The Supreme Court has agreed to review the constitutionality of a smuggling law under the Immigration and Citizenship Law. United States of America Sineneng-SmithNo. 19-67. The statutory provision in question, INA §274 (a) (1) (A) (iv), allows the prosecution of persons "who encourage or cause a foreigner to come, enter or stay in the United States", if the encouragement knew or ignored recklessly "the fact that such coming, entering or staying is contrary to the law or will be violated."
INA §274 (a) (1) (A) (iv), which encourages a non-citizen to reside in the United States in violation of the law, is a companion to other related smuggling provisions such as "bring" or "deliver". Smuggling "(INA §274 (a) (1) (A) (i))," Transport "(INA §274 (a) (1) (A) (ii)) and" Port "(§274 (a) )) (1) (A) (iii)). While these three provisions are discreet in terms of smuggling, transportation and ports, the "encouraging" provision is much broader and may apply to a person who encourages a person without papers who already lives in the US to do so Violation of the law. This provision could therefore potentially reach ethical lawyers who advise and represent undocumented clients.
The ninth circuit in USA against Evelyn Sineneng-Smith Last year it was decided that INA §274 (a) (1) (A) (iv) was so vague and vague that the speech protected by the first amendment could be criminalized. The following examples were mentioned in the decision of the Ninth Circle, which could possibly constitute a criminal behavior within the meaning of this provision:
- A loving grandmother urging her grandson to pass his visa by telling him, "I encourage you to stay."
- A speech addressed to an assembled crowd or undocumented people on social media, in which the speaker says, "I encourage all who have no legal status to stay in the US! We are in the process of changing the immigration laws, and the more we can show the potential distress to the people who have been in the country for a long time, the better we can convince the American people to fight for us and give us a way to Legalization "
- A lawyer tells her client to stay in the country during the move – for example, because non-US citizens have more procedural rights in the United States than outside the United States, and because the government might do so in practice – you may remove them first when the move is complete.
The government, on the other hand, argued that INA §274 (a) (1) (A) (iv) should be narrowly worded to meet unscrupulous lawyers and unauthorized practitioners who bring migrants to the United States in violation of the law to stay . Despite the breadth of INA §274 (a) (1) (A) (iv), the government claimed that it was not its intention to prosecute people in the above examples who exercised freedom of speech. Indeed, USA against Evelyn Sineneng-Smith involved an unauthorized practitioner who ran an immigration consulting firm in San Jose, California. Sineneng-Smith mainly represented locals in the Philippines who were illegally employed in home health care and sought to change their status to permanent residence by submitting a work certificate from an employer. These customers were not eligible to apply for a status adjustment in the US in accordance with INA § 245 (i), which expired on April 30, 2001, and they did not appear to be grandfather even under this provision. Although Sineneng-Smith knew its clients were not eligible under 245 (i), it still signed withholding agreements with them and told them that they could apply for green cards in the US. At least two of the clients testified that they had left the country if they had been told that they had no right to apply for a permanent residence.
Sinseneng-Smith was convicted by a jury in violation of INA §274 (a) (1) (A) (iv) and INA for two reasons to encourage and induce a foreigner to remain in the United States §274 (a ) (1) (B) (i). She was also convicted of two cases of e-mail fraud in violation of 18 US states. §1341. The Ninth Circuit reversed its beliefs in accordance with INA §274 (a) (1) (A) (iv) and INA §274 (a) (1) (B) (i) on the grounds that they "encourage" and "inducing" its clear meaning restricts large parts of the protected statement, which violates the First Amendment, although the government opposes that the law prohibits only behavior and a narrow band of unprotected freedom of expression. Since the supplies were so widespread, the Ninth Circuit refused to interpret them closely as the Third Circuit DelRio-Mocci v. Connolly properties Claiming to encourage or induce a foreigner to reside in the United States not only meant general advice, but a much broader assurance that would make it more likely for someone without a legal status to enter or stay in the United States.
The Supreme Court upheld the government's request for a deed. Loud Crimigration BlogThe decision of the Supreme Court to hear this case is … fascinating, since it did not really come to a circuit split. As a rule, the Court of Justice gives a hearing if there is a sharp conflict in the lower courts over the proper interpretation of a law. There is hardly a split between the Ninth Circuit in United States against Sinseneng-Smith and the third circuit in DelRio-Mocci since the latter is not a first change. Instead, Third Circuit's involvement was based on a private lawsuit alleging that a property management company violated the law on racketeer-influenced and corrupt organizations by encouraging undocumented individuals to illegally reside in the US as lessees. Sinseneng-Smith claims in contrast to the government's petition that the government claims the circuits are in conflict, it is merely an "attempt to bring about a limited sharing of circuits". It will also be interesting to see how Justice Gorsuch proceeds in this case, as he is averse to laws that are void because of their indeterminacy, as he has done in the destruction of "violent crime" Sessions against Dimaya, Although the Ninth Circle did not have to deal with the voidness of the challenge, as it found the statutory provision in the context of the First Amendment Overbreadth analysis unconstitutional, but both types of disputes for Justice Gorsuch may be of interest, which may have him with the four could reconcile liberal judges.
