The Immigration and Naturalization Service is threatening to deport an illegal immigrant. She will be given a court hearing to make her case for political asylum. However, though she fled her homeland after losing her job due to her political views and is likely to suffer further mistreatment if she is sent back, she probably will not win in court.
As a member of an organization dedicated to helping such persons, I am giving this woman free legal assistance. She is considering two unlawful possibilities: (1) improving her chances for asylum by overstating her role in the opposition to the regime in power in her homeland (thereby exaggerating the prospect that she will be imprisoned or worse if she returns there), or (2) participating honestly in the trial, but if, as we expect, unsuccessful in court evading deportation by going underground.
I firmly believe that this refugee and others like her ought to be given asylum and that deporting them is unjust. In my view, U.S. law does not make fair provision for such people, and the law’s injustice is regularly made worse by the way it is applied. Yet my code of professional ethics tells me I may never knowingly use perjured testimony or assist or counsel a client to engage in any other conduct I know to be criminal or fraudulent.400 If caught in a violation, I could be convicted of a crime and/or disbarred. Still, everyone admires and commends people—such as those who hid Jews from the Nazis—who violated laws and took personal risks to protect the innocent from injustice.
What should I do? Perhaps the possibilities should be distinguished, so that I should help this client do either (1) or (2) but not both. Or perhaps there are other possibilities; and if so, what might they be?
This question calls for applying norms regarding perjury and compliance with laws. The questioner should not advise or help any client to commit perjury. It might be morally permissible or even obligatory for a U.S. citizen to assist a refugee who was objectively justified in violating the immigration law or a lawful order to leave the country. But lawyers should provide an example of conformity to law and, if they practice law as part of their personal vocation, should avoid risking their professional status. Therefore, even if otherwise justified in helping a refugee violate the law, the questioner should minimize his or her complicity.
It is helpful to consider what the refugee herself should and should not do.
If in testifying she expressed her sincerely held but exaggerated view about the significance of her role in opposing the regime in power in her homeland, making the truthful overstatement would not be wrong. But you indicate that she contemplates deliberately exaggerating. Such overstatement would be wrong, for it would be lying and, indeed, lying under oath: perjury. Perjury not only is wrong as lying always is, but is more gravely wrong than other lying, because it dishonors God by calling him to witness the lie.401 A good end cannot justify choosing as a means any act morally wrong in itself. Therefore, the refugee may not commit perjury, even as a means to avoid unjust deportation and its consequences, no matter how disastrous these might be.
Though defective in many ways, the government of the United States basically serves the common good, and its laws and legal procedures on the whole are just (see q. 169, above). Even forgetting its genocide, the Nazi regime was thoroughly corrupt; it greatly injured the German nation, issued and implemented many arbitrary edicts, and regularly used unjust methods to control people. What good people did under the Nazis is not necessarily a model for us. We Americans have good reason to presume the laws of our country to be just until the contrary is established, and, though a law requiring something wrong must not be obeyed, we often have good reason to comply with our country’s laws even when convinced they are not just (see LCL, 880–81). By contrast, those subject to the power of the Nazi regime had good reason to presume that any edicts originating with it would be unjust and few reasons, other than concern about sanctions, for complying with orders they judged unjust.
Still, the worst people in this world are not totally corrupt and the best, except for Jesus and Mary, are not sinless; and no human government is totally unjust or perfectly just. In some respects, even under the Nazis, the rule of substantially just law endured in Germany and deserved respect, and in some instances arbitrary impositions occur in our country and occasionally warrant noncompliance.
So, having honestly participated in a hearing, a refugee might be morally justified in illegally evading deportation and going underground, provided he or she has good reasons—for example, based on a reasonable fear of serious harm to himself or herself or on duties toward dependents.402 Going underground, however, will be justified only if, all things considered, asylum is unjustly denied, that is, if the U.S. morally ought to grant it but does not. Thus, the client should consider everything, apply the Golden Rule, and ask herself: If I were a conscientious American citizen, would I consider it my country’s duty to accept the burden of providing asylum for all refugees whose prospects if deported were as bad as, or worse than, mine truly are? She will be justified in ignoring a lawful order to leave the country only if she can honestly answer yes—that is, if she believes it certain or more probable than not that asylum should have been granted.
Moreover, since lying is excluded, she will not be justified in insincerely promising to comply with an order to leave the country (which, if the hearing results in that order, may be the only way for her to gain the freedom from custody necessary to evade deportation), or in fabricating and telling a cover story to conceal her illegal status from people she will have to deal with while residing illegally in the United States.
