A different view of justice: Philly DA appointee seeks to avoid deportation for some immigrant defendants

On May 29, 2017, a fight broke out at Chihuahua Bar and Restaurant in Philadelphia’s Olney neighborhood. When the dust settled, 26-year-old Jose Sanchez Mercado was rushed to the hospital for emergency eye surgery.

The man taken into custody for chucking a beer bottle at him, 18-year-old Jose Ramirez-Diaz, had recently arrived in the United States after family members here sponsored him for a green card. Now, he was facing a felony assault charge.

“Even though he had [legal] status here, he was looking at automatic deportation,” said Caleb Arnold, immigration counsel with the Philadelphia District Attorney’s Office.

If you’re an immigrant, a minor criminal conviction can trigger removal — whether or not you have lawful permanent residency. In recent years, urban district attorneys offices in places such as Chicago, Brooklyn, and Philadelphia have created positions to oversee charging and sentencing for immigrant defendants. The goal is to prosecute criminal offenses without initiating what they see as the additional penalty of deportation.

These new policies arise as the criminal justice system becomes an increasingly contested area of immigration enforcement. In Philadelphia, that has manifested in Mayor Jim Kenney’s decision to restrict U.S. Immigration and Customs Enforcement (ICE) access to PARS, a law enforcement database, and nationally, in calls from judges to limit ICE arrests at courthouses.

Now, by requiring prosecutors to consider defendants’ immigration status, Philadelphia District Attorney Larry Krasner has waded into ongoing tensions between the Trump administration and so-called sanctuary cities.

However, that process involves tough calls — and pits different, politicized definitions of justice against each other.

Different definitions of justice

Caleb Arnold is the one-person immigration unit making those tough calls in Philadelphia.

In January 2018, Krasner hired Arnold, an immigration attorney and former public defender who uses the pronouns they/them, to advise prosecutors in cases where the defendant is an immigrant.

The move is in line with other new policies under the progressive DA, who has made it a priority to examine the collateral consequences of criminal charges on defendants. During Krasner’s tenure, the DA’s office has also stopped charging low-level marijuana possession cases and no longer pursues prostitution charges against sex workers with fewer than two convictions.

After a press conference announcing their hiring, Arnold has been toiling behind the scenes, creating policy, working with line prosecutors, and signing off on every case involving non-citizen defendants.

In their first year on the job, Arnold said they consulted on around 300 cases and recommended changing plea deals in 120 of them. The remaining cases are either still open, had no immigration consequence, or were too serious to change. Arnold does not consider high-level offenses, such as homicides and sex crimes.

Arnold’s work involves using a sliding scale of discretion, weighing an immigrant’s time in the United States, dependent family members, and criminal records in deciding whether to intervene.

The hardest cases involve “folks who have been here for a long time,” Arnold said.

“They have lives here, kids here, and they commit a kind of crime that the immigration consequences are bright-line deportable,” Arnold said, listing domestic violence and drug possession with an intent to distribute as examples.

In other cases, Arnold said it’s easier to determine whether the immigration consequence outweighs a criminal offense.

“Things like shoplifting or jumping the turnstile — you’re not necessarily thinking that those are inherently so awful that we should remove somebody from the country just for doing them,” they said.

To avoid that, Arnold hunts through Pennsylvania’s criminal codes, looking for statutes that have the same or similar penalties to the crime committed but fall out of the definition of a crime for immigration enforcement purposes.

Take theft. Even longtime green card holders can be sent out of the country for stealing under federal law, according to Arnold. But, in Pennsylvania, there is one type of the offense, “theft of an immovable object,” that does not.

“Our goal is whenever possible to find an equally serious charge, and equally serious consequence,” they said.

Arnold may also recommend changing the length of a sentence for a particular charge because sentences of a year or more on certain offenses can also lead to removal.

Immigrant defendants reached by WHYY to talk about the plea deals they negotiated with the Philadelphia DA’s office did not want to speak on the record.

However, their attorneys provided some examples of cases where defendants received plea deals that took their immigration status into consideration:

• A refugee experiencing chronic homelessness and charged with summary defiant trespassing.
• A longtime unauthorized immigrant charged with a second offense of soliciting a prostitute.
• An asylee and single mother charged with aggravated assault.

The Defenders Association of Philadelphia has been advocating for this type of consideration for a decade.

But its recent adoption by a progressive district attorney has fueled Krasner’s critics.

“District Attorney Krasner’s policy to lessen the offenses of illegal aliens who commit crimes is a total abandonment of his role as prosecutor, it’s an abandonment of the law,” said Val DiGiorgio, head of the Pennsylvania Republican Party.

DiGiorgio says it’s unfair for U.S. citizens to face different charges than an immigrant would for the same crime.

“If an American citizen is charged with committing a felony, he or she is charged with that felony,” DiGiorgio said.

Krasner defines fairness differently. “Equality does not mean identical treatment,” he said, giving the example of how the Americans with Disabilities Act mandated accommodations such as curb cuts. Those changes did not give people with limited mobility more rights but allowed them to participate more equally in society. “This is an example of that with immigrants,” said Krasner.

In 2010, the U.S. Supreme Court ruled in Padilla v. Kentucky that changes to immigration status — and in particular, deportation — are serious penalties that citizens don’t face, and should be a factor in court.

While criminality has long been named in immigration law as grounds for removal, the range of crimes considered deportable has expanded in recent decades. Krasner and other progressive district attorneys frame their work as trying to build trust of law enforcement in immigrant communities where the impact of these laws are keenly felt.

‘Victims want all sorts of different things’

In court, prosecutors are aligned with victims. That role becomes more complicated when they  also weigh the needs of a defendant.

“We’ve certainly had victims who’ve called ICE themselves. Victims want all sorts of different things,” said Allison Sprague, who heads up Victim/Witness Services of South Philadelphia, an independent nonprofit that that works alongside the district attorney’s office.

In South Philadelphia, a home to immigrant communities for generations, a more common scenario she sees is domestic violence — where the victim may have complicated feelings about what should happen to the alleged abuser.

“People want to be safe. They want to know they can call the police if there’s a problem. They don’t want the person in the house … But that’s different from losing them from their children’s lives and a breadwinner and all that,” Sprague said.

Pennsylvania’s victim advocate, Jennifer Storm, said she was aware Arnold’s work in the Philadelphia DA’s office, and she believed some discretion for low-level offenses is warranted, “but if it’s just a policy railing against Trump … I would ask that that not be instituted.”

Under the Krasner’s new immigration policy, prosecutors are charged avoiding unjust outcomes, not just seeking convictions, and he says he is not worried about sparring with the Trump administration over that distinction.

“It is my distinct hope that the Trump administration will disapprove of almost everything I do,” Krasner said.

In the case of the bar fight, justice to the DA’s office meant giving Jose Ramirez-Diaz a choice.

He could serve probation and get deported. Or, he could spend 11 months in jail on similar charges, and keep his green card. Arnold said they looked at a wide range of factors, not just immigration status, when crafting those options.

“We looked at the facts of the case, the age of the defendant,” they said. “If he had been an older person, if he had a prior history of violence, we probably would have done something different.”

He took the jail time.

Ramirez-Diaz’s 26-year-old victim, who had crossed the border illegally, is still waiting for his second chance.

By cooperating with police, he became eligible for a special visa for crime victims, called a U-visa. However, he was arrested by U.S. Immigration and Customs Enforcement on his way to work in November 2017, and detained for more than ten months while waiting for that paperwork to go through.

Tired of waiting, he accepted deportation to Mexico in September 2018. In February, his U-visa application was approved, putting him on a waitlist to reside lawfully in the United States.