As a new administration takes office, significant changes are expected in the field of immigration law. Immigration attorneys must stay informed about these shifts, particularly regarding executive orders, congressional acts, and potential U.S. Supreme Court rulings that could impact their practice. A critical concern for attorneys will be the possible changes in how their legal advice is viewed, especially concerning the risk of criminal liability under the new administration.

Legal Risks and the Fine Line Between Legal and Illegal Advice

One of the most important legal developments for immigration attorneys is the 2023 U.S. Supreme Court ruling in U.S. v. Hansen. The case revolved around a fraudulent immigrant adoption scheme where the defendant, Helaman Hansen, falsely promised that adult adoption could lead to U.S. citizenship. Hansen was charged with encouraging or inducing noncitizens to reside unlawfully in the U.S., violating Title 8, Section 1324(a)(1)(A)(iv) of the U.S. Code, which prohibits the encouragement of illegal immigration.

This case has clarified that the law targets the intentional solicitation or facilitation of unlawful immigration acts. Immigration lawyers must be cautious when advising clients, as even unintentional encouragement could potentially lead to criminal liability. This ruling suggests that legal advice perceived as encouraging illegal actions, particularly under the incoming administration, may carry severe consequences.

How the Hansen Case Affects Immigration Lawyers

While Hansen was not applied to criminally prosecute immigration lawyers during the Biden administration, this could change with the new administration. Lawyers must understand that providing advice that leads clients toward actions violating immigration law may be considered criminal conduct. However, general legal advice, such as informing clients of their rights or explaining available forms of relief, is not inherently unlawful.

To avoid liability, attorneys should be very careful not to encourage actions that directly violate the law. In practical terms, a lawyer could advise a client about potential immigration relief options, but advising a client with a final removal order to stay in the U.S. without legal grounds might be seen as encouraging unlawful conduct under the new administration.

Risk of Assisting in Fraudulent Schemes

Immigration lawyers must also be aware of the possibility of being inadvertently involved in fraudulent schemes. For instance, filing asylum applications for clients without sufficient evidence to support their claims, purely to secure benefits like work permits, could lead to accusations of fraud. Past cases have shown that attorneys who file asylum applications without a valid claim have faced professional discipline.

The case of attorney Jose Bracamonte, suspended in 2020 for filing asylum applications with no intent to pursue the claims, serves as a cautionary tale. Lawyers must ensure that they are filing applications based on genuine claims and not simply to secure a client’s presence in the U.S.

How Lawyers Can Stay Safe

To avoid crossing the line into criminal conduct, immigration lawyers should be cautious in their practice. They should avoid giving advice that encourages or facilitates violations of immigration law, particularly regarding how to remain in the U.S. without legal status. Ensuring that all actions taken on behalf of clients are in line with the law is essential to maintaining professional ethics and avoiding criminal liability.

Practical Tips for Immigration Attorneys

1. Stay Informed: Lawyers should stay up to date on changes in immigration law by joining professional organizations like the American Immigration Lawyers Association (AILA), subscribing to legal updates, and staying current with executive orders and court cases.
2. Advise Objectively: Attorneys should separate their personal feelings from their legal advice, focusing on providing objective, lawful counsel while remaining compassionate.
3. Avoid Encouraging Illegal Acts: Lawyers should avoid advising clients to engage in unlawful actions, and should instead focus on helping clients understand their rights and available legal options.

As the immigration landscape shifts under a new administration, immigration attorneys must be more vigilant than ever. By focusing on lawful methods of immigration and avoiding any facilitation of illegal conduct, lawyers can continue to represent their clients with professionalism and integrity. Staying informed, adhering to ethical standards, and providing objective, lawful advice will ensure that attorneys can navigate the changing environment successfully.