? DANA R. ANTON:
YES. CHIEF JUSTICE RABNER: IN THE REPORT IT SPEAKS REPEED
V PEETDEDLY OF PRIELG MISS CONDUCT AS A BASIS FOR DETENTION. WHAT DOES THAT MEAN
TO YOU? DANA R. ANTON: SO, PRETRIAL MISS CONDUCT OF COURSE
MEANS THE OBVIOUS OF VOLITIONAL NONAPPEARANCE IN COURT. BUT ONCE I THINK THAT
IN CASES LIKE WOOEF BEFORE THE COURT IN LITTLE KRAR AN ESSENTIALLY, WE ARE AT
THE POINT WHERE WE ARE ASKING FOR DETENTION IN TRAVEL DOCUMENTS HAVE BEEN PROCURED.
THERE IS SOME ELEMENT OF MISS CONDUCT ON THE PART OF THE DEFENDANT. IT'S
ALREADY BEEN LITIGATED AND DETERMINED THAT THEY ARE HERE ILLEGALLY SO THAT IS IN
SOME PART MISS CONDUCT ON THE PART OF THE DEFENDANT. CHIEF JUSTICE
RABNER: IEK ARE YOU SUGGESTING THAT ICES DETERMINATION TO PROCURE TRAVEL
DOCUMENTS SFOB CONSIDERED MISS CONDUCT ON THE PART OF THE DEFENDANT?
DANA R. ANTON: NO NO I'M SAYING THAT AT THAT STAGE WHEN TRAVEL DOCUMENTS ARE
PROCURED, REMOVAL THERE IS ALREADY A FINAL ORDER OF REMOVAL AND ALL STATES
HAVE BEEN SKAULS TED SO THAT THERE HAS ALREADY BEEN A DETERMINATION THAT THERE
IN THE COUNTRY ILLEGALLY AND ARE TO BE REMOVED. CHIEF JUSTICE
RABNER: IN THE REPORT IT SOEF BECAUSE MUCH OF THE DEBATE IN THE BRIEFS AND IT IS
VERY HEFRL A BRIEFS BY A MEEK KEY AS WELL AS THE PAERTS IS THE QUESTION
OF WHETHER WE'RE TALKING ABOUT WHETHER A NONAPPEARANCE IS KEY TORT FLIGHT WITH
SOME SORT OF VOE LILGS AM ACT. THE REPORT THAT THE COURT HAS RELIED ON
USES THOSE TERMS INTERCHANGEABLY AND IN FACT SAYS NONAPPEARANCE IN COURT WHEN REQUIRED
SHALL BE REFERRED TO AS FLIGHT FOR PURPOSES OF THAT DOCUMENT. KRIKS
CORRECT? DANA R. ANTON: CORRECT. CHIEF JUSTICE
RABNER: SO WHAT DOES THAT BIT OF LEGISLATIVE HISTORY TELL US?
DANA R. ANTON: AT LEAST INITIALLY THAT FLIGHT OR MISS CONDUCT WAS THE ORIGINAL
INTENTION. HOWEVER, THAT LANG WAS ABANDONED THROUGHOUT THE LEGISLATIVE
PROCESS. I UNDERSTAND THAT THE DEFENDANT'S COUNSEL AND THE APPELLATE DIVISION
BELOW HELD THAT IT'S REALLY ONLY VOLITIONAL NONAPPEARANCE. THE FLIGHT OF
NONAPPEARANCE BUT IN THAT CASE THAT IS NOT REALLY MUCH OF A THREAT AS IT IS IN
OUR CASE WHERE THEY'RE BEING REMOVED. CHIEF JUSTICE RABNER:
BUT WHEN YOU SAY THE LEGISLATURE ABANDONED IT, YOU'RE TALKING ABOUT THE CHANGE
WHERE THEY TOOK OUT THE WORDS WILLFULLY. DANA R. ANTON: CORRECT.
CHIEF JUSTICE RABNER: AND INSTEAD INSERTED WILL NOT APPEAR
IN COURT IF REQUIRED. DANA R. ANTON: YES. CHIEF
JUSTICE RABNER: SO THE LEGISLATURE USED TERM NOEL GEE THAT THE REPORT SAYS IS
INTERCHANGE ABL, CORRECT? OR STUTDED LANG THAT THE REPORT SAYS IS INTER
CHANGE ABL. DANA R. ANTON: YES. CHIEF JUSTICE
RABNER: DID THE LEGISLATURE GIVE A REASON FOR WHAT IT WAS DOING.
DANA R. ANTON: NO IT DID NOT IT DID NOT. CHIEF JUSTICE RABNER: SO
DOES THAT REALLY HELP US? CAN WE KNOW WHAT THE LEGISLATURE MEANT IN THAT
RESPECT BASED ON THE CHANGE IN LANG THAT APPEARS TO MATCH THE INTERCHANGE ABL TERMS
IN THE J C J REPORT. DANA R. ANTON: WELL I THINK WE CAN, YOUR
HONOR, BECAUSE WE LOOK AT THE TIME THAT THE LEGISLATIVE HISTORY WAS DEVELOPING IN
2014, THIS COURT HAD ALREADY DECIDED THE CAR TOES WHICH RECOGNIZED THE PROBLEMS
WITH THE CRIMINAL PROSECUTION AT THE SAME TIME AS THE REMOVAL PROCESS.
AND RECOGNIZING THAT, THE COURT ALSO RECOGNIZED THAT THERE AREN'T REALLY ANY
AVENUES VABL TO THE STATE. PRESUMEING LEGISLATURE NEW ABOUT THAT CASE, IT IS
THE STATE'S ARGUMENT THAT THEY WERE LOOKING TO CORRECT THAT AND TO DIFFERENTIATE
IT FROM THE FEDERAL STAFRP ON WHICH IT IS BASED. CHIEF JUSTICE
RABNER: NONE OF THAT CAN BE FOUND ANYWHERE IN THE LEGISLATIVE HISTORY, WOULD YOU
AGREE? CHIEF JUSTICE RABNER: DANA R. ANTON:
I WOULD AGREE REQUEST THAT. THE LEGISLATIVE HISTORY AFTER THE INITIAL
COMMENTS IS PRETTY SILENT AS TO WHY THE LANG CHANGED. CHIEF JUSTICE
RABNER: GIVEN THE FACT THAT YOU CAN READ THE LETHS I HAVE HISTORY IN A WAY THAT
DOESN'T GIVE A CLEAR ANSWER, AND THAT THE STACH DOESN'T GIVE A CLEAR ANSWER,
YOU COME FORWARD WITH SOME POLICY POSITIONS. WHY ISN'T THE LEGISLATURE THE
RIGHT PLACE TO GO TO ADVANCE THOSE ARGUMENTS? DANA R.
ANTON: WELL, I MEAN, JUDGE, ULTDLY IT MAYBE BUT RIGHT NOW THERE ARE THERE IS THIS
TENSION BETWEEN AND I DON'T MEAN TENSION IN AN ADVERSARIAL WAY BUT THERE
IS THIS CONFLICTING INTEREST BETWEEN THE SOMETHING OF DEE IMPORTANT TAGS AND
CRIMINAL PROSECUTION AND THERE IS AN IMMEDIATE NEED TO HAIF A REMEDY FOR THAT.
JUSTICE ALBIN: IS PART OF YOUR ARGUMENT THAT GIVEN THE BROAD
NATURE OF THE LANGUAGE, TO READ IT IN SUCH A WAY THAT WOULD DEPRIVE THE STATE OF
ITS MOST BASIC SOVEREIGN INTEREST OF THE ABILITY TO PROSECUTE PEOPLE WHO
HAVE COMMITTED VERY SERIOUS CRIMES AGAINST OUR CITIZENS, TO READ IT IN A NARROW
WAY WOULD LEAD TO AN ABSOLUTE AB SURD RESULT THAT A PERSON WHO HAD COMMITTED
A MURDER OR AN AGGRAVATED SEXUAL ASSAULT AND WHO IS CERTAINLY AND I AM MENTALLY
TO BE REMOVED FROM THE COUNTRY, WOULD THEN NOT BE HELD TO ANSWER WITHIN THE
JURISDICTION NOR A CRIME THAT HE'S COMMITTED AGAINST CITIZENS OF NEW JERSEY? GO
AHEAD. DANA R. ANTON: I'M SORRY YOUR HONOR THAT IS ABSOLUTELY
OUR ARGUMENT. AND IN A VERY NARROW CIRCUMSTANCE WHERE WE ARE ASKING FOR THIS
AFTER THE TRAVEL DOCUMENTS HAVE BEEN PROCURED, NOW, IN THE STATE UNDER THE
CRIMINAL JUST REFORM ACT WE DO HAIF A PRESUMPTION IN MURDER CASES THAT WE CAN
DETAIN THEM BUT WE DON'T THAT I HAVE THAT FOR SEXUAL ASSAULT CASES SO THE
FEDERAL STATUTE THE FEDERAL BAIL REFORM STATUTE DOES HAVE A PRESUMPTION FOR DETENTION
IN SEXUAL ASSAULT CASES PARTICULARLY WITH A MINOR. SO THEY HAD THAT PROTECTION
BUILT INTO THAR BAIL REFORM STAT UTD. WE DON'T HAVE THAT. SO WE ARE ASKING THAT
PROCESS OF IMMIGRATION NOT STRIP US OF OUR ABILITY TO EXERCISE OUR SKUF
POWERS IN THE MOST SERIOUS OF CASES WHERE THERE ARE VICTIMS WHERE THE STATE THROUGH
CONSTITUTIONAL A MREMENT HAS DEDICATED THE PROTECTION OF VICTIM RIGHTS.
JUSTICE ALBIN: WESTERN WHEN THERE IS A PRESUMPTION REALLY THE QUESTION IS WHORT
IT'S AN IT'S LEGITIMATE FOR THE COURT TO DETAIN A PERSON WITHIN THE
JURISDICTION WHEN THE PERSON IS ABOUT TO BE REMOVED OUTSIDE OF THE JURISDICTION
AND THEREFORE NOT TO BE HELD ACCOUNT ABLG FOR A CRIME THAT'S COMMITTED HERE IN
THE STUJ. DANA R. ANTON: ABSOLUTELY, YOUR HONOR.
PERMANENTLY. IN EVERY OTHER SITUATION WHERE IT'S WHERE IT IS VOLITION ALLEGE OR
FLON VOLITIONAL CONDUCT THE COURT HAS THE ABILITY TO CATCH UP WITH SOMEBODY WHO
DOESN'T APPEAR IN COURT. THAT IS NOT THE CASE HERE. WE LOOK AT ALL RIGHTS
TO PROSECUTE SOMEBODY IF THERE IS A CASE AND WE ARE NOT ASKING TO DETAIN SOMEBODY
AT THE BEGINNING OF THE PROCESS WITH A DETAINER AND A HOLD THEM INDEFINITELY
BUT WHEN WE'RE CONFRONTED WITH THIS SITUATION WHERE SOMEONE IS ACCUSED OF A S
VERY SERIOUS CRIME AND IS ABOUT TO FOREVER LEAVE THE CAN YOU BE TREE WE ARE
JU ASKING THAT THEY BE TRARNLS FERD FROM IEK CUSTODY TO OUR KUS TOID AND ICE HAS
INSTRUCTED THAT IS THE ONLY THING THAT WOULD DELAY THE DEE FOR THE TAGS. A.
MISS AND SON ASZ A PRACTICAL I MATTER KOINT FIND THERE THIS FROM THE BRIEF
HERE HUGH DOES A STATE PROSECUTOR KEEP ON TOP OF THE ICE PROCESS AS IT PROCEEDS
AND IN PARTICULAR SINCE THERE IS SO MUCH FOCUS ON TRAVEL DOCUMENTS HERE, DOES IEK
DISCLOSE WE HAVE NOW SET UP TRAVEL DOCUMENTS FOR THIS INDIVIDUAL?
DANA R. ANTON: YOUR HONOR, THAT IS A GREAT QUESTION BECAUSE IT REALLY IS
INCUMBENT ON THE STATE PROSECUTOR TO IS ASSIGNED THE CASE WHERE THIS IMMEDIATE
SITUATION TO STAY ON TOP OF THAT. ICE HAS BEEN VERY GOOD ABOUT LITING US KNOW
WHEN THEY HAVE SOSH WHO IS GOING TO BE REMOVED. SOMETIMES WE DON'T KNOW
UNTIL A DAY BEFORE. SOMETIMES WE EVER A LITTLE MORE NOTICE. BUT ICE HAS BEEN VERY
GOOD WITH COMMUNICATING WITH US. BUT IT WOULD BE INCUMBENT UPON THE PROSECUTOR
ONCE THEY KNOW THAT THAT IS AN ISSUE IN THAR CASE TO ESTABLISH A DIALOGUE WITH
THE ICE DETECTIVE OR INVESTIGATOR TO BE AWARE OF WHEN THAT MAY BECOME AN
ISSUE. I KNOW THAT THAT IS NOT EVERY ICE INVESTIGATOR MAYBE AS VIGILANT SO IT
WOULD BE REALLY BE INCUMBENT UPON US TO MAKE SURE THAT THAT HAPPENED.
JUSTICE ALBIN: I WOULD LIKE TO ASK YOU A QUESTION ABOUT THE STANDARD. SO THE
A CREDIT WILL YOU IS SAYING CERTAIN AND IMMINENT REMOVAL. DANA R.
ANTON: YES. JUSTICE ALBIN: I HEARD YOU SAY ALL BUT CERTAIN.
ICE COULD BE NEAR CERTAIN HIGHLY PROBABLE WHAT DO YOU THINK THE STANDARD SHUB?
YOU STARTED OUT JUST PIE SAYING IMMINENT AND THEN YOU SAID. DANA
R. ANTON: YES. JUSTICE ALBIN: I THINK YOU SAID ALL BUT
CERTAIN AND IMMINENT. SO TELL US WHAT STANDARD YOU'RE PROPOSING.
DANA R. ANTON: OKAY. SO YOUR HONOR, I THINK IT'S VERY HARD IN THIS KIND OF CASE
TO HAIF ANY KIND OF BRIGHT LINE RULE. WE ARE ASKING FOR AN ALMOST LIKE
A MINIMUM THRESHOLD THAT WHEN TRAVEL DOCUMENTS ARE PROCURED THAT THEY THERE ALSO
BE AN ABUSE OF DISCRETION NOT TO RETAIN THEM AND THEN THERE MAYBE OTHER
CONSIDERATIONS IF TRAVEL DOCUMENTS ARE NOT PROCURED. I DON'T WANT TO PRECLUDE
REVIEW OF ANY CASE BASED ON THAT BECAUSE IT'S VERY INDIVIDUALIZED EVERYBODY UNDER
THE CRIMINAL JUSTICE REFORM ACT HAS THE RIGHT TO HAVE THAT INDIVIDUALIZED
ASSESSMENT. JUSTICE ALBIN: WHEN TRAVEL DOCUMENTS LOOK, I'M
NOT AN EXPERT IN IMMIGRATION LAW. WHEN TRAVEL DOCUMENTS ARE PROCURED, IS THE DEFENDANT
IN ICE CUSTODY? AND MY NEXT QUESTION, WOULD BE ONCE THEY'RE IN ICE CUSTODY
AND ICE HAS GONE THAT FAR ARE THEY GOING TO RESPOND TO AN ORDER OF A STATE COURT?
DANA R. ANTON: SO, LET ME UNPACK THAT A LITTLE BIT. IT IS
MY UNDERSTANDING THAT FOR THE MOST PART ONCE WHERE WE'RE PROPOSING THAT DETENTION
BE ALLOWED AT THAT STAGE DEFENDANTS ARE DETAINED BY ICE THERE ARE SITUATIONS
WHEN THERE IS A FINAL ORDER OF REMOVAL WHERE I GUESS THEY COULD BE RELEASED BUT
I THINK THAT THAT IS DIFFERENT CIRCUMSTANCES. AND THAT WOULD AUMS BE
A CONSIDERATION FOR THE COURT. FOR THE MOST PART ONCE THEY ARE AT THE STAGE WHERE
WE'RE ASKING TO DETAIN THEM, THEY ARE IN ICE CUSTODY. AND IN OUR DEALING
WITH ICE, THE ONLY WAY THAT THEY WILL DELAY DEE IMPORTANT TAGS, THEY TELL US IS
IF WE WILL DETAIN THEM IN OUR JAIL. THEY HAVE BEEN VERY COOPERATIVE WITH THAT
IN ALLOWING THEM TO COME TO OUR CUSTODY AS LONG AS WE GIVE THEM RIGHT BACK
TO THEM WHEN OUR CRIMINAL CHARGES BUT THEY WILL ONLY DO IT IF WE HAVE AN ORDER
WITH VERY SPECIFIC LANGUAGE THAT THEY WILL REMAIN IN CUSTODY FAIR FAIR MISS
AND TON ANOTHER QUESTION QUESTION TIED IN I KNOW YOU MENTIONED YOU OFTEN DON'T
KNOW THAT A DEFENDANT IS BEING SCHEDULED TO BE REMOVED UNTIL THE DAY BEFORE.
I DON'T KNOW IF YOU KNOW THE ANSWER TO THIS BUT HOW HOW HOW LONG IN ADVANCE DO YOU
USUALLY OBTAIN INFORMATION WITH REGARD TO THE TRAVEL DOCUMENTS HAVING BEEN
PROCURED FOR THAT DEFENDANT? DANA R. ANTON: I THINK THAT THAT IS
VERY DIEN MIDDLESEX COUNTY. I MI THAT THAT COULD BE BASED UPON THE SOMETHING
WITH THE PROSECUTOR IN KEEPING IN TOUCH WITH ICE OR IT COULD JUST BE A MATTER OF
EVERYTHING FALLING INTO PLACE SUDDENLY AND HE IS READY TO GO. YOU KNOW,
TRAVEL DOCUMENTS AND IF IT IS ONE OF THE COUNTRIES WHY FLIGHTS ARE REGULARLY SCHEDULE
IT COULD HAPPEN VERY QUICKLY. SO YOU KNOW, I GUESS THOSE ARE THE SITUATIONS
WHERE ICE CALLS US AND SAYS HEY WE WANT TO GIVE YOU A HEADS UP THIS GUY IS GOING
OUT ON A FLIGHT TOMORROW OR THIS GUY IS GOING OUT NEXT WEEK. SO I THINK
THAT THAT IS THERE IS KNOW E WAY TO OPINION THAT DOWN ON THE TIME IT'S VARIABLE.
CHIEF JUSTICE RABNER: MISS AND TON, THE QUESTIONS ABOUT THE
3 PART TEST THAT THE A CREDIT WILL YOU HAS ADVANCED WE DON'T GET TO THAT TEST UNLESS
WE FIND THAT THE STATUTE PERMITS CONSIDERATION OF AN ICE REMOVAL
ACTION. WOULD YOU AGREE WITH THAT? DANA R. ANTON: YES.
CHIEF JUSTICE RABNER: AND THE AFRMENT C L U IN ITS PROPOSAL SAYS WE'RE PUTTING
THIS FORWARD AS AN ALTERNATE PROPOSAL. THEY RIDE THE STATUTE AS NOT
PERMITTING GOING TO THE NONE VOLITIONAL ACT OF ICE REMOVING SOMEONE, RIGHT?
DANA R. ANTON: THAT'S CORRECT. BUT I THINK TO READ THE STATUTE THE WAY
IT DOES LEAD TO AN AB SURD RESULT I DON'T THINK THE LEGISLATURE COULD UPON BLEE
HAVE EVEN TENDED TO LOSE DEFENDANTS ACCUSED OF A SERIOUS CRIME TO DEE IMPORTANT
TAGS OVER WHICH CUSTODY THERE IS. CHIEF JUSTICE RABNER: SO
THAT'S AN INTERESTING QUESTION ABOUT WHAT WE THINK THE LEGISLATURE MIGHT
HAVE BEEN THINKING AND THAT'S THE LEVEL THAT WE'RE ASKING ABOUT THIS. IN 2014
WHEN THE LAW WAS PASSED, REMOVAL PROCEEDINGS, UNDOCUMENTED INDIVIDUALS
WERE FAIRLY COMMON, CORRECT? DANA R. ANTON: YEAH I THINK THAT'S
TRUE. CHIEF JUSTICE RABNER: AND YET THE LEGISLATURE NEVER
SPOKE TO THIS ISSUE, RIGHT? DANA R. ANTON: THAT'S TRUE, YES.
JUSTICE ALBIN: WELL, DEPENDING UPON HOW WE READ THE STATUTE THEY MAY HAVE
SPOKEN TO IT BY REMOVING FLIGHT. WHEN YOU THE LANGUAGE WOULD REASONABLY ASSURE
THE ELIGIBLE DEFENDANT'S APPEARANCE IN COURT AS YOU'VE NOETDED DOES NOT
HAVE A VOLITIONAL ASPECT TO IT. DANA R. ANTON: THAT'S RIGHT.
JUSTICE ALBIN: THE STATUTE COULD HAVE BEEN WRITTEN IN SUCH
A WAY THAT THAT WOULD HAVE BEEN CLEAR. BUT IT'S NOT PRESENT.
