If you continue reading this blog post, you might be placing me in line to face criminal charges.
Because my commentary could be knowingly or recklessly encouraging or inducing an undocumented immigrant to come to, enter, or reside in the United States in violation of federal law.
In other words, by doing what a lawyer is supposed to do.
By adhering to my professional duty to care, protect, and guide clients.
By being a lawyer who practices preventive law – who engages in helping immigrants strategize and plan ahead to improve their chances for green card success.
Zealous Representation Is Not A Criminal Act
You’re probably thinking, “C’mon, Carlos, you’re kidding, right?”
No, I’m not.
Big Brother wants to curtail the ability of lawyers to help immigrants.
So despite the risk I take writing this article . . .
To the extent the government wants to arbitrarily block lawyers from representing their immigrant clients, I refuse to be quiet in my efforts to help them win lawful permanent resident status.
To equate passionate defense of immigrants with criminal activity is a false equivalency, a devious sleight-of-hand ploy to strip helpless individuals of legal representation.
What Every Immigrant Advocate Needs To Know About The Sineneng-Smith Case
U.S. vs Sineneng-Smith may be the most important immigration case on the Supreme Court docket this term.
Yet, few know any details about its significance.
Although it threatens to undermine the ability of lawyers to guide immigrant clients to safety, it remains relatively hidden from public view.
Scant media attention has been paid to how an adverse decision could affect thousands of immigrants this year and beyond.
Most immigration news about the Supreme Court this term has centered on two other cases:
- (a) DHS v. Regents of the University of California, which questions the administration’s efforts to terminate the Deferred Action for Childhood Arrivals program
- (b) DHS v. Thuraissigiam, which raises whether immigrants who enter the country illegally have the right to appeal before they are deported
All three cases have huge implications for immigrants and their families. However, based on the statute under review in Sineneng-Smith, if lawyers are not able to assist currently undocumented immigrants, who will be left to file lawsuits such as those in DACA and Thuraissigiam matters?
How Did The Sineneng-Smith Case Arise?
Evelyn Sineneng-Smith was an immigration consultant who worked with Filipino families in the San Jose, California region. The majority of her clients worked in the home health care industry without lawful employment authorization. She would help them apply for and obtain permanent residence under a Labor Department Certification program.
After the program expired, she continued to file applications she knew were doomed to failure. She told her clients that the program would allow them to remain in the U.S. even though they were undocumented. Eventually, she was convicted of fraud.
The government also alleged she was guilty under a 1986 law, 8 U.S.C. 1324(a)(1)(A)(iv), that makes it an offense for any person who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”
She appealed her conviction to the Ninth Circuit. Her fraud conviction was upheld. But the Ninth Circuit reversed her “encouragement” conviction. The court stated the statute is overbroad.
The statute, noted the court, has the potential to criminalize almost any pro-immigration speech.
As a result, the Ninth Circuit held that it infringes upon the First Amendment’s guarantee of free speech.
The government, arguing that “speech integral to criminal conduct” is not protected by the Constitution, now challenges the Ninth Circuit opinion before the Supreme Court.
If they prevail, any attorney who gives advice to an undocumented immigrant could be subject to criminal charges.
Editor’s Update: On May 7, 2020, the Supreme Court decided Sineneng-Smith on procedural grounds. The Court did not address when and how does protected client advocacy transform into criminal solicitation. This leaves the matter unresolved.
At least until if and when the government raises it again in another case.
The Chilling Effects Of The Encouragement Statute On Immigration Advice
What types of immigration cases might be affected by an adverse Supreme Court ruling?
- Advising an immigrant wife that by remaining in the country, rather than going back home, she might qualify for adjustment of status after her spouse becomes a U.S. citizen
- Encouraging a client to apply for DACA, TPS, asylum, or other benefits as a means to protect themselves against being removed for their unlawful entry
- Writing blog posts, filming videos, publishing Tweets, handing out flyers, or speaking in public about how to reopen cases related to past deportation orders
In other words, nearly any type of advice for those without lawful status could possibly trigger criminal liability for anyone – lawyers and non-lawyers alike.
For as the Cato Institute points out in their Amicus Brief, a pediatrician who encourages a undocumented immigrant patient to stay in America because of vital care being provided to her child would be subject to conviction under the encouragment statute.
What’s Wrong With Advance Planning And Preparation?
It seems that every few years, the advance planning and preparation role of lawyers who help immigrants comes under attack.
Sometimes, the assult is launched by presumed friends, not foes.
Take the California legislature. A few years, a few immigrant-friendly representatives decide to weed out immigration scams.
Yet, the bill they proposed, AB 60, restricted immigration attorneys from gathering even basic background information to assess a client’s options that included obtaining criminal background checks, client immigration files, and past court filings.
The American Immigration Lawyers Assocation was not impressed, and pointed out the absurdity of the legislative language:.
“Refusing to allow immigration attorneys to do their jobs and obtain the documentation necessary to determine a client’s options places immigrants at a huge disadvantage legally and points them in the direction of the very people who take advantage of immigrants – notarios, unlicensed document preparers and immigration consultants.”
The bill began as an effort to curb immigration fraud. Yet, it failed to distinguish rip-off scam artists from compassionate immigration defense lawyers.
Instead, attorneys were blindly lumped together with non-lawyers, who have long operated without any regulatory oversight.
Planning ahead for immigration success.- even tactically surmising about future legal and political actions – is often necessary to protect the best interests of clients, especially in these dark days of immigration laws.
That’s true whether the authors of ill-designed anti-planning, anti-preparation policies and procedures are friends of immigrants or not.
What’s wrong with advance planning and preparation?
Unless you’re an opponent of all things immigration.
The Sineneng-Smith Threat To Zealous And Passionate Representation
As an immigration appeals attorney, I’ve read many court hearing transcripts where representatives were cowered from raising viable arguments by bully judges.
The Sineneng-Smith case has the potential to amplify such behaviors by my brethren.
Some lawyers will be too afraid of criminal prosecution to give full, complete, and accurate legal advice.
An adverse Supreme Court decision could minimize the immigration bar’s willingness to provide zealous and passionate defense for immigrants and their family.
The obligation to advocate freely on behalf of our clients may be muzzled by the negative impact of being charged with a criminal act.
For those of us who practice family unity and defense law on the immigrant side of the fence, there will be no hiding.
And that’s why I have written this blog post.
Whatever the outcome of the Sineneng-Smith case, my voice will not be chilled.
By Carlos Batara, Immigration Law, Policy, And Politics