Courts May Not Sentence Illegals to Report Themselves to ICE – State v. V.D.

In yesterday’s Appellate Division decision in State v. V.D., the Court established a limitation on sentencing that applies to people who are in the United States illegally. In the V.D. case, the defendant entered a plea of guilty to a document-related fourth degree crime. As a specific term and condition of probation, the sentencing judge (over the objection of defense counsel) ordered the defendant to report her illegal presence and her conviction in the Superior Court to the federal Immigration and Customs Enforcement agency (ICE).

The Appellate Division ruled that such a sentencing provision is improper under New Jersey law. The decision related to whether a person in the United States illegally is to be reported to ICE is an executive function and, as per Attorney General and AOC Directives, has been vested in the office of the prosecutor in criminal cases and drunk driving matters. Moreover, the threat of being required to report to ICE by order of the judiciary would have a chilling effect on people who seek relief and protection in the Courts in family matters, civil actions and criminal cases.

It should also be noted that the sentencing procedure used in this case had two additional errors that would entitled the defendant to vacate her plea. At sentencing, the trial judge inadvertently misrepresented to the defendant what her maximum exposure in jail could be. The judge also inserted the ICE reporting condition on his own and appended it the plea agreement. The ICE component of the sentence had never been part of the plea agreement. The Appellate Division reminded judges in this opinion that if the Court wishes to impose a sentence that contains elements that are not part of the plea agreement or that calls for more punishment than set forth in the agreement, the defendant has the right to vacate the plea and either re-negotiate the plea bargain or go to trial.

Click here to view a copy of State v. V.D.

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