DANA R. ANTON: THAT'S CORRECT. AND YOU KNOW, SOMETIMES THE LEGISLATURE JUST DOESN'T
TAKE EVERYTHING INTO ACCOUNT, EVERY SITUATION INTO ACCOUNT AND I THINK
THAT THIS TO THINK THAT THEY INTENDED THE RESULT OF REMOVING PEOPLE WHEN THEY HAVE
COMMITTED CRIMES AGAINST OTHER PEOPLE IN THIS STATE TO REMOVE THEM WITHOUT
ANSWERING TO THOSE CHARGES I THINK IS AN AB SURD RESULT. JUSTICE
LAVECCHIA: BUT MISS AND THON THE LEGISLATURE WAS CERTAINLY AWARE OF THE
FEDERAL STATUTE WE KNOW THAT, AND THE FEDERAL STATUTE HAS THIS CARVE OUT
OF A TEMPORARY REDEFRNGS PERIOD TO ALLOW FOR IMMIGRATION OFFICIALS TO AMONG OTHERS
TO DECIDE WHAT THEY WANT TO DO. WHEN THAT PERIOD ENDS, AS I READ THE FEDERAL
STATUTE, IT RETURNS THE PERSON BACK TO THE STATUS OF BEING TREATED LIKE ALL OTHERS
IN THE ASSESSMENT FOR UNMANAGEABLE RISK OF NONAPPEARANCE. THE APPELLATE DIVISION
DECISION POINTS THAT OUT. AND THAT SEEMS TO BE A VERY SOUND POINT THAT THEORY
LYING ON THERE, OUR LEGISLATURE DIDN'T DO THAT, THEY DIDN'T CREATE THIS
SPECIAL CHANNEL TO ALLOW FOR THE ICE ACTIVITY AND THEN THE FEDERAL LAW TREATS THE
PERSON NOT WITHSTANDING ANY FUTURE THREAT OF ICE REMOVAL AS IF THAT IS NOT
PART OF THE EQUATION. HOW DO YOU RESPOND TO THAT? DANA R. ANTON:
I THINK THERE ARE A KUMENT OF THINGS WITH THAT, YOUR HONOR. FIRST IS THERE IS
A DIFFERENT LEVEL OF COOPERATION AMONGST TWO BRANCHES, TWO EXECUTIVE BRANCHES
OF THE SAME POWER. WE DO NOT ENJOY THAT RELATIONSHIP THAT TWO FEDERAL BRANCHES
HAVE WITH EACH OTHER OR TO FEDERAL AGENCIES HAVE WITH EACH OTHER.
I THINK THAT THERE IS MORE OF A COOPERATION THERE. AND SECONDLY, THE
FEDERAL STATUTE FIRST OF ALL IT DOES USE THE LANGUAGE FLEE IN THE FEDERAL STATUTE.
JUSTICE LAVECCHIA: IT DO SFLOO IT ALSO DOES HAVE PRESUME SHUNS
FOR CASES THAT WE'RE TALKING ABOUT. THE FEDERAL STATUTE HAS A PRESUMPTION
PROSPECTIVE WITH A MRIEN OR THAT THEY CAN BE DETAINED WE DON'T HAVE THAT IN NEW
JERSEY. SO THEY HAVE THAT OTHER MECHANISM TO DETAIN SOMEBODY THAT IS ACCUSED OF
OF A SERIOUS CRIME. THEY HAVE THAT PRESUMPTION. AND THIRD, THAT 10-DAY
PROVISION THAT ALLOWS FOR ICE TO MAKE A DECISION TO TAKE CUSTODY OF THAT DEFENDANT
I THINK IF YOU LOOK AT IT THAT WAY IF ICE DECIDES NOT TO UTILIZE THAT 10-DAY
PROVISION, AS RECOGNIZED IN SOME OF THE FEDERAL CASE LAW, IT THEN DIFFICULTIES
GIN YUS TO ARGUE THAT THAT IS A TLETD. SO FOR A PROSECUTOR TO STAND IN
COURT. JUSTICE LAVECCHIA: WEM CURRENTLY IT WOULD BE DIFFICULTIES
IN GENERAL YUSZ TO ARGUE IT IS A THREAT TO BE MANAGED THROUGH THE PRETRIAL DETENTION
SYSTEM, CORRECT? DANA R. ANTON: IN THE FEDERAL CONTEXT,
YES. ONLY IN THE FEDERAL CONTEXT. ABOUT YOU FOR A PROSECUTOR TO SAY LOOK,
WE WANT YOU TO DETAIN THEM BECAUSE THERE IS THIS RISK BUT ICE ALREADY DIDN'T
EXERCISE THAT ABILITY TO TAKE THEM INTO CUSTODY. AND I JUST THINK THERE IS THAT
LEVEL OF COOPERATION AMONGST THOSE TWO EXECUTIVE BRANCHES IN WHAT THAR PRIORITY
IS. IF YOU LOOK AT A LOT OF THE FEDERAL CASES WHICH HOLD THAT A VOLITION
AL ACT IS REQUIRED, A LOT OF THOSE CASES ARE ILLEGAL REENTRY CHARGES.
JUSTICE LAVECCHIA: REPLY POINT GOES TO THE FACT THAT OUR LEGISLATURE WAS AWARE
OF THAT STRUCTURE IN THE FEDERAL SYSTEM AND COULD HAVE SET UP THAT PATH WAY
FOR DEALING WITH WHAT THE FEDERAL LEGISLATION CLEARLY REGARDED AS NOT A MANAGEABLE
RISK TO BE HANDLE THROUGH THE SYSTEM OF PRETRIAL DETENTION. AND YET
APPARENTLY IT DIDN'T DO SO AND NOW WE'RE LEFT TO HAVE THIS DEBATE OVER WHETHER WE'RE
DEELTHS WITH VOLITIONAL OR NONE VOLITIONAL NONAPPEARANCE. IT IS A MORE DIFFICULT
LIFT I THINK FOR YOUR POSITION. DANA R. ANTON: IT IS BUT I DON'T
THINK NEW JERSEY COULD HAVE HAD A SIMILAR STATUTE BECAUSE AGAIN WE ARE NOT
PART OF THAT FEDERAL GOVERNMENT. SO FOR US TO BUILD IN THIS PROVISION IN OUR BAIL
STATUTE THAT SAYS IF A DEFENDANT CAN COME IN AND TEE OUR PEOPLE THEY ARE
NOT GOING TO GIVE US THE SAME CONSIDERATION THAT THEY GIVE THAR FEDERAL PROSECUTORS.
AND I DO THINK AS I WAS SAYING, A LOT OF THE FEDERAL CASES ARE ILLEGAL REENTRY
CASES SO THE ICE OFFICIALS AND THE FEDERAL PROSECUTORS, THEY NEED TO DETERMINE
WHAT IS THAR PRIORITY PROSECUTING FOR ILLEGAL REENTRY OR DEPORTED IN OUR
CASE WE'RE TALKING ABOUT VICTIM CRIMES, CRIMES OF VIOLENCE, WHICH THE FEDERAL STATUTE
HAS ALLOWED THE PRESUMPTION OF DETENTION FOR. SO THERE IS A DIFFERENT
MECHANISM FOR THOSE KIND OF CRIMES. SO YOU KNOW, WHEN YOU'RE LOOKING AT THE FEDERAL
CASES THAT SAY YOU KNOW, A VOLITIONAL AK IS REQUIRED, THEY'RE DECIDING WHAT
IS OUR PRIORITY. IS OUR PRIORITY PROSECUTING SOMEBODY FOR ILLEGAL REENTRY AND
THEN DEE IMPORTANTING THEM? THERE IS KNOW E VICTIM OTHER THAN THE UNITED STATES
THERE. THERE IS NO REAL VICTIM THERE. BUT IN CASES WHERE THERE IS A VICTIM, I
THINK THE NARROWLY TAIL ORGANIZE THIS STATUTE. JUSTICE ALBIN:
WHAT DO YOU MEAN BY TRAVEL DOCUMENTS? CAN YOU I AM PRYING TO UNDERSTAND THAT.
IS THAT LIKE BEING PUT ONLY THE PIECE OF PAPER SAYING THAT YOU ARE GOING
TO BE LEAVING ON SOME GOVERNMENT CHARTED PLAIN OR GET CAN SOME COMMERCIAL FLIGHT?
WHAT DO YOU MEAN BY TRAVEL DOCUMENTS? DANA R. ANTON: SO
PERHAPS MY THE A MEEK COMPANY CAN PROBABLY SHED IN OTHER LIGHT ON THIS ON THAR
TURN WHICH I LEARNED A GREAT DEAL FROM THAR BRIEFS AS WELL. TRAVL DOCUMENTS I
THINK ARE MORE IDENTIFICATION DOCUMENTS OF THE INDIVIDUAL, LIKE PASSPORT,
STUFF LIKE THAT, WHERE THEY PROVE WHO THEY ARE AND THAT THEY ARE A CITIZEN OF THE
RECEIVING COUNTRY. AND THEN FLIGHT ARRANGEMENTS WOULD BE WHORT THEY GET
ON A COMMERCIAL FLIGHT A CHARTER FLIGHT OR ARE JUST ESCORTED OVER THE BORDER.
SO I THINK TRAVEL DOCUMENTS REALLY RELATE TO THE PERSON'S I D.
JUSTICE ALBIN: HOW COULD THESE EXPEDITED FLIGHTS THAT WE OR SPEDZ INDICTED REMOFLGS
THAT WE HAVE HEARD ABOUT I WOULDN'T ASSUME THAT SOMEONE CHARGED WITH AN
AGGRAVATED SEXUAL ASSAULT PLAY EVEN BE EXPOSED TO AN EXTENDED TERM WILL BE HAEP
TO GET ON ONE OF THOSE FLIGHTS. DANA R. ANTON: YEAH. CANDIDLY
YOUR HONOR I HAVEN'T HAD A LOT OF EXPERIENCE WITH THE SPEDZ INDICTED
REMOVAL AND I THINK THE ATTORNEY GENERAL MAY ADDRESS THROWS A LITTLE BIT IN HER
ARGUMENT BUT EXPEDITED REMOFRLS ARE YOU KNOW IN NARROW SITUATION WHERE THEY
ARE WITHIN 2 YEARS OF ENTRY AND THEY ARE NEAR THERE ARE NEAR THE BORDER I THINK
THOSE WERE MORE AIMED AT PEOPLE WHO TO BE REMOVED RIGHT A WAY AFTER COMING
OVER. NOT SO MUCH OUR SITUATION WHERE SOMEONE HAS BEEN IN THE COUNTRY FOR AWHILE.
JUSTICE ALBIN: I THINK THAT'S FOR PEOPLE WHO HAVE BEEN IN
THE COUNTRY FOR LESS THAN 2 YEARS. DANA R. ANTON: YES.
CHIEF JUSTICE RABNER: ANYTHING ELSE YOU WOULD LIKE TO PRESENT MISS AND TON?
DANA R. ANTON: JUST GIVE ME A MOMENT. I THINK,
JUDGE, THAT I WOULD JUST LIKE TO BRIEFLY MENTION THAT THERE HAS BEEN SOME SUGGESTION
THAT IN ADDITION TO OUR 3 SORT OF STEPS IN THE PROCESS, FINAL ORDER OF REMOVAL,
THE EXHAUST THANK YOU, YOUR HONOR. OF ANY APPEALS AND THE PROCUREMENT OF TRAVEL
DOCUMENTS, THERE HAS BEEN SOME SUGGESTION THAT THE STATE SHOES ALSO BE REQUIRED
TO EXHAUST ANY ADMINISTRATIVE REMEDIES AND ALSO THAT FLIGHT ARRANGEMENTS
BE MADE. JUST DEALING WITH THE LAST ONE FIRST, TO WAIT FOR FLIGHT ARRANGEMENTS
TO BE MADE, THAT IT JUST WOULDN'T WE WOULD LOSE THE DEFENDANTS IN THOSE CASE
S BECAUSE SOMETIMES ONCE FLIGHT ARRANGEMENTS ARE MADE THEY'RE GONE. AND THERE WOULDN'T
BE AN OPPORTUNITY FOR US TO NOT ONLY WE WOULD HAVE TO MAKE A MOTION TO REMOVE
RELEASE IF THEY ARE OUT ON RELEASE SO WE HAVE TO GET A COURT DATE AND ICE HAS
INSTRUCTED US ON OTHER OCCASIONS THAT THEY REQUIRE 48 HOURS TO PRODUCE SOMEBODY
FOR VIDEO COURT. SO WAIT UNTIL A FLIGHT IS SCHEDULED WE JUST PROBABLY WOULD NOT
BE ABLE TO GET INTO COURT IN TIME TO GET THAT DETENTION ORDER. AS
FAR AS THE TOOL KIT GOES, ON BOTH ITS FACE AND THE WAY IT'S A FLIED, IT JUST DONTS
THAN THE OFFER ANY AFTER NEW OF OF RELEVER TO STATE PROSECUTORS AND ICE
HAS REPRESENTED TO US THAT ABSENT A DETENTION ORDER NOTHING WILL STOP A REMOVAL.
SO NLGS YOUR HONORS HAVE ANY OTHER QUESTIONS. CHIEF JUSTICE
RABNER: THANK YOU MISS AND THON. DANA R. ANTON: TUN IFRMENT
NIS LIAR MR. FASSETT: YOUR HONORS AND MAY IT PLEASE THE COURT,
MR. RE OWES WAS DETAINED IN THE WORDS OF THE TRIAL COURT BECAUSE HE WAS, IN OTHER WORDS
HE WAS DETAINED SOLELY ON THE BASIS OF HIS IMMIGRATION STATUS, IT'S NOW
IT'S ILLEGAL, IT VIELTS DUE PROCESS AND PROTECTION, I DON'T UNDERSTAND THE BASIS
OF DETAINING FOR IMMIGRATION, WHAT WE SEE IS THE HARM THAT COMES FOR DETAINING
SOMEONE ON THE BASIS OF SUM HUNDRED, MR. RE OWES WAS DETAINED ON THE BASIS OF THE
SUPPOSED RISK OF DEPORTATION THAT SIMPLY DOES NOT RESIST, THUS THIS CASE
DEMONSTRATES THAT IF IMMIGRATION STATUS IS TO BE CONSIDERED AT ALL IT MUST BE DONE
SO UNDER A CAREFULLY LIMITED AND CRAFTED RULE THAT MAKES SURE THAT WHAT HAPPENS
IN THIS CASE DOESN'T HAPPEN AGAIN, PRETRIAL DETENTION BASED ON THE UNSUBSTANTIATED
RISK. AS THE STATE'S POSITION HAS EVOLVED IN THIS LITIGATION IT NOW ADMITS
THAT THERE ARE NO FACTS ABOUT MR. RE OS'S STATUS -- IS NOT ADDRESSED, THAT'S EXACTLY
WHAT HAPPENED IN JULY AFTER THE APPELLATE DIVISION REMANDED THIS CASE, THERE IS
A NEW DETENTION HEARING, HIS IMMIGRATION STATUS WAS NOT CONSIDERED AND HE WAS RELEASED
ON NUMBER 1 MONITOR BEEN, HE COULD NOT APPEAL THAT RELEASE ORD, THEREFORE
AS FAR AS IT CONCERNS MR. RE OWES, THIS CASE NAUD, I WOULD MOVE ON TO THE BROADER
ISSUES OF THIS CASE UNLESS ANYONE HAS ANY QUESTIONS ABOUT MR. RE OS. SO
OBVIOUSLY THE BROITSD ISSUE IN THIS CASE IS IF UNDER THE C J R A SOMEONE'S
IMMIGRATION STATUS CAN BE CONSIDERED TO DETAIN SOMEONE WHO OTHERWISE WOULD NOT BE
DETAINED BECAUSE OF A RISK OF DEPORTATION AND UNDER WHAT CIRCUMSTANCES THAT
RISK COULD BE CONSIDERED. OUR PRIMARY POSITION IS THAT IT ASK NOT BE CONSIDERED
AT ALL, BECAUSE THE CRIMINAL JUSTICE REFORM ACT DOES NOT ALLOW, AND EVEN
IF SOME VISUAL RISKS COULD BE CONSIDERED, THIS ONE COULD NOT, FIRST, STATE COURTS ARE SIMPLY ILL EQUIPPED TO DECIDE WHETHER THERE IS A RISK OF DEPORTATION
IT UNDERMINES THE CRIMINAL JUSTICE REFORM ACT TO EXPLICITLY TREAT OUR
UNDOCUMENTED IMMIGRANTS DIFFERENTLY. JUSTICE ALBIN: SO LET'S LIMIT
THE SCOPE OF MEEM WHO WOULD BE SUBJECT TO DEPORTATION. YOU HEARD MISS AND
TO KNOW, SHE WAS SAYING ONLY THOSE PEOPLE FOR WHOM TRAVEL DOCUMENTS HAVE BEEN PROCURED
BY ICE, WHERE THE PERSON IS IN ICE CUSTODY AND WHEN THE PERSON IS ABOUT
TO BE DEPORTED. TAKE THE EXAMPLE OF A PERSON WHO IS IN CHARGE OF MULTIPLE AGGRAVATED
SEXUAL SOOLTS. 10 VICTIMS, IS ABOUT TO BE SDPORTED, I'M GOING TO ASK YOU TWO
QUESTIONS AND YOU CAN ANSWER THEM. ONE IS IS THERE ANY AMBIGUITY IN THE LANGUAGE
OF THE STATUTE WHEN REASONABLY ENSURE THE ELIGIBLE DEFENDANT'S APPEARANCE IN
COURT DOESN'T HAVE VOLITIONAL, AND NUMBER TWO, DOESN'T THE STATE HAVE AS ITS MOST
SOVEREIGN RIGHT THE ABILITY TO PROSECUTE PEOPLE WHO HAVE COMMITTED SERIOUS CRIMES
WITHIN ITS JURISDICTION AND GET SOME SORT OF ACTION TO ENSURE THAT THEY WILL
BE HELD ACCOUNTABLE IN STATE COURT AND NOT BE RETURNED TO THEIR COUNTRY OF ORIGIN
TO ESCAPE ALL JUSTICE. GO AHEAD. MR. FASSETT: SO YOUR FIRST
QUESTION IS THIS THRESHOLD QUESTION, CAN WE CONSIDER NON VOLITIONAL RISKS AT
ALL, AS THE CHIEF JUSTICE POINTED OUT IF THE ANSWER TO THAT QUESTION IS NO WE DON'T
GET TO THE SECOND PART, SO I WILL ADDRESS THE SECOND PART OF YOUR QUESTION, YOUR
HONOR, THE FIRST PART IS A LITTLE COMPLICATED, SO LET ME BEGIN THERE.
SO THE C J R A SAYS THE WORD NAUD, THE QUESTION IS WHAT DOES APPEARANCE MEAN IN THIS
CONTEXT, SO WE HAVE TO LOOK AT THE PURPOSE OF THE CRIMINAL JUSTICE REFORM
ACT, THE CONTEXT THAT THE WORD IS USED IN AND THE LEGISLATIVE HISTORY, APPEARANCE
IS A WORD THAT CAN MEAN A LOT OF THINGS, THIS COURT HAS SAID IN STATE V.
THOMAS THAT WHEN A WORD HAS ONLY ONE INTERPRETATION --
JUSTICE ALBIN: LET ME STOP YOU FOR A MINUTE, ASSUME THE WORDS APPEARANCE IN COURT,
I'M TRYING TO SEE, WHERE IS THE AMBIGUITY THERE, APPEARANCE IN COURT, WHETHER
IT'S VOLITIONAL, THERE'S NO ADJECTIVE THAT IS MODIFYING APPEARANCE IN COURT, VOLITIONAL,
NON VOLITIONAL, ANYTHING, SO WHY ISN'T IT JUST A CLEAR TEXT CHUL ANALYSIS
OF THAT CONSISTENT WITH THE ARGUMENT THAT THE STATE HAS BEEN MAKING.
