Can my lawyer tell me to stay in the United States illegally?
- 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 This is the case of a permanent resident who obtains residence by fraud and it has not been revoked by immigration or an immigration judge.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.
- 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?
- 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.
ICE has undertaken the practice of detaining individuals at state courthouses when they appear for matters unrelated to their immigration case. The explanation given by the agency is that communities that do not place “immigration holds” on immigrants have “forced their hand” towards this practice. This is utter nonsense. ICE has a significant number of tools with which to locate and apprehend aliens who they consider high priority such as gang members or people with previous deportations orders. One, they can simply look them up and detain them at their homes or other locations. In today’s day and age, its almost impossible for someone not to leave a digital trail that will allow law enforcement to find them. Two, if an individual is on probation for a serious offense and is on probation, ICE can detain him or her at the probation officer’s appointments. Three, ICE may and does detain a significant number of individuals with criminal backgrounds while they are traveling in and out of the Unite States. Just from these examples it is clear that ICE has other options beyond going to courthouses to pick up aliens. The real reason is obvious, as with denaturalization cases and other actions, to send a chill through the immigrant community in order to have them “self deport” and/or creating legal hurdles to being in the U.S. Not OK as the person ultimately in charge of these policies has said. If not look at the opinion of 77 ex-judges on this matter.
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.