Much Ado About Nothing – Supreme Court Sanctions Immigration Consultant Who Committed Fraud
© Attorney Farhad Sethna, 2020
On May 7, 2020, the United States Supreme Court in US v Sineneng-Smith (slip opinion 19-67) took up a case involving the acquittal of an “immigration consultant” in San Jose California.
Evelyn Sineneng-Smith was alleged to have committed large-scale fraud by filing immigration applications which she knew that would never be approved under the law for numerous clients in order to adjust to lawful permanent resident status. She charged each client over $6000, netting more than $3.3 million.
By simple math, this amounts to approximately 550 clients!
What Sineneng-Smith did was to claim that her clients were eligible for labor certification and thereafter, permanent residency by filing under the “Life Act” provisions signed by President Clinton in 2000. There was only one small problem. Any such applications under the Life Act had to be filed by April 30, 2001. Therefore, Sineneng-Smith knowingly and willfully filed hundreds of applications that could never be approved. When she was brought up on charges of federal felony under 8 USC §1324(a)(1)(A)(iv) and (B)(i) which states it is a felony to “encourage or induce an alien to come to, enter, or reside in the United States knowing or in reckless disregard of the fact that such coming to, entry or residence is or will be in violation of law”, and an enhanced penalty under (B)(i), if the crime is “done for the purpose of commercial advantage or private financial gain”.
The US District Court in California convicted Sineneng-Smith. However, Sineneng-Smith appealed on first amendment grounds to the Ninth Circuit Court of Appeals. The Ninth Circuit overruled the District Court decision and held that the statute was constitutionally overbroad.
The Supreme Court would hear none of it. In a unanimous decision, the Supreme Court held that the Ninth Circuit had overstepped its boundaries, stating “the Ninth Circuit Panel’s drastic departure from the principle of party representation constituted an abuse of discretion.” What this basically means is that the Ninth Circuit took away the arguments that Sineneng-Smith’s own attorney had made on appeal, and instead substituted its analysis of overbroad statutory construction in its place, ruling that the statute was unconstitutional.
How does this opinion affect legitimate legal counsel for immigrants?
As far as affecting what honest attorneys do, this decision does nothing. As an honest attorney, our duty to give the client the facts and the law, and advise the client of their chance to prevail or not, remains sacred. As long as an attorney is honest and the client understands their chances of success or failure, Sineneng-Smith does not affect the attorney-client relationship.
Does Sineneng-Smith have any potential to affect even honest attorneys?
Yes. If an attorney believes that the statute may be interpreted differently and has some reasonable cause to advise the client to proceed with filing an application or litigating a matter on that basis, that will probably be protected. If, however, the statute is very clear, as in Sineneng-Smith – that there is no legal basis for approval of the application as presented, then the counsel is committing an error and might be violating the statute. Remember however, that Sineneng-Smith was limited only to the statutes cited above, and no other.
What is a good attorney supposed to do?
First of all, abide by the law. If the law provides for a possible application for relief, then by all means, the attorney is protected. A genuine application filed with genuine facts and no embellishments or material misrepresentation is going to protect the attorney. Additionally, if there are weaknesses in the legal posture of the case, make the client aware of it. Have the client sign a statement indicating that they understand the weaknesses and nevertheless still wish to proceed.
Finally, if the relief sought is clearly proscribed by the law, then don’t do it. Simply don’t file the application. It is far better to not have that particular fee than to run the risk of being upbraided by the courts and potentially, following the decision in Sineneng-Smith, by disciplinary counsel.
© Farhad Sethna, Attorney, 2020
Farhad Sethna has practiced law for over 25 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and used his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.