Tag Archive for: Immigration Lawyer

Cyrus Mehta

Supreme Court Agrees to Hear Constitutionality of Smuggling Statute That Could Impact Immigration Lawyers

/0 Comments/in /by

The Supreme Court has agreed to review the constitutionality of a smuggling statute under the Immigration and Nationality Act. United States v. Sineneng-Smith, No. 19-67. The statutory provision in question, INA §274(a)(1)(A)(iv),  permits a felony prosecution of anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if the encourager knew or recklessly disregarded “the fact  that such coming to, entry, or residence is or will be in violation of the law.”

INA §274(a)(1)(A)(iv), which involves encourage a non-citizen to reside in the United States in violation of law, is a companion to other related smuggling provisions such as “brings to” or “smuggling” (INA §274(a)(1)(A)(i)), “transportation” (INA §274(a)(1)(A)(ii)), and “harboring” (§274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete, the “encouraging” provision is far broader and can potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. This provision could thus also potentially reach ethical lawyers who advise and represent undocumented clients.

The Ninth Circuit in United States v. Evelyn Sineneng-Smith ruled last year that INA §274(a)(1)(A)(iv) was so broad and vague that it could criminalize speech protected under the First Amendment. The following examples were provided in the Ninth Circuit’s decision that could potentially constitute criminal conduct under this provision:

  • A loving grandmother who urges her grandson to overstay his visa by telling him “I encourage you to stay”
  • A speech addressed to a gathered crowd or directed to undocumented individuals on social media in which the speaker says something such as “I encourage all you folks out there without legal status to stay in the US! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization”
  • An attorney tells her client that she should remain in the country while contesting removal – because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed.

The government, on the other hand, argued that INA §274(a)(1)(A)(iv) should be read narrowly to target unscrupulous lawyers and unauthorized practitioners who dupe migrants into staying in the United States in violation of the law.  Despite the broadness of INA §274(a)(1)(A)(iv), the government asserted that it was not its intention to prosecute people in the above examples who were exercising free speech. Indeed, United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sinseneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She also got convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits conduct and a narrow band of unprotected free speech. Because the provision was so overbroad, the Ninth Circuit refused to construe it narrowly as the Third Circuit in DelRio-Mocci v. Connolly Properties had done by holding that encouraging or inducing an alien to reside in the United States did not mean just general advice but some more substantial assurance that would make someone lacking lawful status more likely to enter or remain in the United States.

The Supreme Court granted the government’s petition for a writ of certiorari. According to the Crimigration blog, the “Supreme Court’s decision to hear this case is … fascinating” as there was not really a circuit split. Typically, the Court agrees to hear a case when there is a sharp conflict in the lower courts regarding the proper interpretation of a statute. Here there is hardly a split between the Ninth Circuit in United States v. Sinseneng-Smith and the Third Circuit in DelRio-Mocci as the latter does not involve First Amendment. Instead, the Third Circuit’s holding was based on a private lawsuit claiming that an apartment property management company violated the Racketeer Influenced and Corrupt Organizations Act by encouraging undocumented people to reside in the United States unlawfully in their property as tenants. Sinseneng-Smith  claimed in opposition to the government’s certiorari petition that the government asserting that the circuits are in conflict is nothing more than an “attempt to conjure a limited circuit split.” It will also be interesting to see how Justice Gorsuch rules in this case as he is averse to laws that are void for void for vagueness as he did in demolishing “crimes of violence” in  Sessions v. Dimaya. Although the Ninth Circuit did not have to deal with the void for vagueness challenge as it found the statutory provision unconstitutional under First Amendment overbreadth analysis, both sorts of challenges might be of interest to Justice Gorsuch that might potentially  align him with the four liberal justices.

Whatever may have been the motivations of the Supreme Court to take up the case, how the Supreme Court will rule carries important implications especially for immigration lawyers. If the Supreme Court reverses the Ninth Circuit and upholds the constitutionality of the provision, would an immigration attorney advising unauthorized individuals to remain in the United States to seek adjustment of status at a later point in time, whenever they become eligible, be within the scope of the prohibition against encouragement or inducement under INA §274(a)(1)(A)(iv)? Granted that the facts in Sineneng-Smith are bad as she advised clients as an unauthorized practitioner, but even if Sineneng-Smith was a lawyer, she would have still been convicted under the provision. Even if this lawyer had provided more appropriate advice when filing the labor certification such that the clients would have to return to their home country for consular processing, assuming an I-601A would be approved based on extreme hardship to a qualifying relative, the lawyer could have still been potentially implicated by advising the unauthorized person to remain in the US during the processing of the labor certification, I-140 petition and the I-601A waiver.