As for your responsibilities, you certainly should not advise or help any client to commit perjury. For a lawyer to advise or cooperate in perjury, no matter how good the end sought, is a great moral evil, for it adds to the evil of perjury itself a radical betrayal of the lawyer’s role as an officer of the court and a servant of just legal process, which is vital to the common good of the whole society. Then too, as explained below, lawyers ordinarily should not advise or help clients engage in criminal conduct, even when the lawbreaking itself could be justified; a fortiori, they should never involve themselves in unjustifiable lawbreaking, such as perjury. Finally, even if perjury were a morally acceptable tactic, it would be risky. Lies often are unconvincing, and unconvincing liars seldom elicit the compassion of those they try to deceive. Therefore, advise your client not to commit perjury under any circumstances.
There is, however, a vast difference between perjury and presenting an effective, persuasive case. Help your client prepare her testimony, so that everything favorable to her case will appear as clearly and forcefully as possible.403 Since there is no perjury in truthfully stating what one sincerely believes, help her present her honest opinion regarding all the difficulties she will face if repatriated, even if you consider her honest view overly pessimistic. And of course you may rightly advise her not to say anything more than she must to answer the questions put to her, since going further might harm her case, and neither morality nor law requires her to volunteer information that might be disadvantageous to her.
So much for the first possibility. What about advising or assisting your client in morally justified lawbreaking?
If the client is convinced she is doing the right thing, others could be justified in advising and helping her evade deportation—of course, after making their own conscientious judgment that, though unlawful, it is certainly morally permissible for them to help her or, at least, is more likely their moral obligation than not.
For lawyers, however, there usually are special considerations making it unreasonable, and therefore wrong, to advise or assist in anyone’s lawbreaking, even if it is justified in itself. First, their example of conformity to law is especially important, and their involvement in any lawbreaking often provides bad example and leads others to violate the law unjustifiably. Second, they should practice their profession as part of their personal vocation: to help people obtain justice and protect them from various harms, to make a living for themselves and their families, and so on. If they practice law with such commitments, they have compelling reasons to avoid risking their professional status, and lawbreaking does that. For instance, if you were convicted of conspiracy to violate the immigration laws and disbarred for helping this particular refugee, you could not help other refugees in the future obtain the asylum to which they are legally entitled.
Therefore, in response to your client’s inquiry about the possibility of evading deportation if asylum is not granted, tell her that is illegal and, as a lawyer, you cannot advise or help her violate the law. You may, of course, explain the likely consequences of going underground, even if doing so might encourage her to attempt it. Certainly, if you can think of any practical, lawful alternative that might solve her problem—such as seeking asylum in some third country—you should suggest it and, depending on your resources and her need, perhaps should assist her in pursuing it.
But suppose you can think of no such alternative, and you consider your client’s prospects, if deported, so bad that, in your judgment, she is both morally justified in evading deportation and morally entitled to others’ unlawful help. Might you then rightly judge that you should do something illegal to help her evade deportation? Perhaps. On the stated supposition, you would regard helping her not only as morally acceptable in itself but as the responsibility of anyone who could help and had no overriding reason not to. Still, if helping involved lying or doing anything else wrong in itself, it would be excluded.
But suppose one could help without wrongdoing? Even then, you would have overriding reasons to minimize your complicity, namely, to avoid, insofar as possible, two things: giving an example that might lead others to disrespect the law and risking your professional status. Some people are not only ready to help refugees whose deportation they judge would be unjust but also free of responsibilities that require them to avoid complicity in lawbreaking of this sort. As a member of an organization dedicated to helping refugees, you probably are acquainted with such people or know someone who would be likely to know them. If so, you could communicate anonymously with them, describe the refugee’s desperate situation, and encourage them to help.
Note, though, that giving your client even such indirect help in breaking the law would violate the relevant provision, noted above, of your code of professional ethics. Like some violations of law itself, however, some violations of professional ethics are not morally wrong. If you were justified in helping your client violate the law, you also might well be justified in violating your code of professional ethics.
Someone might object that it would be hypocritical to try to avoid giving others bad example if one justifiably participates in violating the law and one’s code of professional ethics. The objection begs the question. Hypocrisy is trying to appear virtuous when sinning, not trying to prevent the scandal that might result from a virtuous deed if it were done openly.
400. See American Bar Association, Model Code of Professional Responsibility (1986), DR 7–102 (A) (4) and (7); Model Rules of Professional Conduct, Rule 1.2 (d).
401. Some courts permit an affirmation in place of an oath but still regard it as perjury to make a false statement under affirmation. Such statements, though not irreverent except as all sins are, remain an especially grave kind of lying.
402. Mark Gibney and Michael Stohl, “Human Rights and U.S. Refugee Policy,” in Open Borders? Closed Societies? The Ethical and Political Issues, ed. Mark Gibney (New York: Greenwood Press, 1988), 151–83, show that the level of political terror in a country does not correlate well with favorable adjudications for people seeking asylum.
403. A guide for lawyers: Deborah E. Anker, The Law of Asylum in the United States: A Guide to Administrative Practice and Case Law, 2nd ed. (Washington, D.C.: American Immigration Law Foundation, 1991).