COMMENT: The Notario Problem
By Rebeca Ontiveros-Chavez
Associate Editor, Vol. 21
Executive Articles Editor, Vol. 22
Latin Americans are the largest immigrant group in the United States.[1] Many have fled from persecution in their country and seek asylum.[2] Others are involuntarily brought as infants or children by their parents or other family members. In some cases, these immigrants had lawful status and lost it. Some are eligible to apply for immigration relief. Of those seeking legal assistance, some become victim to the fraudulent practices of “immigration consultants” – or “notarios,” as they are referred to by Spanish speakers. In Latin America, a notario (literally, a “notary”)[3] is given special authority by the government in certain legal matters.[4] In the United States, some notarios pose as licensed immigration attorneys, preying on immigrants who do not understand the domestic legal system. This Comment contends that cities should take measures to combat the problem of notario fraud. A stricter approach is needed in regulating notaries involved in immigration law cases. Part I discusses notario fraud. Part II explains why most federal and state initiatives to combat fraud have been unsuccessful. Part III proposes that cities implement local ordinances similar to New York’s as a solution to combat fraud.
I. Notario Fraud
Latino immigrants face significant roadblocks to obtaining legal representation. This includes unfamiliarity with the U.S. legal system as well as linguistic and economic barriers limiting their access to legal resources. These roadblocks can make it extremely difficult for noncitizens that are indigent to get counsel.[5] The consequences and setbacks for victims of notario fraud can be severe.
Immigration clients come from countries whose legal systems differ from that of the United States.[6] Latino immigrants, unfamiliar with the U.S. legal system, may fall victim to notario fraud because they confuse legal duties with those performed by a notario in Latin America. Although a “notario” in Latin America is given special authority by the government in certain legal matters,[7] in the United States a “notario” is a notary public and is not usually a licensed attorney. The duties of a notary in the United States are limited to serving as an impartial witness related to the signing of documents and, if necessary, putting the signer under oath to declare the information in the document is true and correct.[8] They may help individuals prepare forms by filling in “spaces on printed Service forms,”[9] but cannot hold themselves out as qualified in legal matters.[10] Only attorneys, law students or law school graduates, reputable individuals (as defined in 8 C.F.R. § 292.1(a)(3)), and accredited representatives authorized by the Board of Immigration Appeals (BIA) can represent people in immigration matters.[11] BIA-accredited representatives include non-profit, religious, charitable, social service, or similar organizations[12] that charge nominal fees, have “adequate knowledge, information, and experience,” and have successfully applied for recognition.[13] It can be difficult for a person to distinguish the authority between someone helping them fill out a form and a licensed attorney qualified to offer substantive legal advice. A person correctly practicing immigration law appears “in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with the DHS, or any immigration judge, or the Board [of Immigration Appeals].”[14] This includes “the study of facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities.”[15] Unlike an attorney who has passed the bar exam, a notario has not demonstrated the necessary legal knowledge or expertise. Therefore, though not explicitly prohibiting notarios from representing people in immigration matters, the federal government has effectively excluded them by creating a high bar for immigration representation that most notarios do not meet.
Yet notarios exist in every immigrant community across the country, especially among those for whom English is a second language.[16] This may be the result of the linguistic barrier. Attorneys who do not speak more than one language are often not trained in cross-cultural issues, jeopardizing their ability to adequately represent immigration clients.[17] The differences in the legal systems often result in the inability to accurately convey the meaning of legal terminology, so the client may not fully comprehend.[18] This barrier may be partially overcome by the use of an interpreter, but that is a cost added to the legal service that some clients or attorneys might not be able or willing to incur. It can be difficult for Latino immigrants to pay not just legal costs, but also the expensive fees imposed by the government for legal filings. Some nonprofit organizations provide free or low-cost immigration legal services, but may only represent noncitizens in specific areas of immigration law.[19] Nonprofit organizations also lack the resources to help every client. The number of people needing legal representation exceeds the supply, and immigrants thus become vulnerable to the predatory practices of notarios.[20]
The consequences and setbacks can be severe for the victims of notario fraud. Victims can lose their savings and hand over original documents. Their eligibility for certain immigration benefits may be permanently destroyed as a result. “The most salient example is asylum, which has a one-year bar for filing after arrival into the United States. Many notarios tell people to file for asylum affirmatively when they are clearly ineligible. Their case is rejected by the USCIS office, referred to immigration court, and converted to a withholding of removal case. If a client is not advised of these risks, or impossibilities, that is a major issue because it can bring an otherwise unknown migrant to the attention of Immigration Customs and Enforcement.”[21] In some cases, notarios may make false promises that they can expedite the immigration process[22] or threaten to have the client deported.[23] Victims fear being deported and may have children, complicating the situation further. Unlike the criminal context,[24] there is no constitutional right to appointed counsel in immigration proceedings. Immigration law is complex and fact-dependent with regard to an immigrant’s particular situation.[25] The Immigration and Naturalization Act (INA) governs immigration policy, providing for an annual limit of permanent immigrants, with certain exceptions.[26] Congress and the President determine a separate number for refugee admissions.[27] Different types of immigration law include: family-based, employment-based, refugees and asylees, the diversity visa program, other forms of humanitarian relief, and U.S. citizenship.[28] Given these many frameworks, every case is different. Unlike a notario, an immigration attorney will be familiar with the legal consequences at stake and types of immigration relief available in each individual case.
