L U SETS FORTH LINES TO DRAW SHOULD THIS COURT CONSIDER NON VOLITIONAL GUIDELINES, OUR
FALL BACK POSITION, OUR POSITION IS THAT THE APPELLATE DIVISION GOT IT RIGHT THAT IT IS
DESIGNED TO MEASURE VOLITIONAL NON APPEARANCE BY DEFENDANTS AS WE'RE DEALING WITH HERE.
THIS IS OUR PRIMARY POSITION BECAUSE WE BELIEVE THE APPELLATE DIVISION RECENTLY FOUND
BECAUSE MISS LERER SET FORTH MANY OF THE ARGUMENTS THAT WE'RE GOING TO MAKE I WILL BE
BRIEF ON THAT AND THEN FOCUS ON THAT FALL BACK ARGUMENT. LET ME SAY A COUPLE OF FRIGHTENING
QUESTIONS ON THAT, MR. HEINZEL WHEN HE WAS UP TALKED ABOUT THE PRIMARY PURPOSE OF THE
CRIMINAL JUSTICE REFORM ACT BEING ABLE TO DETAIN PEOPLE TO PREVENT WHETHER IT'S NON
APPEARANCE, BUT THAT'S ACTUALLY NOT THE PRIMARY PURPOSE AND YOU DON'T HAVE TO TAKE MY WORD
FOR IT THE ACT IS VERY CLEAR IN CHAPTER 15 THAT THE PRIMARY PURPOSE IS TO RELEASE PEOPLE,
THE PRIMARY PURPOSE IS A LIBERTY RESPECTING ONE AND THAT'S HOW THE COURTS HAVE BEEN TOLD
TO INTERPRET THE STATUTE WITH LIBERTY AT THE FOREFRONT AND THAT DOESN'T MEAN THAT
DETENTION ISN'T A POSSIBILITY, OF COURSE EVERYONE WOULD HAVE TO ACKNOWLEDGE THAT, BUT IT IS
THE EXCEPTION RATHER THAN THE RULE AND IT IS BOTH A CONSTITUTIONAL MANDATE AND SET FORTH
VERY CLEARLY IN OUR STATUTE. I ALSO WARNLTED TO JUST CLEARLY, BECAUSE THE
ATTORNEY GENERAL MADE A LOT OF HEY OUT OF THE DIFFERENCE BETWEEN A FEDERAL BAIL REFORM
ACT AND THE NEW JERSEY BAIL REFORM ACT, AND THE SUGGESTION OF FLIGHT IN THE FORMER AND
IT DOESN'T SUGGEST IN THE LATTER, BUT IT ACTUALLY ONLY KIND OF TALKS ABOUT FLIGHT. IN
SUBSECTION E OF 1342 IT SAYS THE GOVERNMENT MAY MOVE FOR DETENTION FOR NON ENUMERATED
CRIMES WHEN THERE IS AN INCREASED RISK OF FLIGHT AS CAN HAPPEN HERE, WE HAVE ENUMERATED
CRIMES AND WE PROVIDE THAT TO THE PROSECUTORS BUT THEN IN SUBSECTION E WHICH TALKS ABOUT
HOW JUDGES SHOULD MAKE THE DECISION IT TELLS JUDGES THAT WHAT WE ARE LOOKING TO MEASURE
THERE IS NO CONDITION OR COMBINATION OF CONDITIONS THAT CAN REASONABLY ASSURE THE
APPEARANCE OF PERSONS AS REQUIRED, WHICH IS SIMILAR TO THE LANGUAGE USED IN OUR STATUTE
IN DETERMINING WHETHER SOMEONE SHOULD BE DETAINED OR SHOULDN'T BE DETAINED. I'M HAPPY
TO ANSWER QUESTIONS, BUT -- WELL LET ME ACTUALLY SAY ONE MORE THING ON THIS CASE, WHICH IS
CHIEF JUSTICE YOU ASKED ASTUTELY WHETHER THIS IS SOMETHING WE SHOULD DEFER TO THE LEGISLATURE
OR SOMETHING THE JUDICIARY SHOULD SEE IN THE FIRST INSTANCE AND I WANDER TO SAY YES TO
BOTH QUESTIONS BECAUSE ULTIMATELY IF THE COURT IS GOING TO INTERPRET THE STATUTE AS IT
THINKS IS MOST FAITHFUL TO THE ELEVENS LAFSH'S INTENT, IF THE COURT IS WRONG THE LEGISLATURE
CAN INTERCEDE BUT WE NEED A STATUS QUO FOR THE COURT TO TELL US IS RIGHT OR WRONG, SO
EITHER WE'RE GOING TO SAY THE APPELLATE DIVISION IS RIGHT AND IF THE LEGISLATURE DISAGREES
AND SAYS NO NO NO YOU MAY HAVE TO REACH NON VOLITIONAL ACTIVITY, THEY CAN DO THAT, OR
THE COURT CAN SAY THE APPELLATE DIVISION WAS INCORRECT AND WE CAN CONSIDER NON VOLITIONAL
CONDUCT IN WHICH CASE THE LEGISLATURE CAN THEN AGAIN INTERCEDE. BUT WE NEED SOMETHING
IN THE INTERSTITIAL PERIOD BEFORE THE LEGISLATURE ACTS AND I THINK THE THING THAT IS MOST
ASK TRENG SICKLY AND I KNOW STRICTLY THE EVIDENTIAL IS TO AFFIRM THE APPELLATE
DIVISION'S DECISION WITH RESPECT TO VOLITIONAL TEA. LAST THING, THERE SEEMS TO BE A
CONFLICT BETWEEN IS THE ARGUMENTS THE STATE IS MAKING, ON THE ONE HAND THEY SAY THE LANGUAGE
OF THE STATUTE IS CLEAR AND IT HAS TO ME WE CAN INCLUDE ANY SORT OF NON VOLITIONAL ACT
POSSIBLE AND THEN THEY SAY OF COURSE WE'RE ONLY REALLY TALKING, WE ONLY WANT THE NARROW
EXCEPTION FOR IMMIGRATION STATUS, THOSE TWO THINGS DON'T WORK TOGETHER AS A MATTER OF
STATUTORY INTERPRETATION, EITHER THE STATUTE IS CLEAR THAT YOU CAN CONSIDER NON VOLITIONAL
CONDUCT OR IT'S NOT, BUT IF YOU CAN CONSIDER ALL NON VOLITIONAL CONDUCT, THEN I THINK
(INAUDIBLE) WHICH IS NOT (INAUDIBLE) INSTEAD ONE OF THE CHIEF CRITICS OF THE CRIMINAL JUSTICE
REFORM ACT IS THE FACT THAT PEOPLE HAVE BEEN KILLED BECAUSE THEY'VE BEEN RELEASED UNDER
THE CJRA, IT'S NOT IMPOSSIBLE BUT IT'S BEFORE THERE WERE AMENDMENTS TO THE DECISIONMAKING
FRAMEWORK WITH RESPECT TO GUNS AND THERE WAS ALSO SOME POLICE CHIEFS IN SOME MAJOR CITIES,
AND SO I APPRECIATE MY FRIEND MR. HEINZEL'S CONCESSION THAT THE EXECUTIVE BRANCH WOULD
NEVER DO THAT BUT MEMBERS OF THE EXECUTIVE BRANCH HAVE PROCEED POEFDZ TO DO JUST THAT,
SO WE HAVE A VERY SMALL NUMBER OF CASES IMPACTED BY THE IMMIGRATION EXCEPTION, MISS HUNT
TALKED ABOUT THREE OR FOUR IN THE LAST COUPLE OF MONTHS, WOOF SEEN IN THE RECORD THREE
OR FOUR IN THE LAST COUPLE OF YEARS, IT'S NOT THAT FREQUENT, AND I THINK JUSTICE AL BIN
THIS GOES TO SOMETHING OF YOUR EARLIER INQUIRY, YOU WERE TALKING ABOUT SOMEONE WHO IS
CHARGED WITH 10 DIFFERENT COUNSEL OF AGGRAVATED SEXUAL ASSAULT AGAINST A CHILD, KEEP IN
MIND, THIS RULE WE ARE CONTEMPLATING IS ONLY FOR PEOPLE WHO WILL NOT BE DETAINED BECAUSE OF
THEIR RISK FOR PUBLIC SAFETY, WHERE THE ONLY RISK THAT THE STATE CAN COME FORWARD WITH
IS A NON VOLITIONAL RISK THAT THE PERSON WILL BE REMOVED FROM THE DEFENDANT, SO YOUR
HYPOTHETICAL DEFENDANT IS OUF PLAY BECAUSE THAT PERSON IS GOING TO GET DAND. THE
COURT: NOT NECESSARILY. LOOK, THERE ARE PLENTY OF -- YOU STATED AT THE BEGINNING THE
PRESUMPTION EVEN FOR SEXUAL OFFENSES IS RELEASE. THERE ARE MRENTD TEA OF PEOPLE WHO HAVE
COMMITTED SEXUAL OFFENSES WHO ARE RELEASED AND THE VICTIMS OF THOSE SEXUAL OFFENSES, UNDER
THE VICTIM'S RIGHTS ACT, THE CONSTITUTIONAL AMEND; THEY EXPECT THAT THOSE PEOPLE WILL
BE BROUGHT TO JUSTICE WITHIN THE STATE AND NOT RELEASED TO ANOTHER COUNTRY WHERE THEY WILL
BE ABLE TO ALLUDE. ALEXANDER SHALOM: I AGREE AND YOU'RE RIGHT THAT THEORETICALLY
