New Jersey Naturalization

Immigration, deportation, and the right to bail

In 1996, federal legislation was passed which stated that if an immigrant was convicted of an "aggravated felony," he or she could be deported and denied the right to reenter the country for 20 years. Such a conviction, however, requires a criminal trial and, for those accused of a crime, the constitutional right to bail is an important legal guarantee. This right applies to immigrants facing deportation because of a criminal conviction.

The federal Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." But what, exactly, is "excessive bail"?

ICE detainer and increasing amount of bail

In 2009, a battle between the state and federal government arose in Morris County over providing bail for an immigrant who was without legal permission and who was facing deportation. To be specific, the question raised was whether bail for an immigrant without legal permission held in a county jail on an indictable offense could be raised to a significant, perhaps "excessive," degree solely because the federal Immigration and Customs Enforcement placed a detainer on him. Such a detainer often quickly results in deportation, avoiding criminal prosecution.

How did this situation originate? In 2008, an immigrant from Honduras who entered the U.S. illegally was charged with sexual assault on a child. He posted bail, but was then picked up by ICE and deported, even though his criminal charges were pending.

Then, later in 2008, another immigrant from Honduras without legal permission was also charged last year with child sexual assault child, posted a $75,000 bail in 2009, and also was detained by ICE. Four months later, however, before he could be deported, the Morris County prosecutor sought a higher bail of $300,000 and the superior court granted it, stating, according to The Star Ledger, that there was a "tug-of-war" between the state and federal agencies, and that "the process has changed."

The public defender's office appealed the bail ruling, arguing that there must be a new circumstance to warrant a new bail, and that an ICE detainer alone is not such a circumstance. The immigrant's attorney stated, again according to The Star Ledger, "It is correct that a defendant's status as an illegal alien is an important factor to consider in setting bail, which is exactly the point here. The Superior Court judges involved in both setting and reviewing the initial bail took this fact into account as advised by the state. There was no basis to later claim that this information is somehow new four months later."

The state appellate court agreed with the public defender and reversed the bail ruling. The case was then appealed to the Supreme Court, which upheld the bail increase, reversing the appellate court, stating that: "Federal authorities exercised their discretion in lodging a detainer against defendant. That increased the risk that he would not appear at trial. The trial judge then properly responded to a change in circumstances by increasing defendant's bail."


What is the lesson to be learned here? If you are an immigrant and are arrested and charged with a state crime, a crime considered an "aggravated felony", your right to bail may be compromised by an ICE detainer and the raising of your bail to an amount that you cannot afford. If you are faced with this situation, you need to contact an experienced immigration lawyer immediately, to investigate the facts and determine the legal relief you are entitled to.