The first preoccupation of the undocumented is fear from being apprehended by the Immigration and Customs Enforcement (ICE). A close second is being able to find a job to support oneself and family members. There is a greater danger, however, that is often overlooked. The undocumented is ignorant of those who will take advantage of him, and indeed defraud him, with promises of making him legal. Most often he becomes a victim by his own kind.
Don’t be a victim
The US Department of Justice recently released a memo entitled “Do Not Be a Victim of Immigration Fraud.” It warns the immigrant that notarios, immigration consultants, and visa consultants are not attorneys and may not represent clients in immigration court. The memo lists warning signs and steps to take to protect victimization. They include:
• DO NOT sign applications or papers that are blank.
• DO NOT sign applications or papers that you do not understand.
• DO NOT sign applications or papers that have false information.
• DO NOT pay money without getting a receipt.
• DO get copies of all applications or papers prepared or filed for you.
• DO check that an attorney or “accredited representative” can represent you in immigration court. (See Immigration Court Practice Manual, Chapter 2.)
• DO report complaints about “notarios,” visa consultants, and immigration consultants to your state Bar Association, state Office of Attorney General, and City Attorney.
In seeking protection, the vulnerable and fearful naturally gravitates toward what makes him feel comfortable, his own kind. Worse yet, the meaning of the title notario is different in the US than it is in Latin and European countries, where a notario is a lawyer elevated by the government to special status. In the U.S. a notary’s powers are very limited, usually reserved to swearing a person to an oath when signing a document, and verifying the signer’s authentic identity. This major difference makes it easy for the unscrupulous to victimize the desperate and the naïve.
During my 30 plus years of practice I have seen this repeated not only in the Latino community, but across all ethnic groups, including British, Russian and Armenian. These consultants routinely make promises that are not legally feasible, take large sums of money, file papers with incorrect, incomplete, and often fraudulent information, leaving the client unaware of the content of the applications filed. Typically, the client ends up in removal proceedings in immigration court where he then must confront the incorrect information.
Notarios and attorneys
The real problem occurs if in the earlier immigration interview, the client did not correct or recant the false information in the applications. Such behavior would cause the judge to doubt any of his testimony offered in court.
When the client returns to the consultant or notario to complain, again he is promised that everything will be taken care of because the consultant will find a good attorney to represent him in court. This offer by the consultant can lead to another problem: Finding a licensed attorney is necessary, but if the attorney continues to work with the consultant or the attorney routinely receives cases from the consultant, there is a dependent relationship and a clear conflict of interest that may work to the disadvantage of the client.
For example: the attorney who receives the case finds that the consultant/notary made serious errors in the client’s application, or worse, that the papers prepared by the consultant/notary misrepresented facts. Does the attorney continue to work with the consultant? He should not. Does the attorney advise the client to report the consultant/notary to the City Attorney, District Attorney, or Attorney General? Yes, he should. Does the attorney prepare the client to testify before the Immigration Judge putting the blame where it lies? Under most circumstances, this is in the best interest of the client, but may not be in the interest of future business to the attorney from the consultant.
Depending on the level the client’s case has reached, different options must be taken to dislodge him from the appearance of fraud or misrepresentation. This is done by doing a detailed sworn statement of the circumstances of meeting with the notario;/consultant, what he promised, the fees paid, what was delivered, whether the client was informed of the content of the application filed, provided a copy, or properly prepared for any immigration proceeding. It is also important to detail how and when the client learned of the errors or misrepresentations in the applications.
Equally important is to file a complaint against the notario/consultant with the City Attorney, Attorney General and District Attorney. I always encourage my clients to take such steps. Without it, a complaint about the facts and testimony in court would be less credible. Reporting the actions of the notario will also make it less possible for him to cause harm to others.
Special California Laws
My most recent experience in advising a client who had been victimized was in the Russian community. A consultant charged thousands of dollars for filling out an application for political asylum. The client did not know that the information was inadequate to make an asylum claim. Her application was therefore referred to the Immigration Judge where we had to withdraw the application. I encouraged her to report the incident to the district attorney. It turned out that 4 other victims had filed complaints against the consultant. After many delays, the consultant was convicted of offenses against all the clients, ordered to return the money she had received, and sentenced to three years in jail.
Some states, notably California, offer special laws for additional protection from notarios and consultants. California Business and Professional Code (sections 22440-22448) seeks to regulate the conduct of an immigration consultant, spelling out limitation of service, obligations and liabilities. The same law also provides clients with specific rights and remedies.
Limitation of service:
The consultant /notary
1. May not give legal advice.
2. May not provide guarantees of outcome
3. May not say that he has special influence or can obtain special favors with a judge or and immigration employee
5. Must not advertise himself as a notario, licenciado, abogado, implying that he is an attorney.
6. Must not charge a fee for referring a client to an attorney.
Obligations to the client:
1. Must post a $50,000 bond with the California Secretary of State for the benefit of any person damaged or injured by the consultant’s services; by fraud, unlawful act or omission;
2. Display a large sign in the office in bold letters 1” size that he is not an attorney, name, address and bond number, the services he provides and the price of each, name of each employee, and addresses of all offices;
3. Before beginning service, the consultant must give the client written information
with (a) his name, address, telephone number and bond number, (b) name of agent for service of process, (c) name of person who consulted with client;
4. Must return all original documents;
5. Must provide a copy of all applications filed with the immigration service;
6. Must provide a written contract in your language, listing the service he will provide;
7. A typed receipt on consultant’s letterhead for each payment made;
8. An accounting every two months of total fee and payments received, on consultant’s letterhead, with a translation in your language;
Rights & remedies of the client:
1. $100,000 penalty for each violation by a consultant/notary.
2. The City Attorney, Attorney General, and District Attorney may bring action against the notary /consultant. A finding of guilty will result in restitution to the client plus a fine between $2,000 and $10,000 or jail up to one year, or both. A second violation is punishable by imprisonment in state prison. .
3. Within 4 years of the services, the client can sue for damages. The recovery is actual damages (the amount paid to the consultant) plus $1,000 or three times the amount, whichever is greater, plus attorney fees and court costs. .
4. The client can also recover damages from the consultant’s bond.
The best remedy is to hire a lawyer experienced in immigration law, certified specialist being the best. If that is not possible, protect yourself by requiring the consultant to comply with California law, and if that fails, take legal action against him through your local small claims court and District Attorney. Chances are that you are not the first victim of this consultant.
Aggie R. Hoffman is a Certified Specialist in Immigration and Nationality Law, licensed by the State Bar of California and certified by the Bd.. of Legal Specialization. Ms. Hoffman has over 25 years of experience in a variety aspects of immigration law, from employment based (investors and PERM) to family immigration. Her victories include cases in Immigration Court, Board of Immigration Appeals, and Ninth Circuit Court of Appeals, focusing on reopening proceedings based on ineffective counsel. For more information, see www.arhlaw.biz .