PEOPLE CAN BE RELEASED AND THERE IS A PRESUMPTION, WE ALSO KNOW THERE ARE 55
HUNDRED PEOPLE CURRENTLY DAE TAND IN NEW JERSEY FOR A VAST MAJORITY OF THEM THERE ISN'T
THE PRESUMPTION OF DETENTION, SO JUDGES HAVE FOURND WAYS TO OVERCOME THE PRESUMPTION OF
RELEASE AND MOST OFTEN IT IS NOT IN RELIANCE ON THE RISK THAT ANOTHER GOVERNMENT ENTITY
WILL REMAIN THE PERSON UNAVAILABLE FOR TRIAL. SO THIS ISN'T JUST A GOVERNMENT EXPELLING
INTEREST THAT PEOPLE SHOW UP, THERE OF COURSE IS, IT'S IN MAINTAINING UM HMM PEOPLE TO
ENSURE THAT WILL A SMALL SUBSET WILL SHOW UP, IS A RISK. (INAUDIBLE) I DO THINK WHERE
THE COURT DRAWS THE LINE, THAT'S WHERE THIS SECONDARY QUESTION IS, A LINE DRAWING
QUESTION, IT'S GOING TO BE ABSOLUTELY CRITICAL TO HOW THINGS GO, AND I WANT TO APPLAUD
MY FRIENDS FROM THE PROSECUTOR'S OFFICE FOR THE CONCESSIONS THEY HAVE MADE BECAUSE WE
DO HAVE A LOT OF COMMON GROUND ON THE TESTS AND I THINK THERE ARE SOME THINGS AROUND THE
MARGINS THAT THE COURT IS GOING TO HAVE TO STRUGGLE WITH AND I'LL HELP YOU, SO EVERYONE
AGREES THAT PERHAPS THE EXCEPTION OF THE ATTORNEY GENERAL THAT A FINAL ORDER IS NECESSARY
FOR A REQUISITE WAY OF SAYING A QUICK WORD ON THE ATTORNEY GENERAL'S RED HERRING ABOUT
EXPEDITED REMOVAL. EXPEDITED REMOVAL STILL REQUIRES AN ORDER, AND SO THE RULE PROPOSED
BY EVERYONE THAT SAYS WE NEED A FINAL ORDER, IS -- APPLIES IN EVERY CASE. IF PEOPLE ARE
NOT GETTING REMOVED FROM THIS COUNTRY WITHOUT AN ORDER. THAT'S IT. OKAY. NEXT
POINTER IS WITH NO PENDING APPEALS OR COLLATERAL CHALLENGES, THIS IS AGAIN IN BOTH THE
PROSECUTOR ITS AND THE PUBLIC DEFENDER'S TESTS, I THINK THAT'S RIGHT, I JUST WANT TO SAY
A WORD ABOUT THE MECHANICS OF THE IT BECAUSE I DO THIS IT'S IMPORTANT AND WE HAVE TWO
PROCEDURAL 'CHURS IN THESE TWO SETS OF CASES, AND SO I THINK WHAT WE NEED -- IN THE FIRST
INSTANCE WHAT THE STATE WOULD BE REQUIRED TO DO WHICH I THINK IS MOST OFTEN LITIGATED
IS TO SAY WE'VE HEARD FROM ICE AND ICE TELLS US THAT THIS ORDER IS FINAL, THERE ARE NO
PENDING APPEALS. I THINK THAT IS KIND OF A NECESSARY THRESHOLD FOR THE STATE TO
SURMOUNT. HOWEVER, THE STATE MIGHT NOT KNOW ABOUT ALL COLLATERAL CHALLENGES NOR COULD
THEY KNOW ABOUT ALL COLLATERAL #K458 LENGS AND I THINK IT WOULD BE FAIR FOR THE COURT
TO ASSIGN TO DEFENSE COUNSEL THE BURDEN OF COMING FORWARD TO SAY WAIT WAIT WAIT IF THE
PROSECUTOR IS CORRECT, THERE ARE NO PENDING APPEALS, BUT WE DID JUST FILE A HABEAS IN THE
CIRCUIT OF NEW JERSEY, THE ONUS WOULD BE ON CRIMINAL DEFENSE COUNSEL TO CONSULT WITH
IMMIGRATION COUNSEL WHERE THERE IS ONE TO FIND OUT WHETHER ANY OF THOSE MATTERS HAVE BEEN
FILED. THAT IS THE SORT OF THING THAT CAN HAPPEN IN AN ADVERSARIAL SYSTEM LIKE OUR KRORM
ACT ALLOWS FOR. OKAY. THE COURT: MAY I ASK YOU A QUESTION
ABOUT THAT? ASSUME THAT THE HABEAS HAS BEEN FILED, ICE SAYS THAT THE DEFENDANT IS GOING
TO BE REMOVED ON MONDAY PLAIN, AND THAT'S WHAT THEY'RE SAYING, I DON'T CARE WHAT'S BEEN
FILED, WE'RE MOVING HIM ON MONDAY. ALEXANDER SHALOM: TYPICALLY THERE ARE
STAYS ISSUED BY FEDERAL COURTS, IT'S NOT THE ACT OF FILING, IT'S THE ACT OF SAME BEING
ISSUED BY THE FEDERAL COURT AND IF ICE SAYS THEY'RE GOING TO REMOVE HIM NO MATTER WHAT,
THEN THEY CAN TAKE THAT UP -- THE COURT: OKAY, YOUR POINT INCLUDED A STAY
BY THE COURT. ALEXANDER SHALOM: THAT'S RIGHT. TRAVEL DOCUMENTS,
I THINK MISS LERER THE POINT SHE MADE IS CRITICALLY IMPORTANT HERE, THERE HAD BEEN A
MISUNDERSTANDING IN THE PAPERS ABOUT WHAT DO WE MEAN BY TRAVEL DOCUMENTS BECAUSE TRAVEL
DOCUMENTS IS NOT SOMETHING THAT IS ALWAYS AFFIRMATIVELY OBTAINED, IT IS NOT A PLAIN
TICKET, IT IS I KNOW SAID A PASSPORT AND A VISA SO THERE ARE SOME PEOPLE WHO ARE GOING
TO GET REMOVED WHO CAME IN WITH VALID TRAVEL DOCUMENTS FROM THEIR COUNTRY, WHO STILL HAVE
VALID TRAVEL DOCUMENTS FROM THIS COUNTRY, THAT MIGHT BE IN ICE'S POSSESSION, SO IT'S
IMPORTANT, IT'S A NECESSARY THING FOR THEM TO HAVE TRAVEL DOCUMENTS BUT IT IS NOT A SUFFICIENT
THING. IN FOOTNOTE 6 OF OUR BELIEF WE CITE TO -- I'M SORRY, 3 HIGH PROFILE CASES, SOME OF
WHICH ARE CLASS ACTIONS, OF PEOPLE WHO ARE HERE IN THE UNITED STATES, HAVE FINAL ORDERS
OF REMOVAL AND THAT ARE LIVING UNDER ORDERS OF SUPERVISION, IN SOME CASES FOR DECADES.
IN BOTH OF THE CLASSES, ONE WAS THE CASE OF ROB BEE ROB YER WHO IS AN IMMIGRATION AD
VOCATE IN NEW JERSEY AND NEW YORK AND THE OTHER ARE CASES IN THE DISTRICT OF NEW JERSEY
AND ONE FROM THE DISTRICT OF MICHIGAN, IN BOTH OF THOSE CLASSES THERE WERE SEFRLT PEOPLE
WHO HAD BOTH FINAL ORDERS AND TRAVEL DOCUMENTS, THOSE CASES ARE NOW BEING HEARD FROM
2017 AND ALL OF THE IMPACTED PEOPLE ARE STILL LIVING IN THIS COUNTRY WITH BOTH I ASSUME
TRAVEL DOCUMENTS BUT STILL FINAL ORDERS. SO IF WHAT WE'RE TRYING TO IDENTIFY IS CERTAINTY,
I.E. I THINK IT'S IMPORTANT TO REMEMBER THAT TRAVEL DOCUMENTS ARE NECESSARY BUT NOT
SUFFICIENT, BECAUSE MANY PEOPLE WILL HAVE TRAVEL DOCUMENTS WHO WILL NOT BE SOON TO GET
ON THE PLAIN. I THINK EFFORT, FOR LACK OF A BETTER WORD, SOME EFFORTS BY
THE PROSECUTOR TO FORESTALL REMOVAL IS NOT JUST REQUIRED BECAUSE IT MAKES GOOD POLICY
SENSE, I THINK IT'S ABSOLUTELY REQUIRED BY THE VERY LANGUAGE OF THE CJRA, BECAUSE THE
CJRA IS ALL ABOUT WHERE THE BAD THINGS IN THIS CASE NON APPEARANCE CANNOT BE PREVENTED
BY LESSER INTERVENTIONS LIKE CONDITIONS. SO TO SAY YOU DON'T EVEN HAVE TO TRY IS REALLY
TO SCLUS THINGS WE WOULD NEVER EXCUSE. LET ME GIVE YOU A PARALLEL HYPOTHETICAL, IMAGINE
THAT THE CONCERN IN THE CASE WAS THAT THE DEFENDANT LIVED IN CLOSE PROXIMITY TO THE
VICTIM, THIS IS SOMETHING THAT THE STATE RACED, LET'S SAY A DEFENDANT IS GOING TO GO RELEASED
AND THERE'S NO PLACE TO LIVE OTHER THAN NEXT DOOR TO THE VICTIM. IF THE JUDGE WAS CONCERNED
