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SCOTUS To Decide If Immigration Attorneys Can Fulfill Their Ethical Duty To Provide Zealous And Correct Representation

SCOTUS to decide if Immigration Attorneys can Fulfill their Ethical Duty to Provide Zealous and Correct Representation

By: Jaclyn Fortini Laing

United States v. Sineneng-Smith

The Supreme Court of the United States has agreed to hear the federal government’s appeal from the Ninth Circuit ruling in the case United States v. Sineneng-Smith. The case in that ruling involves a little-used portion of the Immigration and Nationality Act. This statute finds that it is illegal to advise anyone who is illegally in the United States that they should reside in the United States.

Although the law could be seen as unconstitutional on its face (see below), SCOTUS has never before agreed to determine its constitutionality, although it was used to prosecute a litigant under the George W. Bush administration.

How does this involve the U.S. Constitution?

The provision could violate the First Amendment Freedom of Speech by controlling what one says. Historically, SCOTUS has limited free speech in a variety of ways, including where the speech is made. However, in this case, if SCOTUS were to find that the law is Constitutional, it could criminalize comments made on social media, advice given to friends or family, or even advice that an attorney gives to her client.

What’s the problem for immigration attorneys?

Immigration attorneys often have clients that are in the United States without immigration status. Depending on the circumstances of the case, there are sometimes ways that the client can later immigrate or attain immigration status legally. If SCOTUS were to find that this statute is Constitutional, it would criminalize any advice that an immigration attorney gives a potential client or client that is currently in the United States without status.

Beyond the repercussions that this has on attorneys’ Freedom of Speech, all attorneys have an ethical duty to present zealous and correct advocacy on behalf of their clients. Part of that is giving a client all of her options. Clearly, if an attorney cannot advise a client on how to attain legal status, that advocacy is neither zealous nor correct. In fact, it’s not even advocacy. The government would effectively be tying immigration attorneys’ hands against advocating for their clients.

We can take a common example. A non-resident alien enters the United States on a visa and overstays that visa. She later meets a U.S. citizen and marries. If she leaves the United States before applying for and receiving a Green Card, she will have trouble re-entering, if she can in fact re-enter at all. SCOTUS’ ruling could make telling her that illegal.

What does this mean for me?

Whether you’re a non-resident alien in the United States, an immigration attorney, or a U.S. citizen, the chipping away at Freedom of Speech is disconcerting. Please direct any questions or concerns to Fortini Laing Law here.

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