MR. FASSETT: FIRST OF ALL, APPEARANCE ON ITS OWN IS A WORD THAT CAN TAKE ON MANY
DIFFERENT MEANINGS, IT CAN BE BROAD, IT CAN BE MORE NARROW, I DON'T THINK
THERE'S ANYTHING IN THAT WORD STANDING ALONE THAT TELLS US WHAT IT MEANS, AND WHEN
WE ARE -- WHEN WE EMBARK ON STATUTES FOR CONSTRUCTION, THE MANDATE ISN'T TO
LOOK AT THE WORD IN A VACUUM, THE MANDATE IS TO LOOK AT THE WORD IN CONTEXT. EVEN
BEFORE WRE LOOKED AT INTRINSIC SOURCES WE LOOK AT THE WORDS IN THE CONTEXT WITH
RELATING PROVISIONS TO GIVE SENSE TO THE ELEVENS LADIES AND GENTLEMEN. SO I AGREE
THAT APPEARANCE THE LEGISLATURE DID NOT SAY ONLY NON VOLITIONAL RISKS OF NON
APPEARANCE BUT NOR DID THE LEGISLATURE SAY ANY RISK OF NON APPEARANCE, INCLUDING
THOSE OUTSIDE OF THE DEFENDANT'S CONTROL, KNOWING THAT THIS WAS AN ISSUE GOING
ON IN THE FEDERAL SYSTEM WHICH IT MUST HAVE BEEN AT THAT POINT BEEN GOING ON FOR
YEARS, IT DOES NOT SAY INCLUDING IMMIGRATION STATUS, INCLUDING RISK OF
DEPORTATION, SO THE REASON IT CAN TAKE ON DIFFERENT KINDS OF MEANS AND STILL
MAKE SENSE AND THAT'S WHY WE HAVE TO LOOK AT THE ENTIRETY OF THE STATUTE TO FIGURE
OUT HOW DOES IT MAKE SENSE HERE. THE CRIMINAL JUSTICE REFORM ACT TOOK A
SYSTEM WHERE SOMEONE WAS DETAINED FOR FULLY NON VOLITIONAL REASONS AND REPLACED
IT WITH A SYSTEM THAT CONTROLS THE DEFENDANT'S APPEARANCE, THE OTHER TWO
PRONGS RIGHT AFTER APPEARANCE ARE THE RISK THAT THE DEFENDANT WILL COMMIT ANOTHER
CRIME AND THE RISK THAT HE WILL OBSTRUCT JUSTICE, THESE ARE THE TWO THINGS
THAT FOCUS SOLELY ON THE CHOICES OF THE DEFENDANT, AND THROUGHOUT THE STATUTE THAT'S
WHAT IT'S FOCUSSED ON. SO IN SUBSECTION 20 C WHEN IT LISTS THE FACTORS
THAT THE COURT CAN CONSIDER, THOSE ARE ALL FACTORS THAT RELATE TO CHOICES THE DEFENDANT
ALREADY HAS MADE, OR INCENTIVES THAT WOULD MAKE THE DEFENDANT MAKE THE RIGHT
CHOICE HERE OR NOT, FAMILY TIME, COMMUNITY TIME, EMPLOYMENT. IN SUBSECTION 20.A,
WHEN IT LISTS CONDITIONS, IT SAYS IT'S OFFICIALLY CLEAR AND SPECIFIC TO
SERVE AS AL GUIDE TO THE ELIGIBLE DEFENDANT'S CONDUCT, AGAIN IT'S FOCUSSED ON THE
DEFENDANT'S CONDUCTOR, AND LAST, YOU KNOW, YOU WANT TO NOTE THAT MONEY CAN
STILL BE USED AS A BASIS TO I KNOW SENT ADVISE APPEARANCE TO ADDRESS THE RISK OF
NON APPEARANCE AND THE ONLY WAY THAT WORKS IS BY INCENTIVE I'VE GONE ON THE
BASIS, THERE IS NO AMOUNT OF MONEY THAT A DEFENDANT WILL PUT DOWN THAT WOULD
FREE VENT ICE, NAUD, SO THE IDEA OF WHAT THIS LOOKS LIKE IS THROUGHOUT THE PURPOSE
OF THE STATUTE AND THE CONTEXT OF THE LEGISLATION IS FOCUSSED ON THE COURT
BEING ABLE TO CONDITION THE DEFENDANT'S BEHAVIOR -- JUSTICE
ALBIN: SO I THINK EVERYBODY WOULD CONCEDE THAT MOST OF THE STATUTE NATURALLY IS
GEARED TOWARDS THE BEHAVIOR OF THE DEFENDANT AND THAT'S WHAT MOST OF
THOSE PROVISIONS OR ALL OF THOSE PROVISION GOES THAT YOU'RE REFERRING TO, GOING
TO THE SECOND PART, WOULD THE LEGISLATURE EXPECT THE ABSURD RESULT THAT IT CAN
NOT, THROUGH THE C J R A, THAT IT COULD NOT EXERCISE ITS MOST BASIC POWER,
SOVEREIGN AUTHORITY TO KEEP WITHIN THE JURISDICTION A PERSON WHO HAS COMMITTED A
SERIES OF UNSPEAKABLY HORRIBLE CRIMES AGAINST VICTIMS WHEN THE PERSON IS
ABOUT TO BE DEPORTED TO THE COUNTRY OF THAT PERSON'S ORIGIN. WOULD THAT NOT BE
THE MOST ABSURD RESULTS? MR. FASSETT: YES, SO I THINK I HAVE
A 3 PART RESPONSE TO THAT, LET'S SEE IF I CAN KEEP TRACK OF ALL 3 CHL THE
FIRST IS THAT THE CRIMINAL JUSTICE REFORM ACT ANTICIPATES THAT THERE IS A CERTAIN
LEVEL OF DEFENDANT'S NAUD, IT'S REASONABLY ENSURING THE DEFENDANT'S APPEARANCE,
REASONABLE AM ENSURING THEY WOULD NOT COMMIT ANOTHER CRIME, THERE ARE NO PROMISES,
SO OBVIOUSLY A PROSECUTION BEING THWARTED IS UPSETTING FOR A NUMBER OF REASONS
BUT IT'S NOT LIMITED ONLY TO BECAUSE SOMEONE GETS DEPORTED CHL THAT'S THE FIRST
THING. THE SECOND THING IS THAT THIS PROBLEM HAS BEEN PERCOLATING
THROUGHOUT THE FEDERAL COURTS SINCE 2000, THE LEGISLATURE CLEARLY COULD HAVE --
THE WAY I COUNT IT MOST FEDERAL COURTS HAVE AGREED WITH MY INTERPRETATION BY
2014, BUT EVEN IF WE'RE NOT COUNTS GO NOSES LIKE THAT, THE LEGISLATURE WAS AWARE
THAT THIS WAS A RISK AND DID NOT ADDRESS IT AT ALL. THE LEGISLATURE'S INTENT WAS
TO SAY HERE A CAREFULLY CRAFTED CRIMINAL JUSTICE REFORM ACT PLAN, BUT ONE
FACTOR THAT WILL ELIMINATE ALL THE OTHER CONSIDERATIONS FOR SOMEONE WHO OTHERWISE
DOES NOT HAVE A RISK OF COMMITTING NEW CRIMES OR OBSTRUCTING CRIMINAL JUS
TICE -- JUSTICE ALBIN: ARE YOU SUGGESTING THAT THE LEGISLATURE
KNOWING OF THIS SITUATION APPROVED OF THE REMOVAL OF PEOPLE WHO COMMITTED CRIMES
IN NEW JERSEY AND THEREFORE BALANCING THE TWO, WHETHER IT WANTS TO PROSECUTE
SOMEONE FOR 10 SEXUAL ASSAULTS WITHIN THE JURISDICTION, THAT THE LEGISLATURE WAS
FINE WITH THE REMOVAL AND NOT KEEPING THE PERSON IN THE STATE TO PROSECUTE
THE CRIMES. MR. FASSETT: I HAVE TO PUSH BACK ON THAT, THOSE
PEOPLE WOULD PROBABLY BE DETAINED ANYWAY, SO THAT THE MOST DANGEROUS, MOST VICIOUS
PEOPLE ARE GOING TO BE DETAINED. BUT I THINK YES IT'S QUITE POSSIBLE THE
LEGISLATURE SAID THIS IS A NEW JERSEY LAW, IT'S AN INDEPENDENT SOURCE OF LAW, IT
DOES NOT GET CRAMMED INTO ONE BINARY, WHAT IS ICE GOING TO DO OR NOT GOING TO DO
AND THAT WOULD DICTATE THE DECISION, AND ALSO IT APPLIED TO ALL PERSONS
BY NAME, AND THE LEGISLATURE SAID WE ARE NOT HARMING OUR IMMIGRANT COMMUNITIES
BY TREATING THEM DIFFERENTLY, AND THE LEGISLATURE ALSO COULD HAVE SAID THAT
IT IS FUNDAMENTALLY UNFAIR TO DETAIN PEOPLE WHO ARE PRESUMED INNOCENT BECAUSE OF
FACTOR IT'S OUTSIDE OF THEIR CONTROL. JUSTICE ALBIN: THE
PEOPLE WHO THE PEOPLE ARE TALKING ABOUT ARE ALREADY IN DETENTION, THEY'RE IN
ICE DETENTION, THEY'RE ABOUT TO BE FLOWN OUT OF THE COUNTRY, SO WE'RE NOT TALKING
ABOUT A CLASS OF PEOPLE WHO WOULD OTHERWISE HAVE A RIGHT TO BE RELEASED AND ARE
BEING DETAINED, WE'RE TALKING ABOUT APPARENTLY A SMALL CLASS OF PEOPLE WHO
ARE ALREADY IN FEDERAL DETENTION. CORRECT? MR. FASSETT:
THAT'S NOT NECESSARILY TRUE, I THINK IF YOUR HONORS ARE COMFORTABLE WITH THIS LET
ME SUGGEST THE FOLLOWING, I WILL JUST HIT ANOTHER FEW POINTS I WANT TO MAKE
ABOUT VOLITIONAL AND THEN I'LL TURN TO I THINK WHAT JUSTICE ALBIN WANTED TO DISCUSS
WHICH IS WHO WOULD THIS APPLY TO, HOW OLD WOULD APPLY IT, IF THAT'S ALL RIGHT,
IF ANYBODY HAS ANY QUESTIONS ABOUT NON VOE LISHL AL I'M HAPPY TO ANSWER THEM
OTHERWISE THERE ARE A FEW THINGS I WANT TO OFFER THIS COURT BEFORE I PIVOT TO THIS
ALTERNATIVE ARGUMENT. JUSTICE SOLOMON: ISN'T THE QUESTION THOUGH
VOE LISHL AL, THE LEGISLATURE DID DEAL WITH IT, AFTER ALL THE REPORTS AND
THE FEDERAL STATUTE, THEY DELETED THE FEDERAL ASPECT OF THE STATUTE.
MR. FASSETT: THAT'S WHERE I WAS GOING TO GO. I WOULD LIKE TO START WITH
THIS CHANGE FROM FLIGHT NO NON APPEARANCE, I THINK THE APPELLATE DIVISION DID A
COGENT JOB OF EXPLAINING IT BUT I WANT TO PUT IT TO THIS COURT, WHAT WE
KNOW, I DON'T THINK THE LEGISLATIVE HISTORY IS AS CLEAR AS ANYBODY WOULD LIKE IT
TO BE BECAUSE OTHERWISE WE WOULDN'T HAVE THIS DISCUSSION, BUT WHAT'S CLEAR
IS THAT THE LEGISLATURE TOOK THE WORD FLIGHT AND MADE IT BROADER TO NON APPEARANCE.
BUT WE DON'T KNOW HOW FAR BROADER END THAT CORD IS, WHAT THE APPELLATE DIVISION
URGES AND WHAT I URGE IS CORRECT, THERE ARE MANY FORMS OF VOLITIONAL NON APPEARANCE
THAT ARE NOT FLIGHT, FLIGHT IS SEPARATE AND APART, IF THE DEFENDANT IS HOME
AND DECIDES TO BING WATCH SOMETHING ON NOELT FLICKS INSTEAD OF COMING TO COURT,
THEY'VE FAILED TO APPEAR, I REALIZE THAT THIS IS A BROAD NING BUT IT DOESN'T
ANSWER THE #W40E8 QUESTION ABOUT VOLITIONAL OR NON VOLITIONAL. I ALSO WANT TO
OFFER TO THIS COURT THAT ARE CONSIDERING THE OTHER NON VOLITIONAL RISKS WOULD
LEAD TO FUNDAMENTALLY UNFAIR RESULTS, WHEN THIS WAS FIRST PASSED THE MAYER
OF THE SECOND LARGEST CITY IN NEW JERSEY SAID THE DEFENDANTS ARE GOING TO GET KILLED
AND OURL STATUTES DON'T HOLD PEOPLE IN JAIL IF THEY ARE SUBJECT TO VIOLENCE,
PERHAPS THEY'RE COOPERATING AND THERE'S A DANGER, SO TO SUGGEST THAT IT'S FUND
AMENTALLY UNFAIR, WE RECOGNIZE THAT'S FUNDAMENTALLY UNFAIR, BECAUSE WE'RE
NOT DOING IT RIGHT NOW, THE ONLY NON VOLITIONAL RISK OF NON APPEARANCE IS RISK
OF DEPORTATION. JUSTICE PATTERSON: IS THERE ANYTHING,
OBVIOUSLY THE PROSPECT OF PEOPLE BEING HURT BECAUSE THEY'RE OUT THERE AND THERE'S
A GANG SITUATION IS THERE, BUT THAT'S HYPOTHETICAL, IS THERE ANY OTHER NV NON
VOLITIONAL RISK LEADING TO NON APPEARANCE OTHER THAN DEPORTATION.
MR. FASSETT: NOT YET WHICH I THINK SUGGESTS THAT EVERYBODY UNDERSTANDS THAT
THE CRIMINAL JUSTICE REFORM ACT IS DETAINING PEOPLE WHO ARE PRESUMED INNOCENT
ON THE BASIS OF THEIR OWN CONDUCT AND CHOICES THAT THEY MIGHT MAKE BUT WHO
KNOWS WHAT HAPPENS AFTER THE SUBPOENA, WHAT WE'RE GIVING IS TO CONSIDER NON
VOLITIONAL RISKS IF THAT'S THE DEFENDANT, BUT I DON'T KNOW WHERE THIS WILLING.
JUSTICE PATTERSON: COMBROM TO ASK YOUR POSITION OF WHAT'S
CONTEMPLATED BY THE STATUTE BECAUSE YOUR POSITION IS CLEAR, BUT WHAT COULD BE A
NON VOLITIONAL RISK OTHER THAN THE RISK OF DEPORTATION. MR.
FASSETT: I THINK THE RISK OF VIOLENCE IS A BIG ONE, IT'S A BIG ONE FOR PEOPLE WHO
COOPERATE, IT'S A BIG ONE WHO LIVES IN CERTAIN KINDS OF NAKS, IT'S PROBABLY
A BIG ONE FOR VICTIMS OF DOMESTIC VIOLENCE, WE'RE LOOKING AT IDENTIFIABLE GROUPS
OF PEOPLE WHO ARE MORE LIKELY TO BE VICTIMS OF VIOLENT CRIME, WHICH IS
BEGIN A NON APPEARANCE THAT'S NOT VOLITIONAL, AND AGAIN, I DO THINK OTHER TYPES
OF RISKS ARE PROBABLY MORE AMENABLE TO CONDITIONS, BUT I DON'T KNOW WHAT YOU DO
WITH A DEFENDANT WHO LIVES IN A RUE ORIGINAL COUNTY AND DOESN'T HAVE A
CAR, BUT IN THE CATEGORY OF VIOLENCE, IT IMPACTS CERTAIN PEOPLE IN CERTAIN COMMUNITIES
MORE, AND I THINK IT WOULD BE DANGEROUS TO START DETAINING THOSE PEOPLE
BECAUSE OF THOSE RISKS. THE OTHER THING I WANT TO OFFER TO THE COURT IS WHAT THIS
COURT SAID IN PAR BIO WHICH IS A CASE WHERE AN UNDOCUMENTED PERSON'S BROADER
RIGHTS IT SAID THAT THE LITERAL SENTENCE OF TERMS IS NOT TO HAVE A SENTENCING OVER
THE REASONING AND THE EXPERIENCE OF THE EXPRESSION OF A WHOLE WHETHER THE
STATUTE IS TO BE LITERALLY CONSTRUCTED AND THE CRIMINAL JUSTICE REFORM ACT IS TO BE
LITERALLY CONSTRUCTED TO RELY PRIMARILY UPON RELEASE. SO THE WORD APPEARANCE I
THINK IS SUSCEPTIBLE TO THAT MEANING, IT CAN CARRY MANY MEANINGS, SO THE
QUESTION HAS TO SAY WHAT IS THE SPIRIT AND THE REASON OF THE WHOLE AND THE ANSWER
I'M OFFERING THIS COURT IS THAT INNOCENT PEOPLE ARE NOT DETAINED PRETRIAL
BECAUSE OF RISKS THEY DO NOT CONTROL. JUSTICE PATTERSON: BUT YOU
MAKE THAT POINTER, THE WORD APPEARANCE SUGGESTS TO ME WITHOUT AMBIGUITY
FRANKLY SHOWING UP IN COURT, WHERE YOU'RE SPOECHD TO SHOW UP IN COURT. ARE YOU
REALLY SAYING THE AMBIGUITY MAY BE IN WHAT MAY BE REASONS FOR NON APPEARANCE.
MR. FASSETT: IF THE COURT SAYS IT'S NOT AN AMBIGUOUS WORD
I THINK THE INQUIRY ENDS THERE, BUT I THINK THE AMBIGUITY COMES BECAUSE I COULD
NOT FIND A BINARY CASE WHERE SAYS THAT APPEARANCE MEANS THIS OR THAT. IT'S
USED IN CERTAIN SETTINGS TO ME DIFFERENT THINGS AND SOMETIMES IT'S THE DEFENDANT'S
CHOOSING NOT TO APPEAR, IF THE LEGISLATURE MADE CLEAR THAT IT WAS NON VOLITIONAL
RIVENGS AS WELL, I DON'T KNOW THAT APPEARANCE ALONE CAN SAY THAT. EVEN BEFORE
WE GO TO EXTRINSIC SOURCES THE COURT HAS ALWAYS SAID WE START WITH THE CONTEXT,
AND SO WE CAN'T JUST TAKE APPEARANCE OUT OF THE REST OF THE STATUTE, WE HAVE TO
LOOK AT IT ALTOGETHER. SO, TO MOVE ON TO IF THIS COURT THINKS THAT
THE CRIMINAL JUSTICE REFORM ACT THE WORD APPEARANCE CAN SUBSUME NON VOLITIONAL,
AND THIS COURT KINDS OF REJECTS THE ARGUMENT THAT I'M NOT GOING TO BELABOR RIGHT
NOW THAT OUR COURTS ARE FUNDAMENTALLY ILL EQUIPPED TO MAKE THIS DETERMINATION,
AND IT UNDERMINES THE CRIMINAL JUSTICE REFORM ACT TO TREAT UNDOCUMENTED RESIDENTS
DIFFERENTLY, THE STATE HAS COME A LONG WAY, I WOULD NOT BE HERE TODAY IF
THIS WAS THE STATE'S POSITION IN JANUARY WHEN MR. RE OS WAS DETAINED SO IBLTHS
DENY THAT THIS MOVEMENT IS SIGNIFICANT AND I THINK VERY IMPORTANT. I WILL
FOCUS ON THE AREAS WITH DISAGREEMENT BUT FIRST I WANT TO FOCUS ON SOMETHING THAT
HAS BEEN KIND OF A QUESTION SWIRLING AND AN EMBEDDED ASSUMPTION AND SUGGEST
THAT THIS BE MADE AN EXPLICIT PRONG, WHICH IS SOMEONE SHOULD BE IN ICE CUSTODY
BEFORE THEY CAN DETAINED IN STATE CUSTODY DUE TO RISK OF NON APPEARANCE. THIS IS
IMPORTANT FOR A FEW REASONS. THE FIRST IS SOMEONE'S LIBERTY INTERESTS IS
OBVIOUSLY SIGNIFICANTLY DIMINISHED ONCE THEY'RE IN ICE CUSTODY AND THE SECOND IS THAT
TAKING SOMEONE INTO CUSTODY IS AN IMPORTANT SIGN THAT ICE IS GOING TO
EFFECTUATE A DEPORTATION, IT'S NOT A DONE DEAL BUT IT'S AN IMPORTANT SIGNAL, SO
WE'RE GOING TO BE LIMITING OVERT DETENTION IF WRE ADOPT THAT AS A PRONG
AND WE'RE TALKING ABOUT LIBERTY INTERESTS BEING SOMEWHAT NARROWED. PAN I JUST
WANT TO SAY, YOU CAN CORRECT ME IF I'M WRONG, BUT PEOPLE OF NEW JERSEY ARE
OUT OF CUSTODY EVEN THOUGH ICE HAS A FINAL ORDER OF REMOVAL, IT'S NOT BEING APPEAL,
SO IT'S NOT OBVIOUS THAT SOMEONE IS GOING TO BE IN CUSTODY AND IT'S BEEN ASSUMED
AND WE HAVE TO MAKE THAT EXPLICIT TO LIMIT THE REALLY IMPORTANT LOSS OF
LIBERTY. SO THAT IS THE FIRST THING THAT I WANTED TO PUT OUT THERE. THE SECOND
THING THAT'S ALSO NOT IN MY BRIEF BUT I SEE IS GOING ON IN THIS CORPORATION
AND I'D LIKE TO ALSO ASK THIS COURT TO MAKE IT EXPLICIT IN ITS DECISION IS THE
STATE'S POSITION DOES NOT APPLY SOLELY TO REALLY SERIOUS CRIMES, BY ITS TERMS
IT COULD APPLY TO SOMEONE WHO IS PICKED UP FOR FOURTH DEGREE 1407 LIFTING
AND TOK DO TAKEN THEM FOR WHO KNOWS HOW LONG TO AVOID DEPORTATION, WHICH IS BY
THE WAY SOMETHING SHATTERING TO MOST PEOPLE WHO EXPERIENCE IT, I THINK
WOULD BE FUNDAMENTALLY UNJUST, SO THE STATE IS ASSUMING THAT IT'S GOING TO BE LIMITED
TO SERIOUS CASES, I CAN'T TELL YOU RIGHT NOW I HAVEN'T HAD A CHANCE TO THINK
ABOUT IT ALL THE WAY THROUGH IF THIS IS GOING TO BE A FACTOR, BUT I THINK WE WOULD
PROBABLY ALL AGREE GIVEN WHAT THE STATE HAS SAID THAT IT WOULD BE AN ABUSE OF
DISCRETION TO DETAIN SOMEONE ON A FOURTH DEGREE DEFIANT TRESPASSING CHARGE --
JUSTICE ALBIN: IT'S PROBABLY HIGHLY UNLIKELY THAT THE STATE
WOULD DETAIN SOMEONE ON A SHOPLIFTING CASE WHEN THE PERSON IS GOING TO BE REMOVED
FROM THE COUNTRY, BUT I'LL GUESS WE'LL HEAR FROM THE REPRESENTATIVES OF THE
STATE ON THAT SUBJECT. MR. FASSETT: I MEAN WITH ALL DUE RESPECT
MR. RE OS WAS DETAINED FOR SEVEN MONTHS BECAUSE HE'S ILL LEGAL AND GOT INTO
A FIGHT, IT'S AN ASSAULT CHARGE BUT IT'S NOT THAT SERIOUS OF AN ASSAULT CHARGE,
I WOULD NOT TO LEAVE IN THE STATE'S SOLE DISCRETION WHEN THIS IS APPROPRIATE
OR NOT APPROPRIATE, TRIAL COURTS OBVIOUSLY WOULD HAVE A ROLE IN DECIDING WATSDZ
APPROPRIATE BUT GIVEN THAT EVERYONE SEEMS TO AGREE THAT THIS IS SOME SORT
OF PROCEED SPRITE, I WOULD ARGUE THE COURT TO MAKE THM EXPLICIT, I THINK THAT'S
VERY IMPORTANT. THE OTHER THING I WANT TO TOUCH ON IS THAT THE
STATE KEEPS SAYING TRAVEL DOCUMENTS, ICE CAN HAVE TRAVEL DOCUMENTS BEFORE A FINAL