II. Federal and State Initiatives
Federal and state initiatives have been implemented to combat fraudulent notario activity. On the federal level, tips to identify and avoid notario scams are offered by the Federal Trade Commission.[29] The United States Citizenship and Immigration Services (USCIS) offers a number of tools to help educate the immigrant community about such scams. These include flyers, brochures, posters, and public service announcements for use by radio outlets.[30] USCIS also provides information on how to report immigration-related scams on a state-by-state basis.[31]
On the state level, there are a number of statutes and regulations designed to combat the problem of notario fraud. Some states, including Arizona, Texas, California, Michigan, and Utah, require a notary public who advertises in a language other than English to post a disclaimer stating they are not a licensed attorney, and cannot give legal advice about immigration or any other matters.[32] Minnesota further requires that the disclaimer be posted in every other language in which the immigration services are provided.[33] Immigration service providers may not describe themselves as a “notary public,” “immigration consultant,” or any other name that “could cause a customer to believe [they are] authorized to provide advice on an immigration matter.”[34] Before rendering services, clients must be provided a written contract with “an explanation of the services” and all “costs to be charged.”[35] “Too often notarios (or even bad attorneys) only have oral agreements, which are difficult to dispute later.”[36] A written contract is thus a good step toward protecting clients.
In many states with requirements affecting notarios, failure to comply is a misdemeanor.[37] Arizona has gone further, making noncompliance a felony that carries permanent revocation of notary privileges.[38] Likewise, New York Governor Andrew M. Cuomo signed legislation in 2012 making the unlicensed practice of law a felony punishable by up to four years in prison.[39]
California subjects notarios[40] to numerous requirements beyond those typically seen at the state level. Providers must file a surety bond of $100,000,[41] pass a background check conducted by the Secretary of State,[42] and submit fingerprint images to the Department of Justice to obtain a record of past convictions and arrests.[43] Clients of notarios are granted the right to rescind a contract within 72 hours of signing.[44] Regulating notarios, however, creates a concern. Consumers may be led to believe they can do more than what the law allows.[45]
The Michigan Immigration Clerical Assistant Act targets the problem directly. It creates a private right of action for any person seeking equitable relief on behalf of the general public against an abusive immigration services provider.[46] But, this remedy is ineffective for immigrants who have already been victimized. Many times, the consequence of bad advice from a notario is deportation. A deported client is no longer able to go after the notario in state court.
Although federal and state initiatives are helpful, they are not sufficient. They tend to have the unintended effect of consumer overreliance; a private tort action is not effective because it is unenforceable by someone who is already deported. Finally, solutions at the federal or state level may be difficult to push through a hostile political climate, and they lack responsiveness to local conditions and stakeholders. Federal and state initiatives are different from local ones: the former are actually inferior solutions in this case. Further measures on the local level should be taken to provide equitable relief and stop such people from committing future fraud.
III. Solving the Notario Problem
The long-term solution to the problem faced by immigrants is to increase access to affordable legal assistance.[47] In the short-term, meanwhile, cities should adopt reporting and enforcement mechanisms by implementing ordinances. This would be an effective means of regulating notario fraud.
