NEW JERSEY STATE BAR ASSOCIATION
DOMENICK CARMAGNOLA, PRESIDENT
Carmagnola & Ritardi, LLC
60 Washington Street
Morristown, NJ 07960-6859
973-267-4445 • FAX: 973-267-4456
[email protected] July 1, 2021
The Honorable Phil Murphy
Office of the Governor
Post Office Box 001
Trenton, New Jersey 08625
Re: S3361 (Weinberg)/A5207 (Johnson) – Prohibits State and local entities and private
detention facilities from entering into agreements to detain noncitizens
Dear Governor Murphy:
On behalf of the New Jersey State Bar Association, I write to convey our grave concerns
about S3361 (Weinberg)/A5207 (Johnson), which would prohibit State and local entities and
private detention facilities from entering into agreements to detain noncitizens. We urge a veto of
this legislation because, despite the laudable goals of the advocates advancing this legislation,
the very real consequences of detained noncitizens who will be impacted by it are far more
significant and dangerous than if they are kept in New Jersey. Our members are already reporting
a number of negative consequences their clients have experienced as a result of this proposal
before it is even fully enacted, including the transportation of noncitizens detained in New Jersey
to remote areas in other states. The NJSBA has made recommendations to protect these
individuals instead of sending them elsewhere by advancing legislation that would mandate, as
part of any agreement that includes the detention of noncitizens, safeguards that would not only
to provide for their safety and well-being while detained, but protect their due process rights. The
NJSBA is willing to work with you and our legislators to advance those initiatives.
To be clear, the NJSBA does not support the detention of noncitizens without a basis for
doing so. Certainly, any policy changes intended to reduce or avoid improper detentions are
warranted and should continue. As noted above, in light of the mere introduction and movement
of this bill, New Jersey facilities have acted to transport noncitizen detainees out of the state. Just
yesterday, the American Civil Liberties Union filed a class action lawsuit seeking to block the
long-distance transfer of ICE detainees from the Essex County Correctional Facility in Newark,
New Jersey after Essex County announced the end of its ICE contract with the facility. The
complaint, which can be viewed here, outlines the threat that noncitizen detainees face as a result
of closing down facilities in New Jersey.
According to ACLU’s filing, Juan R. is a noncitizen currently detained in the Essex
County Correctional Facility. He is represented by counsel from the Rutgers Immigrant Rights
Clinic, who meets with him weekly to represent him. “If he were transferred outside of 100 miles
from [the Essex County Correctional Facility], his lawyer would not be able to meet with him in
person.” The NJSBA previously urged the sponsors to reconsider this bill in light of this very
concern. In its letter to the sponsors on June 17th, it said:
Resolving these legal matters involve a number of face-to-face hours with a legal
representative – whether it be an attorney or a volunteer. Many times, the
immigration issue may be coupled with a New Jersey-specific criminal issue. If
sent to another state, the ability to confer with an attorney to resolve the New Jersey
specific issue – which cannot be resolved in another state – becomes a due process
issue as they will have to be present in New Jersey to resolve that issue.
Furthermore, the ability to address an immigration issue in another state with in-
person consultations with a New Jersey attorney is cost prohibitive. In many
instances, these remote facilities do not permit video visitation for attorneys and
therefore attorneys and noncitizens must rely on mail to relay documents to each
other.
In that regard, our members report that a number of detainees have been moved to remote parts
of the country, including Georgia where a number of the horrific abuse stories have arisen.
One of our members is representing an individual who she cannot locate as the person
was transferred out of state, and she is unable to obtain information on his whereabouts. The
ACLU is requesting that the court issue a temporary restraining order to enjoin the removal of
Mr. R., and others similarly situated to him, to distant locations. However, if this bill is signed
into law, there will be no choice but to send these detainees outside of New Jersey – and most
likely to remote facilities because they are few and far between throughout the country.
Simply put, eliminating immigration detention facilities in this state will not stop
detentions. Instead, it will drive those noncitizens who are still detained, regardless of any policy
changes made by President Biden regarding detentions, to farther, less safe facilities with even
less ability to see their families, retain attorneys, or address those issues that are specific to any
New Jersey matters.
To be clear, noncitizens are still being detained, and in some cases necessarily so. In
those cases, they are and will continue to be sent to remote facilities hundreds of miles from New
Jersey. Their families will no longer be able to visit them because of the inability to travel or will
face great difficulties traveling to see them pending a resolution of their issue. In New Jersey,
these individuals have visitation privileges.
In addition, you should be aware that the conditions of these remote facilities are
notoriously worse than what has been reported in New Jersey, with less oversight for the care of
these noncitizen detainees. Some of these facilities are located so remotely, there are no local
attorneys to represent them or they are difficult to find. Therefore, a large majority of those
detained noncitizens go unrepresented or under represented resulting in a much lower rate of
release on bond, continued detention, and a reduction in a successful resolution of their matters.
On the issue of legal jurisdictional issues, there are a number of specific instances where
these individuals are facing a violation of their due process rights. Those detainees who also have
been picked up for criminal charges or arrests pending in New Jersey criminal court or municipal
court may not be brought back to New Jersey to address these charges. This leaves those matters
open and unresolved, creating an impediment from getting a noncitizen detainee released on
bond by an immigration judge or parole from ICE. This occurs with some regularity and would
likely increase exponentially.
Just this past week, the United States Supreme Court in Johnson v. Chavez issued another
ruling which negatively impacts noncitizen detainees. In that matter, the Court ruled that certain
detainees who returned to this country illegally after being deported because they faced threats at
home could be held without a bond hearing. The consequence of Johnson v. Chavez is that these
individuals will be forced to be detained pending proceedings that could last for months, or even
years. This merely adds to the grave dangers these individuals face and will further exacerbate
the consequences of this bill on noncitizen detainees.
As the NJSBA has pointed out to the sponsors, there is a great opportunity here in New
Jersey to be innovative in its approach to noncitizen detention. Instead of banning ICE detention
contracts, modifying them under State law to afford these detainees additional health, welfare
and other important safeguards would provide the much-needed protections that they should be
afforded. Revenue gained from these facilities could be redirected to legal service organizations
to help those who are detained. Instead of creating an additional obstacle for detainees, New
Jersey could lead the way in addressing the situation in a more constructive, positive manner.
We recognize this is an important issue for advocates and their intentions are laudable.
However, detention is a reality and will not go away by eliminating facilities in New Jersey that
provide those services. even in the most liberal of federal administrative policies. It is the intent
of our members to assure detainees get the protections they deserve and we oppose any efforts or
actions which would put them in harm’s way simply to send a message to ICE or the current
Administration.
We strongly urge you to consider these significant issues and take action to ensure that
further damage to noncitizen detainees occurs. We stand ready to work with you and our
legislators on legislation which will address the issues brought forth by the advocates, but protect
those detainees who will surely fall victim to the fallout from this well-intended bill. We
appreciate your consideration of our comments and concerns and look forward to speaking to
you and Governor’s Counsel further about this as you contemplate this bill. The NJSBA’s
Director of Government Affairs, Lisa Chapland, is in contact with your office and can be reached
at [email protected] or 732-239-3356 with any questions you have or for further information
you require. On behalf of the NJSBA, thank you for your continued leadership.
Very truly yours,
Domenick Carmagnola
President
cc: Parimal Garg, Chief Counsel to the Governor
Kate McDonnell, Deputy Chief Counsel to the Governor
Jeralyn L. Lawrence, Esq., NJSBA President-Elect
Angela Scheck, NJSBA Executive Director