REMOVAL IS IN PLACE, AND ICE MIGHT SEE THAT WHEN THEY ARREST SOMEONE, SO THEY
HAVE THE TRAVEL DOCUMENT, SO IT CAN'T JUST BE IF THERE'S A TRAVEL DOCUMENT
IT WOULD HAVE TO BE ALSO IF THERE IS A FINAL ORDER OF REMOVAL THAT'S NOT BEING
APPEALED, ON SOMETHING THAT THE 9TH CIRCUIT SAID IN ONE OF THE CASES IS
THAT ONE OF THE CONDITIONS THAT COULD ASSURE A DEFENDANT'S APPEARANCE IS IF THE
PASSPORT IS SEIZED BY THE STATE AND HELD IN STATE CUSTODY, AND THE PASSPORT
SHOULDN'T BE HAND PD TO ICE TO MAKE DEPORTATION EASIER BECAUSE THAT IS A CONDITION
THAT COULD ASSURE APPEARANCE. SO I WANT TO FOCUS MOSTLY ON
THIS QUESTION OF ASKING ICE FOR HELP AND WHAT THAT LOOKS LIKE AND WHY IT'S
IMPORTANT. SO JUST TO BEAR WITH ME FOR THE LEGAL PREMISE FOR A MINUTE BECAUSE
IT'S SCATTERED THROUGHOUT, IT WASN'T REALLY PUT IN ONE PLACE, AND MISS AND TO KNOW
CAN CORRECT ME IF I'M WRONG, SO SOMETHING ICE CANNOT DO, WHICH ICE HAS
CONSISTENTLY SAID IT CANNOT DO IS DETAIN SOMEONE IN ITS OWN CIVIL DETENTION FOR
THE PURPOSE OF BEING PROSECUTED. THEY RUN INTO THEIR OWN DUE PROCESS ISSUES,
WHAT ICE CAN DO AND HAS THE DISCRETION TO DO IS TO RELEASE A PERSON AND KEEP THEM
RELEASED UNDER CONDITIONS AND THEN THAT PERSON CAN ALSO BE RELEASED UNDER
OUR CONDITIONS. SO WHY THAT'S IMPORTANT AND I'LL TELL YOU WHAT THAT LOOKS LIKE
IS THAT THE CRIMINAL JUSTICE REFORM ACT IS RESPECTED, BECAUSE A PERSON WAS
RELEASED UNDER CONDITIONS UNDER THE CRIMINAL JUSTICE REFORM ACT, WOULD BE RELEASED
UNDER CONDITIONS, IT PRESERVES THIS LIBERTY INTEREST AND THEN ICE WOULD KNOW
THEN YOU HAVE CUSTODY AND ICE ISN'T GOING TO RELEASE THEM THEN REALLY AS JUSTICE
ALBIN POINTED OUT WE DO HAVE A VERY LIMITED LIBERTY INTEREST LEFT AND IT REQUIRES
THE STATE TO GO TO ICE FIRST AND SAY CAN WE TRY TO WORK THIGS OUT BEFORE
ASKING THE COURTS TO GET INVOLVED IN DETAINING SOMEONE ON THE BASIS OF IMMIGRATION
STATUS, AND IT'S ALSO A CONDITION SHORT OF DETENTION THAT WOULD EFFECTUATE
NAUD. SO THE LEGAL AUTHORITY AT ANY TIME WHATSOEVER INCLUDING AFTER A FINAL ORDER
HAS BEEN ISSUED ICE HAS THE LEGAL AUTHORITY TO RELEASE SOMEONE TO PAROLE
UNDER 8 U. S. C-1182 D-5, I'M GOING TO REPEAT IT, 8 U. S. C, 1182 E 5, TRA JULIO
ALZ REZ, A CASE I CITED, I CAN PROVIDE THAT FOR YOU, THERE'S AUTHORITY FROM ICE
THAT INTERPRETS ONE REASON TO PAROLE SOMEONE THE SIGNIFICANT PUBLIC BENEFIT
OF PURSUING A PROSECUTION, SO SOMETHING THEY CAN DO. I'M NOT SAYING IT'S SOMETHING
THEY MUST DO, IT'S SOMETHING THEY CAN DO. OF THE OTHER LEGAL HOOK TO RELEASE
SOMEONE IS WHAT'S CALLED RELEASING SOMEONE ON AN ORDER OF SUPERVISION, A LOT OF
THEM DISCUSSED PEOPLE HAVE BEEN OUT ON SUPERVISION FOR YEARS, AND THE WAY THAT
WORKS IS THAT ICE HAS INTERPRETED THE SHALL DETAIN UNDER UNDER 1231 A-2
AS MAY BUT DOES NOT HAVE TO, WHICH JUST HIGHLIGHTS ONE OF THE DANGERS OF US TRYING
TO UNDERSTAND THIS KIND OF COMPLEX AREA OF LAW, I COULD ALSO PROVIDE MORE
AUTHORITY ON THAT, I'M ASSUMING PROFFERS GOT MAN COULD PROVIDE SOME, THE THINGS
IN THE TOOL CAN IT ARE EXPLANATIONS OF HOW ICE HANDLINGS IT'S RESTRICTIONS TO
ADMINISTER STATE REMOVAL, THOSE TWO THINGS ARE NOT NECESSARY FOR PAROLE OR
AN ORDER OF SUPERVISION, BUT THEY CAN WORK TOGETHER. SO WHEN THE STATE SAYS PLEASE
HOLD ON TO MR. LOPEZ, OF COURSE ICE CAN, THE REQUEST THAT WASN'T MADE WAS
RELEASE HIM UNDER WHATEVER CONDITIONS YOU DEECHL APPROPRIATE SO HE CAN BE RELEASED
HERE AND STAND TRIAL. THE BIG PROBLEM IS THE HALLMARK OF IMMIGRATION LAW
IS DISCRETION, SO THINGS SHIFT, FIELD OFFICER TO FIELD OFFICER, SOMEONE JUST SAID
NO TO MR. LOPEZ, SOMEONE ELSE MIGHT HAVE SAID SURE, IF THE RIGHT REQUEST
HAD BEEN MADE, AND IT ALSO CHANGES ADMINISTRATION'S ADMINISTRATION, AND WHAT
THIS COURT IS ABSOLUTELY NOT GOING TO BE IN THE BUSINESS OF DOING AND I'M
NOT SUGGESTING SHOULD BE IN THE BUSINESS OF DOING IS ANTICIPATING WHAT THE NEXT
ADMINISTRATION'S POLICIES WOULD BE, BUT I'M SUGGESTING BECAUSE WE CAN'T DO THAT,
WE NEED TO ASK, WE NEED TO REGULARLY ASK, AND THE ASK IS REALLY NOT THAT
BURDENSOME AS THE LOPEZ KRAR RA CASE SHOWS, WHAT WE'RE SAYING IS MAKE THE REQUEST,
CITE THE AUTHORITY AND EXPLAIN WHY THE REQUEST SHOULD BE GRANTED. WHAT
WE WANT IS TO -- NAUD. AND SAYING WE TRIED. ARE THERE ANY QUESTIONS
ABOUT THAT? OKAY. CHIEF JUSTICE RABNER: YOU'RE AT THE 30
MINUTE MARK SO I WANT YOU TO PRESENT A MORE ABBREVIATED VERSION OF THE ARGUMENT
YOU WANT TO PRESENTER. MR. FASSETT: THE LAST PRONG WE DISAGREE
ABOUT IS WHETHER A FLIGHT HAS BEEN SCHEDULED, I WILL SAY THAT IF ALL
THESE OTHER PRONGS ARE MET INCLUDING THE PRONG IN CUSTODY AND INCLUDING ASKING ICE
FOR THE RIGHT THINGS, THERE IS A MUCH LESSER RISK OF UNNECESSARY DEPRIVATION
OF LIBERTY BUT THE DOCUMENT THAT THE STATE AND I BOTH CITE SAYS THAT TSDZ HARD
TO SCHEDULE FLIGHTS AND EVEN FOR A PERSON FROM MEXICO THAT I DAUKD ABOUT IN MY
BRIEF, ICE KEPT SAYING HE'S GOING TO BE ON A PLAIN TOMORROW UKS THE PLAIN NEVER
MATERIALIZED, HE PLEADED GUILTY TO STATE CHARGES, SO SCHEDULING A FLIGHT IS IS A
N IMPORTANT WAY THAT ICE SIGNALS THAT A PERSON IS ACTUALLY GOING TO BE
DEPORTED, BUT I WILL SAY THAT FIRST SOMEONE IS IN CUSTODY AND ICE IS NOT WILLING
TO RELEASE THEM FROM CUSTODY, THEN WE HAVE A MORE LIMITED DUE PROCESS PROBLEM.
BUT I JUST WANT TO KNOW JUST BECAUSE SOMEONE IS IN ICE NAUD, SO THE FLIGHT SCHEDULED
IS AN IMPORTANT SIGNAL. THE LAST THING I WANT TO SAY BEFORE
I SUM UP IS THAT THE ATTORNEY GENERAL'S PROPOSAL WHICH REALLY LEAVES THINGS
IN THE STATE DISCRETION AND THE COURT DISCRETION WITH THE SLIDING SCALES, IT IS
-- IT WOULDN'T FIX ANY OF THE PROBLEMS WE SEE HERE, THE WHOLE PROBLEM OTHER
THAN THE ATTORNEY GENERAL'S ARGUMENT WAS IT'S REALLY REALLY REALLY HARD TO FIGURE
OUT IMMIGRATION LAW AND THE STATE COURTS DON'T HAVE THE CONFIDENCE TO DO IT
JUST USING THEIR OWN FEELINGS ABOUT WHAT A SPECIFIC FACT SIGNIFIES, AND IN THIS
CASE THE PROPOSAL WOULD NOT EVEN HAVE MADE SURE MR. RE OS WOULD NOT BE DETAINED
BECAUSE HE WAS CHARGED WITH AN OFFENSE THAT'S PART OF THE ATTORNEY GENERAL'S
DIRECTIVE, SO HE MIGHT HAVE BEEN DETAINED ANYWAY, SO IT REALLY DOESN'T MITIGATE
ANY OF THOSE. SO I WILL SUM UP BY SAYING THAT THE LEVEL OF
CONCRETE RISK OR A MODIFIED VERSION OF MY TEXT AND THE STATE'S TEXT WITH
IMPORTANT PRONGS THAT WE'VE DISCUSSED IS THE ONLY WAY THIS COURT CAN AVOID
DISCRIMINATING AGAINST NON CITIZENS AND PREVENT THE UNPREDICTABLE ACTIONS
OF ICE AND IT'S THE ONLY WRA THAT THERE CAN BE UNIFORM APPLICATION OF THIS IMMIGRATION
STATUS, I DO URGE THIS COURT TO CONFIRM THE OPINION OF THE APPELLATE DIVISION
AS TO THE NON VOLITIONAL ACT BUT IF IT DOESN'T THERE IS A VERY SPECIFIC RULE UNDER
WHICH IMMIGRATION STATUS CAN BE CONSIDERED OTHERWISE MR. A. OUR CLIENTS
MISS HERE LAST DONE A VERY, VERY GOOD JOB TODAY JUST EXPLAINING BASEIICALLY OUR
POSITION, YOUR HONORS, AND STOE I'M NOT GOING TO TAKE THE COURTS'''S TIME TO
CONTINUE TO REITERATE THOSE ARGUMENT THAT WERE ALREADY PRESENTED TO THE COURT BUT
I WOULD LIKE TO ADD A LITTLE BIT OF INFORMATION ABOUT MY CLIENT AND AGAIN
JUDGES, THIS IS THE JUSTICES, THIS IS A CASE WHERE MY CLIENTS'''S 21, HAD COME INTO
COUNTRY WITH HIS FAMILY AS A MINEOOOR I KNOW THAT THIS IS INFORMATION THAT WAS
NOT PRESENTED TO THE TRIAL COURT, INITIALLY, AND UNFORTUNATELY THERE WAS
NOT A LOT OF INFORMATION WITH RESPECT TO MR. MOLCHORS HISTORY OR BACKGROUND WHICH
WAS PRESENTED TO THE COURT. AND IT WAS INTERESTING I UESS TO LISTEN TO THE
PROSECUTORS'''S POSITION TODAY BECAUSE THIS CASE HAS HAD WEEVEN THROUGH SEVERAL
MOTIONS PRIOR TO APPEARING BEFORE THE APPELLATE DIVISION IN AN ATTEMPT TO
VACATE THAT DEETENTIONT ORDER AND I'S NICE TO LATTER THAT THE STATE HAS EVOLVED
AT LOOEFT IN ITS UNDERSTANDING OF HOW THIS PARTICULAR CASE HAS AFFECTED
NOT ONLY MY CLIENT BUT ALSO MANY INDIVIDUAS THAT ARE IN THAT POSITION AS MR.
MOLCHOR WAS, WHICH WAS IEESSENTIALLY THERE WAS NO INFORMATION WHATSOEVER
ABOUT HIS BACKGROUND AT THE TIME OF THE HEARING AND IT'S ALSO TRUE THAT TLHHERE
WAS NO ICE DE DETAINER, THERE IS NOE ICE DEETTTAINER TODAY, AND WHEN THIS CASE
WAS REMANDED BACK TO THE SUPERIOR COURT AFTER THE APPELLATE DIVISION MADE ITS DECISION,
BASEII THE COURT AGREED IN REVIEWING THE OTHER FACTORS THAT MR. MOLCHOR
SHOULD HAVE BEEN RELASED AND UNFORTUNATELY FOR MR. MOLCHOR HE WAS INCARCERATED
FOR SEVERAL MONTHS. THIS BRINGS ME TO Y NEXT POINT, YOUR HONORS. WHEN I THINK
ABOUT THE ARGUMENTS THAT I HEARD TODAY, SPIFL SOME OF THE QUESTIONS THAT JUSTICE
AL BIN HAD ESSENTIALLY BROUGHT FORTH WHICH I THINK WERE VERY IMPORTANT, AND
ALSO JUSTICE LA VEHICLE YA SPEAKING ABOUT THE FEDERAL BAIL FORMAT AND HOW THE CJRA
ESSENTIALLY DOES NOT IT'S MODELED AFTER IT BUT IT DOSEEES NOTEXPLICITLY
HAVE IN ITS AMENDED DRAFT OR BILL THE APPEARANCE THE RISK OF FLEE THAT WAS REMOVED
BUT IT IS CONTAINED IN FEDERAL BAIL REFORM. MY POSITION IS, YOUR HONOR
S, THAT I DO NOT BELIEVE THAT THE LEGISLATEUUURE IN THE STUJ INTENDED TO ASK TS
ANGS ALSO AGREED ON INTENDED TO RETAIN INDIVIDUALS FOR ACTS THAT THEY ARE NOT
RESPONSIBLE FOR. AND AS I BELIEVE IT WAS JUSTICE PAERSON WHO BROUGHT UP THIS ISSUE
THAT THIS OPENS UP THE DOORWAY TO CONSIDER IF THESE ARE NONVOLITIONAL ACTS
WHETHER THERE WILL BE OTHER CIRCUMSTANCES WHERE INDIVIDUALS ARE GOING TO BE DEETTAINED
BECAUSE OF OTHER FACTORS THAT ARE NOT DREBLTHLY KAUSZED BY THEM. FOR
EXAMPLE, AS WAS MENTIONED, IF THEY PRESIDE IN A NEIGHBORHOOD WHERE THERE IS VOLENCE,
WHERE DOMESTIC VOLENCE MAYBE ANOTHER ISSUE, AND I ALSO BELIEVE THAT THAT
IF THIS IS NOT ADDRESSED IN A MATTER IN WHICH IT IS VERY WHATEVER DECISION THIS
COURT MAKES ISEXTREMELY NARROW IN V AND EXPLICIT WHEN ADDRESSING THE ISSUES ARE
RISK OF AN APPEARANCE OR NONAPPEARANCE, THERE'S GOING TOSH THOSE ARE GOING
TO BE OTHER ISSUES THAT ARE GOING TO WE WILL BE DEALING WITH. BUT THE MAIN THING
IS, YOUR HONORS, IS THAT WHEN WE CONSIDER IMMIGRATION AND RIGHT NOW THAT'S
THE ONLY THING WE'RE CONSIDERING AS A RISK VOFO FLIGHT FOR THESE DEFENDANTS, AND
THERE IS NOE INFORMATION ON THE RECORD INDICATEIIING TA WHAT POINT ICE IS
GOING TO GET INVOLVED, THIS CONTINUES TO GO ON IN THE TRIAL COURTS BY THE WAY EVEN
AFTER THE DECISION M MOLCHOR. AND THIS IS I THINK THIS IS A BIGGER ISSUE, WHO
HOW DO WE ADDRESS THAT SO THAT THESE CASE SS ARE IF THEY HAPPEN THE NUMBER OF CASE
S THAT ARE IN THIS COURT ARE NOT BECAUSE OF WHAT HAPPENED TO MR. MOLCHOR, MR.
RIOS. SO IN SSENCE, YOUR HONOS, I BELIEVE THAT AS MISS HERE HAS EXPLAINED TO THE
COURT, THAT THE WAY TO REDUCE THAT RISK OF UNFORTUNATELY DEETTTAINING INDIVIDUALS
BECAUSE THEY'RE UNDOCUMENTED CITIZENS ALONE IS TO JOIN A NARROW AND EXPLICIT
RULE THAT INDICATES SNFRMENT DRAW SNFRMENT ONCE THE STATE HAS SPOKEN TO ICE AND
HAS DETERMINED THAT TLHHERE IS A FLIGHT SCHEDULED OR THAT THERE ARE NO FURTHER
APPEALS, THEN AT THAT POINT, YOUR HONORS, IF THERE ARE NO CONDITIONS UNDER WHICH
THESE INDIVIDUALS CAN BE RELEASED, THEN AND ONLY THEN SHOULD THERE BE A
DEETENTIONTENTIONT. BECAUSE OTHERWISE THE TRIAL COURTS DON'T UNDERSTAND THE
COMPLEXITIES OF IMMIGRATION LAW AND WHAT HAPPENS IS THAT THE MINUTE THEY HEAR MOST
JUDGES IN OUR CASE TODAY IS A PRIME EXAMPLE OF IT, MOST JUDGES WHEN THEY
HEAR THIS PERSON IS HERE ILLEGALLY, THEY AUTOMATICALLY ASSUME THAT ICE IS ON THE
WAY AND IN THIS CASE THAT WASN'T THE CASE AND THERE ARE MANY CASES ACROSS
THE STATE FOOOF NEW JERSEY THAT ARE INDIVIDUALS TLAR IN THE SAME POSITIONS. WE
WANT TO TRY TO AVOID INCARCERATEING THOSE DEFENDANTS SIMPLY BECAUSE OF THEIR
STATUS IN THIS COUNTRY. AND. JUSTICE PATTERSON: YOU MENTIONED AND
YOU'RE QUITE RIGHT THAT MOSTLY A MEEK US BRIEFS ARE DEVOTED TO EXPLAINING
THE COMPLEXITIES OF MMIGRATION LAW. DOES THE BRIGHT LINE RULE FOR LACK FOOF A
BETTER TERM OF TRAVEL DOCUMENTS, IS THE TRIGGER POINT WHICH IS BEING
SUGGESTED, RESOLVE THAT PROBLEM? BECAUSE THAT SEEMS TO BE A VERY CLEAR-CUT DISTINCTION
THAT DOSEEESN'T REQUIRE THE TRIAL COURT TO BECOME AN EXPERT IN IMMIGRATION
LAW. CRISTINA L. VAZQUEZ: YOUR HONOS, I WOULD SUGGEST THAT
AS MISS HERE LGS POINTED OUT ONLY IF IT'S IN A VERY, VERY NARROW SITUATION WHERE
WE ARE TALKING ABOUT THE PROSECUTION HAS REACHED OUT TO ICE, AND THERE ARE
NO OTHER CONDITIONS UNDER WHICH THE DEFENDANTS CAN BE RELEASED, THEN AND ONLY THEN
IF THEY'RE BEING HELD AND THEY ARE BEING DEETTAINED BY ICE, AND THERE IS KNOW E
OTHER WAY TO RELEASE THEM, THEN AN THAN ONLY THEN SHOULD THERE BE AN ORDER
FOR DEETTENTION SENDING THEM BACK. AND I WOULD JUST LIKE TO BRING THIS UP, YOUR
HONOR S,S BECAUSE I KNOW FROM MY EXPERIENCE, I'VE HAD CLIENTS THAT HAVE
BEEN ON THEIR WAY TO BEING DEPORTED AND THIS PARTICULAR PROSECUTORS''S OFFICE ONE
OF THE PROSECUTORS TLAM CONTACTED ICE AND THEY BROUGHT HIM BACK AND HE WAS
ALL THE WAY IN TEXTAAS AND ICE COOPERATED WITH THEM AND THEY BROUGHT HIM BACK AND
HE RESOLVED HIS CASE AND HE WAS SENTENCED AND THERE WAS IN 2016. SO I KNOW
THAT THE PROSECUTORS HAVE THE ABILITY TO CONTACT ICE AND TO WORK WITH THEM. SOMETIMES
IT MAY WORK, SOMETIMES IT MAY NOT, YOUR HONORS, BUT THIS COURT DOES NOT
ISSUE A VERY, VERYEXPLICIT RULE THEN WHAT'S GOING TO HAPPEN IS THAT JUDGES IN THE
TRIAL COURTS ARE GOING TO BE CONFUSED AND THESHGING TO BE HOLDING PEOPLE
UNNECESSARILY. AND THAT IS WHY THIS IS SOE IMPORTANT. THA'S ALL I HAVE TO ADD
UNLESS YOUR HONOS HAVE ANY QUESTIONS. CHIEF JUSTICE RABNER:
THANK YOU MISS VAZQUEZ. MR. HIENS EL GOOD MORNING YOUR HONO
S. MAY IT PLEASE THE COURT. I WILL ASK FOR REBUTTAL TIME BUT
I AM TLAM I WILL ASK FOR IT. IN ANY EVENT, I THINK WHAT WE HAVE TO GET BACK TO
IS ACENTRAL PURPOSE OF THIS CJRA HERE AND THAT IS TO EMENT POWER COURTS
AND GIVING THEM THE AUTHORITY WHICH THEY DIDN'T HAVE BEFORE AND THAT IS TO DEETTAIN
DEFENDANTS BEFORE TRIAL WHEN AS HERE THE RISK OF THEIR NONAPPEARANCE IN COURT
WHEN REQUIRED BECAME OTHERWISE UNMANAGEABLE BY LESSER MEANS. AS INTERPRETED BY THE
COURT BELOW, THE APPELLATE DIVISION IN THE MOLCHOR CASE, THAT ACT WOULD NOW
BE SYSTEMATIC, WOULD NOW SYSTEMATICALLY DEESSSTROY OUR COURTS ABILITY TO
INSURE JUSTICE FOR OUR SCITIZEN AND FOR CRIME VICTIMS BY PREVENTING COURTS FROM
DEETTAINING THE ONE CLASS OF DEFENDANTS WHOSE INABILITY TO APPEAR FORFUTURE
PROCEEDINGS HAS NOW EVOLVED TO A CERTAINTY. THAT CAN'T BE WHAT THE LELTH YOU ARE
INTENDED AND IT CERTAINLY CAN'T BE WHAT THE CITIZENS THOUGHT THEY WERE EM
POWERING COURTS TO DO WHEN THEY PASSED THE CONSTITUTIONAL ERP REFRN DUMENT LEADING
TO BAIL REFORM. NOW, HERE WE CERTAINLY REACHED THAT CRITICAL
POINT BEFORE WE SOUGHT DEETTENTION. WE DIDN'T DO SO EARLIER EVEN FOR A DEFENDANT
FACEIING SECOND DEGREE SEX CHARGES BECAUSE WE AGREE THAT IMMIGRATION STATUS ALONE
IS NOT A BASEIIS FOR PRETRIAL DEETTTENTION, RATHER, AS HERE, IT WAS THE FINAL
CONCLUSION OF ICE'S REMOVAL LITIGATION THAT MOVED THISCASE FROM ONE WHERE THE
RIFKD OF KNOW NA APPEARANCE WAS MANAGEABLE TO ONE WHERE IT OTHERWISE WAS NOT AND
WHERE A COURT CAN CERTAINLY AT THAT POINT STEP IN AND ORDER DEETTTENTION.