WITH THAT AND IT CAME TO THE COURT'S ATTENTION THAT THERE WAS A SHELTER ON THE OTHER
SIDE OF TOWN AND THE DEFENDANT COULD LIVE THERE, BUT ALL HE NEEDED TO DO TO HAVE THE DEFENDANT
LIVE THERE WAS THE PROSECUTOR MAKE THE REQUEST, WE WOULD SAY WELL THAT'S A CONDITION THAT
YOU HAVE TO CHECK BEFORE WE COULD AUTHORIZE DETENTION BECAUSE IT'S A LESS RESTRICTIVE
ALTERNATIVE, AND SO THE QUESTION IS ARE WE MAKING THEM MEET THAT REQUEST FOR A SHELTER
WHICH IS TO ICE. AND EVERYONE SEEMS TO AGREE THAT WE'RE ASKING THEM TO DO SOMETHING AND
HAVE ICE COME BACK AND SAY NO DIES IS A NECESSARY PREREQUISITE AND THE QUESTION IS WHAT
DO THEY HAVE TO SAY. AND I THINK IT'S IMPORTANT TO FLESH OUT WHAT DEFENSE COUNSEL MISS
LERER REQUESTED, SHE SAID TO MAKE THE REQUEST, CITE THE AUTHORITY AND THEY HAVE TO APPLY
THE FACTS TO IT. THAT IS NOT AN ONEROUS DEMAND. SO WE'VE HEARD A LOT TODAY OR WE'VE
HEARD SOME TODAY ABOUT PAROLE RUNTD A U. S. C-1182 D, AND WE'VE HEARD THAT PAROLE CAN BE
GRANTED AND I SUSPECT WE'LL HEAR MORE FROM THE PROFESSOR IN A MOMENT, THAT PAROLE CAN BE
GRANTED WHEN THERE IS A SIGNIFICANT PUBLIC BENEFIT AND ICE HAS GRANLTSED PAROLE WHEN THE
SKIG PUBLIC BENEFIT IS SEEING THE DEFENDANT BROUGHT TO JUSTICE TO FACE CHARGES. SO WHAT
IT WOULD REQUIRE IN A CASE LIKE ONE OF THESE IS SAYING PLEASE RELEASE THE DEFENDANT ON
PAROLE, YOU HAVE THE AUTHORITY TO DO THAT, PURSUANT TO A U. S. C-1182 D, IN THIS CASE
THE SIGNIFICANT MUST BE BENEFIT THAT WOULD ENURE WOULD BE THE FOLLOWING, THESE ARE SERIOUS
CHARGES AND THERE ARE VICTIMS WHOSE INTERESTS ARE IMPLICATED AND HE WOULD BE RELEASED
ON THE FOLLOWING CONDITIONS, WE ARE PROPOSING 24 HOUR HOME DETENTION WITH ELECTRONIC
MONITORING, THOSE ARE THE THINGS THAT WOULD BE REQUIRED AND IF ICE WROTE BACK TO THAT AND
SAID I HEAR YOU PROSECUTOR, BUT NO, THEN THE STATE WOULD HAVE SATISFIED THEIR BURDEN OF
-- THE COURT: I WANT TO UNDERSTAND SOMETHING, YOU WANT THE PROSECUTOR TO
TELL THE ICE OFFICIALS WHO HAVE SOMEONE IN CUSTODY, WHO AT SOME POINT THEY INTEND TO
REMOVE, TO RELEASE THE PERSON ON PAROLE, YOU'RE PUTTING THAT OBLIGATION ON THE PROSECUTOR,
ICE PEOPLE I KNOW YOU'VE GOT SOMEONE IN CUSTODY THERE, WHAT I'D REALLY LIKE YOU TO DO
IS RELEASE THE PERSON ON PAROLE, LIKE WHY SHOULD THEY HAVE THAT OBLIGATION, I DON'T UNDERSTAND
THAT. ALEXANDER SHALOM: BECAUSE TSDZ A CONDITIONING OF RELEASE, WELL THEY
DON'T HAVE TO DO THAT BUT THEY ARE ASKING TO USE THE MECHANISM OF OUR CRIMINAL COURT TO
DETAIN A PERSON INSTEAD. THE COURT: NO WHAT I HEARD I THINK MR. HEINZEL
SAID THE PERSON BASICALLY HAS TO HAVE A FINAL ORDER, THE PERSON HAS TO BE IN CUSTODY,
THE PERSON HAS TO HAVE THE TRAVEL DOCUMENTS, AND THERE'S A COMMUNICATION BETWEEN THE
PROSECUTOR AND ICE AND ICE IS SAYING THAT IF YOU DON'T -- IF YOUR COURT DOES NOT ISSUE
THE DETENTION ORDER THE PERSON IS GOING TO BE ON THE PLAIN AND OUT OF THE COUNTRY. NOW
IS THAT NOT CERTAIN AND IMMINENT ENOUGH? ALEXANDER SHALOM: IT IS NOT, BUT
LET ME GET REAL SPECIFIC, I HAVE A LIST OF 7 FACTORS AND I WAS ON 4 AND YOU HIT 5 BUT
LET'S JUST KNOCK IT OUT BECAUSE I DO THINK THERE IS WIDE SPREAD -- CUSTODY, CUSTODY IS
A PREREQUISITE, IT IMPLICATES ALL SORTS OF BAD INCENTIVES BUT ALSO TALKS ABOUT WHAT WE'RE
NOT TALKING ABOUT, I AM NENS, AND I THINK MR. HEINZEL CONCEDED AND THE ATTORNEY GENERAL
THOUGH KWIF INDICATED, THAT THAT IS A PREREQUISITE. ASSUMING THAT IS SO, IF I PUT
WORDS IN HIS MOUTH, I APOLOGIZE, I WAS NOT TRYING THO MR. BEHIND, I ASSURE YOU, BUT WHETHER OR
NOT MR. HEINZEL CONCEDES IT I THINK CUSTODY IS AN EXPLICIT REQUIREMENT AND IT MUST BE BECAUSE
ICE IS NOT PUTTING ANYONE ON A PLAIN WITHOUT FIRST PUTTING THEM IN CUSTODY, SO ALL THAT
WE HAVE AS A COUNTERVEILING INTEREST IS THE VERY SPECIAL ASSERTION THAT IT IS THEORETICALLY
POSSIBLE THAT ICE WILL ARREST SOMEONE, PUT THEM INTO CUSTODY AND PUT THEM ON A PLAIN
WITHOUT SUFFICIENT TIME FOR THE STATE TO SEEK A MOTION TO REOPEN AND PRODUCE THE DEFENDANT,
I DON'T THINK THERE'S ANY EVIDENCE TO SUPPORT THAT THAT PRACTICE IS WIDE SPREAD OR EVEN
HAS EVER HAPPENED, THAT SOMEONE GETS DETAINED AND REMOVED THAT QUICKLY. LET
ME JUST CIRCLE BACK TO THE QUESTION ON EFFORT, YOU'VE AGREED THEY HAVE TO REACH OUT TO
ICE AND ICE HAS TO TELL THEM THERE'S NOTHING WE CAN DO, SO ALL WE'RE SUGGESTING IS WHAT
THEY HAVE TO DO, THEY HAVE TO SAY HERE'S ONE MORE TOOL IN YOUR TOOL BOX, ICE, AND IF
YOU WERE TO USE THIS TOOL, THIS IS HOW IT WOULD PLAY OUT AND THIS IS HOW IT WOULD BE
BENEFICIAL TO US. IF THIS IS A PERSON WHO COULD BE DETAINED UNDER THE CJRA FOR OTHER REASONS,
WHO SHOULD OTHERWISE BE DETAINED BECAUSE HE'S A RISK TO PUBLIC SAFETY, THEN HE CAN BE
DETAINED FOR THOSE REASONS, WE'RE TALKING ABOUT THE SMALL SUBSET WHERE DETENTION IS ONLY
PREMISED OR IT ONLY GETS OVER THE THRESHOLD BECAUSE OF THIS RISK OF NON APPEARANCE.
SO THE IDEA THAT WE WOULD RELEASE THAT PERSON IS NOT SO CRAZY, IN FACT IT'S NECESSARY TO
THE ARGUMENT THAT THE JUDGE WOULD HAVE FOUND THAT THIS PERSON UNDER THE CJRA IS APPROPRIATE
FOR RELEASE BUT FOR THE RISK OF NON APPEARANCE OCCASIONED BY ICE'S BEHAVIOR. SO THAT IS
EXACTLY WHAT I'M SUGGESTING TO JUST BE VERY CLEAR LICHLT MR. SHALOM, ON THAT LAST POINT
YOU ACKNOWLEDGED THAT THIS REQUEST TO GO TO ICE AND GET THE PERSON OUT OF CUSTODY IN ORDER
TO MAKE THE APPLICATION RAISES TO ME THE QUESTION THAT I HAD IN MIND. THE STATE I DON'T
THINK IS TAKING THE POSITION, MAYBE THEY ARE AND MAYBE YOU'RE RESPONDING TO IT, THAT GOING
TO THE JUDGE AND ASKING FOR DETENTION BECAUSE ICE REMOVAL IS IMMINENT, WHETHER THE PERSON
WAS IN CUSTODY OR NOT, IS A FOR GONE CONCLUSION THAT THE COURT, THE STATE COURT, MUST
DETAIN THIS INDIVIDUAL. IT'S STILL SIMPLY A CONSIDERATION. CORRECT?