Whatever the motivation of the Supreme Court has been to seize the case, as the Supreme Court will decide, has important consequences, especially for immigration lawyers. If the Supreme Court reverses the Ninth Procedure and confirms the constitutionality of the provision, an immigration officer would advise unauthorized persons to stay in the United States to request a status adjustment at a later date as soon as they become eligible for the INA encouragement or incentive ban Section 274 (a) (1) (A) (iv)? Granted, the facts in Sineneng-Smith are bad, as she has advised clients as unauthorized practitioners, but even if Sineneng-Smith had been a lawyer, she would still have been convicted under that provision. Even if this attorney had given more reasonable guidance in submitting the work certificate so that the clients would have to return to their home country for consular work, the attorney might, assuming that I-601A were approved for a qualified relative due to extreme hardship may still have been affected by instructing the unauthorized person to remain in the US while processing the employment certificate, the I-140 petition and the I-601A exemption.
It is indeed beneficial that the government argued emphatically United States of America Sineneng-Smith that the cases mentioned in the above three examples are not prosecuted or that lawyers give legitimate advice to clients. However, there is no guarantee that an overzealous prosecutor can not seek to prosecute lawyers who give legitimate advice to clients in other instances, as I have discussed with Alan Goldfarb in the AILA practice consultancy. Executive Disorder: Ethical Challenges for Immigration Attorneys Under the Trump Administration, A lawyer can advise a client whose bourgeois becomes 21 years old in two years to stay in order to adjust his status in the United States. Even if the customer does not have a child at the age of 21, there is a possibility that the client may one day marry a US citizen and also be eligible for status adjustment. If this client has come forward without verification and is not entitled to a status adjustment, he may be able to file an application for the I-601A 3-Year or 10-Year Barred Advance Scheme, based on a qualified relationship with the prospective spouse , and return after approval of the I-601A application in the home country for consular processing. A lawyer who may advise the client competently to stay in the US while the I-601A application is still pending could be misled to encourage the unauthorized client to stay in the US, which is against the Law violates. In another example, lawyers represent clients who have pending removal orders and have not left the United States. The non-departure within 90 days after a deportation order according to INA §237 (a) according to INA §243 leads to a criminal offense. However, INA § 243 (a) (2) also provides for an exception: "It is not contrary to paragraph (1) to take appropriate measures to repeal or exempt such an order for removal or for the purpose of ensuring release the foreigner from custody or detention. "The attorney responsible will advise the client with the expulsion order to stay in the United States while every effort is made to reopen the expulsion order. A person with a final deportation order may try to reopen a deportation order after several years if the government agrees to the reopening and there is relief against deportation. See 8 C.F.R. Section 1003.2 (c) (iii); 8 C.F.R. Section 1003.23 (b) (4) (iv). According to INA §274 (a) (1) (A) (iv), an ethical lawyer who has great competence and diligence in representing a vulnerable client with a deportation order could be caught because he encourages the client in the United States States that violate the law, even if there is a game plan that makes the customer's stay lawful.
Most prudent is when a lawyer does not specifically solicit or encourage a client to stay in the US in violation of the law. and instead present customers with both the adverse consequences and the potential benefits of staying in the United States in violation of the law. Such an approach would be prudent even if the Supreme Court confirms the constitutionality of section 274 (a) (1) (A) (iv), even if the Government has stated in its pleadings that it will enforce the law to a limited extent , Regardless of whether or not Section 274 (a) (1) (A) (iv) is respected, the behavior of a lawyer should be guided by the rules of professional responsibility. Significantly, ABA Model Rule 1.2 (d) states that "(a) a lawyer may not advise a client to engage or assist a client in any criminal or fraudulent activity, but a lawyer may discuss the legal consequences of any kind a client and, possibly, advice or assistance to a client to determine in good faith the validity, scope, meaning or application of the law. "Please note that this is just a sample rule. Readers should review this analogous to Rule 1.2 (d) within the rules of professional responsibility in their own state.
With regard to immigration law, it is difficult for a disciplinary authority to conclude that a lawyer who recommends a stay in the United States for an unauthorized client on the grounds that he will eventually benefit from it would be criminal or criminal in nature sets fraudulently. There is still the possibility of prosecution in the broadest sense of Section 274 (a) (1) (A) (iv) and of a lawyer acting under Model Rule 1.2 (d), such as: Legal consequences of whereabouts in the US, or the explicit request to the client to stay, should be more isolated than a lawyer who does not.
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