NOW, AS I SAID IN ONE OF THE BRIEFS WE FILED WE WERE WILLING TO WORK WITHIN
THIS FRAMEWORK THAT'S BEEN SET UP BY THE AFRMENT C L U, WE WAITED UNTIL
THERE WAS ONE A FINAL ORDER OF REMOVAL THAT HAD NOT BEEN STAYED. THE DEFENDANT
HAD NO PENDING APPEALS AND THERE WERE NO COLLATERAL CHAS TO THE REMOVAL ORDER
AND THREE, ICE HAD INDEED SECURED TRAVEL DOCUMENTS. IT'S NOT JUST THE FINAL
ORDER THAT HAPPENED IN THIS CASE, IT WAS ALL THREE OF THOSE THAT MOVED US TO ACT.
NOW, ONCE ALL THOSE THINGS HAPPENED, ICE NEEDS TO ACT QUICKLY
UNDER THE STATUTE. THEY ARE SUPPOSED TO REMOVE SOMEBODY WITHIN 90 DAYS AND THAT'S
WHY AND I'LL GET TO IT LATER WHY WALTING NLG A FLIGHT IHHAS TLAM BEEN SCHEDULE
AS THIS COURT KNOWS FROM THIS VERY CASE, WAS TOO LATE A LONG IN THE PROSCCESS AND
IT DOSESN'TESN'TE GIVE US ENOUGH TIME TO SCHEDULE THE DEETENTIONT HEARING
AND DO EVERYTHING WE NEED TO DO TO PROPERLY LITIGATE WHETHER TO DEETTAIN THIS DEFENDANT
UNDER STATE LAW. NOW, AS WOOEF' SGLEEFRNLTS WE'VE SHOWN IN
THIS CASE, WE'RE NOT WAITING WE'RE NOT TRYING TO INTERPRET WHAT ICE MIGHT
TWO IN THEFUTURE IT ISN'T STATE AKCTORSCTORSC ATTEMPTING TO DEE VINE WHAT ICE
IS ENFORCEMENT PRYIIORITIES ARE OR WHAT THEIR ACTIONS WILL BE OR WHAT THE
STAGE OF DEETTENTION LITIGATION IS I AM SORRY WHAT MMIGRATION PROCEEDINGS ARE GOING
TO DO OR ON APPEAL. WE KNOWN OULT THAT WE ARE BEYOND ALL THAT THAT'S ALL
BEEN SETD WILL AND WE ARE NW GIST SIMPLY ON THE THRESHOLD OF OF A PERSON BEING
REMOVED IN TH COUNTRY. NOW, HAVING SAID THOSE THINGS AND THAT'S
WHY WE WERE IN THISCASE, I'LL TURN TO QUESTIONS OF STATUTORY INTERPRETATION
BECAUSE I THINK THAT WHEN YOU READ THIS STATUTE BY ITS PLAIN TERMS AND CERTAINLY
BY ITS HISTORY, IT'S CERTAINLY ALLOWS FOR NONE VOELLLLITIOAL ACTS TO BE
CONSIDERED, CERTAINLY IN THIS LIMITED CONTEXT. AND YOU BEGIN WITH THE PLANING
LANGUAGE IT'S VERY CLEAR THE ACT SPEAKS IN FEWERLY OBJECTIVE TERMS. IT
DOSEEESN'T REQUIRE THAT A DEFENDANTS'''S NOAPPEARANCE BE VOELLITIONAL IT
DOSEESN'T ASK WHY THE DEFENDANT DIDN'T FAILED TO APPEAR, AND IN FACT THE INQUIREYY
IS VERY PRACTICAL IN ITS NATURE. IT'S ONLY THAT A COURT HAS TO FIND CLEAR
AND CONVINCEIING EVIDENCE THAT NOTHING SHORT OF PRETRIAL DEETENTIONT WILL QUOTE
REASON BLEE ASSURE THE ELIGIBLE DEFENDANTS IN COURT WHEN REQUIRED.
THERE IS NOEWHEREW IN THE ACT ANY SUGGESTION OF VOLITIONAL CONDUCT. AND I THINK
THAT BECOMES MORE STRENGTH END WHAT WAS MENTIONED BEFORE AND THAT IS EARLIER
VERSIONS OF THE BILL TLAM DID HAVE THE SAME SORT OF LANGUAGE THAT FEDERAL COURTS
HAVE LOOKED TO TO FIND UNDER THE FEDERAL BAIL REFORM ACT THAT TLHERE ISHERE ISH
A VOLITIONAL CONDUCT REQUIREMENT. HERE, OUR LEGISLATE UR HAD AN EARLIER
VERSION WHICH HAD LANGUAGE THAT WOULD HAVE ALLOWED PRETRIAL DEETENTIONTENTIONT
HEARING TO BEGIN IF THERE WAS A SERIOUS RISK THAT KWOELT DEFENDANT WILL FLEE,
THAT THAT LANGUAGE WAS CHANGED ALL REFERENCES TO FLIGHT WREER REMOVED, AND THAT'S
WHERE WE ARE WHEN THE LAW WAS PASSED. NOW, THIS COURT HAS
REENTLY LOOKED AT A SINMMILAR SITUATION IN THE CJRA AND THAT WAS IN MK CRA WHERE
THE LEGISLATEUURE DEEPARTPED FROM FEDERAL LAW IN TERMS OF CCONTEMPT PROSECUTIONS
FOR VIOLATION OF N ORDER OF RELEASE. THAT WAS ORJIIGINALLY IN THE BILL BUT THEN
IT WAS TAKEN OUT WITHOUT EXPLANATION LIKE THIS ONE. BUT IN OTHER WORDS WHAT THIS
COURT CONSIDERED WAS THAT THAT HAD TLAM BEEN CONSIDERED BY THE LEGISLATEUURE
AND REJECTED AND THE SAME WAS TRUE HERE. NOW, ALL FOOOF THAT COMES
OF COURSE IN. A. CHIEF JUSTICE RABNER: MR. HIENS UNLIKE MK
CRA THOUGH THIS IS A SITUATION WHERE THE CHANGE IN LANGUAGE IN THE BILL
AS THE APPELLATE DIVISION EXPLAINED COULD MEAN ANY NUMBER OF DIFFERENT THINGS NOT
NECESSAILY NOT CONDUCT. DO YOU SAGREE WITH THAT? CRISTINA L.
VAZQUEZ: I DON'T DISAGREE REQUEST WHAT YOU JUST SAID BUT WHAT I DO DSAGREE WITH
IS THAT WECONSTRUE THIS CHANGE IN THE NARROW WAY POSSIBLE PARTICULARLY
BECAUSE THE LEGISLATEUURE WAS PRESUMEAAABLY AWARE OF WHAT WAS GOING ON HINS HINS
IN FEDERAL COURT AT THE TIME WHEN IT WAS DEEBBATEINGINGI AND FINALIZEIIING
THIS BILL WHEN IT WAS MADE INTO LAW IN 2014 AND THAT IS FEDERAL COURTS I AM SORRY,
YOUR HONOR. CHIEF JUSTICE RABNER: PLEASE CONTINUE HINS HINS
OKAY THE FEDERAL COURTS WERE KEELY DIVIDED ANS DPO A VOLITIONAL ACT RIERNLT EXISTED
AT THAT TIME AND THOSE COURTS HAVE WERE INCLINED TO FIND THE VOLITIONAL ACT
WERE SEIZING ON THE LANGUAGE WILLFULLY. THERE WERE A NUMBER OF DECISIONS THAT
LOOKED TO THAT VERY LANGUAGE AND SAID THERE IS A PLAIN LANGUAGE BASEIIIS IN OUR
LAW AND THAT IS BECAUSE OUR LAW SPEAKS IN TERMS OF WILLFULLY.
CHIEF JUSTICE RABNER: WOULD THE APPROPRIATE TO PRESUME AS WELL THAT THE
LEGISLATEUURE WAS AWARE OF THE REAL PROBLEM THAT MANY DEFENDANTS SIMPLY DON'T
SHOW UP FOR A COURT APPEARANCE BUT DO NOT FLEE AND THAT THEY WOULD NOT HAVE COVERED
BY THE FIRST CONSIDERATION IN THE STAFRP HINS HINS WELL I THINK YES MISS
CONDUCT WAS CERTAINLY A CONSIDERATION THAT WAS GOING ORNL. BUT THE QUESTION IS
WAS IT THE ONLY CONSIDERATION. AND BY THE PLAIN LANGUAGE LANGUAGE THAT WAS
REMOVED WHICH WOULD HAVE FOCUSED ON SMEBODY'S TLAL STATE OF MIND AND NOW WE SPEAK
IN PURELY OBJECTIVE TERMS AND A CLEAR DPARTURE FROM THE FEDERAL LAW, I THINK
A MORE NATURAL READING OF THE LAW IS TO ALLOW THAT TO BE TAKEN INTO ACCOUNT. AND
THAT ALSO COMES IN THE ^ WHAT I CAN ^ WAKE OF THIS COURTS''S DECISION OF COURSE
5 YEARS EARLIER IN THE HEART V SAN TOES WHERE IN THE ^CONTEX OF ADVANCEIIING ICE
LITIGATION TO REMOVE A DEFENDANT, YOU SAID, THAT IT IS ENTIRELY APPROPRIATE TO
CONSIDER A DEFENDANTS''S IMMIGRATION STATUS IN EVALUATEIIING THE RISK OF
FLIGHT OR NONAPPEARANCE. SO UYYOU TOOK THE WORDS THAT BOTH HAD VOLITIONAL ^CCONTENT
AND NONVOLITIONALCONTENT AND ALLOWED THEM BOTH TO BE CONSIDERED SPECIFICALLY IN THE CONTEXT OF ICE REMOVAL EFFORTS AND THEN THE LEGISLATEUUURE WHICH WAS
BUT REASONABLEYY ASSURE SMEBODY'S APPEARANCE IN COURT AS REQUIRED. SO AGAIN, I
THINK THE FAR MORE NATURAL READING IN LIGHT OF THAT HISTORY IN LIGHT OF THE
FACT THAT FEDERAL COURTS THAT WERE FINDING VOLITIONAL ACT WERE LOOKING TO THE WILLFULLY
LANGUAGE AND YOUR LEGISLATEUURE BEING PRESUMEAABLY AWARE OF THAT DECIDEDED
TO GO IN THE OTHER DIRECTION, I THINK IT'S A MORE NATURAL AND PERFECTLY CONSISTENT
WITH THE PLAIN LANGUAGE OF THE LAW TO ALLOW ICE TO REMOVAL EFFORTS TO BE
CONSIDERED HERE A NONVOLITIONAL AK. I ALSO BELIEVE OF KOIRSZ AS JUZSTICE
ALBINS HAS SAID THAT TO ^ CON ^ CONNECTICUT STRUT LAW OTHERWISE WOULD
LEAD TO AB SURD RESULTS. WE ARE TALKING ABOUT IN THISCASE AND IN OTHERS VERY SERIOUS
CRIMES. TO THINK IF THE LEGISLATEUUURE WOULD SIMPLY SAY TO ITSELF, WE KNOW
ABOUT THIS PERSON, WE CAN TAKE ACTION, WE CAN BRING HIM TO TRIAL EASTIIILY ENOUGH
IF WE CAN CONSIDER THE FACT THAT HE'S OTHERWISE ABOUT TO BE REMOVED AND
WE CAN TAKE ACTION TO BRING HIM INTO STATE CUSTODY WHICH WOULD STOP THAT. I THINK
THAT'S AB SURD TO THINK THAT THEY THEY THOUGHT THAT. AND I THINK THAT GARN
ERS FURTDHHER SFOERTD FROM THE WAY THE QUESTION WAS PRESENTED TO THE PUBLIC. THE
QUESTION WHICH WAS PRESENTED TO THE PUBLIC AS A MEENTS OF AUGMENING STATE COURT
POWER TO DO SOMETHING THAT IT DIDN'T HAVE THE POWER TO DO BEFORE AND THAT WAS TO
INSURE THAT OUR PROCESS COULD BE SEEN THROUGH TO THE END BY TAKING SOMEBODY
INTO CUSTODY TO ASSURE THEIR APPEARANCE IN COURT AS REQUIRED. NOW
SOME ARGUES HAFK MADE ABOUT WEM THAT MIGHT OPEN THE DOOR TO OTHER SITUATIONS WHERE
IT WOULD LEAD TO AN AB SURD RESULT IN THE OTHER DIRECTION. AND I THINK
THOSE FEARS ARE REALLY UNFOUNDED. I THINK WHEN YOU ARE TALKING ABOUT DEETTAING
SOMEBODY BECAUSE THEY LIVE IN A BAD NEIGHBORHOOD, OR DEETTAINING SOMEBODY
BECAUSE THEY ARE A COOPERATEER THAT IS FRANKLY AB SURD AND IF THOSE ARE THE EXAMPLES
YOU HAVE TO COME UP WITH TO SAY THAT THIS MIGHT LEAD TO AB SURD RESULT, THAT
JUST SLOWS THAT OUR RESULT IS NOT AB SURD ALT ALL. IN FACT, FOR THE EXECUTEIIIVE
BRANCH THE PROSECUTORS AND POLICE AGENT SEEGS TO SAY WELL, WE ARE GOING TO DEETTAIN
YOU BECAUSE WE CAN'T KEEP YOU SAFE, NO, I MEAN THA'S ON THE EXECUTEIIVE
BRAN OF TO KEEP THOSE PEOPLE SAFE AND THAT'S A RESPONSIBILITY WHICH WE FULLY
EMBRACE. ALSO, THEN IT WAS SAID IF YOU RULE THIS THE OTHER
WAY IN THISCASE TODAY, IT LWILL OPENW THE DOOR TO OTHER SORTS OF THINGS. WELL,
WE'VE BEEN SEEKING DETENTION IN CASS INVOLVING CERTAIN RISK OF DEE
IMPORTANT TAGS. THE HERNANDEZ KAM POSE ORDER WAS ISSUED I T3 YEARS AGO AT THIS
POINT IN THE APPELLATE DIVISION THAT WAS AMENDED TO OUR APPENDIX AND COURTS
HAVE LOOKED TO THAT AND PROSECUTORS HAVE LOOKED TO THAT ORDER AS WELL AS THE LANGUAGE
FROM THERE COURT'S OPINION IN VAL HEART TOES SAN TOES TO SEEK DETENTION WHEN
REMOVAL EFFORTS HAD RESULTED OR HA GOTTEN TO A CRITICAL POINT WHERE IT WAS NOW
NECESSARY TO ACT. SO THIS ISN'T SOMETHING THAT WOULD BE NEW
TO OUR COURTS. JUSTICE ALBIN: MR. HIENS, YOU AGREE WITH
THE AFRMENT C L U THAT THE STAN ASHD SHUB CERTAIN AND I AM MEANT REMOVAL?
DO YOU AGREE WITH THAT? HIENS HIENS I BELIEVE SO BECAUSE I THINK THAT YES, W'RE
TALKING ALL THE QUESTIONS OUT OF THE EQUATION AS TO WHAT MAY HAPPEN IN I AM
DWRAGS PROCEEDINGS. JUSTICE ALBIN: NOW I WANT TO UNDERSTAND WHAT
CERTAIN ARN IMMINENT MEANS. YOU SAID A FINAL ORDER OF REMOVAL, YES? HIENS HIENS
YES. JUSTICE ALBIN: A PERNSON ISS IN ICE CUSTODY? ICE HIENS
HIENLS I THINK THAT'S GOING TO GENERALLY BE TRUE BUT I DON'T KNOW IF THA'S NECESSARY
TO US SEEKING A DEETENTIONTENTIONT APPLICATION. BECAUSE IF EVERYTHING ELSE IF
THERE IS NOE SOMETHING TO THAT FINAL ORDER IF ALL THE A PEELGS HAVE BEEN
EXHAUSTED, IF THERE IS NOE COLLATERAL PROCEEDINGS. JUSTICE
ALBIN: I AM TRYING TO UNDERSTAND YOUR OKAY SO YOU ARE NOT REQUIRING CUSTODY IN
YOUR HIENLS HIENS NO AND AS AN FAR AS I KNOW NOBODY ELSE WAS REQUIRING THAT
BEFORE DAY. I THINK IT. JUSTICE ALBIN: TRAVEL DOCUMENTS FROM MISS
AND TON HIENLS HIENS YES I WOULD GENERALLY SAY THAT'S PROBABLY GOING TO BE
IN EXISTENCE WHETHER I'S ABSOLUTELY HAS TO BE I DON'T KNOW BECAUSE AS THAT
INSPECTOR GENERAL'S RORTD THAT HAS BEEN SORT OF DISCUSSED ON BOTH SIDES HAS MENTIONED,
IN A NEW JERSEY OF CASESS AND IN FACT IN THE VAST MAJORITY OF CASES REPAY
YAGS TO A NUMBER OF COUNTRIES HAPPEN WITHOUT ANY DELAYS AND IN FACT ICE EVEN MENTIONS
IN THAT REPORT. JUSTICE ALBIN: YOU SAID FINAL ORDER OF REMOVAL
AND NO APPEALS. IN MOST OF THOSE CASES ARE THE PEOPLE WHEN THERE IS A FINAL ORDER
OF REMOVAL AND NO APPEALS, IN WHAT PERCENTAGE OF CASS IS THE PERSON NOT
IN CUSTODY? DO YOU KNOW? HIENS HIENS I DON'T KNOW. AND I WOULD ASSUME THAT THEY
ARE GENERALLY GOING TO BE IN CUSTODY BUT THE REASON WHY I HESITATE IN MAKEIING THAT
A HARD AND FAST REQUIREMENT IS BECAUSE IF WE IF THEY ARE NOT, W'RE NOT GOING
TO BE ABLE TO MOVE FOR DETENTION UNTIL THEY ARE. BUT ICE MAY ONLY BRING THEM
BACK INTO CUSTODY AT THE MOMENT BEFORE THY ARE GOING TO PUT THEM ON A PLAIN.
SO IF WE HAVE TO WAIT UNTIL THAT PRECONDITION HAPPENSEDE I THINK WE ARE ASKING
FOR TROUBLE. I DO THINK AS YOU SAID, THAT IN MOST CASES WE'RE GOING TO
HAVE PEOPLE WHO ARE IN CUSTODY. SO AS A PRACTICAL MATTER I DON'T KNOW IF IT MATTERS
THAT MUCH BUT I THINK IN THOSE CASES WHERE I'S NOT, I THINK WE'RE REALLY
ASKING FOR TROUBLE BEFORE IF WE SAY BEFORE THE STATE CAN EVEN FILE ITS MOTION THE
PERSON HAS TO BE IN CUSTODY BECAUSE LIKE I SAID THAT MAY HAPPEN THE DAY BEFORE
THEY ARE KNOWN OUT. SO THA'S WHY I HESITATE TO MAKE THAT A FORMAL PRE^RREQUISITE.
SO AS FAR AS THE TOOL KIT AND AS FAR AS BA WEWE TRY TO DO IN
THIS CASE WITH THE TOOL KIT, WE DIDN'T ASK OR ICES RESPONSE TO US CERTAINLY DIDN'T
CONSTRUE OUR REQUEST AS VERY NARROWLY TAILORED, YO'RE ONLY SEEKING
DEEFERFERF TO ACTION OR ADDMINISTER THEM IF STAY OF REMOVAL. WHEN YOU LOOK AT THE
WAY ICS ASSISTANT CHEEFR COUNSELRESPONDED TO US HE SAID UNFORTUNATELY THEY
CAN'T CONTINUE TO DEETTAIN RERESPONDENTS REMOVAL BASED ON HIS PENDING NEW JERSEY
CRIMINAL MATTER. AND THIS WAS EARLIER LANGUAGE I AM NOT AWARE OF ANY AVENUES
FOR YOUR OFFICE AT THIS TIME. SO THE FACT THAT NOW TODAY THEY COME UP WITH
A NEW AVENUE OF RELIEF, ICE WAS TELLING US THEY'RE DONE I'S VER WE ARE GOING TO
REMOVE HIM SHORT OF A STATE COURT ORDER OF DEETTENTION THERE IS NOTHING THAT
CAN BE DONE TO STOP THIS TRAIN. SO THAT IS THE NATURAL READING OF WHAT THEY SAID.
AND AS FAR AS THE TOOL KIT IS CONCERN, I THINK IF YOU ARE GOING TO ENVVVEN
ALLUDE TO IT IN YOUR OPINION IN THIS CASE, I THINK WE DON'T HAVE TO MAKE THAT A
HARD AND FAST REQUIREMENT ITHER, THAT WE ALWAYS AVAIL OURSELVES OF IT.
THAT IS BECAUSE ON ITS FACE THE TOOL KIT ONLY APPLIES TO CERTAIN DISCRETE SITUATIONS.
WHEN YOU READ THE TOOL KIT, IT CERTAINLY DIDN'T APPLY TO MR. LOWPEZPEZP KRAR
AN BECAUSE AS FAR AS DEEFFERRED AXIS CONCERNED AND AS THE AFRMENT C D L RIGHTLY
CONCEDED IN ITS BRIEF, THE DEEFFERRED ACTION CAN BE APPLIED TO SINL ATHETIC FACTS
IN A LOW ENFORCEMENT PRONE REA THEYCONCEDE THAT HAD DOESN'T APPLY HERE.
SO THE SEKCK TYPE OF DEEFFF AXIS WHERE SOMEBODY IS GOING TO BE AN IMPORTANT WITNESS
IN THE LITIGATION. OBVIOUSLY THAT WASN'T THE CASE. SO ON ITS FACE DEEFFERRED
ACTION DIDN'T APPLY, ON ITS FACE ADMINISTRATIVE STAYS OF OF REMOVAL DIDN'T
APPLY ETITHERITHERI BECAUSE THIS IS SOMEBODY WHO CAME INTO THECOUNTRY
ILLEGALLY AND NOT THROUGH NOT THROUGH MMIGRATION OFFICIALS. SO FOR THAT FOR THOSE
FOR THOSE TYPES OF CASS IT'S ONLY WHERE REMOVAL ISN'T PRACTICAL OR PROPER OR
AGAIN WHEN SOBMEBODY'SM NEEDED TO TESTIFY IN A FEDERAL OR STATE PROCEEDING. OCHS
LY THOSE DIDN'T APPLY. SO IF WE COULD HAVE JUST TOLD THE DEETENTIONT JUDGE, LOOK,
JUDGE, W'RE REPRESENTING THAT NO TOOLS IN THE TOOL KIT EVEN APPLY HERE,
AND EXPLAINED WHY THAT WAS SOE,,, THAT SHOULD HAVE BEEN SUFFICIENT. INSTEAD OF
HAVING TO GO TO ICE, HAVING THEM SAY NO FOR SOMETHING THAT WE KNEW WOULD BE
A NO JUST BY LOOKING AT THE TOOL KIT ITSEL. JUSTICE ALBIN: LOOKING
AT YOUR STANDARD, WOULD YOU ADD ALSO THAT TLHHHERE HAS BEEN A COMMUNICATION BY
THE STATEEITHER ATTORNEY GENERAL'S OFFICE OR THE PROSECUTOR'S OFFICE WITH ICE THAT
WITHOUT A STATE DETENTION ORDER THE PERSON WILL BE REMOVED FROM THE COUNTRY?
HIENS HIENS IF WE TOLD THAT TO THEM? JUSTICE ALBIN: YOU HAVE HAD
A DIEAAALOGUE THOUSANDNOW YOU REPORT BACK TO THE COURT THIS HAS BEEN REPRESENTED
TO US BY ICE, WE EVER ALL THESE OTHER CONDITIONS, THAT UNLESS THERE IS A STATE
ORDER OF DETENTION THE PERSON WILL BE REMOVED FROM THE COUNTRY. HIENS HIENS
I THINK THAT WOULD BE WORKABLE. I THINK THAT HAPPENED IN OUR CASE. I BELIEVE
THAT HAPPENED IN A REENT GLOUCESTER COUNTY CASE WHERE THEY ALSO SOUGHT TO
AVAIL THEMSELVES OF THE TOOL KIT. SO IF WE'RE ASKING FOR LANGUAGELIKE THAT I THINK
THAT GENERALLY THAT CAN BE OBTAINED. THE OTHER THING THAT
WAS MENTIONED BEFORE AND AGAIN WASN'T EVEN TALKED ABOUT HERE WAS DEPARTURE CONTROL
ORDERS. THIS COURT IN VIRGINIA HARD TOES SAN TOES SAID THOSE ONLY APPLY TO VOLUNTARY
TRI REMOFLS. AND THE ONLY TWO CIRCUIT COURTS AROUND THE COUNTRY THAT I
WAS ABLE TO FIND THAT SAID NICK ABOUT THAT THEY GREED WITH THAT, THAT DOSEESN'T
APPLY TO REMOVAL LITIGATION, ONLY TO VOLUNTARY DEPARTURES. AS
FAR AS THE WHAT HAD BEEN DISCUSSED BY THE CHIEF BEFORE ABOUT THE J C J REPORT I
WOULD LIKE TO TALK ABOUT THAT FOR A MINUTE. BECAUSE THAT WAS PUBLIC
ESTABLISHED ON MARCH TENANT, 2014, WHICH WAS WBEFOR THE LEGISLATEUURE CHANGED THE
LANGS WAGE IN THE BILLS THAT WERE MOVING THROUGH THE LEGISLATEUURE FROM RISK OF
FLIGHT TO JUST PLAIN NONAPPEARANCE. SO UYYYOU WENT FROM A NARROWER SET
OF CIRCUMSTANCES TO NOW ONE WHERE THE LANGUAGE QUITE NATURALLY APPLIES TO CASE SS
LIKE THIS. YOU LOOK AT THAT REPORT AND I'VE READ THAT REPORT
SEVERAL TIMES NOW, IT DOSEESN'T SAY ANYTHING ABOUT IT DOOS THAN THE EVEN CITE FOR
HARD DOSE SAN TOES WHICH WAS ONLY A FEW YEARS BEFORE. IT DOSEESN'T SAY ANYTHING
ABOUT IMMIGRATION PROCEEDINGS. WELL YES GENERALLY IT TALKS ABOUT RISKS
AND MISS CONDUCT BECAUSE THAT'S MOST NATURALLY WHAT WEA ARE GOIN TO BE DEALING
WITH IN THE VAST MAJORITY OF PRETRIAL DEETTENTION HEARINGS, BUT WHEN THE
LEGISLATEUURE CHANGED THE LAW, CHANGED THE WORDING VLT BILL TO MAKE IT MUCH
BROADER IN SCOPE, I THINK IT'S UNNATURAL TO NOW READ IT AS IF IT HAD KEPT THE LANGUAGE
AT RISK OF MISS CONDUCT THE WAY IT OCCURRED. PARTICULARLY GIVEN THE WAY
FEDERAL COURTS HAD BEEN DIVIDED AND CLINGING TO THE WILLFULLY LANGUAGE AT THAT
TIME. CHIEF JUSTICE RABNER: MR. HIENLS ELG YOU CORRECTLY
FLOAT THAT THERE IS NOE EXPRESS DISCUSSION ABOUT ICE REMOVAL ACTION IN THE CJRA
REPORT. ISN'T THE SAME TRUE ABOUT THE LEGISLATEIIVE HISTORY THAT TLHHERE IS
NOE PLACE THAT EXPRESS DISCUSSION ABOUT WAHHAT WILL THIS STATUTE DO IN THE SITUATION
WHERE ICE IS GOING TO REMOVE SOMEONE? HIENS HIENS NO IT DIDN'T BUT AGAIN,
THE LEGISLATEUURE WAS PRESUMEAABLY AWARE OF YOUR DECISION IN VOLITIONAL HARD TOE
SAN TOES THAT SAID THAT THE RISK OF NONAPPEARANCE CAN BE MGSD IN THECONTEXT OF
ICE REMOVAL PROCEEDINGS ^ ( ^ ) MANAGED ^ ( ^ )
BY INCREASEIIING BAIL. AND THEREFORE I DOEN'T THIN IT NEEDED TO SAY ANYTHING.
THEY WERE PRESUMEABLYA AWARE OF THAT AND THAT FITS CERTAINLY WITHIN THE
CONFINES OF THE CURRENT LANGUAGE USED IN THE STATUTE TO ACCOUNT FOR ICES ADVANCEIIING
ENFORCEMENT EFFORTS. CHIEF JUSTICE RABNER: I KOSH WRONG BUT
I DIDN'T THAT I THAT ZARD LOW SAN STOES WAS IN ANY WAY INTERPREING THE
STATUTE. I THOUGHT IT WAS SIMPLY NOTING THAT SOMETHING MIGHT BE CONSIDERED AS
RELEVANT TO RISK OF FLIGHT. HIENS HIENS RIGHT. OR NONAPPEARANCE AS YOU
SAY. IT SAID THE RISK OF FLIGHT OR NONAPPEARANCE. AGAIN, THE LEGISLATEUUURE HAD
THE FLIGHT LANGUAGE BUT OPTED FOR THE BROADER NONAPPEARANCE WHICH AGAIN
WAS IN THECONTEXT OF INCREASEIING BAIL. YES, YOU'RE RIGHT IT WASN'T A STATUTE
BUT AGAIN THEY WERE PRESUMEAAABLY AWARE OF IT. CHIEF JUSTICE
RABNER: ANYTHING YOU WOULD LIKE TO ADD? HIENS HIENS NO I THINK THAT THAT
SUMMARIZES OUR POSITION. WE ASK THIS COURT TO MODIFY MOLCHOR TO MAKE IT AND
LOWPPPPEZ KRAR AN SERJT TO MABL IT MORE IN KEEPING WITH A NATURAL NONE AB SURD RESULT
I WOULD SUBMIT THAT ALLOWS THE STATE TO PROSECUTE CERTAINLY SERIOUS CRIMES
AND AS FAR AS WHETHER WE ARE GOING TO INCLUDE ALL CRIMES WITHIN THIS THE FACT IS
ALL ELIGIBLE DEFENDANTS ARE ELIGIBLE DEFENDANTS AND I DN'T THINK IT WOULD
BE THIS COURTS''S PLACE TO SORT OF DO A CARVE OUT FOR CERTAIN CRIMES BUT NOT OTHERS.
BUT I HAVEN'T SEEN ANYBODY SEEKING 0 DEETTENTION IN THESE SORTS OF CASE
IS FOR SHOPLIFTING THESE ARE GENERALLY VERY SERIOUS CRIMES. BUT I THINK IT WOULD
IT WOULD CERTAINLY BRING AN AB SURD RESULT OR PUT AN AB SURD GLOSS ON THIS
STATUTE TO ^ CON ^ CONNECTICUT TRUE IT OTHERWISE. CHIEF JUSTICE
RABNER: THANK YOU. MR. BRUR ROSE ANDREW R. BURROUGHS: WELL, I HAVE SOME
PRELIMINARY REMARKS BECAUSE MY CASE IS THE MORE CONTROVERSIAL 1 OF THOSE THAT HAVE BEEN
SPOKEN TO, THE TRIAL COURT HELD IN THIS CASE THAT A FINAL REMOVAL ORDER AGAINST THE DEFENDANT
WAS INSUFFICIENT TO WARRANT REVOCATION OF HIS RELEASE. THE DEFENDANT HAD VIGOROUSLY
DEFENDED HIMSELF BOTH IN HIS CRIMINAL AND IMMIGRATION PROCEEDINGS, THE COURT FOUND HIS
REMOVAL WAS NON VISUAL AND REGOIO OCCASION MUST BE ON HIS MISCONDUCT AND NOT A DISCRETIONARY
DECISION TO REMOVE HIM FROM THE KOURN. NOW, WHILE THE CJRA DOES NOT STATE WHETHER NON
APPEARANCE BASED ON VOLITIONAL OR VAUN VOLITIONAL STATUTES, THE RISK OF NON APPEARANCE
MUST RELATE TO THE VOLITION OOL MISCONDUCT, THERE SHOULD BE AN INDIVIDUAL FACTORS THAT
MAKE A DEFENDANT VOLLEY TAERL LIKE THIS A REMOVAL ORDER IS A (INAUDIBLE), HAD THE LEGISLATURE
WANTED TO EXCLUDE REMOVABLE AL YIENS FROM CONSIDERATION OF RELEASE OF DETENTION IN
CRIMINAL PROCEEDINGS THEY WOULD HAVE DONE SO. DEFENDANT SUBMITS THAT BOTH THE TRIAL COURT
AND THE APPELLATE DIVISION IN THIS CASE GOT IT RIGHT, NON VOLITIONAL CONDUCT CANNOT JUSTIFY
INTENTION. THE TRIAL COURT WAS ALSO CONSIDERING THIS CASE THE STATE WAS SEEKING TO USE
REVOCATION AS LITIGATION ADVANTAGE, THE ASSISTANT PROSECUTOR HAD URGED REVOCATION TO ENCOURAGE
THE DEFENDANT TO ACCEPT THE PLEA OFFERS WHICH THE DEFENDANT HAD REJECTED, THE COURT TO
DECLINED TO DETAIN DEFENDANT TO SECURE A CERTAIN PROSECUTORIAL OUTCOME, WHILE WE MAY HAVE
A PROBLEM HERE HOW MANY NONCITIZEN DEFENDANTS ACTUALLY EVADE PROSECUTION BECAUSE OF I
NVOLUNTARILY GETTING REMOVED RECENT WE DON'T KNOW, ALTHOUGH BOTH THE STATE AND THE ATTORNEY
GENERAL HAD THE OPPORTUNITY TO CANVAS COUNTY PROSECUTOR OFFICES TO DETERMINE THE SCOPE
OF THE PROBLEM THEY FAILED TO DO SO, WE ARE LEFT ONLY WITH ANECDOTES AND THE THAT THIS
COURT EFFECTIVELY WRITE THE CJRA TO TREAT NON CITIZENS DIFFERENTLY, NOW WHAT IS A FINAL
REMOVAL ORDER, WE ADMIT IT'S NEITHER FINAL NOR NECESSARILY MEANS REMOVAL, STATUTORILY
IT IS AN AGENCY ADMINISTRATIVE ORDER ENTERED BY THE D I A A, IT DOES NOT CONSIDER APPEALS
TO THE FEDERAL COURTS, MANY RECIPIENTS WINDS UP YEARS IN ICE DETENTION OR ARE OFTEN RELEASED
ON BOND OR ON THEIR OWN RECOGNIZANCE THUS IT IS UNCERTAIN WHAT WEIGHT WE SHOULD ACCORD
A FINAL REMOVAL ORDER BEFORE WE SHOULD DEPRIVE NONCITIZEN DEFTHS OF THEIR LIBERTY. THERE'S
ALSO THE PROBLEM THAT NONCITIZEN DEFENDANTS WHO HAVE VALID DEFENSES OR ELIGIBLE FOR RELIEF
MAY BE CONTAINED UNDER CJRA, (INAUDIBLE) AND CONSIDERED. THE DEFENDANT SUBMITS THERE IS
A MORE EFFICIENT SOLUTION HERE, IS TO WORK WITH CONGRESS TO REQUIRE THE D H S TO NOT REMOVE
ANY DEFENDANT FACING STATE CRIMINAL PROCEEDINGS UNDER 8 U. S. C 1231. A SIMPLE CLARIFICATION
TO THIS STATUTE WOULD RESOLVE THE PROBLEM RAISED BY THE STATE, MEETING ITS OBJECTIVES
OF ENSURING PROSECUTIONS AS WELL AS PROTECTING A DEFENDANT'S DUE PROCESS AND EQUAL PROTECTION
RIGHTS. THE IDEAL IS FOR ALL DEFTHS TO APPEAR FOR TRIAL, THIS COURT THOUGH HAS LONG
ACCEPTED THE CALCULATED RISK THAT UNDER THE FOURTH AND FIFTH AMENDMENTS SOME DEFENDANTS
MIGHT ESCAPE JUSTICE TO PROTECT OUR BROADER CONSTITUTIONAL RIGHTS, WHILE ONE RECURRING
CRITICISM OF BAIL REFORM IS THAT OVER DETENTION SOME DEFENDANTS MAY COMMIT NEW CRIMES
WHILE AWAITING TRIAL, THE LEGISLATURE OF THE PEOPLE OF NEW JERSEY KNEW AND ACCEPTED THIS
RISK IN FAVOR OF A CHEEFK LIBERTY FOR THOSE WHO THROUGH NO FAULT OF THEIR OWN CANNOT AFFORD
MONETARY BAIL. RESPONDS DENT SUBMITS THERE IS JUST TOO MUCH UNCERTAINTY HERE. FOR THE
FIRST TIME UNDER CJRA WE WILL TREAT CITIZENS AND NON CITIZENS DIFFERENTLY, SOME WILL ENJOY
LIBERTY AND OTHERS WILL WAIT IN JAIL FOR MONTHS OR MAYBE YEARS. (INAUDIBLE) PARTICULARLY
FOR THOSE MOST UNABLE TO AFFORD BAIL, THE DEFENDANT RESPECTFULLY REQUESTS THAT IT BE
REMANDED TO A SPECIAL MASTER WHO CAN OBJECTIVELY DETERMINE THE SCOPE OF THE PROBLEM AND
WHETHER IT'S AN EXCEPTION OR SYSTEMIC, WE ASK THE ATTORNEY GENERAL TO ENGAGE WITH THESE
COUNTERPARTS TO DETERMINE WHETHER OR NOT STATUTES CAN BE RE INTERPRETED OR SXABDED TO
INCLUDE INVOLUNTARILY REMOVED NON CITIZENS FACING STATE CRIMINAL PROCEEDINGS, WITH THAT
THAT CONCLUDES MY PRELIMINARY REMARKS, IF THERE IS ANY QUESTIONS I WOULD LIKE TO TURN
TO THE INTERPRETATION OF THE STATUTE IF I MAY. THANK YOU. THERE HAS BEEN
SOME DISCUSSION HERE TODAY, NON APPEARANCE, IT DOESN'T SAY VOLITIONAL, IT DOESN'T SAY
NON VOLITIONAL, THUS WE REACH THE CONCLUSION WELL IT MUST INCLUDE THINGS LIKE REMOVAL
ORDERS, ASK TEFRN NALTSDZ, SUCH AS WHY A FEDERAL AGENCY MAY REMOVE A PARTICULAR DEFENDANT.
I DON'T THINK THAT'S HE CAN'T KR, WE CAN FIND THE ANSWER IN THE STATUTE ITSELF IF WE WERE
TO LOOK AT 2A 16215 AND READ IT TOGETHER AT 162-20 AND WHAT AM I TALKING ABOUT HERE,
162-15 THE LEGISLATURE HAS GIVEN US A ROADMAP, THEY SAY THE STATUTE SHOULD BE LIBERALLY
RELEASE ON NON MONETARY BAIL, THEN LET'S GO TO 2A 162-10, THAT IS WHERE THE LEGISLATURE
HAS ENUMERATED SPECIFICALLY FOR THE COURTS INFORMATION CONSIDERED IN DETERMINATION OF
PRETRIAL DETENTION. SO HERE THE LEGISLATURE HAS GIVEN US THE ROADMAP, GIVEN THE COURTS
HOW THEY SHOULD CONSIDER THE FACTORS FOR PRETRIAL INTERVENTION, AND I FIND THIS THE VERY
INTERESTING PART OF THE STATUTE, FIRST IT STARTS OUT BY THE INFORMATION CONSIDERED IN THE
DETERMINATION OF THE PRETRIAL STATUTE, A THE NATURE AND CIRCUMSTANCES OF THE OFFENSE,
THAT DOESN'T FIGURE HERE NECESSARILY, B, THE WEIGHT OF THE EVIDENCE AGAINST THE ELIGIBLE
DEFENDANT, THAT DIDN'T COME UP HERE, HERE'S THE CATCH ALL PHRASE THAT I'VE HEARD USED
THAT WE CAN CRAFT INTO IT THE ICE REMOVAL ORDER, THE HISTORY AND CHARACTERISTICS OF THE
ELIGIBLE DEFENDANT, YES, BUT LOOK AT THE NEXT PART OF THE PHRASE, THERE'S A XHA AND THEN
IT SAYS INCLUDING, AND LOOK AT WHAT IT INCLUDES, 1 AND 2, THEY'RE ALL IDIOSYNCRATIC TO
THE DEFENDANT, THERE'S NOTHING HERE NON VOLITIONAL, THERE'S NOTHING HERE ABOUT #509D
AGENCY OR ANOTHER PART OF THE GOVERNMENT THAT'S DOING SOMETHING IN SOME EXTERN NATURALLY
TEA OF THE DEFENDANT, IT LOOKS AT THE CHARACTER, THE PHYSICAL AND MENTAL CONDITIONS, FAMILY
TIES, EMPLOYMENT, ALL OF THESE ARE FACTOR, THE LEGISLATURE HAS TOLD THE COURT THESE ARE
THE THINGS THEY SHOULD BE CONSIDERED, THEY ARE NOT NON VOLITIONAL, THEY ARE VOLITIONAL,
THEY'RE IDIOSYNCRATIC TO THE DEFENDANT, HIS HISTORY, HIS FAMILY TIES. AND I WANT TO
MENTION IN THIS PARTICULAR CASE THERE WAS AN OPPORTUNITY AT THE VERY BEGINNING TO ARGUE
FOR DETENTION OF THIS DEFENDANT NOT ON HIS IMMIGRATION STATSDZ, NOT THAT HE HAD A
DETAINER, HE WASN'T A RESIDENT OF THE STATE OF NEW JERSEY IN FACT, HE WAS A RESIDENT OF THE
STATE OF CONNECTICUT, THAT'S WHERE HIS FAMILY WAS, THAT'S WHERE HIS TIES WERE, ETD NO
TIES TO THE STATE OF NEW JERSEY AT ALL THAT I KNOW OF. HERE, THE STATE COULD HAVE ARGUED
THAT AT THE BEGINNING, NOT BASED ON THE RULE OF ORDERS, NOT BASED ON DETAINERS, BUT THE
FACTORS THAT ARE ALLOWED IN 162-20 HIS RESIDENCY, HIS TIES TO THE STATE, WHAT WOULD THAT
CREATE A VOLUNTARY RISK OF FLIGHT OR ABSCONDING AWAY FROM THE STATE OF NEW JERSEY. BUT
THE STATE FOR ITS STRATEGIC REASONS DECIDED NOT TO, IT HAD AN ICE DETAINER, IT WAS
CONVENIENT, TWORNT BE IN THE COUNTY JAIL, HE WOULDN'T GET HIS JAIL TIME CREDITS, IT WAS
LEVERAGE, AND THEN NINE MONTHS LATER WHEN A FINAL REMOVAL ORDER WAS ENTERED THEN THE STATE
COMES IN AND SAYS NO, HE HAS TO BE DETAINED UNDER THE CJRA, NOT THAT HE DID ANYTHING WRONG,
NO THE DEFENDANT DID ANYTHING VOLITIONAL, BUT THAT AL FEDERAL AGENCY IN ITS OWN DISCRETION
DECIDED THAT HE SHOULD NOW BE RETAINED INDEFINITELY UNDER THE CJRA. THAT CAN'T BE
WHAT THE LEGISLATURE INTENDED. I'VE HEARD THE COMMENT THIS IS AN ABSURD RESULT, WHEN THE
BAIL BAIL REFORM HAS ABSURD RESULTS, WE KNOW PEOPLE GO OUT AND COMMIT NEW CRIMES EVEN
THOUGH THE CRIMINAL JUSTICE REFORM SAYS THERE IS NO DANGER. JUSTICE ALBIN:
MR. BURROUGHS, YOU MENTIONED SECTION 20, SECTION 20 HAS THE LANGUAGE REPEATED IN MANY
STATUTES, ONE REASONABLY ASSURED TO THE DEFENDANT'S APPEARANCE IN COURT, AND THEN THE
SPECIFIC FACTOR IT'S THAT YOU MENTIONED BEGINS WITH AS THE COURT MAY TAKE INTO ACCOUNT
INFORMATION CONCERNING, IT'S NOT AN EXHAUSTIVE LIST. SO THEREFORE IT DOES NOT EXCLUDE
THE COURT FROM CONSIDERING WHETHER OR NOT THE PERSON IS CERTAIN IMMEDIATELY TO BE REMOVED
FROM THE COURT, IT DOESN'T EXCLUDE THAT. DO YOU AGREE. ANDREW R. BURROUGHS:
I DO AGREE, HOWEVER I WOULD GO BACK TO MY OLD CONSTRUCTION OF STATUTORY CONSTRUCTION,
STATUTORY CONSTRUCTION LOOKS AT THE LIST AND WHAT IT CONTAINS AND THEY CONTINUE ON DOWN
THAT PATH, NOTHING THAT THE LEGISLATURE OR THE GUIDELINE THAT THE LEGISLATURE GAVE HERE
HAD NON VOLITIONAL FACTORS, I THINK THAT'S TELLING, I THINK THAT'S IMPORTANT TO
RECOGNIZE WERE THAT WHEN A LEGISLATURE CRAFTED THE CJRA THEY TOLD THE COURT THEY MAY, IT
DOES SAY MAY, BUT THESE ARE FACTORS YOU SHOULD BE LOOKING AT AND I THINK THEY'RE TELLING
YOU VOLITIONAL OR NON VOLITIONAL. JUSTICE SOLOMON: DO YOU THINK FAMILY
TIES AND TIES TO THE COMMUNITY IMPLICATE IMMIGRATION STATUS. ANDREW R.