ALEXANDER SHALOM: YOU'RE GETTING TO MY SECOND CONSIDERATION BUT I'LL HOP RIGHT IN THERE,
JUSTICE LA LICHLT OKAY, BECAUSE I'M TRYING TO UNDERSTAND, YOU WANT THE ASSUME THAT THE
PERSON GOES AND GETS THE PERSON OUT OF ICE CUSTODY IN ORDER TO PRESENT THEM TO THE STATE
COURT THAT HAS THE DISCRETION IN ORDER TO BE SEEN AT ALL SHALT I THINK. ALEXANDER
SHALOM: I THINK THERE IS NO DISAGREEMENT THAT ICE WILL MAKE THEM AVAILABLE FOR DETENTION
HEARINGS, MY ABLE ADVERSARIES MAY DISAGREE BUT I DON'T THINK THAT'S BEEN QUESTIONED, I THINK
THE QUESTION IS HOW MUCH TIME, I THINK THEY TYPICALLY REQUEST 48 HOURS BUT NOT THAT THEY
DON'T MAKE PEOPLE AVAILABLE WHILE THEY ARE IN THE ESSEX COUNTY JAIL LICHLT OKAY, WHAT
I'M GETTING AT THE STATE'S POSITION TO PURSUE THIS APPLICATION WITH ICE AND TO BRING THIS
TO THE TRORLT IS NOT KONG VERT GO TO THE STATE'S POSITION FOR ONE THAT IT HAS BECOME THE
DECISION MAKER FOR DETENTION. ALEXANDER SHALOM: THAT IS CORRECT. SO LET
ME GET DOWN TO NUMBER 7 WHEN IS I'M NOT SURE IT'S A PREREQUISITE BUT THERE'S BEEN SOME
CONFUSION IN MY HEAD ON THE DECISIONS TAKEN BY MISS ANTON WHICH IS ON ONE HAND SHE SAID
LOOK WE WOULD NEVER SEEK THIS FOR NON SERIOUS CHARGES, WE'RE ONLY SEEKING IN VERY SERIOUS
CASES, ON THE OTHER HAND IF OUR TEST IS MET WHERE WE HAVE A FINAL ORDER AND NO APPEALS
AND TRAVEL DOCUMENTS, THEN IT WOULD BE AN ABUSE OF DISCRETION FOR THE JUDGE NOT TO DETAIN
THAT PERSON, THAT CAN'T BE SO, BECAUSE THAT SUGGESTS THAT THERE'S NO ABILITY FOR THE
JUDGE TO SAY I FIND THE INTERESTS IN LIBERTY DON'T OUTWEIGH THE INTERESTS IN DETENTION,
SO IT'S TRUE, THEY'RE RARELY MOVING FOR DETENTION IN SHOPLIFTING CASES, BUT IF THEY DO
AND WE'VE CREATED A RULE THAT SAYS IF YOU CHECK THESE BOXES A PERSON MUST BE DETAINED
RATHER THAN MAY BE DETAINED, THEN IT WILL PRESUMABLY CHANGE BEHAVIOR. SO WHAT I WANT
TO SAY IS THESE ARE THRESHOLD QUESTIONS THAT ARE REQUIRED FOR THE COURT TO CONSIDER THE
NON VR NON VOLITIONAL NON APPEARANCE, NOT THAT THEY THEREFORE DICTATE THE COURT'S RESULT.
THE COURT: THEN YOU'RE GOING TO COME TO US ON SOME EQUAL PROTECTION ARGUMENT,
SO YOU HAVE SIMILARLY SITUATED AGGRAVATED SEXUAL DEFLTHS AND ALL OF THE PREREQUISITES
ARE MADE, THE PERSON IS GOING TO BE REMOVED ON MONDAY, AND ONE JUDGE IS TO SAY SINCE IT'S
MAY, I'LL BRING IT TO THE STATE'S CUSTODY TO BE TRIED, AND IN THE OTHER CASE, I DON'T THINK
SO, LET LIMB GO BACK TO GUATEMALA, YOU WANT TO LEAVE THAT TYPE OF DISCRETION TO THE TRORTS
TRIAL COURTS. ALEXANDER SHALOM: I DO, I DON'T SEE HOW THAT DISCRETION IS
ANY DIFFERENT THAN TWO SIMILARLY SITUATED ROBBERY DEFENDANTS WHO PRESENT THE SAME FACTS
TO A JUDGE TO GET THE SAME RESULT, I THINK THAT PART OF THE CRIMINAL JUSTICE REFORM IS
A FEATURE, NOT A FLAW. THE COURT: GIVEN ALL OF THOSE FACTORS TELL ME HOW
THAT DISCRETION WOULD BE EXERCISED OTHER THAN IN SOME ARBITRARY WAY. ALEXANDER
SHALOM: THERE'S NO DICTA IN THIS CASE -- THE COURT: I'VE GIVEN YOU THE AGGRAVATED
SEXUAL ASSAULT, TWO DEFRTHS CHARGED WITH AGGRAVATED SEXUAL ASSAULT AND YOU HAVE ALL
THE PREREQUISITES AND ON MONDAY AND YOU'RE SAYING JUDGE A CAN DECIDE TO DETAIN THE PERSON AND
JUDGE B NO. ALEXANDER SHALOM: I THINK BOTH JUDGE A AND B WOULD DETAINING THE
PERSON, WHERE WE'RE TALKING ABOUT A SOVEREIGN INTEREST IN BRINGING THE PERSON TO JUSTICE
I THINK THAT IS DIMINISHED IN LOWER LEVEL CASES. JUSTICE LAVECCHIA: DOESN'T
HAVE ACTUALLY RAISE THE QUESTION OF WHY THIS IS SUCH A JANICE ARGUMENT THAT IS GOING ON
HERE BECAUSE WHEN YOU THINK ABOUT THE POSITION BEING ADVOCATED ON BEHALF OF THE STATE,
REALLY IN LISTENING TO IT THIS MORNING, IT SOUNDS LIKE THE PERSON HAS TO BE DETAINED BY
THE COURT AND IF THAT'S TRUE, BECAUSE NON APPEARANCE IS SUCH A CERTAINTY (, THEN WE
HAVE REALLY RE WRITTEN, WE WOULD REALLY BE REWRITING THIS STATUTE TO INTERPRET FROM THE
LEGISLATURE ITS ABSOLUTE INTENTION TO DETAIN EVERY ILLEGAL -- EVERY UNDOCUMENTED IMMIGRANT
WHO WAS AT THAT POINT ALONG THE LINE OF BEING REMOVED FROM ICE. SO IT HAS COMPLETELY
UP ENDED Z WHAT IS A VERY DISCRETIONARY INDIVIDUALIZED ASSESSMENT THAT CONSIDERS A
NUMBER OF FEATURES INTO A LOCK STEP REQUIREMENT. ALEXANDER SHALOM: I THINK
THAT'S RIGHT AND I THINK NOT ONLY IS OUR DISCRETIONARY AND MULTI FACILITIED BUT IT HAS
ITS THUMB ON THE SCALE OF LIBERTY, AND THIS PUTS IT ON THE OTHER SCALE, THE THUMB ON THE
OTHER SCALE, IT'S WHERE IT PUTS IT, SO -- JUSTICE LAVECCHIA: LET ME COME
BACK TO THE QUESTION THAT I ASKED YOUR ADVERSARY EARLIER, WHEN I LOOK AT THE FEDERAL STATUTE,
THE FEDERAL STATUTE WHICH OUR LEGISLATURE DID NOT FOLLOW, GAVE A LITTLE TIME OUT PERIOD
TO LET ICE DECIDE WHAT THEY WANT TO DO AND THEN IF THE PERSON IS NOT PROCEEDED AGAINST
THROUGH THE IMMIGRATION OFFICIALS, THEN THE PERSON COMES BACK INTO THE SYSTEM OF PRETRIAL
INTERVENTION AND GETS ANALYZED ON AN INDIVIDUALIZED BASIS AS IF THAT ONE FEATURE
IS NOT PART OF THE EQUATION. THAT SEEMS TO BE THE LOGICAL WAY TO INTERPRET THE STATUTE
BECAUSE OTHERWISE WE ARE IMPOSING AN ABSOLUTE REQUIREMENT TO DETAIN BASED UPON IMMIGRATION
STATUS, LISTENING TO THE STATE'S ARGUMENT PLAY OUT. I'M HAVING TROUBLE, UNLESS YOU'RE
READING THE DISCRETIONARY PART OF THE COURT MORE FLEXIBLY, I'M LOOKING TO YOU BECAUSE
YOU'VE RAISED IT AS A FEATURE, NOT A FLAW. I DON'T KNOW HOW IT WORKS IN THIS SITUATION
OTHER THAN TO COMPEL A COURT TO HAVE TO DETAIN. ALEXANDER SHALOM: I THINK
THAT'S RIGHT, I THINK YOUR READING IS CORRECT, I THINK THERE'S AN INTERESTING PROCESS
POINT THAT COMES UP IN THE DICHOTOMY OF THESE TWO CASES, SO WE HAVE RIOS AND MOLCHOR COME
FIRST AND THEN THE APPELLATE DIVISION DECIDED THOSE CASES AND SAID NON VOLITIONAL CANNOT
BE CONSIDERED THEN YOU HAD THE CASE COME UP IN SOMERSET COUNTY AND IN SOMERSET COUNTY
WHERE THE PERSON HAD ORIGINALLY BEEN RELEASED, NOW THERE'S A FINAL ORDER AND A CHANGE
OF CIRCUMSTANCES, BECAUSE YOU'RE THINKING WE'RE MORE LIKELY TO FACE THE PROSPECT OF THIS
PERSON BEING REMOVED AFTERNOON THE COURT SAID NO HE'S NOT. AND I WANT TO JUST UNPACK
THAT, THE COURT DIDN'T A LAW (INAUDIBLE). HERE'S THE THING, THE COURT WAS BOUND BY RIOS
AND MOLCHOR, WHICH SAYS THIS HAS NO IMPACT, SO THE COURT MADE CLEARLY THE RIGHT DECISION
UNDER BINDING APPELLATE DIVISION PRECEDENTS THAT SAYS YOU CAN'T CONSIDER THIS. IF THAT
WEREN'T THE CASE, WHICH IS THIS WHOLE LINE DRUG CONVERSATION, THEN OF COURSE THE CASE SHOULD
BE REOPENED, I DON'T THINK THEY SHOULD CHANGE THE RESULT, BUT IT IS OF COURSE A CHANGE
IN CIRCUMSTANCE AND I DO THINK OUR TRIAL COURTS NEED TO BE MORE LIBERAL WITH REOPENING,
THEY SHOULD USE THE STANDARD OF A REASONABLE POSSIBILITY, NOT A REASONABLE PROBABILITYGE
A DIFFERENT REASON. IF RIOS AND MOLCHOR WEREN'T THE LAW, IF THE MOLCHOR DECISION WASN'T
THE LAW, THEN I THINK THE APPELLATE DIVISION MADE THE WRONG DECISION, BUT IT WAS THE LAW
AND THEY WERE BOUND BY IT. JUSTICE ALBIN: MR. SHALOM, ONCE WE MEET YOUR
STANDARDGE I AM NENS AND CERTAINTY, THE QUESTION IS NOT BETWEEN DETENTION AND NON DETENTION,
THE QUESTION IS WHETHER OR NOT THE PERSON WILL BE TRIED FOR THE CRIME WHICH CHARGES IN THE
STATE, OR THE PERSON WILL BE RELEASED TO ANOTHER QUESTION, AND THAT'S THE QUESTION.
