SCOTUS considers gutting ability of lawyers to help vulnerable migrants
One of the most important skills I learned in law school was how to come up with creative solutions to complex problems — how to think outside the box and see options where no one else could, and in that way, help people with their legal issues.
And that is what I do every day at Safe Horizon’s Immigration Law Project. As Director of the program, I oversee a team of lawyers, fellows, paralegals and administrative assistants who assist immigrant survivors of crime, violence, abuse, trafficking and torture seek safety and protection in the United States under our immigration laws.
It’s not always obvious what relief from removal, if any, a client has. Sometimes we have to push boundaries, challenge the status quo and come up with creative and novel arguments to try and establish new precedent. In other words, sometimes we try and change the law for the better. Like when we argue that a woman from Honduras who reports a rape by a gang member to the police is expressing a political opinion and is therefore eligible for asylum — even though the current law doesn’t favor such an outcome. There are times we are successful and other times, we are not. But that’s just what lawyers do and why folks come to us.
But now, there is the potential threat that we could be found criminally liable for doing just that — our job. The Supreme Court has agreed to take up United States v. Sineneng-Smith, a case that involves an obscure provision in the immigration laws that imposes liability on anyone who “encourages or induces” someone to reside in the United States knowing that such residence is in violation of the law.
Broadly written, this provision and the ultimate decision by the Supreme Court could have a devastating impact on the legal advocates community, not just sending a chill but grinding to a halt most of the legal work we do.
If a client came to us wanting to be sponsored for a “green card” by his U.S. citizen son who turns 21 next month, and I told him to come back in a month when the child turns 21 and then we could help them, could I be sent to jail for “encouraging or inducing” that person to reside in the United States without status? If we actually file an application for someone, say a U visa for a serious crime victim, which affords no status to the person while the application is pending, am I facing five years and a fine for “encouraging or inducing” someone to remain in the U.S. while their application is pending rather than leave the country to await the outcome? Is my entire organization implicated and culpable for “aiding and abetting” under the same provision for sanctioning the work of the program? What about those who refer clients to us — are they also at risk of being found liable for “aiding and abetting”? And what happens to the privilege of attorney-client confidentiality?
At a time when due process — a bedrock of this country’s legal system — is under attack, adequate and competent legal representation shouldn’t be stifled, it should be strengthened. There should be a universal right to counsel in immigration proceedings given the complexity and what’s at stake.
Those trained to do the work of explaining our immigration laws and helping others navigate it should be supported, not criminalized. And the Supreme Court should send a clear message that upholding the law, which lawyers are charged to do, should not be conflated with violating it.
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