BURROUGHS: IT SHOULDN'T IMPLICATE A NONCITIZEN OR SIT CERTAIN DIFFERENTLY. JUSTICE
SOLOMON: I'M NOT SAYING THEY SHOULD, I'M SAYING DO THEY IMPLICATE IMMIGRATION STARTS.
ANDREW R. BURROUGHS: HISTORY, CAN I USE THE WORD HISTORY? TIES, FOR EXAMPLE
I'M FROM CALIFORNIA, I COME TO NEW JERSEY, I COMMIT A CRIME, I HAVE NO TIES IN NEW JERSEY,
I'M FROM GUATEMALA, I COME TO NEW JERSEY, I HAVE NO TIES IN NEW JERSEY, MY TIES ARE BACK
IN GUATEMALA, IN BOTH CASES THE TIES TO THE COMMUNITY CAN BE ASSESSED. IT'S NOT BECAUSE
I'M AN IMMIGRANT OR NOT. JUSTICE SOLOMON: I UNDERSTAND, THAT WAS NOT MY
QUESTION, MY QUESTION WAS DO FAMILY TIE GOES, CAN FAMILY TIES AND TIES TO THE COMMUNITY
IMPLICATE IMMIGRATION STATUS, IT MAY ALSO IMPLICATE OUT OF STATE RESIDENCY.
ANDREW R. BURROUGHS: YOU MEAN IT CAN DO A CANCELLATION OF REMOVAL BECAUSE OF FAMILY
TIES. JUSTICE SOLOMON: NO, NO, NO. I LIVE IN CALIFORNIA, CONSIDER THAT,
I LIVE IN GUATEMALA, MY FAMILY IS IN GUATEMALA, CONSIDER THAT, I'M NOT A CITIZEN, THEY'RE
ALL THERE, REQUEST THAT BE CONSIDERED. ANDREW R. BURROUGHS: IT COULD POSSIBLY BE
CONSIDERED, A FACT INTENSIVE ANALYSIS, YES, IT'S A POSSIBILITY THAT COULD BE LOOKED AT.
IT'S IDIOSYNCRATIC, IT'S NOT BASED ON A GOVERNMENT AGENCY'S DECISION, BUT ON THE
FACTS ON THE GROUND. JUSTICE SOLOMON: I'M TALKING ABOUT THE STATUTE, I'M
NOT TALKING ABOUT THE DISCUSSION HERE. ANDREW R. BURROUGHS: YES, I THINK SO,
BECAUSE THE STATUTE MEANS FAMILY TIES, EMPLOYMENT, FINANCIAL RESOURCES, LENDER OF
RESIDENCY IN THE COMMUNITY, THOSE CAN BE CONSIDERED, NO PROBLEMS WITH THAT. BUT THESE
ARE THE THINGS THAT THE DEFENDANT HAD CREATED FOR HIMSELF, SO I WOULD ASK THAT THE COURT
LOOK BACK ON THE STATUTE PARTICULARLY 162-20 WHICH HAS NOT BEEN MENTIONED BUT I FIND IT
ENUMERATING IN MY OPINION THAT THIS IS HOW THE LEGISLATURE TOLD US HOW WE SHOULD LOOK
AT THESE SORT OF FACTORS AND IT DID NOT CONSIDER NON VOLITIONAL FACTORS. STWLZ
BEEN ARGUMENT I'VE HEARD WELL THE LEGISLATURE CONSIDERED IMMIGRANTS AND ALL OF THIS AND
I PUT IN MY BRIEF THERE'S 2 MILLION IMMIGRANTS WITHIN THE STATE OF NEW JERSEY OF WHICH
475,000 ARE ESTIMATED TO BE UNDOCUMENTED ALIENS, NOTHING HAS BEEN MORE PRONOUNCED IN
THE NEWS THAN IMMIGRANTS, STORIES OF UNDOCUMENTED ALIENS, THIS HAS BEEN FRONT AND CENTER,
IT HAS BEEN HOTLY DEBATED WITHIN THE STATE OF NEW JERSEY ABOUT IMMIGRATION STATUS, BUT
FOR THE FIRST TIME IT SEEMS TO ME WE ARE ASKING THAT CITIZENS AND NON CITIZENS ARE BEING
TREATED DIFFERENTLY WHEN THEY STAND BEFORE A SUPERIOR COURT, BASED ON SOME FEDERAL
AGENCY'S CAPRICIOUS DECISION ON WHETHER THEY SHOULD BE REMOVED AND RECEIVING A FINAL
REMOVAL ORDER DOES NOT OF COURSE MEAN THAT YOU WILL BE REMOVED BECAUSE THERE ARE I BELIEVE
HUNDREDS OF THOUSANDS OF IMMIGRANTS WHO HAVE FIN FINAL REMOVAL ORDER WHO ARE STILL IN THIS
CORNER WHERE ICE DOESN'T HAVE THE MANPOWER OR SIMPLY DOESN'T CARE AND THOSE INDIVIDUALS
CONTINUE TO -- JUSTICE ALBIN: MR. BURROUGHS I THINK THE CLASS OF PEOPLE
WE'RE TALKING ABOUT IS HAVE LIMITED, WE'RE TALKING ABOUT PEOPLE WITH FINAL ORDERS OF
REMOVAL, THEY'RE IN CUSTODY, THEY HAVE TRAVEL DOCUMENTS, NO APPEALS, AND THERE'S BEEN
COMMUNICATION WITH ICE THAT UNLESS THERE IS A STATE ORDER OF DETENTION THE PERSON WILL BE
REMOVED. THAT'S NOT GOING TO BE MILLIONS OR HUNDREDS OF THOUSANDS OF PEOPLE. DO YOU
AGREE. ANDREW R. BURROUGHS: I DO AGREE WITH YOU THAT'S VERY POSSIBLE BUT
LET'S LET THE LEGISLATURE THEN CARVE OUT THE STATUTE AND PUT IT IN THERE. THAT SHOULD
BE THEIR JOB, THAT'S HOW I WOULD RESPOND TO THAT, IT'S A LEGISLATIVE DUTY TO DECIDE IF
IT WABTS NOW TO ADD NEW CATEGORIES OF EXCLUSION FOR MONETARY BAIL OR DETENTION. CLEARLY
THE LEGISLATURE, FOR EXAMPLE THOSE WHO WILL COMMIT A SERIOUS CRIME LIKE MURDER, THESHGD
GET DETENTION, THE LEGISLATURE WAS DECIDED WHO SHOULD GET DETENTION AND HOSHGD NOT GET
DETENTION, IT'S NOT LIKE THE LEGISLATURE WAS ACTING IN A VACUUM. CHIEF
JUSTICE RABNER: THANK YOU. WE'RE GOING TO BREAK AT 1230, IF WE'RE NOT FINISHED WE'LL
RESUME THEN, THANK YOU, MISS HUNT. SARAH C. HUNT: THANK YOU, GOOD MORNING
YOUR HONORS, MAY IT PLEASE THE COURT, THIS IS NOT ABOUT TREATING IMMIGRANTS AND NON IMMIGRANTS
DIFFERENTLY, THIS IS ABOUT DETERMINING A DEFENDANT'S ACTUAL RISK OF NON APPEARANCE,
WHATEVER MIGHT BE RELEVANT TO THAT DETERMINATION, AND WITH THAT I WANT TO GET INTO RESPONDING
TO SOME OF THE ISSUES THAT HAVE COME UCH. FIRST AND FOREMOST THE PRELIMINARY QUESTION
OF WHETHER THERE IS ACTUALLY ANY AMBIGUITY IN THE STATUTE AND I THINK IF WE LOOKED AT THE
STATUTE'S PLAIN LANGUAGE, OBVIOUSLY WE DON'T EVEN HAVE TO GET TO THE LEGISLATIVE HISTORY
BECAUSE THE PLAIN LANGUAGE ITSELF I THINK MAKES CLEAR THERE IS NO VOLITIONAL ABILITY
REQUIREMENT IN THE CJRA, THE LANGUAGE OF THE STATUTE DOES NOT SPECIFY THAT IT INCLUDES
NON VOLITIONAL ACTS BUT IT DIDN'T SPECIFICALLY REMOVE THE PLAIN LANGUAGE USED IN THE
FEDERAL STATUTE AND WE SHOULDN'T BE READING ANY DISCUSSION OF A VOLITIONAL ACT AS APP.
AMBIGUITY, I THINK THAT'S A MISTAKE, AND THIS A PRINCIPLE -- ACTUALLY I DO WANT TO GO
BRIEFLY JUST TO THE SECTION OF THE STATUTE THAT WAS JUST MENTIONED BY MR. BURROUGHS, EVEN
IF WE LOOK TO SECTION 20 THE FACTORS THAT ARE EXPRESSLY SUGGESTED FOR THAT CONSIDERATION
IN THAT PORTION OF THE STATUTE, I WOULD SAY THEY DO INCLUDE CHARACTERISTICS THAT ARE NON
VOLITIONAL. IF YOU LOOK AT SOMEBODY'S PHYSICAL AND MENTAL CONDITION, I DON'T THINK THAT
ANYONE WOULD DISAGREE THAT THOSE ARE NON VOLITIONAL CHARACTERISTICS THAT ARE RELEVANT
AND EXPRESSLY PROVIDED FOR BY THE LEGISLATURE. AND WITH THAT, I THINK --
CHIEF JUSTICE RABNER: YOU MAY BE RIGHT ABOUT THAT, BUT WHAT DOES THAT MEAN?
WHAT PHYSICAL AND MENTAL CONDITION WOULD BE APPROPRIATE FOR A JUDGE TO CONSIDER?
SARAH C. HUNT: I MEAN IN -- AND THIS IS SOMETHING THAT WAS RECOGNIZED BY THE
APPELLATE DIVISION BUT IN STATE V. WILLIAMS THE APPELLATE DIVISION FOUND THAT IT WAS
APPROPRIATE TO CONSIDER THE DEFENDANT'S PREGNANCY IN THAT CASE, I THINK THERE ARE CERTAIN
CONDITIONS THAT MIGHT BE RELEVANT UNDER THAT OR EVEN IF YOU LOOK TO (INAUDIBLE), THAT'S
SOMETHING THAT MAY NOT BE CONSIDERED VOLITIONAL IN EVERY CIRCUMSTANCE, WHETHER SOMEBODY
HAS A JOB MAY NOT BE VOLITIONAL, THEY MAY BE TRYING THEIR HARD DEFENDANT AND SIMPLY NOT
ABLE TO FIND EMPLOYMENT. THOSE ARE ALL THINGS THAT COULD BE CONSIDERED NOT NECESSARILY
FULLY VOLITIONAL ACTS AND I THINK THAT THE FACT THAT THOSE WERE INCLUDED BY THE LEGISLATURE
EXPRESSLY IN THEIR NON EXHAUSTIVE LIST DOES HELP US INTERPRET THE STATUTE MORE BROADLY.
CHIEF JUSTICE RABNER: DO THE EXAMPLES THAT YOU'VE JUST SPOKEN TO SPEAK TO
SGIED GO JUDGES TO RELEASE INDIVIDUALS I.E. IN THE CASE OF PREGNANCY OR TO DETAIN THEM.
SARAH C. HUNT: I THINK THAT THAT REALLY DEPENDS ON THE PARTICULAR CONDITION
AND THE PARTICULAR CIRCUMSTANCES OF THAT DEFENDANT AND ALL OF THE FACTS THAT ARE
CONSIDERED TOGETHER AND I THINK THAT THAT'S REALLY WHAT THIGS CASE IS ABOUT, THE WHOLE
POINT IS TO DETERMINE THE ACTUAL RISK THAT A DEFENDANT WILL NOT BE PREBT IN COURT. AND
SO TO CONSIDER ANY FACTOR THAT MIGHT BE RELEVANT TO THAT INQUIRY, WHETHER IT BE VOLITIONAL
OR NON VOLITIONAL. AND I THINK -- I DON'T WANT TO FOCUS ON SECTION 20, BUT I THINK NOTING
THAT THE LEGISLATURE DID NOT LIMIT ITSELF EVEN IN THAT SECTION TO THINGS THAT ARE MORE
TRADITIONALLY CONSIDERED VOLITIONAL I THINK IS CERTAINLY RELEVANT WHEN WE'RE LOOKING TO
THE STATUTE AS A WHOLE. CHIEF JUSTICE RABNER: BUT IN LOOKING AT THOSE
EXAMPLES, THE REASON FOR INCLUSION WAS THAT THIS WAS GUIDANCE TO JUDGES ABOUT NOT HOLDING
SOMEONE, DOES THAT WEEK KEN YOUR ARGUMENT. SARAH C. HUNT: WELL I WOULD
RESPECTFULLY DISAGREE THAT IT IS SPECIFICALLY ABOUT NOT HOLDING SOMEBODY, I THINK THIS IS
A LIST OF FACTORS THAT ARE TO BE CONSIDERED IN DETERMINING WHETHER THE RISK OF NON
APPEARANCE, DANGER OR OBSTRUCTION APPLY, AND ALTHOUGH I DON'T THINK IT SPEAKS IN EITHER
DIRECTION, I THINK THESE ARE JUST FACTORS THAT SHOULD BE CONSIDERED AND THEN WHATEVER
WAY THEY MIGHT GO, WHATEVER WEIGHT THEY SHOULD BE GIVEN WOULD OBVIOUSLY BE CASE SPECIFIC.
CHIEF JUSTICE RABNER: GOOD, FAIR ENOUGH AND I DON'T WANT TO BELABOR THE POINT,
BUT COULD YOU GIVE US AN EXAMPLE OF THE ONES THAT YOU HAVE MENTIONED, WOULD ACCOUNT FOR
HOLDING A PERSON PRETRIAL BASED ON THE CONSIDERATIONS YOU'VE IDENTIFIED.
SARAH C. HUNT: YOU KNOW, I CAN'T THINK OF ONE IN EITHER DIRECTION, JUST OFF THE TOP OF
MY HEAD. JUSTICE ALBIN: LET ME THROW ONE AT YOU, THE MENTAL CONDITION OF
PED FEEL YA, THERE ARE ALL SORTS OF MENTAL CONDITIONS THAT MAY MAKE SOMEONE PRONE TO BE
VIOLENT. SARAH C. HUNT: ABSOLUTELY, ANY SORT OF COMPULSIVE BEHAVIOR TO THAT
EXTENT, I DON'T WANT TO STATE DEFINITIVELY, BUT I DO THINK THERE ARE CERTAIN CONDITIONS
THAT STATE VERY DIRECTLY TO THAT AND WOULD COUNSEL IN FAVOR OF DETENTION.
CHIEF JUSTICE RABNER: THIS WILL TAKE US FAR AFIELD AND I REALLY DON'T WANT TO GO THAT
FAR, BUT YOU'RE NOT SUGGESTING THAT IN A CASE THAT DOES NOT INVOLVE A SEXUAL ASSAULT A
JUDGE COULD SAY YOU HAVE A HISTORY OF PEED FEEL YA AND THAT WEIGHS HEAVILY HERE.
SARAH C. HUNT: ULTIMATELY THIS COMES DOWN TO DETERMINE WHAT RISK FAKSDS APPLY AND I THINK
IT'S TOUGH TO SAY IN ANY GIVEN CASE WHAT FACTS MAY BE RELEVANT, IT'S POSSIBLE THAT A
DEFENDANT MIGHT HAVE A CONDITION IN CERTAIN CIRCUMSTANCES COULD COUNSEL IN FAVOR OF
DETENTION OR RELEASE BUT THAT IT'S ENTITLED TO SO LITTLE WEIGHT IN THE INDIVIDUAL CASE
THAT IT'S REALLY IRRELEVANT 2 THE ULTIMATE DETERMINATION. CHIEF JUSTICE
RABNER: GO AHEAD WITH YOUR ARGUMENT, PLEASE. SARAH C. HUNT: AND I THINK
THE SAME PRINCIPLE THAT WE SHOULDN'T READ THE ABSENCE OF THE DISCUSSION OF A VOLITIONAL
ACT IN THE STATUTE ITSELF ALSO APPLIES TO THE LEGISLATURE HISTORY AND I THINK WHEN WE
LOOK AT THE LEGISLATURE HISTORY, OBVIOUSLY WE'VE DISCUSSED IT IN GREAT DETAIL, THAT IT'S
VERY SIGNIFICANT TO LOOK AT THE FACT THAT THE LEGISLATURE EXPRESSLY REMOVED THE FLIGHT
LANGUAGE FROM THE STATUTE, AND I THINK RECOGNIZING THAT CHANGE, EVEN THOUGH IT
WASN'T EXPRESSLY DISCUSSED AND EXPRESSED REASONS WEREN'T PROVIDED, I THINK LOOKING AT THAT
CHANGE IS CERTAINLY AMONG THE MOST SIGNIFICANT FACTORS TO CONSIDER WHEN DETERMINING --
WHEN CONSIDERING THE LEGISLATURE HISTORY AND WHAT THE LEGISLATURE INTENDED WITH THIS STATUTE.
CHIEF JUSTICE RABNER: CAN YOU GIVE US ANY ESTIMATE AS TO THE NUMBER OF CASES
AFFECTED BY THE FACT PATTERN WE HAVE IN FRONT OF US HERE. SARAH C. HUNT:
SO I CANNOT GIVE THAT NUMBER PER ANY YEAR, I CAN SAY I'VE REFERENCED THESE CASES BRIEFLY,
EVEN IN THE MONTHS THAT WE'VE HAD SINCE MOLCHOR WAS DECIDED WE'VE HAD 3 DEFLTHS ALONE
REMOVED BEFORE TRIAL AND THAT OBVIOUSLY DOESN'T ACCOUNT FOR THE ADDITIONAL OCCASION WHERE
-- AND THERE'S ANOTHER SOMERSET COUNTY CASE WHERE THE DEFENDANT DISTINGUISHED FROM THOSE
FACTS AND DECIDED TO DETAIN THE DEFENDANT, SO I APOLOGIZE I CAN'T GIF YOU A SPECIFIC NUMBER
FOR HOW MANY CASES THIS HAS ARISEN IN BUT I THINK EVEN IF WE JUST LOOK AT THE FACTS THAT
IN THE FOUR OR FIVE MONTHS SINCE MOLCHOR WAS DECIDED THIS ISSUE HAS COME A HANDFUL OF
TIMES. CHIEF JUSTICE RABNER: DO YOU AGREE THAT THE NUMBER OF INDIVIDUALS
WHO FAIL TO SHOW UP FOR COURT WITHOUT FLEEING OUT PACE THOSE FEW EXAMPLES IN TERMS OF
SCOPE. SARAH C. HUNT: ABSOLUTELY, ABSOLUTELY. AND I THINK THAT THE FACT
THAT THE OVERWHELMING NUMBER OF CASES WHERE FLIGHT OR NON APPEARANCE WHETHER IT BE THE
PERSON ABSCOND TO ANOTHER STATE SORE SIMPLY DECIDES NOT TO GO TO COURT AND STAYS HOME,
I THINK THAT SO OUTWEIGHS THE NUMBER OF CASES 24 WE'RE CONSIDERING REALLY DOES LEAD TO
THE FACT THAT YES, THAT WAS -- THAT IS -- HOW DO I PUT THIS, I GUESS THAT IS WHAT THE
PRIMARY CONSIDERATION MAY HAVE BEEN BECAUSE THAT IS HOW THIS WILL OCCUR IN MOST CASES.