SO TALKING ABOUT DETENTION AND NON DETENTION SEEMS TO ME TO EVADE THAT BASIC POINT.
ALEXANDER SHALOM: JUSTICE ALBIN I THINK FUND MENTALLY THAT REFLECTS A MISUNDERSTANDING
OF THE ABILITY OF STATE COURTS TO ENGAGE IN A -- JUSTICE ALBIN: I'M PUTTING
INTO THE EQUATION THE ABILITY TO ACTUALLY MAKE THAT DETERMINATION, UNLESS IT'S IMPOSSIBLE.
I GUESS WE'LL HEAR FROM THE PROFFERS. ALEXANDER SHALOM: YES, BUT WHAT I'M
TELLING UH UH NEED TO BE REAL CERTAIN OF IT, EACH OF THOSE 7 STEPS ALONG THE WAY ARE IMPORTANT.
LAST POINT I'LL SAY BECAUSE I'M MINDFUL THAT I'VE TAKEN A LOT OF YOUR TIME,
IS THAT THE ATTORNEY GENERAL HE IS CHOOSE THE BRIGHT LINE POSITION, THE TEST I KNOW
VARIOUSLY PUT FORTH BY THE PUBLIC DEFENDER AND THE PROSECUTOR'S OFFICE, AND OUR KINDS OF
MORE MOOSH EAST CONSIDER IS BETTER. LET'S BE CLEAR ABOUT SOMETHING. THE STATE WANTED
MR. MOLCHOR AND MR. RIOS DETAINED THEY ARGUED FOR THEIR DETENTION UNDER THEIR TEST, THEY
ARGUED FOR THEIR DETENTION THAT THE PROSECUTOR NOW RECOGNIZES WAS I KNOW SUPPORTABLE,
BUT IN THE ATTORNEY GENERAL'S TEFLT WHO HAD NO FINAL ORDER WERE ON ICE'S RATER AND HAVE
NOW BEEN OUT ON LEVEL ONE NO SUPERVISION WOULD BE DETAINED. I THINK THE CJRA CONTEMPLATES
ONLY NON VOLITIONAL NON APPEARANCE, FOR THE REASONS WE'VE BEEN ASSESSING ALL MORNING AND
AS A FALL BACK, IF THE COURT IS GOING TO ALLOW THE CONSIDERATION OF NON VOLITIONAL, IT
NEEDS TO MAKE SURE THAT THERE IS A FINAL ORDER, THAT THERE ARE NO APPEALS OR COLLATERAL
CHALLENGES TO THAT APPEAL THAT WOULD SLOW THING DOWN, THAT TRAVEL DOCUMENTS HAVE BEEN
OBTAINED, THAT THE DEFENDANT IS IN CUSTODY, THAT THE STATE HAS MADE A SUFFICIENT EFFORT
TO PREVENT REMOVAL USING ALL OF THE TOOLS AVAILABLE TO IT, THAT A TICKET HAS BEEN
OBTAINED, AND THAT ON BALANCE THE INTERESTS IN PROSECUTION JUSTIFY DETENTION AND THAT'S
WHAT I WOULD CONSIDER THE KIND OF MINOR CHARGE OR VICTIM LESS CHARGE EXCEPTION. UNLESS
THE COURT HAS ANY FURTHER QUESTIONS I APPRECIATE YOUR INDULGENCE. JOANNE
GOTTESMAN: WHAT I SEES THE 3 FRIEM REFLAUTS OF THE VARIOUS TETS TS THAT HAVE
BEEN PROPOSED FOR MESH YOU ARE BEING RISK OF REMOVAL AND THOSE ARE THE FACT
THAT ALL OF THE TESTS KRIER STATE COURT DECISION SGLIEFRJTS JUDGES TO MAKE REL
DETERMINATIONS INVOLVING IMMIGRATION LAW THAT ARE OUTSIDE THEIR EXPERTISE
AND ALSO THAT REQUIRE ON FACTS DEE FEND ON FACTS THAT ARE NOT EASILY ASCERTAINABLE.
IN ADDITION THE STATE TESTS DO NOT ADEQUATELY TAKE ACCOUNT
ICE PROSECUTORIAL DISCRETION AND BOATS THEIR INTENT AND THEIR ABILITY TO DEE PORT.
AND THIRD I WOULD LIKE TO TALK ABOUT SOMETHING AND IMPORTANCE OF CUSTODY.
AS AN INITIAL TLESHG HOELTD MATTER, I DO HAVE SERIOUS CONCERNS THAT I FEEL LIKE
I WOULD BE REMISS FOR NOT RAISING ABOUT THE STEFRNT TO WHICH THE CRIMINAL
DEFENSE COMMUNITY IN NEW JERSEY HAS AN EXPERTISE TO ADEQUATELY INSURE THAT THEIR
CLIENTS INTERESTS ARE MET IN THESE CIRCUMSTANCES WERE THE RISK OF REMOVAL
TO BE CONSIDERED IN THESE DETENTION HEARINGS AND I HAVE A KERJ THAT THAT WILL UNDER
MINE ONE OF THE GOELGS OF THE CJRA WHICH AS I CONTENDED WAS TO ADDRESS SOME OF
THE HIGH LEVELS OF INCARCERATION AMONG LOW INCOME PEOPLE OF COLOR AND THAT IS OF
COURSE BECAUSE IN REMOFLT PROCEEDINGS NONE CITIZENS DON'T HAVE A RIGHT TO CREATE
COUNSEL AND SO IT'S NOT A GIVEN THAT ALL OF THE INDIVIDUALS THAT I AM TALKING ABOUT
ARE GOING TO HAIF SUFFICIENT IMMIGRATION REPRESENTATION TO DEFEND ALL OF THEIR
INTERESTS. BUT IF I COULD TURN TO THE FLAWS THAT I ALLUDED
TO AT THE OUTSET. I THINK THAT THE TESTS ARE SPOKEN ABOUT AS IF THEY ARE BRIGHT
LINE RULES. BUT IN FACT I WANT TO EMPHASIZE THAT THEY REQUIRE STATE COURT
JUDGES TO HAVE NEW ANSWERED UNDERSTANDING OF AND TO MAKE NUANCEED LEGAL DETERMINATIONS
REGARDING IMMIGRATION LAW. SO FIRST THEY ALL RELY ON THE EXISTENCE OF A
REMOVAL ORDER AND I JUST WOULD LIKE TO GET AT THE A SUMENTS THAT THERE IS SORT
OF A NECESSARILY THING OUT THERE THAT IS GOING TO BE DLEERLY MARKED YOU
KNOW FINAL REMOVAL ORDER. AND THAT'S JUST NOT HOW IT WORKS. IT IS OFTEN A LEGAL
DETERMINATION WHETHER A REMOVAL ORDER IS FINAL OR NOT. SO AS
EVEN WITH A FINAL REMOVAL ORDER, A NONE CITIZEN COULD HAVE BEEN GRANTED WITHHOLDING
AN I REMOVAL OR RELIEF UNDER THE CONVENTION AGAINST TORTURE AND MAY
THERE MAYBE NO PROSPECT OF THAT PERSON BEING DEPORTED AFRN THAT PERSON WILL HAVE
A FINAL REMOVAL ORDER. THERE ALSO MAYBE QUESTIONS WAS THAT ORDER ENTERED
IN ABSENT YA BECAUSE IF SO IT COULD BE REOPENED AT ANY TIME UNDER 8 U.S.C. SECTION
1229 A B FIVE C. AND THERE ARE ALSO THE ATTORNEY GENERAL'S TEST TALKS ABOUT
SPEDZ INDICTED REMOVAL. AND JUST TO GIVE A SENSE OF THE KIND OF NEW ANSWERS THAT
ARE GOING TO GO INTO ANALYSIS OF WHETHER THE INDIVIDUAL IS SUBJECT TO EXPEDITED
REMOVAL, THERE IS GOING TO BE A QUESTION OF IS I IT IS ND SECTION 238 THAT INVOLVES
CERTAIN INDIVIDUALS OR CERTAIN KINDS OF CONVICTIONS OF CRIMES. THEY ARE GOING
TO HAVE TO KNOW IS THAT CRIME AN AGGRAVATED FELONY, THAT IS A CHALLENGE FOR
IMMIGRATION JUDGE LET ALONE A STATE COURT JUDGE. WAS IT AN EXPEDITED ARE
THEY SUBJECT TO EXPEDITED REMOVAL UNDER SECTION 235 INVOLVING INDIVIDUALS WHO YOU
KNOW ARE OUT OF PORT OF ENTRY OR IN THE UNITED STATES FOR LESS THAN 2 YEARS.
DID THAT INDIVIDUAL ENTER THE UNITED STATES AS AN UNACCOMPANIED ALIEN CHILD BECAUSE
IF SO UNDER THE TRAFFICKING VICTIM PROTECTION ACT SPEDZ INDICTED REMOCHL
WILL NEVER APPLY TO THEM THE. AS I HOPE YOU CAN SEE, THESE ARE CONFLICT KIND OF
DETERMINATIONS THAT I THINK A STATE COURT JUDGE IS GOING TO WANT TO WADE INTO.
AND EVEN WITH EXPEDITED REMOVAL AGAIN WITH HOLDING OF REMOVAL THAT I ALLUDED TO
THAT'S PROVIDERS PROTECTION TO CERTAIN INDIVIDUALS WHO FEAR CERTAIN KIEFRS
HARMS IN THEIR HOME COUNTRY MIGHT STILL APPLY TO THEM AS IS RELIEF UNDER THE CONVENTION
AGAINST TORTURE. I ALSO WANT TO TALK ABOUT THE KINDS OF FACTS
THAT THE JUDGES WILL NEED TO DETERMINE WHETHER A REMOVAL ORDER IS OR THE FINALITY
OF A REMOVAL ORDER OR WHETHER THERE ARE OTHER CHALLENGES. SO NOT EVEN THE
DEFENDANT HIM OR HERSELF OR THEIR COUNSEL ARE LIKELY TO HAVE A FULL PICTURE OF
IMMIGRATION HISTORY. I THINK ANY IMMIGRATION ATTORNEY WILL TELL YOU THAT ONE
OF THE FIRST THINGS THEY DO IS THEY FILE MULTIPLE FREEDOM OF INFORMATION
ACTS KWGS FROM MUNS PALG AGENCIES. A. ICE COURTS JUST TO GET A SENSE OF THEIR
INDIVIDUALS HISTORY BECAUSE THEIR CLIENTS HIMSELF OR HERSELF MAY NOT EVEN
KNOW. I ALSO CAME ACROSS AN 0 AING OFFICE OF IN SP ESHG TOR
GENERAL REPORT ON ICE DEE IMPORTANT TAGS OPERATIONS FROM 2017 THAT TALKS ABOUT
PROBLEMS WITH ICES OWN RECORD KEEPING AND ITS OWN OFFICERS KNOWLEDGE OF
THE INDIVIDUAL'S CRIMINAL HISTORY AND IMMIGRATION HI TRI AND INACCURACIES IN THOSE
RECORDS. SO I DON'T THINK IT IS A CASE THAT A PROSECUTOR OR ANY ONE IS GOING
TO BE ABLE TO JUST CONTACT ICE AND FIND OUT WHAT ELSE IS HAPPENING IN THIS INDIVIDUAL'S
CASE. WAS THERE A HABEAS FILED AS MY AS MR. SHA LOM MENTIONED THAT CAME IN AN
EMERGENCY STAY, ANOTHER THING THAT COULD HAPPEN IS THAT INDIVIDUALS COULD APPLY
FOR BENEFITS AFFIRMATIVE IMMIGRATION BENEFITS WITH U.S. SITS SHIP AND INL
GRAGS SFRSS. AND THAT WILL CHANGE THEIR THEIR THE PROCEDURAL POSTURE OF THEIR
CASES IF THAT APPLICATION IS APPROVED AND THERE ARE COURTS THAT MIGHT FEDERAL
COURTS THAT MIGHT ENJOIN REMOVAL ONCE U.S.A.S GRANTS CERTAIN BENEFITS FOR SOMEONE
WHO WAS PREVIOUSLY UNDOCUMENTED. SO THERE ARE MULTIPLE TYPES
OF ACTIONS THAT COULD INLTS FEAR WITH THE FINALITY OF AN ORDER AND IT'S GOING
TO BE DIFFICULT FOR COURTS TO ASCERTAIN WHETHER THOSE THINGS HAVE HAPPENED.
THE OTHER PIECE THAT I ALLUDED TO WAS THE ROLE OF ICES OWN PROSECUTORIAL
DISCRETION AND THE MANIFESTATION OF THEIR BOTH THEIR IN TOENTS TO TLANL SKUTS
THE ORDER AND THEIR ABILITY TO DO SO. SO I JUST WOULD LIKE TO GET AT THE ASSUMPTIONS
UNDERLYING A LOTS OF THE CONVERSATIONS THAT THERE IS SOME KIND OF DIRECT LINE
BETWEEN YOU KNOW AN INDIVIDUAL'S APPREHENSION AND THAT GOES ENTRY OF ORDER AND
GET CAN TRAVEL DOCUMENTS. YOU KNOW IN FACT DOCUMENTS CAN BE OBTAINED IN TIME AND
DOUJTS CAN BE TRAVEL DOCUMENTS CAN BE OBTAINED AND THEN AN INDIVIDUAL CAN BE
RELEASED ARN THAT HAPPENS ALL THE TIME. SO I LOOKED AT STATISTICS ON THE ALTERNATIVE
TO DETENTION PROGRAM SO ICE HAS AN ALTERNATIVE TO DETENTION PROGRAM A CD
PROGRAM AND IN 2018 STATISTICS THEDZ 87 THOUSAND INDIVIDUALS IN THAT PROGRAM.
SO PEOPLE WHO TLAM HAVE BEEN RELEASED. AND IT INDICATED THAT 14 PERCENT
OF THOSE HAD A FINAL ORDER OF REMOVAL. SO PEOPLE WITH FINAL ORDERS OF REMOVAL
ARE RELEASE DZ INTO THE COMMUNITY ALL THE TIME FOR A VARIETY OF REASONS
INCLUDING CHANGING PROSECUTORIAL DISCRETION WHICH CHANGES ALL THE TIME. IF YOU
LOOK THERE ARE A VARIETY OF MEMOS THAT HAVE BEEN ISSUED PROSECUTORIAL
DISCRETION MEMOS THAT HAVE BEEN NISHLDZ AND CHANGED UNDER VARIOUS ADMINISTRATIONS
WITHIN THE SAME ADMINISTRATION. YOU KNOW, IT'S THERE IS NOTHING THERE IS
NO STRAIGHT LINE TO REMOVAL BUT I THINK IT JUST INDICATES THAT IT'S VERY IMPORTANT
TO ASCERTAIN WHETHER ICE IS ACTUALLY INTENDING TO DEE PORT SOMEONE WHICH IS
WHY I THINK THAT A FLIGHT BEING SCHEDULED IS AT LEAST SOME INDICATION THAT THEY
INTEND TO DO SO ALTHOUGH IT IS ALSO NOT SUFFICIENT BECAUSE YOU KNOW IN MANY CASE
S THERE ARE PROBLEMS WITH WHETHER THEY'RE GOING TO BE ABLE TO SCHEDULE THE
FLIGHT FLIGHTS ARE RESCHEDULED, REPAY THE YAGS AGREEMENTS WITH DIFFERENT COUNTRIES
CAN BECOME AN ISSUE. AND I BELIEVE THERE WAS AN EXAMPLE THAT SOMEONE FWAF
THAT THAT IN FACT HAPPENED IN ONE OF THE CASES HERE. SO WITHOUT KNOWING -- WITHOUT
HAVING SOME SORT OF AFFIRMATIVE EXPRESSION THAT ICE INTENDS TO SORT OF ACT
ON THE ORDER, THERE IS NO CERTAINTY. AND CERTAINLY THERE IS NO I AM NENS OF TLAL
REMOVAL. I LGS JUST WANTED TO TALK ABOUT CUSTODY. I THINK
IT HAS BEEN IMPLICIT IN SOME OF THE CONVERSATIONS BUT I AGREE WITH MR. SHA LOM
AND MISS HERE THAT IT REALLY NEEDS TO BE EXPLICIT THAT CUSTODY IS PART OF IT
BECAUSE ICE IS NOT DEE PORTING ANYONE UNTIL THEF THEM IN THEIR CUSTODY. AND I THINK
IT'S INSTRUMENTAL HERE TO ALSO LOOK AT THE BOARD OF IMMIGRATION APPEALS AND WHEN
THE BOARD OF IMMIGRATION APPEALS THE I BE AN IS WILLING TO ENTERTAIN REQUESTS FOR
EMERGENCY STAYS. THAT IS WHEN THE ABOUT I AN IS CONCERNED ENOUGH THAT REMOVAL
MIGHT ACTUALLY HAPPEN THAT IT FEELS THE NEED TO TAKE SOME ACTION. AND LOOKING
AT THE B I AS STANDARD OPERATING PROCEDURES AND WHICH TLAM WERE ONLY OBTAINED
THROUGH A SOMETHING BY THE AMERICAN ICHL GRAGS LAWYERS ASSOCIATION, AND THERE
IS ALSO A FACT SHEET REGARDING EMERGENCY STAYS TO THE B YIEFRMENT A THEY TALK ABOUT
CUSTODY AND A FLIGHT SCHEDULE WITHIN ONE WE CAN AS THEIR DEFINITION OF I AM
NENLS. AND I HAVE TO SAY THEY DON'T USE CERTAIN BECAUSE I DON'T THINK ANY OF US
I DON'T YOU KNOW AS AN IMMIGRATION PRACTITIONER AND PROFESSOR I WISH I
COULD I WISH I HAD A CRYSTAL BALL I WISH I COULD PREDICT YOU KNOW I IF I WERE A
PRIVATE ATTORNEY I WOULD PRAB MAEK A LOT OF MONEY IF I YOU KNOW IF I COULD
DO THAT BUT THIS IS IMPOSSIBLE. AND I THINK IT IS AT LEAST INSTRUCTIVE TO LOOK
TO THE B I A WHICH YOU KNOW DEALS WITH THESE SITUATIONS MORE THAN MOST OF US
THAT THEY SORT OF DON'T WANT TO BE BOTHERED DON'T COME TO ME AND SAY THERE IS GOING
TO HAPPEN RIGHT A WAY UNLESS THERE IS A FLIGHT SCHEDULED WITHIN A WEEK. AND
UNLESS THE PERSON IS IN CUSTODY AND OF COURSE IMPLICIT IS THERE IS A FINAL ORDER
BECAUSE THEY COULD NOT BE DEPORTED WITHOUT A FINAL ORDER. SO
THERE IS A LOT THAT I COULD SAY BUT I THINK THE POINT THAT I REALLY WOULD LIKE
TO MAKE IS THAT MY CONCERN ABOUT IF RISK OF REMOVAL IS PERMENTDED TO BE
CONSIDERED IT WILL END UP BACK IN A PLACE WHERE WE WERE BEFORE THE CJRA AND THAT
IF THIS COURT IS COMMITTED TO ISSUING A RULE, THAT RULE THAT THE RULE HAS
TO CONTAIN PRONGS THAT RELY ON EASILY ASCERTAINABLE FACTS AND NOT ON NEW
ANSWERED UNDERSTANDING OF IMMIGRATION LAW AND YOU KNOW SHOULD LOOK TO IMMIGRATION
LAW STANDARDS FOR DEFINITIONS OF WHEN REMOVAL IS ACTUALLY IMMINENT OR AT
LEAST HIGHLY LIKELY. I AM HAEP TO ANSWER ANY QUESTIONS THAT YOUR
HONORS MAY HAVE. CHIEF JUSTICE RABNER: QUESTIONS ANYONE?