It is indeed salutary that the government strenuously argued in United States v. Sineneng-Smith that it would not prosecute cases cited  in the above three examples or with respect to lawyers giving legitimate advice to clients. But there is no guarantee that if the statute remains intact an overzealous prosecutor cannot try to prosecute attorneys providing legitimate advice to their clients in other examples, as I have discussed with Alan Goldfarb in AILA’s practice advisory,  Executive Disorder: Ethical Challenges for Immigration Lawyers Under the Trump Administration. A lawyer may advise a client whose citizen child is turning 21 in two years to remain so that she can adjust status in the United States. Even if the client may not have a citizen child who is turning 21, there is a possibility that the client may marry a US citizen some day and likewise be eligible for adjustment of status. Alternatively, if this client entered without inspection and is not eligible for adjustment of status, he may be eligible to file an advance I-601A waiver application of the 3 or 10 year bar based on a qualifying relationship with the prospective citizen spouse, and return to the home country for consular processing upon the approval of the I-601A application. A lawyer who may competently advise the client to remain in the United States during the pendency of the I-601A application could get snared for encouraging the unauthorized client to remain in the United States in violation of the law. In yet another example, lawyers represent clients who have outstanding orders of removal and have not departed the United States. Failure to depart within 90 days after a removal order pursuant to INA §237(a) under INA §243 renders such conduct a criminal felony. However, even here, INA §243(a)(2) provides for an exception: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” The competent lawyer will advise the client with the removal order to remain in the United States while every effort is made to reopen the removal order. A person with a final order of removal may attempt to reopen a removal order after several years if the government consents to reopening and there is available relief against deportation. See 8 C.F.R. §1003.2(c)(iii); 8 C.F.R. §1003.23(b)(4)(iv). Yet, under INA §274(a)(1)(A)(iv) an ethical lawyer, who exercises great competence and diligence in representing a vulnerable client with a removal order, could get snared for encouraging the client to remain in the United States in violation of the law even if there is a game plan down the road to render the client’s stay lawful.

The most prudent approach is for a lawyer to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to clients if they to remain in the United States in violation of the law. Such an approach would also be prudent if the Supreme Court upholds the constitutionality of §274(a)(1)(A)(iv) even if the government has asserted in its pleadings that it will enforce the law in a limited manner. Regardless of whether §274(a)(1)(A)(iv) is upheld or not, a lawyer’s conduct should be guided by rules of professional responsibility. Significantly, ABA Model Rule 1.2(d) states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” Please note that this is only a Model Rule, and readers should check the analog to Rule 1.2(d) within the rules of professional responsibility within their own state.

In the immigration law context, a disciplinary authority would be hard pressed to conclude that a lawyer who advises an unauthorized client to remain in the United States due to the likelihood of benefiting at some point in the future would be engaging in conduct that is criminal or fraudulent. Still, there is still a possibility of criminal prosecution under the broad ambit of §274(a)(1)(A)(iv), and  a lawyer who practices within the confines of Model Rule 1.2(d) – such as presenting the legal consequences of remaining in the United States or not rather than explicitly advising the client to remain –  should be more insulated than a lawyer who does not.

 

 

 

Cyrus Mehta

Dealing With The Dreaded RFE – Reflections Of An Immigration Lawyer

/0 Comments/in /by

RFE is the acronym for Request for Evidence. It is dreaded by immigration lawyers who file H-1B visa petitions and other applications for immigration benefits. The RFE is essentially a challenge by the immigration agency, United States Citizenship and Immigration Services (USCIS), asserting that the applicant does not appear to be qualified for the visa classification, and therefore requests additional information to adjudicate. The time given to respond to an RFE is generally 87 days. The RFE can consist of several pages of objections. Upon receiving it, the immigration lawyer must meticulously strategize a response in conjunction with the client. Responding to the RFE can take several hours, and at times days on end. It requires coordinating with others for an expert evaluation, as well as for corroborative letters from other employers and trade organizations. Although responding to an RFE is part of a routine administrative process, it feels like one is writing a brief to an appellate court. There is a lot of tension for both the lawyer and the client. If the response to the RFE cannot be overcome in the eyes of a faceless bureaucrat in a remote immigration service center, the petition is denied. The consequences can be drastic. The foreign national beneficiary falls out of status, and may have to leave the United States with family in tow. If the case was filed under the H-1B cap, filing a new one will not be possible until the employer waits for H-1B cap filing period next year, and then too there is no assurance that the H-1B will get selected under next year’s lottery.

It is not a surprise, therefore, that when the Administration does not favor a particular visa, the RFE rate increases. A case in point is the H-1B visa that has become the favorite whipping boy over several administrations. An article in Reuters by Yeganeh Torbati entitled “Trump administration red tape tangles up visas for skilled foreigners, data shows,” where I have been quoted, brilliantly shines the torch on the dreaded RFE and how it is used to distort a visa program even though this was not the intention of Congress. This article has made the RFE a household name. What the government cannot change through Congress or by amending the rules through notice and comment, it does through the RFE. If it wishes to bring about a new policy, such as insisting on the employer demonstrating an employer-employee relationship, or as seen more recently under the Trump administration, insisting on higher wages under the H-1B visa, it does so through the RFE. Even if there be no legal basis for insisting that only one who is paid more than an entry level wage can qualify for the H-1B visa, the administration tries to bring about this change through the RFE. To get a better understanding of the recent RFE trend based on entry level wages, read my prior blog H-1B Entry Level Wage Blues.

The following extract from the Reuters article is worth reproducing:

The Trump administration is making it more difficult for skilled foreigners to work in the United States, challenging visa applications more often than at nearly any point in the Obama era, according to data reviewed by Reuters.

The more intense scrutiny of the applications for H-1B visas comes after President Donald Trump called for changes to the visa program so that it benefits the highest-paid workers, though he has not enacted any such reforms.

Data provided by U.S. Citizenship and Immigration Services shows that between Jan. 1 and Aug. 31, the agency issued 85,000 challenges, or “requests for evidence” (RFEs), to H-1B visa petitions – a 45 percent increase over the same period last year. The total number of H-1B petitions rose by less than 3 percent in the same period.

The challenges, which can slow down the issuance of visas by months, were issued at a greater rate in 2017 than at any time in the Obama administration except for one year, 2009, according to the USCIS data, which has not been previously reported.

The trend is likely to cheer supporters of Trump’s hardline stance on immigration. They say visas for skilled foreigners undercut American workers by replacing them with low-paid employees shipped in from abroad. But major tech companies, universities and hospitals contend the visas allow them to fill highly specialized jobs for which there are sometimes few qualified Americans.

H-1B visas allow foreign workers, generally with bachelor’s degrees or higher, to work for three years at a time, often in the technology, healthcare and education sectors. Microsoft (MSFT.O), Amazon (AMZN.O), Google (GOOGL.O), Apple (AAPL.O), Intel (INTC.O), Oracle (ORCL.N) and Facebook (FB.O) were heavy users of H-1B visas in 2016, according to USCIS data.

The USCIS inquiries typically challenge the basis of the original petitions and assert that the employers do not qualify for the visas. Employers and their lawyers must then provide further evidence to prove their need and eligibility for the visas.

To be sure, the Obama administration also issued a large number of H-1B challenges – nearly 59,000 – from January through August 2016, and a similar number in 2015.

Immigration attorneys have for years complained about redundant and burdensome challenges to high-skilled employment visas. But they say they are seeing a new trend in the Trump era.

In addition to querying applications more often, the Trump administration is targeting entry-level jobs offered to skilled foreigners. The lawyers say this violates the law governing H-1Bs, because it allows for visa holders to take entry-level jobs.

Several attorneys said they view the increase in challenges and focus on entry-level jobs as a stealth campaign by the administration against the H-1B program in the absence of public regulatory changes or changes passed by Congress, which could be debated and decided in the open.

“One way to have an immigration policy that’s consistent with the policy that’s been articulated by the Trump administration is to put more scrutiny on H-1B cases,” said Cyrus Mehta, a New York-based immigration attorney.

 You can continue to read the entire article here.

It is no accident that the issuance of 85,000 RFEs between January 1 and August 31, 2017 on H-1B visa petitions, coincided with Trump’s America First policy that got crystalized in the Buy American Hire American Executive Order. While not official, it is widely believed that the goal of the Trump administration is to curb legal immigration. Since it is difficult to meet this objective through Congress, the Administration has resorted to the issuance of RFEs on the spurious and legally unsustainable ground that a person who is offered a Level 1 wage cannot be classified for an H-1B visa. A spate of RFEs were also issued during the Obama administration on H-1B visas, after the issuance of the Neufeld Memo on January 8, 2010, which set forth the standards for determining an employer-employee relationship under 8 CFR 214.2(h)(4)(ii). However, those RFEs were issued against IT consulting firms whose business models were to place H-1B workers at third party client sites. The RFEs being issued under the Trump administration seem to curb the entire H-1B visa program.

The current trend in RFEs on H-1B visas do not just challenge the Level 1 wage, but also whether the position qualifies as a specialty occupation. The RFE also questions the beneficiary’s maintenance of F-1 status under Curricular Practical Training challenging whether the CPT constituted an integral part of the program. At times, evidence is also requested to establish that the company is doing business as stated in the H-1B petition. Many RFEs also challenge the employer-employee relationship under the Neufeld Memo. Even if the H-1B worker is not working at a client site, the RFE still asks for proof that there is sufficient work to employ the H-1B worker in the specialty occupation at the employer’s place of business. Although there has been a general upswing in the issuance of RFEs, H-1Bs appear to be getting hit the hardest.

When such an RFE is received, one should take a deep breath and respond appropriately. Imagine yourself feeding the beast in order to tame it or make it go away. If you feed the beast well, it will go away satisfied. If you do not feed it well, it will still be hungry and will come back for more. Respond to every issue raised in the RFE even if you believe that you submitted the evidence previously. If there is a silly request, still respond. For example, RFEs often ask for a weekly percentage breakdown of the duties listed in the job description. This is a rather flawed and ridiculous request, as it is rare that modern employers keep tabs of such breakdowns. Most people occupying professional positions tend to multitask, and are expected to be creative and motivated, thus going beyond what is expected of them in the official job description. You may wish to preface the response by stating that such a request has no bearing to the reality of the job, although a good faith attempt has still been made to approximately breakdown the duties into percentages. Be forewarned that if you feed the beast offal, it will not be satisfied. You need to feed it the choicest bits of meat. For example, the RFE at times erroneously asks that all of the four regulatory prongs to show that the position qualifies as a specialty occupation be satisfied, when only one needs to be satisfied:

A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

The employer normally requires a degree or its equivalent for the position; or

The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

See 8 CFR §214.2(h)(4)(iii)(A).

Thus, petitioners and their attorneys should strategically decide whether to address all four prongs or only one or more of the four prongs. At times, responding to prong 4, when there is also a challenge to the Level 1 wage, could backfire. If you demonstrate that the position is so specialized and unique, then the USCIS can hit back asserting that if the job was “so specialized and complex,” then the position could not have commanded an entry level 1 wage. On the other hand, a petitioner may have no choice but to rely on prong 4 if it is not acknowledged in the Occupational Outlook Handbook that employers always require a bachelor’s degree in the specialty occupation. For example, the OOH with respect to Computer Programmers states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers with an associate’s degree.” It may be risky to rely on the first prong for the position of computer programmer since the OOH acknowledges that some are hired with an associate degree.

Even if the employer normally hires computer programmers with bachelor’s degrees under prong 3, the employer’s requirements in isolation cannot be given deference if a bachelor’s degree is not normally required by all employers, according to the holding in a Fifth Circuit Court of Appeals decision in Defensor v. Meissner, which the USCIS loves to cite in the RFE.

When relying on prong 4, it is important to justify that complex duties may be performed even with the Level 1 wage. In other words, the job duties of the challenged occupation remain complex in the O*Net, regardless of the H-1B worker performing at an entry level and being closely supervised. The reason why a Level 1 wage was assigned is because the prospective worker met the entry level wage under the DOL’s prevailing wage guidance based on less than two years of experience required for the job and not possessing unusual skills – not because the duties were any less complex.  It may also be imperative to obtain an expert opinion from a professor in the same field to justify the essentiality of a bachelor’s degree, even at the entry level. The USCIS may disregard the expert opinion, but it may only reject such testimony if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the AAO held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue.

In this author’s experience, most RFEs can be overcome and the H-1B visa petition is approved. It is difficult to predict whether this trend will continue under the Trump Administration’s Buy American Hire American Executive Order. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

If the H-1B is denied, it is not the end of the road. The denial can be appealed to the Administrative Appeals Office, and it is also possible that the USCIS can reconsider the denial before it is sent to the AAO. If the AAO denies, the denial can also be challenged in federal court. In fact, it is also permissible under Darby v. Cisneros to bypass the AAO and challenge the denial directly in federal court. It is quite likely that if there is a pattern and practice of denials on the Level 1 wage issue, there will be challenges in federal court that will review the case with a different lens from the USCIS or AAO.

There was a time when it was thought that RFEs issued under the Neufeld Memo were insurmountable. Soon, upon meticulously addressing those RFEs, employers and their lawyers were able to overcome the objections and get an H-1B approval by establishing the employer-employee relationship. Likewise, there are even stronger arguments to demonstrate that the mere offering of a level 1 wage does not disqualify a foreign national form H-1B classification, which should hopefully overcome the recent spate of RFEs.

Cyrus Mehta

The Ethical Role of a Lawyer Under a Trump Administration

/0 Comments/in /by

Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young people, known as Deferred Action for Childhood Arrivals (DACA), who arrived in the United States prior to the age of 16 and are out of status. There are also proposals of banning immigrants from certain countries or areas, as well as engaging in extreme vetting of people from Muslim countries as well as reviving the registration program.

The role of the immigration lawyer has become ever more important since Trump winning the election, and the prospects for increased immigration enforcement after January 20, 2017 when Trump is President. While Trump has softened some of his harsh rhetoric since the election, many of his advisors are in favor of strong enforcement such as Jeff Sessions who will be the Attorney General and other immigration hardliners such as Kris Kobach and Stephen Miller. Hence, the fear is palpable, and immigration lawyers have been inundated with calls from worried clients.

Undocumented immigrants fearful of a new enforcement machine will rely on the immigration lawyer to advise them on how they can remain in the country, especially if they have US citizen children. In the event that DACA is rescinded, although there is an ameliorative legislative proposal whose outcome is uncertain, DACA recipients may want to know whether they can change their address, which would be different from the address that was provided in the application. Similarly, even lawful permanent residents with a criminal records and who are vulnerable to deportation may ask the same question of the lawyer. Employers will want to know whether they can continue to hire a DACA employee if the program will be rescinded. A DACA employee will want to know whether she can continue working for the employer if the employer does not realize that the work authorization has expired.

What are the lawyer’s ethical obligations when advising a client fearful of a Trump presidency? A lawyer is under a duty to vigorously represent the client. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only represent her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling an unauthorized immigrant to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation in our immigration system where an undocumented noncitizen can eternally hope to gain legal status (such as if a US citizen child turns 21 or if the individual is placed in removal and obtains cancellation of removal), a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order pursuant to INA 237 (a) within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The ethical lawyer must also be a competent lawyer who is capable of analyzing all the nuances and contours of statutory and regulatory provisions. Even if the DACA program is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. Thus, a lawyer can ethically advise that an unexpired EAD still authorizes the DACA recipient to work in the US, and for the employer to continue to employ this person. In the event that a DACA client’s employment authorization has expired, but the employer is not being represented by the same lawyer as the DACA client, this lawyer is under no obligation to alert the employer if it did not notice the expiration of the employment authorization. The employer may be subject to employer sanctions for continuing to employ an unauthorized worker while the DACA client is in any event amenable to deportation whether he is working or not.

Lawyers should also be exploring for alternative opportunities for DACA recipients under immigration law. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule, which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

A lawful permanent resident who may have a criminal conviction cannot be immediately removed from the United States. He is first subject to removal hearing and must be served with a Notice to Appear. Not all criminal conduct results in removal. Even if a criminal conviction is considered a crime involving moral turpitude or an aggravated felony, it should be carefully considered if such a characterization can be contested under the categorical approach. This approach, best exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013), requires identification of the minimum prosecuted conduct that violates the criminal statute rather than the conduct of the respondent in removal proceedings.

Permanent residents are in a rush to file for naturalization, but the lawyer must carefully review the client’s history to ensure that nothing comes up during the naturalization process that could trigger some ground of removability, such as an improperly obtained green card or a criminal conviction. If the client still wants to take the risk of applying for naturalization, the lawyer must also determine if there are grounds for a waiver in removal proceedings, and should also advise that it is likely that discretionary waivers may be less readily granted within a bureaucracy that is oriented towards enforcement rather than grating immigration benefits.

It may be an exercise in futility for the lawyer to advise a client to move residence so as to avoid detection, even when the client is not being actively pursued and there is no outstanding warrant. If the DHS wishes to initiate removal proceedings, it can do so by serving the Notice to Appear by mail. It would be better if the undocumented immigrant received the NTA at the last known address that the government has rather than not receiving such an NTA and being subjected to an in absentia removal order. While an in absentia order can be reopened for lack of notice, it is time consuming, stressful and the results are uncertain. In any event, an AR-11 has to be filed whenever a person changes address. If a person with a removal order reports that she is being pursued by ICE agents, it would be ethically problematic for the lawyer to advise this person to evade ICE agents by changing address. Remaining in the US after a removal order is a felony under INA 243 and a lawyer should not be advising a client to engage in criminal conduct, although a lawyer could, if applicable, advise such a client on ways to overcome the removal order or to seek a stay of removal or apply for other prosecutorial discretion remedies such as an order of supervision. It would be clearly unethical for a lawyer to advise a client who is facing ongoing removal proceedings to not honor hearing dates as it would lead to a removal order in absentia, and the lawyer will be held responsible for providing ineffective assistance to her client.

The immigration lawyer must also be mindful of potential criminal penalties that can be applied for providing advice to a person who is unauthorized to remain in the United States. There exists a relatively untested provision under INA 274(a)(1)(A)(iv) which criminally penalizes any person who:

“encourages or induces an alien to come to, enter, or reside in the United States in knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”

This provision, which involves encouraging someone to reside in the US in violation of law, is a companion to other related criminal provisions such as “brings to” or “smuggling” (INA 274(a)(1)(A)(i)), “transportation” (INA 274(a)(1)(A)(ii)), and “harboring” (INA 274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete and Congress intended to cover distinct groups of wrongdoers, see US v. Lopez, 590 F.3d 1238 (11th Cir. 2009) the “encouraging” provision is more broad based and could potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. In U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992), a lawyer was convicted under a predecessor of this provision for representing persons at the former INS who were sold false social security and employment documents by a co-conspirator. Although these facts in U.S. v. Oloyede are rather egregious and would not usually apply to ethical lawyers, the following extract from the Fourth Circuit decision is worth noting:

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, “knowing that [the illegal alien’s] residence is or will be in violation of the law.” (Emphasis supplied). Because the use of the verb “is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

To the best of this author’s knowledge, the “encouraging” provision has never been applied to a lawyer providing routine advice to an unauthorized immigrant who desires to continue to remain in the United States in hope for a remedy in the future, such as a US citizen child turning 21 in a few years, that would enable her to adjust status in the United States or in the hope that the law may change to his benefit. However, it is important to know that such a provision of this sort does exist and could be applied more broadly by an administration that has an enforcement mindset. In the event of overzealous prosecution, a lawyer who carefully remains within the confines of ABA Model Rule 1.2(d) would have a good defense. Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Finally, when immigrants are frightened and vulnerable, they will seek desperate measures such as applying for political asylum. The filing of a political asylum application enables the individual to remain in the United States and even apply for work authorization if the application has been pending for 150 days or more. If there is a meritorious claim for asylum, a lawyer ought to pursue it on behalf of the client, after the client has been informed, and provided consent, about the risks. There is a possibility that the claim, if not granted at the affirmative level, could be referred before an Immigration Judge in removal proceedings. If the client is unable to win before an Immigration Judge, he or she would end up with a final removal order. If the asylum claim is filed after one year, and the exceptions to filing after one year cannot be met, there is an even greater chance that the application will be referred into removal proceedings. For a claim to be meritorious the lawyer must ascertain whether the client can provide a detailed statement regarding his claim to asylum and there is a sufficient nexus on one of the protected grounds. Even if there is a precedent decision against a particular ground for an asylum claim, the lawyer must ask whether there are good faith grounds to seek a reversal of the adverse precedent decision.

The standard for what constitutes a meritorious claim is provided in ABA Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Thus, even if the ultimate objective of filing an asylum application is to ultimately seek cancellation of removal, the asylum claim must still be meritorious. It behooves the ethical practitioner to refer to recent AILA resources, namely, Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident and Nine Ethical Questions to Consider before Filing Asylum Claims to Pursue COR.

Last and not the least, however sympathetic the circumstances may be, the ethical lawyer should never assist in filing an application knowing that it  contains a false statement of fact or law. Although there are clear rules, ABA Model Rule 3.3 and 8 CFR 1003.103(c), that expressly prohibit such conduct, the lawyer could also be implicated under federal criminal provisions such as 18 USC 1001, 18 USC 371 and 18 USC 1546.