The Jersey Lawyer

In State v. Fajardo-Santos, decided this week, the New Jersey Supreme Court held that a lodging of a detainer by federal authorities against an undocumented immigrant facing criminal charges in state court constitutes a change in circumstances, which justifies a higher bail for the undocumented immigrant. 

Defendant Manuel Fajardo-Santos was charged with a first-degree and third-degree crime, and bail was set at $75,000 on the face of the complaint.  Defendant was not given the 10% option, and was therefore required to post the entire $75,000 in cash, bond or property.  At a mandatory bail review hearing the next day, the judge upheld the bail set forth in the complaint and defendant remained in jail.

County officials in Morris County, where the defendant was being held, notified U.S. Immigration and Customs Enforcement (”ICE”) of defendant’s arrest and advised ICE that they believed defendant to be an undocumented immigrant.  Defendant was indicted by a grand jury for first and second-degree crimes.  Four months after defendant’s arrest, ICE lodged a detainer against the defendant at the Morris County Correctional Facility.  The purpose of the detainer was to allow ICE to take custody of the defendant should he be released from the county jail.

A few weeks later, defendant posted bail using a professional surety and was released from state custody.  Defendant was then turned over to federal custody on $15,000 to await deportation proceedings.  After the Morris County prosecutor’s office was advised of the bail set by federal officials, the State moved to increase the defendant’s bail in Morris County.  The State argued that the ICE detainer increased the defendant’s risk of non-appearance at the trial for the criminal charges he faced in Morris County; therefore, this was a change in circumstance, which justified an increase in bail.  The trial judge agreed and set bail to $300,000, cash only.  Defendant was returned from federal custody to state custody.  The New Jersey Supreme Court upheld the increase in bail.

As the Court noted, ICE is responsible for enforcing federal immigration laws.  When state officials arrest someone for an indictable offense (felony), they notify ICE of the arrest.  ICE then determines whether the person is subject to deportation.  If ICE decides that it would like to deport the person, ICE can lodge a detainer with the state agency holding the individual so that the agency is aware that ICE seeks custody of the person for the purpose of deportation.  An undocumented immigrant may be deported regardless of whether there are state criminal proceedings pending against the person, and state criminal proceedings are not reason to delay the deportation.

The New Jersey State Constitution provides that anyone facing criminal charges is bailable by sufficient sureties.  In determining the appropriate amount for bail, the courts looks to ensure that the person will appear for trial.  According to the New Jersey Supreme Court, judges must engage in a fact-sensitive analysis to determine the appropriate bail in any particular case.  Therefore, the Court reasoned, if the facts materially change after bail is set, the judge is free to reconsider the bail that was originally set.

The issue in the present case was not whether immigration status is a factor that a judge can consider bail; rather, whether a judge can increase bail as a result of a detainer being lodged.  The Supreme Court further reasoned that by lodging a detainer, ICE places the state agency holding the defendant in custody and the defendant on notice that “what was once a theoretical possibility of deportation has become a concerted effort by the federal government to achieve that outcome.”

The Court then went on to reason that some defendants might use the detainer process to avoid punishment.  Essentially, the defendant will seek to avoid prosecution and punishment by posting bail in the state court and permitting the federal government to return them to their native country.  Therefore, the lodging of a detainer is a change in circumstances, which permits to the trial court to reconsider the bail that was originally set.  The Court warned that prosecutors should make motions to increase bail as soon as a detainer is lodged, and if possible, should not wait until after the defendant has already made bail.

Anyone arrested or charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance.