Staying in the U.S.

Attorney Nicolas A. OlanoCan my lawyer tell me to stay in the United States illegally?

  1. This is a difficult question to answer.  The first thing to clarify is what does illegally mean?  One thing it is not. My lawyer may not, and should not, give me advice that is intended to actively break the law such as committing marriage fraud, lying to immigration, or any other act that is obviously against the law.  But what if he is not telling me to break the law, just that remaining in the United States illegally might result in my ability to stay in the long term? Complicating things is that the term “illegally in the U.S.” may be technical in nature – the person may be in a legal status which he or she was not entitled to and thus is not exactly “legal in the United States.”  This is the case of a permanent resident who obtains residence by fraud and it has not been revoked by immigration or an immigration judge.  Obviously that resident is in the United States against the law but, is he illegal?  As noted above, he will be a legal permanent resident until an immigration judge finds otherwise, so ‘technically’ he is not in the United States illegally.  To confuse things more, he or she may obtain a waiver from the judge and cure what was making his residence defective.  So is that person legal or illegal in the U.S.  How about the person who entered the United States through the border and wants to ask for asylum?  He or she is entitled under the law to apply for asylum, but a law was broken upon entry without the proper documents and inspection by immigration.  So, is that person in the United States, illegally?  He or she could be placed in removal (deportation) proceedings because of exactly that, not being in the U.S. illegally. But again, if they succeed in their asylum claim they will become legal.
  2. The Point.What I am trying to show here is that the terms “illegal or against the law” are something very difficult to pin down and the only real line is given when the advice to remain in the U.S. is part of or the result of a crime, fraud for example. So, your lawyer may advice for you or your family to remain in the U.S. when relief is available.  But what if there is none?  May your lawyer just say – stay in the U.S. anyway – even if that means you stay and there is not relief for you available at that moment?
  3. The answer is yes.  One, the Ninth Circuit has found that such advice is protected free speech and therefore it is not possible to criminalize it.  (An immigration law tried to do so but it was struck down in  U.S. v. Sineneng-Smith (9th Cir. 2018)  Two, even if you have not relief at the time your lawyer tells you to stay, time may be part of that relief or you may obtain relief in the future.  For example.  A person that has been in the United States for one year and has a month-old baby born here.  He or she will have relief in time if they meet certain criteria.  It would be legal malpractice for an attorney to tell that client to leave the United States knowing that with time their immigration situation may be resolved.    Another example is the issue of an amnesty or even of deferred action such as DACA. Congress is constantly working on immigration laws that may benefit a series of different individuals in different circumstances.  Should an attorney tell a person to leave knowing that congress is actively working on “immigration reform?  Obviously not.  Such act would also be legal malpractice and would take away from a person the possibility of remaining in the U.S. after the passage of new laws by congress.So, there it is.  More complicated than it should be, but an immigration advocate and attorney must keep the previous in mind.

 

Should I ask Immigration or an Immigration Lawyer?


Attorney Nicolas A. Olano

One of the most common errors that lead to problems with immigration client’s cases is that, at some point, they got their advice “directly” from USCIS, ICE or EOIR.  These three (Immigration, Immigration Police and Immigration Judges) are government agencies, they are not there to provide advice to the public on their immigration process.  It seems that the access that USCIS provides to its applications and the streamlining they have created is confused with an obligation for it to provide legal advice to its customers – the public.  This could not be further from the truth.  I am going to provide an example that will hopefully clarify this point.  You have just stolen a million dollars, but you are not sure how long the police can go after you for the crime – after how many years will you not be prosecuted for the crime.  So, after five years you walk into a police station and asked the police officer at the front desk that says “information” about your “case.”  What do you think will happen?  Well, most people do not realize this but when they walk into immigration and start asking questions about their particular situations they are placing themselves at risk of 1) getting detained, 2) having their case affected negatively and 3) simply getting the wrong advice.  And, please, do not blame this on a negative “animus” against immigrants or something like it.  For immigration, just like the police officer, if someone who broke the law shows up they may have to detain them.  Also, like the police officer, immigration must keep a record of when your case was accessed and any information you provided – why wouldn’t they?  Finally, immigration officers are there to provide information about what is happening with your case, not provide you with legal advice on your case.  Therefore, it is not rare to see that a client has received incorrect advice from an officer that either does not have the experience or has a different legal position regarding your client’s case.  So, next time you have a question about your case, think twice before going to immigration to ask it.  Is it a question about what is happening with it or is it a legal question about your case?  If it is the first one, by all means ask away.  If it is the second situation, consult with an immigration lawyer about it.

Now, you will ask, how do I know the difference?  If the questions is whether you or someone “can do” something it is a question that must apply immigration law to specific facts.  It is a legal question.  If it is “how” to do something it is generally not a legal question if no facts are applied.  The problem is that ALL situations are different and that difference in the facts is going to require you to apply the law – again a legal issue.  Finally, if the question is what is happening with my case, why is it taking so long, where is it being processed, etc… then immigration is a place where this can be found out.  Remember there are online resources that you can use to find the situation of your case and other particulars that may help you.  For example, you can go here to find about your case:  CASE STATUS INFORMATION.  In short, if you are not sure of whether the question is one to take to a lawyer, err on the side of caution and call a lawyer experience with immigration matters.

