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  This is the case of a permanent resident who obtains residence by fraud and it has not been revoked by immigration or an immigration judge.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.