The U.S. Supreme Court has agreed to consider the case of U.S. v. Sineneng-Smith involving an immigration consultant — Evelyn Sineneng-Smith — who told her undocumented clients they could stay in the United States under a program she knew had ended. She was convicted on a charge of fraud; however, the more worrisome issue is whether she also is guilty of unlawful encouragement of a person to violate U.S. immigration laws when she knew the person has no status. The U.S. Court of Appeals for the 9th Circuit vacated this portion of her conviction on the ground that the underlying law violates the freedom of speech guaranteed under the First Amendment of the Constitution. The court noted the chilling effect it could have not only on social media users merely commenting on whether persons should stay until the law changes but also on lawyers giving advice to their clients.
As this case winds its way to the Supreme Court, it is a powerful reminder – irrespective of whether the government’s position is correct on this set of facts – that lawyers must consider whether their conduct in advising clients complies with existing ethical and legal constraints. There are a number of scenarios where a beneficiary may fall out of status or otherwise lose entitlement to remain in the U.S. where the logical answer on what to do may not be the legal answer, especially if the Supreme Court reverses the 9th Circuit.