BUT I THINK THAT THAT SHOULDN'T BE NECESSARILY READ TO MEAN THAT IT'S EXCLUDED IN THIS
SMALL SUBSET OF CASES WHERE NON APPEARANCE IS ALL BUT GUARANTEED, I THINK THAT JUST THE
FACTS THAT SO MUCH OF THE DISCUSSION IN THE JCCJ REPORTS SURROUNDS WHAT THEY REFER TO
AS PRETRIAL MISCONDUCT, I THINK -- I MEAN IT MAKES SENSE THAT THEY SPENT SO MUCH TIME
FOCUSING ON PEOPLE WHO VOLUNTARILY DON'T COME TO COURT BECAUSE THAT IS THE OVERWHELMING
NUMBER OF CASES IN THE NON APPEARANCE INQUIRY GENERALLY, BUT I DON'T THINK THAT THAT MEANS
THAT IT SHOULD BE RIGHT TO EXCLUDE NON VOLITIONAL NON APPEARANCE. I ALSO
WANT TO NOTE WITH RESPECT TO THE JCCJ REPORT AND MR. HEINZEL REFRPSED THIS SO I WON'T
BELABOR IT, IT WAS WRITTEN BEFORE THE STATUTE AND IT SHOULDN'T HAVE BEEN READ TO HAVE
ADDRESSED IT AND CONSIDERED IT AND EXPRESSLY RULED IT OUT. AND ALSO BECAUSE THE REPORT
USES FLIGHT LANGUAGE TO COVER BOTH WHAT HAS BEEN REFERRED TO IN SOME CASES AS TRUE FLIGHT,
WHICH IS LEAVING THE STATE, LEAVING THE CITY AND FLEEING SOMEPLACE OUT AND VOLITIONAL
NON APPEARANCE, BEING THE PERSON WHO CHOOSES TO STAY HOME, BECAUSE PRETRIAL MISCONDUCT
AND THE FLIGHT LANGUAGE WAS USED TO COVER BOTH OF THOSE, THEN I THINK THAT WE SHOULD READ
THE STATUTES REMOVAL OF FLIGHT LANGUAGE TO HAVE BROADENED ITS INTENT EVEN FURTHER THAN
THOSE TWO INSTANCES. SO IF WE HAVE THE FACT THAT THE STATUTE ORIGINALLY INCLUDED FLIGHT,
WHICH UNDER THE J C C'S REPORT WAS USED TO EXPRESSLY REFER TO TRUE FLIGHT AND OTHER
VOLITIONAL NON APPEARANCE, THE FACT THAT FLIGHT WAS THEN REMOVED AND EXPANDED AND THE STATUTE
WAS EXPANDED I THINK BRINGS US EVEN FURTHER BEYOND JUST THOSE EXAMPLES AND INTO THE REALM
OF NON VOLITIONAL NON APPEARANCE. AND WITH THAT I WOULD LIKE TO TURN TO JUST THE FED
ERAL STATUTE AND THE FEDERAL CASE LAW THAT INTERPRETS IT. AND THE FACT
THAT THIS WAS AN ISSUE THAT WAS KIND OF PERCOLATING IN FEDERAL COURTS AT THE TIME
THAT THE CJRA WAS DRAFTED AND BEING DISCUSSED AND BEING DEBATED IS CERTAINLY RELEVANT THAT
THIS MAY BE SOMETHING -- THIS IS SOMETHING THAT WE CAN PRESUME WAS ON THE LEGISLATURE'S
MIND, AND I THINK THAT THEY DID -- TO SAY THAT THEY DIDN'T -- TO SAY THAT BY NOT EXPRESSING
ADDRESSING THE RISK OF REMOVAL IN THE STATUTE, TO SAY THAT THAT MEANS THAT THEY EXPRESSLY
RULED THAT OUT, I THINK AGAIN IS A MISTAKE BECAUSE THEY DID REMOVE THAT FLIGHT LANGUAGE
AND THE LEGISLATURE ISN'T -- WE DON'T EXPECT THEM AND THEY'RE NOT PRESUMED TO INCLUDE
EVERYTHING THAT THEY RULE OUT, JUST TO KIND OF SAY THAT ANOTHER WAY I GUESS, WRE DON'T
EXPECT THEM TO INCLUDE IN EITHER THEIR STATUTE OR IN THEIR LEGISLATIVE HISTORY WE CONSIDERED
THIS BUT THEN WE RULED IT OUT AND TO HAVE TO DO THAT WITH EVERY SINGLE THING THAT THEY
MAY HAVE MEANT TO ADDRESS OR NOT ADDRESS. SO I THINK TO OVER READ THAT LACK OF DISCUSSION
IS -- I DON'T WAFRNLT TO SAY UNFAIR TO THE LEGISLATURE BUT I THINK IT EXPECTS WHO ARE
FROM THE LEGISLATIVE HISTORY THAN IS REALLY WARRANTED. AND FINALLY ONCE
WE'VE LOOKED TO -- ONCE WE'VE LOOKED AT THE FEDERAL STATUTE AND THE FEDERAL CASE LAW,
I THINK ULTIMATELY WE SHOULD JUST LOOK TO THE VERY PURPOSE OF THE CJRA WHEN WE'RE LOOKING
TO INTERPT -- TO INTERPRET WHAT WAS INTENDED, AND THE PURPOSE OF THE CJRA IS TO PROVIDE
AN ADMINISTRATIVE MEANS, A REGULATORY MEANS TO ENSURE A DEFENDANT'S APPEARANCE IN COURT
AND THAT'S BECAUSE A DEFENDANT'S APPEARANCE IS SIMPLY NECESSARY TO ACTUAL JUSTICE BEING
DONE. AND ONCE WE RECOGNIZE THAT THE CJRA IS ITSELF A REGULATORY STATUTE, AND NOT A
CRIMINAL ONE, IT TAKES US OUT OF THE REALM VOLITIONAL ACT REQUIREMENTS THAT TYPICALLY
APPLY IN THE CRIMINAL CODE ITSELF AND SO I THINK THE APPELLATE DIVISION'S RELIANCE ON THE
VOLITIONAL ACT REQUIREMENT OF CRIMINAL STATUTES WAS A MISTAKE BECAUSE THAT'S SIMPLY NOT
WHAT THE CJRA IS, IT'S NOT A CRIMINAL STATUTE, IT'S NOT INTENDED TO ASSIGN BLAME OR TO
HOLD A PARTY RESPONSIBLE FOR SOME ACTION IT'S SIMPLY A MEANS OF ENSURING A DEFENDANT'S
APPEARANCE IN RT COULD. AND AS HAS BEEN DISCUSSED AT GREAT LENGTH, ANY READING OF
THIS STATUTE THAT ACTUALLY REQUIRES COURTS TO IGNORE A FACTOR THAT IT CAN BE ABSOLUTELY
DESPOSITIVE TO THE NON APPEARANCE INQUIRY I THINK IS ABSOLUTELY AN ABSURD RESULT AND ONE
THAT SHOULD NOT BE -- NOT HAPPEN IN THIS CASE. NEXT, THERE WAS SOME QUESTION
AS TO WHETHER GIVEN THE ABSENCE OF AN EXPRESSED DISCUSSION OF THE RISK OF REMOVAL IN THE
LEGISLATIVE HISTORY, WHETHER GOING TO THE LEGISLATURE IS THE RIGHT AVENUE IN THIS CASE
OR FOR THIS ISSUE, AND I THINK THE ANSWER TO THAT IS RESPECTFULLY NO. I THINK THE STATUTE
ITSELF IS BROAD ENOUGH AND WAS INTENDED TO BE BROAD ENOUGH TO ENCOMPASS ANY NUMBER OF
FACTORS THAT MAY BE RELEVANT TO THE PRETRIAL DETENTION INQUIRY. IT DOESN'T, AS I
MENTIONED BEFORE IN SECTION 20 IT'S NOT A LIMITED LIST, IT LEAVES ITSELF OPEN TO CONSIDERATION
OF A BROADER NUMBER OF RELEVANT FACTORS. AND TO REQUIRE THE STATE OR ANY PARTY TO HAVE
TO GO TO THE LEGISLATURE EVERY TIME A NEW CONSIDERATION OR FACTOR KIND OF IS RAISED IN
A CASE IS NOT SOMETHING THAT WE SHOULD BE REQUIRED -- THAT WE SHOULD BE REQUIRED TO DO
OR REALLY THAT THE LEGISLATION OR LEGISLATURE INTENDED US TO HAVE TO DO. BY LEAVING IT
SO BROAD IT ALLOWS FOR BROAD CONSIDERATION OF A GREAT NUMBER OF -- OR ANY NUMBER, REALLY,
OF RELEVANT FACTORS. CHIEF JUSTICE RABNER: MISS HUNT, THIS WAS AND IS A
N EXTREMELY HOTLY DEBATED ISSUE, SET ASIDE -- AND THERE ARE PEOPLE PASSIONATELY ON BOTH
SIDES, NO QUESTION, WHETHER TO FAVOR OR OPPOSE REMOVAL ACTIONS BY ICE AND THAT'S BEEN
GOING ON FOR QUITE SOMETIME, I DON'T THINK ANYONE WOULD DISAGREE WITH THAT. YOU INCLUDED.
SARAH C. HUNT: YES, I MEAN ABSOLUTELY. CHIEF JUSTICE
RABNER: OKAY, SO OUR SEARCH FOR LEGISLATIVE HISTORY IS AN EFFORT TO TRY TO DEFINE WHAT
THE LEGISLATURE SPECIFICALLY MEANT TO DO. AND MY QUESTION IS, BECAUSE YOU'VE TOLD US
IN A NUMBER OF DIFFERENT WAYS, THAT ALL OF THIS LEADS TO THE CONCLUSION, ARE YOU STATING
TO US THAT IT IS YOUR UNDERSTANDING THAT THE LEGISLATURE SPECIFICALLY INTENDED TO ALLOW
THE CJRA TO STOP ICE FROM REMOVAL PEOPLE, THAT THE LEGISLATURE CONSIDERED AND REACHED
THAT CONCLUSION? IS THAT YOUR POSITION? SARAH C. HUNT: I THINK THAT JUST
AS A MATTER OF STATUTORY CONSTRUCTION WE PRESUME THAT THE LEGISLATURE IS AWARE OF ISSUES
-- WHEN THEY'RE LOOKING AT A STATUTE THAT IS BASED ON A FEDERAL LAW, THEY'RE PRESUMED
TO BE AWARE OF ISSUES THAT SURROUND THAT FEDERAL STATUTE. I APPRECIATE THAT THERE'S NOTHING
IN OUR LEGISLATIVE HISTORY ITSELF THAT EXPRESSES THAT THAT WAS CONSIDERED, BUT I DO THINK
THAT WHEN YOU LOOK TO THE COMBINATION OF THE FEDERAL CASE LAW THAT SAYS THAT THE
VOLITIONAL -- THE COURT: CHIEF JUSTICE RABNER: I'M ASKING YOU
A SLIELTLY DIFFERENT QUESTION, IS IT YOUR POSITION THIS IS WHAT WE CAN INFER THAT THE
LEGISLATURE SPECIFICALLY MEANT TO ACHIEVE HERE, THAT IT MEANT TO ALLOW COURTS TO START
CRIMINAL ACTIONS, STOP ICE IN THE WAY THAT IT CRAFTED THE CJRA, IS THAT YOUR POSITION?
IT SOUNDS LIKE IT IS. SARAH C. HUNT: I THINK THAT WE CAN PRESUME THAT THE
LEGISLATURE WAS AWARE OF THE ISSUES THAT WERE PERCOLATING IN THE FEDERAL COURTS WITH THE
FEDERAL BAIL REFORM ACT. AND CERTAINLY -- I GUESS -- I DON'T WANT TO SAY CERTAINLY, BUT
I DO BELIEVE THAT OUR PRINCIPLES OF STATUTORY CONSTRUCTION ALLOW US TO PRESUME THAT THEY
WERE AWARE OF THOSE ISSUES THAT SURROUNDED THE FEDERAL ACT ITSELF. CHIEF
JUSTICE RABNER: HERE'S MY CONCERN, ON AN ISSUE OF THIS SPORNS, AREN'T WE REALLY JUST READING
TOO LOOSE HERE. SARAH C. HUNT: NO, WE'RE NOT, YES, IMMIGRATION IS OBVIOUSLY
A VERY HOT BUTTON ISSUE, THAT'S NOT SOMETHING ANYBODY DISAGREES WITH ABOUT, BUT THE
QUESTION WIRE PRESENTED WITH HERE DOESN'T REQUIRE US TO GO INTO THAT I THINK AS MUCH AS
IT MAY SEEM BECAUSE THE QUESTION REALLY IS WHETHER THE CJRA ALLOWS FOR CONSIDERATION OF
NON VOLITIONAL ACTS, AND THAT IS KNOTS AN IMMIGRATION SPECIFIC QUESTIONS, THAT IS NOT
A RISK OF REMOVAL SPECIFIC QUESTION, THAT IS REALLY -- THAT IS THE FUNDAMENTAL ISSUE THAT
WE HAVE TO TACKLE HERE AND NOT JUST -- AND NOT IN THE CONTEXT OF IMMIGRATION STATHS,
JUST IN THE CONTEXT OF WHAT THE STATUTE ITSELF SAYS AND WHAT THE STATUTE ITSELF ALLOWS
FOR AND THE FACT THAT IT MAY OBVIOUSLY IMPACT THIS IMMIGRATION CONTEXT DOESN'T MEAN THAT
ANY RULING SHOULD BE BASED ON THE IMMIGRATION CONTEXT ITSELF. CHIEF JUSTICE
RABNER: MR. BEHIND HEINZEL EARLIER QUITE DEFTLY SUGGESTED THESE OTHER POTENTIAL NON
VOLITIONAL ACTS, DON'T WORRY ABOUT THOSE, ARE THERE OTHER NVR ACTS YOU'RE SEEKING TO COVER.
SARAH C. HUNT: TO BE HONEST I HAVE NOT IN THE MONTHS THAT I'VE BEEN DOING
THIS CASE I'VE NOT BEEN ABLE TO THINK OF A SPECIFIC -- ANOTHER SPECIFIC INSTANCE OF A
NON VOLITIONAL ACT. CHIEF JUSTICE RABNER: WHICH IS TELLING AND SULTHS THIS IS
ALL ABOUT ICE REMOVALS. SARAH C. HUNT: I DON'T WANT TO LIMIT IT TO THAT
BECAUSE IT IS POSSIBLE THAT, YOU KNOW, FOR AS MUCH AS I'VE THAULT ABOUT IT THAT I JUST
HAVE MISSED SOME SORT OF OPTION, BUT I THINK AGAIN TO CONFLATE VOLITIONAL ACTS IN THIS
IMMIGRATION CONTEXT OBVIOUSLY THEY IMPACT 1 ANOTHER, OBVIOUSLY IMMIGRATION -- CONSIDERING
THE RISK OF REMOVAL REQUIRES THAT WE BE ALLOWED TO CONSIDER NON VOLITIONAL ACTS, BUT IN
INTERPRETING THE CJRA ITSELF, WHICH IS REALLY I THINK THE FUNDAMENTAL ISSUE IN THIS CASE,
IT WOULD BE A MISTAKE TO INTERPT THE CJRA ONLY IN THIS CONTEXT. CHIEF JUSTICE
RABNER: MY LAST QUESTION WITH RESPECT TO YOUR ADVOCACY HERE, YOU RIGHTLY ARGUE THAT NOT
EVERY TIME A NEW FACTOR COMES UP SHOULD THE MATTER BE PRESENTED BACK TO THE LEGISLATURE.
IS THIS ONE OF THOSE SITUATIONS WHERE SUGGESTS SOME OTHER FACTOR THAT MIGHT HAVE SURFACED
IN LIGHT OF THE IMPORTANCE OF THE ISSUE? SARAH C. HUNT: YES, I MEAN I THINK
THAT THIS IS JUST LIKE ANY OTHER FACTOR IN THAT IT WAS SOMETHING THAT WAS NOT EXPRESSLY
DISCUSSED IN SUBSECTION 20 BUT IT STILL FALLS WITHIN A FAIR AND PROPER READING OF THE
STATUTE. SO THE FACT THAT IMMIGRATION STATUS AND REMOVAL BY ICE MAY BE A HOT BUTTON ISSUE
I THINK DOESN'T CHANGE THAT ANALYSIS AT ALL, IT DOESN'T REQUIRE AS THIS MAY BE A HOT BUTTON
ISSUE, THAT DOESN'T MEAN THAT WE HAVE TO THEN GO TO THE LEGISLATURE TO GET APPROVAL.
JUSTICE ALBIN: I'M TRYING TO UNDERSTAND YOUR ARGUMENT. I TAKE IT YOUR
ARGUMENT IS THE PLAIN LANGUAGE OF THE STATUTE WOULD ENCOMPASS CONSIDERING CLEAR AND
IMMINENT REMOVAL, THERE ISN'T ANYTHING IN THE LEGISLATIVE HISTORY THAT DIRECTLY CONTRADICTS
THAT, AND TO REACH ANOTHER RESULT WOULD LEAD TO ABSURD RESULTS. IS THAT BASICALLY THE
ARGUMENT THAT YOU'RE PRESENTING? SARAH C. HUNT: YES. YES. ALTHOUGH I
DO WANT TO SAY THAT WE'RE NOT ASKING FOR A BRIGHT LINE RULE AS DISCUSSED IN OUR BRIEFS
I THINK WE RECOGNIZE THIS AS MORE OF A SPECTRUM. CERTAINLY THERE ARE CASES LIKE WHERE
THERE IS A FINAL RISK OF REMOVAL, NO PENDING APPEALS WHERE THERE ARE TRAVEL DOCUMENTS,
THERE ARE CASES WHERE IT WOULD BE IN ALMOST EVERY INSTANCE AN ABUSE OF DISCRETION NOT
TO DETAIN THE DEFENDANT BASED ON THOSE. THEN ON THE ODD END THERE ARE CASES WHERE ICE
IS UNAWARE OF THE DEFENDANT, WHERE THEY HAVE EXPRESSLY SAID THAT THEY WILL NOT BE TAKING
REMOVAL ACTION, WHERE THE RISK OF REMOVAL IS SO LOW THAT IT'S NOT ENTITLED TO ANY WEIGHT
BEING THE NON APPEARANCE INQUIRY, AND THEN IN THE MIDDLE THERE'S A WHOLE NUMBER OF OTHER
CASES THAT WILL REALLY BE DETERMINED BASED ON THE SPECIFIC FACTS OF THE DEFENDANT AND
HIS RISK OF REMOVAL AND ALL OF THE OTHER FACTORS THAT KIND OF PLAY INTO THOSE TWO THINGS.
SO I DON'T SEE IT AS A BRIGHT LINE RULE WHERE DETENTION IS ONLY APPROPRIATE IN THESE
SPECIFIC CIRCUMSTANCES, THERE MAY BE VERY FEW OTHER -- VERY FEW OTHER CIRCUMSTANCES WHERE
IT WOULD RISE TO THAT LEVEL, BUT I THINK THE CJRA IN GENERAL JUST DOESN'T LEND ITSELF
TO BRIELT LINE RULES, AND I THINK THAT A BRIGHT LINE RULE REALLY WOULDN'T WORK IN ANYONE'S
FAVOR BECAUSE IT WOULD LIMIT CONSIDERATION OF ANY NUMBER OF FACTS THAT MIGHT BE RELEVANT
TO THE RISK OF REMOVAL BUT THEY MIGHT NOT BE LISTED. SO, YOU KNOW, WHETHER -- IF WE SAY
THAT THERE HAS TO BE A FINAL ORDER OF REMOVAL AND NO PENDING APPEALS AND THAT'S WHERE
THE LINE IS SET, THEN WHAT ABOUT -- YOU KNOW, WE DON'T WANT TO LEAVE OUT CASES WHERE THE
DEFENDANT MIGHT BE CHALLENGING THAT IN SOME OTHER WAY, WHERE HE MAY BE APPLYING FOR A
SYLUM OR SOME OTHER AVENUE THAT WOULD ALLOW HIM TO STAY, AND THEN ON THE OTHER SIDE WE
DON'T WANT TO LIMIT CONSIDERATION WHERE EXPEDITED REMOVAL APPLIES, SO I THINK TO LIMIT
OURSELVES TO A BRIGHT LINE RULE WOULD JUST BE -- WOULDN'T BENEFIT ANYONE AND WOULD BE
INCONSISTENT WITH THE FACT SENSITIVE NATURE OF THE CJRA ITSELF. JUSTICE ALBIN:
ASSUMING THE INTERPRETATION YOU'RE GIVING THE STATUTE IS CORRECT, SHOULDN'T THERE BE
A COMMUNICATION BETWEEN THE PROSECUTOR AND ICE WHERE ICE SAYS UNLESS THE STATE ISSUES A
DETENTION ORDER THE PERSON IS GOING TO BE REMOVED FROM THE COUNTRY AND THAT IS COMMUNICATED
TO THE COURT? WHY WOULD THAT BE A HEAVY BURDEN ON THE STATE? SARAH C. HUNT:
SO I DON'T THINK THAT THAT NECESSARILY IS A VERY HEAVY BURDEN ON THE STATE. CERTAINLY
OUR PROSECUTORS HAVE BEEN IN TOUCH WITH ICE TO SOME RULTSDZ, SOMETIMES THE ICE
REPRESENTATIVES WILL KEEP THEM APPRISED, SOMETIMES THE PROSECUTOR WILL REACH OUT, WILL
RETURN THAT THERE'S NO OPTION TO KEEP THE DEFENDANT IN THE COUNTRY AND THEN WON'T HEAR
BACK AGAIN UNTIL THE REMOVAL IS COMPLETE AND THE DEFENDANT IS OUT OF THE COUNTRY. SO
I THINK ASKING PROSECUTORS TO MAKE THAT APPEAL TO ICE TO ASK ICE TO COOPERATE IS NOT A
HEAVY BURDEN, BUT AGAIN ISN'T -- I THINK CERTAINLY WHERE THE PROSECUTOR HAS REACHED
OUT AND HAS BEEN TOLD THAT THERE IS NO OPTION, THEN THE RISK OF REMOVAL IS GREATER AND
IS ENTITLED TO MORE WEIGHT IN THE INQUIRY THAN IT MIGHT BE IF THE PROSECUTOR HASN'T REACHED
OUT AT ALL AND HASN'T MADE THOSE REQUESTS OF ICE, AND I THINK THAT THAT'S WHY LOOKING
AT THIS AS MORE OF A FLEXIBLE SPECTRUM THAN SOMETHING -- THAN APPLYING A BRIGHT LINE
RULE WHERE, YOU KNOW, THIS MEANS THE DETENTION IS APPROPRIATE AND THIS MEANS THAT IT ISN'T
I THINK LIMITS PROPER CONSIDERATION OF THE VARIETY OF FACTORS THAT WILL ARISE IN ANY
CASE LIKE THIS. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE TO ADD,
MISS HUNT? SARAH C. HUNT: I DON'T BELIEVE -- THAT IS ALL I HAVE. AGAIN,
WE WOULD JUST ASK THIS COURT TO RECOGNIZE THAT THE CJRA DOES NOT REQUIRE A VOLITIONAL
ACT AND THAT DETENTION WAS APPROPRIATE IN THE CASE OF OSCAR LOPEZ CARRERA, AND WITH THAT
THANK YOU VERY MUCH. CHIEF JUSTICE RABNER: THANK YOU.