THANK YOU PROFESSOR. MISS ANTON DID YOU WANT
TO OFFER REBUTTAL? DANA R. ANTON: VERY BRIEFLY YOUR HONOR.
I THINK JUST TO SUM THINGS UP, WHEN WERE A DECISION THAT CAME OUT FROM THE
APPELLATE DIVISION IN THIS CASE THE NET RESULT IS AS WE TALK A LITTLE BIT
ABOUT EARLIER AB SURD RESULT BECAUSE QUERY LEFT WITH A DECISION THAT IS ESSENTIALLY
GEEG TO TREAT SITSD SENSE AND NONE CITIZENS DIFFERENTLY IN THAT CITIZENS ARE
GOING TO HAVE TO ANSWER TO CHARGES WHEREAS CERTAIN NON CITIZENS WILL NOT HAVE
TO ANSWER TO THOSE CHARGES. THE PURPOSE OF DETENTION WHEN IT IS GRANTED
IS TO ASSURE A DEFENDANT'S APPEARANCE AT TRIAL. WHEN WE BASE THAT ON
VOLITIONAL ACTS, THAT RISK IS ALWAYS SPECULATIVE. A KOERTD IS CONSIDERING THAT
IT'S ALWAYS SPECULATIVE THAT A PERSON MAY NOT APPEAR. THIS IS THE ONE SCENARIO
THAT WE'RE APPROACHING THE COURT WHEN IT IS NOT SPECULATIVE NIM WE KNOW A DEFENDANT
SNTS GOING TO BE THERE. I JUST CAN'T BELIEVE THAT THE J C J R A WOULD HAVE
ANTICIPATED ORDER WOULD HAVE ALLOWED THAT TO BE THE SITUATION. WITH
RESPECT TO VOLITIONAL NONAPPEARANCE, THE EXAMPLE I THINK BY DEFENSE COUNSEL WAS
MAYBE A DEFENDANT JUST DECIDED TO STAY HOME AND BIN JURY NET FLIKS OR WE
ARE GOING TO EVENTUALLY CATCH UP WITH THAT EARN P. I CAN BELIEVE THAT THAT WOULD
SOMETHING A RIFRNG WHEN THEY ENACTED THE CJRA THEY WERE MORE WORRIED ABOUT
THE CIRCUMSTANCE THAN THE CIRCUMSTANCE WHERE THEY MAY NEVER GET THAT PERSON BARK
IN COURT. CHIEF JUSTICE RABNER: WHAT ARE YOU BASING THAT ON
IN LIETD OF THE OBJECTIVE DATA THAT SHOWS THAT IS A MUCH MORE SIGNIFICANT CONCERN
IN TERMS OF DEFENDANTS WHO DON'T APPEAR IN COURT? DANA R. ANTON:
I TLITS A MUCH MORE COMMON CONCERN A MUCH MORE COMMON OCCURRENCE THAT THAT IS THE
REASON THEY DON'T APPEAR IN COURT BUT THE PROBLEM IS THE PROBLEM IS WITH
INDIVIDUAL APPLICANT IS WE ARE GOING TO EVENTUALLY CATCH UP WITH THEM WHEREAS IN
THIS SITUATION EVEN THOUGH IT IS NONE VOLITIONAL CONDUCT, WE'RE GOING TO
LOSS THEM FOREVER. SHORT OF THAT I CAN THINK OF ANY OTHER SITUATION WHERE THE
RISK IS A HUNDRED PERCENT AS IT IS HERE. WITH RESPECT TO
NONVOLITIONAL CONDUCT THERE HAS BEEN SOME DISCUSSION ABOUT IT BEING SORT OF A
SLIPPERY SLOPE OR OPENING THE DOOR TO THESE OTHER ARGUMENTS BUT COURT DECIDED THE
DEE PENSION MOTION THEY USE THEIR DISCRETION THEY USE THEIR DISCRETION IN EVERY
DAY DECISIONS. AND WITH OTHER NONVOLITIONAL CONDUCT IF SOME WN WERE
TO MOVE FOR DETENTION IN THOSE OTHER NONVOLITIONAL CONDUCT, WE WOULD NEED TO
CONSIDER WHETHER ANY CONDITION OF RELEASE OR COMBINATION COULD ASSURE THEIR
APPEARANCE AT TRIAL. THE BAD NEIGHBORHOOD, THE NOT TAKING MEDICATION,
THOSE ARE ALL THINGS THAT CAN BE CONTROLLED OR MONITORED BY PRETRIAL SERVICES.
THIS IS THE ONE THING THAT CANNOT BE MONITORED BY PRETRIAL SERVICES. THIS IS
THE ONE SITUATION THAT IS KIEFRT THE WHOLE POINT OF THE STATES ASHTHD THAT
THERE IS JUST NOTHING WE CAN DO ABOUT IT. JUSTICE LAVECCHIA: MISS
ANTON SO IS THE POINT OF THE STATE'S ARGUMENT THEN THAT YOU HAVE AN
ABSOLUTE RIGHT TO DETENTION IN THESE CATEGORIES ONCE THE PROSECUTOR MAKES THE
APPLICATION, YOU MUST RECEIVE AN ORDER REQUIRING THESE INDIVIDUALS TO BE DETAINED.
DANA R. ANTON: SO YOUR HONOR. JUSTICE LAVECCHIA:
I DON'T UNDERSTAND WHERE YOUR ARGUMENT IS GOING WITH YOUR CERTAINTY THAT THE
STATE WILL ABSOLUTELY LOSE THIS PERSON FOREVER. IT SEEMS TO ME AS IF YOU HAVE
TAKEN CJRA OUT OF IT AND JUST SIMPLY SAID THE LEGISLATURE PLUS ADMIT WE CAN HOLD
THESE PEOPLE BECAUSE THEY ARE GOING TO BE REMOVED, PERIOD. THAT IS A DIFFERENT
STATUTE. DANA R. ANTON: YEAH AND I COMPLETELY UNDERSTAND
THE CONFUSION AND I APOLOGIZE IF I HAVE LED TO ANY CONFUSION. BUT THERE IS ALSO
AULGS DISCRETION AND UNDER THE CJRA IF WHEN WE INITIALLY MOVER FOR DETENTION,
THE FACT THAT SOMEONE IS A NON CITIZEN SHOULD NOT BE RELIED ON, ABSOLUTELY. BUT
OVER THE COURSE OF LITIGATION THAT MAY CHANGE, THE DETENTION CONSIDERATION
IN THAT WE ARE NOTIFIED BY ICE THAT THEY ARE READY TO LEAVE THE COUNTRY AND BE
FOIMENTLY REMOVED FROM THE COUNTRY WE JUST WANT THE OPPORTUNITY TO GET BACK
IN FRONT OF THE JUDGE AND I MEAN THAT SORT OF LIKE A BRIGHT LINE TRIGGERING EVENT
TO GET US BACK IN FRONT OF THE JUDGE TO ARGUE THAT LOOK, THIS IS IMMINENT, THIS
IS HANG. AND I DO. JUSTICE LAVECCHIA: I KNOW THAT YOU ARE
FRAMEING YOUR RESPONSE TO ME IN THAT WAY BUT IT'S DIFFICULT TO UNDERSTAND
YOUR ARGUMENT TO MEAN ANYTHING OTHER THAN THAT THIS NON APPEARANCE IS CERTAIN AND
MUST RECEIVE AN ORDER OF DETENTION. DANA R. ANTON: WELL
CERTAINLY THAT WOULD BE THE STATE'S ARGUMENT, THE DEFENSE COULD ALWAYS BRING
IN OTHER INFORMATION IF THEY'RE AWARE AS I MEAN YOU HAVE DESCRIBED IF THEY ARE
AWARE OF OTHER SITUATIONS THERE IS AN APPEAL THAT IS GOING TO BE FILED OR
SOMETHING LIESHG THAT THAT IS OTHER INFORMATION THAT THE DEFENSE CAN BRING INTO
IT. I'M SAYING THE TRIGGERING EVENT THAT WE SHUB ABLE TO GET IN AND THE COURT
SHOULD BE ABLE TO CONSIDER DETENTION IN ORDER TO HOLD THAT PERSON.
JUSTICE ALBIN: LET'S TALK ABOUT THE FACTORS FOR A SECOND PROFESSOR GOETS
ENUMERATED I WANT TO SEE IF YOU AGREE WITH THEM. DANA R. ANTON:
OKAY. JUSTICE ALBIN: REMOVAL ORDER, TRAVEL DOCUMENTS, AN
AFFIRMATIVE EXPRESSION BY ICE THAT THE DEFENDANT WILL BE REMOVED, THAT THE DEFENDANT
IS IN CUSTODY, AND THAT A FLIGHT IS SCHEDULED. DO YOU AGREE THAT THOSE
ARE ALL FACTORS THAT MUST BE PRESENT BEFORE THE JUDGE CAN ENTER A DETENTION ORDER?
DANA R. ANTON: I DO NOT AGREE WITH ALL OF THOSE FACTORS.
AND HEERSZ' WHY AND WHERE I DISAGREE A LITTLE BIT. THE IN CUSTODY THING, I THINK
AND THIS COULD BE A FUMENTAL MISS UNDERSTANDING ONLY MY PART IF IT IS
YOU KNOW I APOLOGIZE BUT I THINK THAT AS MENTIONED THAT THERE ARE INSTANCES WHERE
SOMEBODY MAY NOT BE IN CUSTODY EVEN THOUGH THE STAFRP SAYS THESH BE IN CUSTODY
ONCE THEY ARE READY TO BE REMOFRTD, THAT THERE MAYBE INSTANCES WHERE THEY ARE NOT
IF THEY ARE NOT IN. JUSTICE ALBIN: THIFR THIS LOGICALLY HOW
COULD ANYONE BE INL MENTALLY RENOFRD IF THEY ARE NOT IN THE CUSTODY OF ICE.
