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IMMIGRATION JANUARY 13, 2023 | The Indian Eye 35

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providing certain legal advice to un- chill speech.” While the government line both the adverse consequences yer advising an undocumented client
documented immigrants. has maintained that it will use INA and potential benefits of this course to remain in the United States in or-
The Ninth Circuit considered a §274(a)(1)(A)(iv) to prosecute per- of action to clients. Immigration law- der to become eligible for an immi-
case that illustrates how easily an im- sons who engage in the sort of crimi- yers should also keep in mind that gration benefit down the road would
migration lawyer could violate INA nal conduct that Hansen engaged in, ABA Model Rule 1.2(d), which has be prosecuted under INA §274(a)(1)
§274(a)(1)(A)(iv) by discussing even this broad provision could also allow analogs in many state rules of profes- (A)(iv), but presenting the general
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general immigration policies and an overzealous prosecutor to go after sional responsibility, states that “[a] consequences and benefits of re-
consequences with undocumented a well meaning worker in a nonprofit lawyer shall not counsel a client to maining in the U.S. in violation of the
clients. In United States v. Hender- who encourages an undocumented engage, or assist a client, in conduct law, as well as staying within the con-
son, 857 F. Supp. 2d 191 (D. Mass. immigrant to take shelter during a that the lawyer knows is criminal or fines of ABA Model Rule 1.2(d), can
2012), the government prosecuted a natural disaster. fraudulent, but a lawyer may discuss offer practitioners some guidelines
U.S. Customs and Border Patrol su- In the absence of clarity on how the legal consequences of any pro- for avoiding potential liability.
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pervisor under this provision for “ad- INA §274(a)(1)(A)(iv) could be ap- posed course of conduct with a client (This blog is for informational purposes
vis[ing her undocumented] cleaning plied to immigration lawyers advising and may counsel or assist a client to and should not be viewed as a substitute
lady generally about immigration law their clients, practitioners can refrain make a good faith effort to deter- for legal advice).
practices and consequences.” 857 F. from expressly advising or encourag- mine the validity, scope, meaning or
Supp. 2d at 193. As Judge Bumatay ing clients to remain in the U.S. in application of the law.” While it may *Kaitlyn Box is a Senior Associate at
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points out in his dissent of the Ninth violation of the law, and instead out- be unlikely that an immigration law- Cyrus D. Mehta & Partners PLLC.
Circuit’s decision denying an en banc _________________________________________________________________________________________________________
hearing, the conduct at issue in Hen- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
derson may be more egregious than Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
it first appears – the CBP supervisor mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
knowingly engaged an undocument- Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
ed employee and “coach[ed] the em- of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
ployee on how to evade immigration Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
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authorities while residing in the coun- Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
try”. Still, the majority in Hansen cit- on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
ed the example of Henderson being Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
prosecuted for advising her cleaning and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
lady about immigration law practices immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
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and consequences, and thus “makes the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
plain the ability of subsection (iv) to in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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