Immigration Technology

Immigration, Technology and Enforcement: It is a Brave New World

It is clear that immigration has increased its enforcement efforts in the Trump administration.  None the less the Obama and W. Bush administrations also had a significant increment in the cases of removal or deportation from the United States.  In the Obama administration the number of aliens that were deported was higher than ever before.  In the W. Bush era the creation and activation of the Department of Homeland Security in 2003 led to a natural increase in removal cases.  The common thread in all of the above is not a negative animus against immigrants, that could be said about the current administration, but not of the previous. The one thing that is a powerful, yet silent, cause behind the rise of enforcement action by immigration agencies is an exponential increment in the use of technology for the processing of cases.  Just to understand what is happening, let’s look at the change of case processing over time in regards to fingerprints.  In the past individuals were fingerprinted in carboard cards that were sent to the FBI and physically compared to one another without the certainty of inclusion in any type of database.  Now fingerprints are collected electronically and immediately available for use and comparison by immigration.  So, what does this mean for the average immigrant, including those individuals who already became citizens of the United States?
Using “preparers,” “notaries,” or “friends” in your dealings with immigration is, more than ever, not an option.  Errors, misstatement and outright fraud, that usually take place with these individuals are things that WILL be seen and found.  They are no longer things of the past – we are not dealing with paper files. We are in the world of electronic files where all information, biometric and biographical, is shared and corroborated.  An omission or a misstatement by someone, like a “notario,” who does not have the preparation or credentials of a lawyer, can be deadly to an immigration case.
Crimes, convictions, marriages and deportations are no longer “forgotten.” If any of these things have happened in a case, they are not going to simply “disappear with time,” as some people think.  Now, more than ever issues with such things are easily discovered and MUST, as has always been the case, be disclosed in your immigration proceedings.  Not doing so may result in your deportation twenty years from now!  For example, read about operation Janus where individuals who were not properly naturalized, be it for lying or fraud in their immigration process, are now being denaturalized.  Also, if you are an immigrant who has an arrest or conviction and who has not yet naturalized, you are also exposing yourself to detention and deportation when traveling out and back to the United States.  Simply put, your biographical history is now in the internet and ignoring it is not a solution.
The bottom line is this.  We ARE living in the age of Big Brother and the U.S. government has the technology and the will to use it to enforce immigration laws.   Remember, Facebook, Instagram, Etc.… collect and share information with third party databases who in turn provide information services for the Government.  Your life is out there in the internet and immigration can get it. So, if you have issues with your immigration past, are having them now with immigration or the law, or think that you may have them in the future, consult or hire a competent immigration attorney who has dealt with cases like yours in the past.

Immigration knows your information, it already has it, so why lie? Disclosure is the best way.

It is hard to believe that the question “how will Immigration find out?” is still being asked by clients and relied upon by some lawyers.  Not only is this line of thinking one that may jeopardize an attorney’s license, it is an almost assured way of ruining a case.  In ANY immigration proceeding, be it your first or last, credibility is an essential part.  Why?  Because not only may your credibility support the case, in some instances it is the reason why you win it.  For example, an asylum case may be granted solely upon credible testimony. (Asylum Credibility) At the same time, the moment credibility is lost with an adjudicator or opposing party, it is very likely that the case will follow the same path – no matter if it is USCIS, an Asylum Officer, or an Immigration Judge.  So, advice.

First.  Always disclose arrests, marriages, changes of address, travel to and from the U.S., etc…  If for some reason your attorney tells you that such act or situation may be an issue: DEAL WITH IT up front.   Trying to hide it or not disclosing it to a department of state consul, an immigration officer or a customs and border protection agent will eventually surface, destroy your credibility and create a disqualifier in the form of fraud.  (Immigration Fraud Info) Further, remember that most things have waivers – few don’t, like a false claim to us citizenship (but even that may be salvageable!) – and it is better to disclose and request a waiver than to fail to disclose and, not only get your case on the path to assured denial, ending up with a fraud charge for which you may need a second waiver.

Second.  Tell your immigration attorney and keep a record of what you said.  Lawyers are human, they make mistakes, forget things, and cannot read minds.  So, do not assume that your lawyer knows something in your case if you have not expressly told him or her about it.  If you think something should be in everyone’s record tell your lawyer and let him or her guide you on that issue.  Take it as a serious warning if your attorney even hints at not disclosing a fact or issue with your case. (This is not to be confused with what the government must prove in its burden in certain cases, but this is a very fine line which you must walk with care).

Finally, keep in mind the information that you have in the internet.  It is public information in many cases.  Google, Facebook, Instagram and other applications and social media services provide a summary of the information they have collected on you.  (Ger your information) You may want to retrieve this information to have a record.

So, when dealing with immigration start from the idea that all negative information about you is in their hands. This leads to better preparation of cases and better results for you as you will not have to worry many years later if your citizenship may be revoked be cause of an undisclosed fact in your immigration history. (Denaturalization Cases)  So talk your attorney or if you do not have one, get one. Good luck.  For more information go to our main page.