For example, New York City has sought to regulate notario fraud by implementing a Consumer Affairs local ordinance.[48] This ordinance allows “immigration assistance services.”[49] In doing so, it forbids the person to imply that they can or will obtain special favors from USCIS,[50] advertise the title of lawyer or the equivalent in English or another language,[51] or give any legal advice.[52] Before the immigration assistance services are provided, the customer must sign a contract in both English and, importantly, in a language the customer understands. The customer has the right to cancel the agreement within three business days. Furthermore, the forms are to be kept by the service provider for three years.[53] The ordinance also requires that signs (at least 11 inches by 17 inches) be posted at every location where the provider meets with the customer stating: 1) that the individual providing the assistance is not a licensed attorney or BIA representative and may not give legal advice; and 2) that the contract may be canceled within three days and that cancellation would allow for the return of any money paid.[54] The provider must also pay a surety bond of fifty thousand dollars in the event a person who is entitled to a refund of fees is injured, but not reimbursed.[55] A provider who violates any provision is guilty of a misdemeanor.[56]
Other cities with a high rate of immigrants who may be susceptible to notario fraud should implement something similar. A local ordinance gives city attorneys, local activists, non-profit organizations, city council members, and other stakeholders the opportunity to engage in dialogue to find a relevant solution. That local aspect is an advantage over federal and state initiatives because the ordinances can be better tailored to each city’s specific issues. Ordinances should keep the notice requirements and restrictions many state statutes and regulations require.
Because the confusion between “immigration consultant” and “notario” still exists, I recommend ordinances use another term to distinguish them from licensed attorneys by adding the qualifier, “non-lawyer.” This would make it clear that person is not a licensed attorney. Other cities could even go further by defining the types of services that may be provided. I would also recommend that an ordinance create a licensing requirement. This would allow the city to better regulate the service providers. Cities could offer a reporting mechanism equipped to handle tips in multiple languages. New York, for example, provides an Immigration Fraud Hotline answered by multilingual individuals.[57] If cities do not have the necessary resources, they might consider using Language Line, a service of translators available on request.[58] Cities could provide an e-mail address where victims or other community members can tip off city officials about fraudulent activities. Convictions due to notario fraud may be rare because there is not a mechanism in place for victims to report their abuse without fear. Prosecuting agencies’ tips can be very limited as a result.[59] The reporting mechanism may help alleviate fear and lead to more tips from the immigrant community.
Furthermore, I would urge USCIS to consider adding a new form a practitioner would file to prove that the client was advised about the prevalence of notario fraud. A separate page should be added to the forms most commonly filled out by notarios to warn a client in multiple languages about fraud. It can be very easy for an attorney to tell a client to sign a form, and have them comply without reading. It is not likely that the client will read through the new form in its entirety, but the client will also have to read the additional warning sheet in multiple languages. This will provide them additional notice about what they are signing.
Conclusion
Immigrants, particularly Latinos, are vulnerable to the predatory and unlawful practice of notario fraud. In addressing this problem, federal and state initiatives are helpful, but do not go far enough. As immigration continues to be a hot political topic, it is imperative that cities, particularly those with large Latino and other immigrant populations, take a stand and implement local ordinances similar to New York’s to combat and reduce notario fraud.
[1] Anna Brown & Renee Stepler, Statistical Portrait of the Foreign-Born Population in the United States, 1960-2013, Pew Research Center (Sept. 28, 2015) http://www.pewhispanic.org/2015/09/28/statistical-portrait-of-the-foreign born-population-in-the-united-states-1960-2013-key-charts/. By 2013, immigrant origins had changed dramatically as European and Canadian immigrants made up only a small share of the foreign-born population (14.2%), while Mexicans accounted for the largest share (28%). Asian immigrants made up 25.8% of all immigrants, other Latin Americans stood at 24%, and 8% were born in another region.
[2] See 8 U.S.C. § 1158.
[3] WordReference, http://www.wordreference.com/es/translation.asp?tranword=notary (last visited Jan. 30, 2016).
[4] Steve Tobocman, Competing for Immigrants: Michigan’s New Consumer Protection Laws, Mich. B.J., 16, 18 (2006).
[5] Stephen H. Legomsky & Cristina M. Rodriguez, Immigration and Refugee Law and Policy, 695 (Robert C. Clark et al. eds., 6th ed. 2015).
[6] Norma C. Connolly & Marilyn R. Tayler, Cross-Cultural Client Contact: Achieving Effective Communication, N.J. Law, 45, 49 (2004).
[7] Tobocman, supra note 4, at 18.
[8] What Is a Notary Public?, Nat’l Notary Ass’n (2015), http://www.nationalnotary.org/knowledge-center/about-notaries.
[9] 8 C.F.R. § 1001.1(k).
[10] Id.
[11] 8 C.F.R. § 292.1.
[12] 8 C.F.R. § 292.2(a).
[13] 8 C.F.R. § 292.2(a)(1)-(2).
[14] 8 C.F.R. § 1001.1(i).
[15] 8 C.F.R. § 1001.1(k).
[16] See Tobocman, supra note 7.
[17] Connolly & Tayler, supra note 6, at 46.
[18] Id.