DANA R. ANTON: I AGREE WITH YOU. JUSTICE ALBIN:
SO THAT SEEMS TO EQUATE WITH I AM NENS THAT THE PERSON IS IN CUSTODY. NO?
DANA R. ANTON: I DO THINK SO YES. I THINK THAT IF SOMEONE IS OUT OF
CUSTODY THEY ARE PROBABLY THERE IS A REASON THEY ARE OUT ON THE STREET ET
ER THEY HAVE BEEN GIVEN A STAY OR SOME OIR ACTION THAT IN OUR TEST WOULD PLEA INCLUDED.
JUSTICE ALBIN: I AM RAISING IT SO WHY WOENTD YOU CONCEDE CUSTODY?
IF CUSTODY IS REQUIRED FOR I AM NENS, WHY ARE YOU GIVING THAT UP?
DANA R. ANTON: THE REASON I AM HESITANT TO GIVE THAT UP YOUR HONOR IS BECAUSE
I JUST DON'T KNOW IF THERE IS A SITUATION WHERE WE GET A PHONE CALL THAT SAYS
WE PICK UP THIS PERSON, WE ARE REMOFRLG THEM ON A FLIGHT YOU KNOW TOMORROW, OR
AND WE JUST DON'T HAVE THE TIME AT THAT POINT TO GET INTO COURT AND TO DO
SOMETHING ABOUT IT. AND THAT'S WHY I JUST HATE TO SAY NEVER I THINK IN MOST EVERY
CASE THEY WILL BE IN CUSTODY BUT IF I JUST WANT THE COURT TO HAVE THE ABILITY.
JUSTICE ALBIN: WHY SHOULD WE BESETING A RULE FOR YOUR ONE
IN A MILLION CASES THEN. DANA R. ANTON: I DON'T THINK YOU ARE
SETTING A RULE FOR THAT I JUDGE US THINK YOU CAN ANTICIPATE AND INCORPORATE THAT
INTO THE RULE. FOR INSTANCE, IF YOU KNOW LOOK, THE INVESTIGATOR FOR ICE TELLS
YOU LOOK, AS SANS WE PICK THIS PERSON UP WE CANNED FIND THEN AS SOOFRN AS WE PICK
HIM UP HE IS GOING THAT SHOULD BE ENOUGH TO GET YOU IN FRONT OF A JUDGE
TO SAY LOOK THEY SAID AS SOON AS THEY PICK HIM UP HE'S GOING. SO THAT'S THE KIND OF
UNIQUE INS SUBSTANTIAL I CAN IMAGINE WHERE WE WOULD WANT THE ABILITY TO
REPRESENT TO THE COURT LOOK, THIS IS HAPPENING HE PLAY NOT BE IN CUSTODY RIGHT
THIS SECOND BUT IT'S COMING AND HE'S GOING TO BE ON A PLAIN IF SOMETHING
WERE TO HAPPEN AND HE DIDN'T GET REMOVED, THE DEFENDANT ALWAYS CAN KONL BACK INTO
COURT AND PRING THAT FACT TO LIGHT AND HAVE A DEFENDANT RELEASED IF
NECESSARY. THE COURT ALWAYS HAS THAT DISCRETION. BUT YOU KNOW, EVERYONE WHO'S
TALK ABOUT HOW NEW ANSZED IMENT GRAGSZ LAW IS AND I CAN FORESEE A CIRCUMSTANCE
WHERE A DEFENDANT IS REMOVAL IS COMING, WILL COME VERY IMMINENTLY OR QUICKLY
AND WE PLAY NOT KNOW WHEN. CHIEF JUSTICE RABNER: MISS ANTON CAN I
ASK YOU TO BRING YOUR ARGUE TO A CLOSE QUICKLY? DANA R. ANTON:
I AM SORRY YOUR HONOR. CHIEF JUSTICE RABNER: TOUCH ON WHAT YOU
BELIEVE YOU NEED TO BUT THIS IS REBUTTAL. DANA R. ANTON: I AM VERY
SORRY IF THERE ARE ANY OTHER QUESTIONS OTHERWISE I AM FINISHED.
CHIEF JUSTICE RABNER: THANK YOU. MR. HIENS BRIEF REBUTTAL?
MR. HEINZEL: YES TUN JUST A FEW POINTS. I WOULD AGREE IT SEEMS
THAT AT THIS POINT THERE IS AN AWFUL LOT THAT WE AGREE ON AS FAR AS LIKE THE
CRAFTING OF A WORKABLE TEST. THERE MAYBE CERTAIN ELEMENTS ALT THE PRIF REPRIVILEGE
REBUT GIVEN WHERE WE ARE AND GIVEN THAT THE COURT I BELIEVE CAN FASHION A
REASONABLE TEST THAT WILL ALLOW OUR INTERESTS TO BE SAFEGUARDED, WE'RE TALKING ABOUT
POSSIBLY HAVING A LEGISLATURE REEXAMINE THIS TO SEE IF THIS IS SOMETHING THEY
WANT TO GET BACK INTO. I THINK WE SHOULD LOOK AT WHAT ARE THE RELATIVE HARMS IN
THAT INTERIM. WE LOSE THE OPPORTUNITY FOREVER TO TRY THESE PEOPLE, WHEREAS
WHAT THEY LOSE IS AN ABILITY TO BE DEPORTED WITHOUT HAVING TO FACE THEIR CHARGES.
I THINK THE RELATIVE HARMS ARE A SLAM DUNG FOR US. AND WHEN WE ARE TALKING ABOUT
A RELATIVELY SMALL TOTAL NUMBER OF CASES VIS-A-VIS THE VAFRT BULK OF CASES THAT
ARE AFFECTED BY BAIL REFORM, I'M JUST A LITTLE BIT CONCERNED THAT THE
LEGISLATURE MAY NOT SEE THIS AS SOMETHING THAT URGENTLY NEEDS TO BE TAKEN UP WHEN
THE CURRENT LANGUAGE OF THE BILL CLEARLY ALLOWS FOR OUR INTERPRETATION. AND
ESPECIALLY THE LEGISLATIVE HISTORY THAT FOLLOW. WE THINK THE LANGUAGE IS CLEAR
BUT MAYBE EVEN MORE CLEAR STILL BY THE FACT THAT THE WAY THE BILL WAS CHANGED
ALONG THE WAY. AS FAR AS THEORETICAL HARNLS VERSUS REAL
HARNLS THAT MR. SHA LOM BRIEFLY TOUCHED ON, LEARN TODAY'S KAM POSE WAS A FIRST DEGREE
AGGRAVATED SEXUAL ASSAULT CASE. THAT CASE OUT OF I THINK IT WAS A DID HE CREDIT
J CASE THAT WAS REASONLY FLTED OUT BECAUSE HE WAS KNOWN OUT OF THE COUNTRY YAG
DOO IS THE DEFENDANT'S NAME ALSO A FIRST DEGREE CASE. THESE ARE VERY IMPORTANT
CASES WHERE THEY ARE NOT BEING DETAINED UNDER THE CURRENT FRAMEWORK. AS FAR AS
HAVING TO GO THROUGH CERTAIN STEPS WITH ICE AND HAVING TO TRY AND ASK THEM TO
RECONSIDER THEIR OWN DECISIONS I THINK I WOULD ASSUME THAT ICE KNOWS THEIR OWN
TOOL KIT AND ICE KNOWS WHAT SORT OF DISCRETIONARY TOOLS THEY HAVE AT THEIR
COMMAND AND WHEN THINK SAY TO US THERE IS NOTHING WE CAN DO, THAT ALONE SHOULD
BE ENOUGH. AND LET'S SEE. AS FAR AS OH YEAH THE ONE OTHER
THING I WANTED TO MENTION BECAUSE THERE HAS BEEN SOMETHING THAT HAS BEEN NOTED
AROUND IS THAT WE HAVE TO WAIT UNTIL FLIGHT ARRANGEMENTS ARE ACTUALLY MADE. THAT
IS OUR EXPERIENCE, NOT A WORK ABLT PART OF THE TEST BECAUSE AT THAT POINT
IT'S TOO FAR A LONG. WE'VE SEEN FROM ICE THAT THEY TELL US TYPICALLY THURSDAY
OR FRIDAY FRLT WE CAN BEFORE THAT HEY, THIS GUY IS GOING TOK ON TUESDAYS
FLIGHT OUT, TUSZ MORNING, SO WE'RE TALKING LIKE ONE BUSINESS DAY. THE ACT CALLS
FOR 3 BUSINESS DAYS TO EVEN SCHEDULE A HEARING. SO IF WEECH TO WAIT FOR
THAT EVENT WALLET GOING TO BE TOO LATE. AND FAST AR FAR AS THE FLIGHT
ISSUES MOENGSED IN THE INSPECTOR GENERALS REPORT THEY WEREN'T REALLY OF
SIGNIFICANT ENOUGH SORT OF MOMENT. I THINK THAT WAS LIKE 1 POINTH 5 PERCENT EVER
ALL FINAL REMOVAL ORDERS HAD FLIGHTS SCHEDULING DELAYS THAT BROUGHT IT
BEYOND THE 90-DAY PERIOD. AND FLON OF THOSE WERE RELEASED BECAUSE THEY GOT REALLY
OUT OF HAN AS FAR AS THE DELAYS. BUT THOSE ARE THE POINTS I WANTED TO MAKE.
AND I THANK THE COURT FOR ITS TIME. CHIEF JUSTICE RABNER: THANK YOU
MR. HIENS EL. THANK YOU TO ALL COUNSEL VERY FINE ARGUMENTS
VERY CAREFUL PREPARATION THAT IS HEFRL TO THE COURT WE WILL TAKE THE MATTER UNDER
ADVISEMENT