DISTRICT ATTORNEY'S OFFICE
THREE SOUTH PENN SQUARE
PHILADELPHIA, PENNSYLVANIA 19107-3499

215-686-8000

POLICY MEMO
AVOID UNJUST IMMIGRATION OUTCOMES
It is essential that immigrants participate—as victims, witnesses and
defendants—in the criminal justice system, in order to ensure the safety of
our communities and residents, including both citizens and noncitizens.
Creating barriers to participation in the criminal justice system due to the
harsh deportation policies carried out by the federal government creates
vulnerability in our communities where immigrants can be preyed upon with
impunity by criminals and is completely unacceptable.
Where disproportionate immigration consequences may result from
a criminal conviction and/or sentence, the case will be reviewed by
immigration counsel to see what, if any, changes could be made to
neutralize or reduce those consequences.
Deportation following a criminal conviction has significant and often
devastating impacts on the emotional and financial well-being of innocent
community members, including victims of crimes. Such impacts can include
separation of families; significantly increased risks of involvement of
children in criminal behavior; victims left without marital or child support;
and families facing economic crises (common financial repercussions of
deportation include food instability, loss of housing, and greater reliance on
government assistance programs).
This office accepts the guidance offered by the Supreme Court of the United
States in Padilla v. Kentucky, which held that adverse immigration
consequences, especially deportation, are an additional punishment – not
shared by a citizen defendant – which often inexorably follows from a
conviction and sentence. As such, immigration consequences are so
intimately tied to the criminal process that they are “uniquely difficult to
classify as either a direct or a collateral consequence.” Padilla v. Kentucky,
559 U.S. 356, 366 (2010).
A citizen and noncitizen – each with the same culpability – can be convicted
of the same crime and receive the same sentence. The citizen will walk out
of jail and return to his family, while the noncitizen, even with a valid visa or
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 permanent resident status, can face the serious and long lasting additional
penalty of deportation and/or other immigration related consequences (these
can include: mandatory detention; inability to travel internationally; or
preclusion from future immigration benefits such as applying for a green card
or U.S. citizenship).
Due to the close relationship between criminal convictions and immigration
consequences, and the severity of these consequences, this office further
accepts the U.S. Supreme Courts’ statement that “informed consideration of
possible [immigration consequences] can only benefit both the State and
noncitizen defendants during the [trial process],” and that, “by bringing
deportation consequences into this process, the defense and prosecution
may well be able to reach [resolutions] that better satisfy the interest of both
parties” Padilla v. Kentucky at 373. Considering alternative plea offers or
sentencing recommendations serves the prosecution by avoiding unjust
outcomes, which are most likely to arise when the charged offense and
corresponding sentence are less serious and are disproportionate to the
immigration risks. Therefore, this office believes that, to the extent possible,
alternative dispositions which are immigration neutral can and should be
considered in all appropriate cases.
THE POLICY
1. If you become aware that a defendant is not a U.S. citizen, through
notification by the defense, information in the file, or by some other
means, you must contact the District Attorney’s Immigration Counsel.
2. DO NOT inquire directly of a defendant about a defendant’s
immigration status.
3. DO NOT disclose a defendant’s status to anyone outside the office,
including witnesses or victims.
4. DO NOT, under any circumstances, contact or communicate with
ICE (Immigration and Customs Enforcement). If ICE is able to reach
you, state that you are not authorized to speak to them and refer them
to immigration counsel.
5. All contact with ICE must be discussed with and authorized by
Immigration Counsel first, with final approval from the District Attorney.
6. Where an immigration consequence has been detected at the pretrial stage, Immigration Counsel will advise what offer or offers can be
made that will avoid the immigration consequence. If trial counsel
disagrees with the advice of Immigration Counsel, the Unit Supervisor
must be consulted. If the Unit Supervisor disagrees with Immigration
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 Counsel, the District Attorney must be consulted and will make the
final determination.
7. If the offer is refused and the case proceeds to trial, Immigration
Counsel must be consulted to determine if a sentencing
recommendation can be made that will avoid the immigration
consequence. If the trial attorney disagrees with Immigration Counsel,
the matter must be discussed, as indicated above, with the Unit
Supervisor and, if necessary, with the District Attorney.
8. After Immigration Counsel’s initial review, if changes in the case
warrant a change in the offer or sentence recommendation (either
lower or higher as evidence comes together or does not), or if defense
presents additional information, such as a mitigation packet or
immigration memo, relating to why the offer or sentence
recommendation should be altered, Immigration Counsel must be
notified to determine whether additional changes are warranted.
PRESUMPTIONS
PLEASE NOTE: You must notify Immigration Counsel, regardless of the
presumption. Cases will be reviewed on a case-by-case basis. However, the
following presumptions will guide the decision. The presumptions, which are
based upon detailed input from the relevant units, are as follows:
MC Cases
There are no presumptions for MC cases and each will be reviewed on a
case-by-case basis.
Felony Cases
In general, offers for cases that include felony charges will not be evaluated
or considered until after the preliminary hearing. For cases that should be
considered prior to the preliminary hearing, they will be considered through
the Pretrial Unit. Any offer will be conveyed by the Pretrial Unit supervisor
and shared with the MC Unit supervisors as well.
Cases where there is a presumption that an immigration neutral
solution will not be sought
Crimes perpetuated by adults against minors
Crimes where the offer includes SORNA registration
Crimes involving human trafficking
Most crimes involving child pornography
Most DV cases where the initial offer remains a felony
Shootings
F1 and F2 Robbery
Cases involving the use of a deadly weapon
Cases involving serious bodily injury
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 VUFA with a record of violence or prior gun possession/use
Homicides
Diversion
In general, there will be a presumption that offers will be modified to take
into account immigration consequences. However, in the following cases,
there is a presumption the offer will not change:
VUFA
Robbery with a gun
Defendants with disqualifying prior convictions (in line with existing
diversion policies)
Family Violence and Sexual Assault
In general, there will be no presumption and cases will be looked at on a
case-by-case basis. In cases where a misdemeanor is the only charge,
immigration neutral changes are more likely.
CONCLUSION
In all cases, in order to arrive at the appropriate charge or disposition, for a
criminal case, prosecutors routinely review and consider all relevant factors
relating to the crime itself as well as all relevant factors relating to the
defendant. In some cases, the factors relating to the defendant include
adverse consequences that the defendant will suffer as a result of the
conviction in addition to the direct consequences of the conviction.
Immigration consequences often have a greater adverse impact on a
defendant than the conviction alone. Most often, when considering
immigration consequences, the immigration considered offer or sentencing
recommendation will be commensurate with the original offer or
recommendation and carry a commensurate penalty, but in some cases the
offense and penalty may be greater or lesser as required for immigration
consequences and our pursuit of justice.

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