[19] E.g., National Immigration Legal Services Directory, Immigration Advocates Network (2016), http://www.immigrationadvocates.org/nonprofit/legaldirectory/.
[20] Legomsky & Rodriguez, supra note 5, at 695.
[21] Interview with Darren Miller, Attorney, Michigan Immigrant Rights Center (2015).
[22] E.g., Nuñez v. Gonzales, 231 F. App’x 666 (9th Cir. 2007). Nuñez went to the office of “General Legal Services” for help. The owner was not a licensed attorney. She told Nuñez that she had friends inside the Immigration and Naturalization Service and that she could expedite Nuñez’s immigration papers.
[23] E.g., People v. Hernandez, No. 401160-09, 2010 WL 3843085 (N.Y. Sup. Ct. Feb. 25, 2010). When Hernandez’s clients complained that she never performed the services promised and requested a refund, she threatened to have them deported. She was brought to court and ordered to pay $3 million in restitution and penalties.
[24] Gideon v. Wainwright, 372 U.S. 335 (1963).
[25] Tobocman, supra note 7, at 19.
[26]How the United States Immigration System Works: A Fact Sheet, American Immigration Council (Mar. 1, 2014), http://www.immigrationpolicy.org/just-facts/how-united-states-immigration-system-works-fact-sheet.
[27]Id.
[28] Id.
[29] To warn the Latino immigrant community, the FTC recently released a “fotonovela” in Spanish. Fed. Trade Comm’n, Como Se Enteraron Myriam y Pedro De Las Estafas De Notario, Una Fotonovela De La Comision Federal De Comercio (May 2015), http://www.consumer.ftc.gov/sites/default/files/articles/pdf/spdf-0203-estafas-de-notario.pdf.
[30] Educational Tools, U.S. Citizenship & Immigr. Servs. (Sept. 2, 2015), https://www.uscis.gov/avoid-scams/educational-tools.
[31] Report Immigration Scams, U.S. Citizenship & Immigr. Servs. (July 11, 2014), http://www.uscis.gov/avoid-scams/report-immigration-scams.
[32] Ariz. Rev. Stat. § 41-329(A); Tex. Gov’t Code Ann. § 406.017(b); Cal. Gov’t Code § 8219.5 (a)(1); Mich. Comp. Laws § 55.291(5)(a); Utah Code Ann. § 46-1-11(2)(a)(ii).
[33] Minn. Stat. § 325E.031(2)(a).
[34] Minn. Stat. § 325E.031(3)(2).
[35] Minn. Stat. § 325E.031(4)(1)-(2).
[36] Interview with Darren Miller, Attorney, Michigan Immigrant Rights Center (2015).
[37] E.g., Minn. Stat. § 325E.031(6).
[38] Ariz. Rev. Stat. Ann. § 41-329 (B)
[39] Joseph M. Gietl, Like Lambs to the Slaughter: How Unregulated Immigration Practitioners Harm Immigrants, 19 Pub. Int. L. Rep. 66, 68 (2013).
[40] In California, notarios are regulated, and referred to as “immigration consultants.”
[41] Cal. Bus. & Prof. Code § 22443.1(a)(1).
[42] Cal. Bus. & Prof. Code § 22441.1(a).
[43] Cal. Bus. & Prof. Code § 22442.4(a).
[44] Cal. Bus. & Prof. Code § 22442(f).
[45] Lawyers Helping Victims, Stop Notario Fraud, http://www.stopnotariofraud.org/lawyers-help-victims.php (last visited Jan. 30, 2016).
[46] See Tobocman, supra note 7, at 19.
[47] Tobocman, supra note 7, at 18.
[48] N.Y. Code § 20-770 to -777.
[49] N.Y. Code § 20-771.
[50] N.Y. Code § 20-771(a)
[51] N.Y. Code § 20-771(d)
[52] N.Y. Code § 20-771(e)
[53] N.Y. Code § 20-772
[54] N.Y. Code § 20-773
[55] N.Y. Code § 20-776
[56] N.Y. Code § 20-777 (a)(2)
[57] Consumer Protection Agencies, Stop Notario Fraud, http://www.stopnotariofraud.org/agencies.php#ach-newyork (last visited Jan. 30, 2016).
[58] LanguageLine Solutions, Enabling Communication, Empowering Relationships, http://www.languageline.com/ (last visited Feb. 6, 2016)
[59] Kirk Semple and Jenny Manrique, Cumo Widens a Probe Into Immigration Fraud (May, 28, 2009) www.nytimes.com/2009/05/29/nyregion/29immigration.html?_r=0
