Unauthorized Practice of LawCalifonrnia Laws, Regulations and Procedures for

How To File A Complaint Against a “Notario Publico”

COMBATING NOTARIO FRAUDCOMBATING NOTARIO FRAUD

Co-Sponsored by:The American Bar Association Commission on Immigration

Office of the County Counsel, County of Santa Clara &

Pro Bono Project

Materials created by Erin J. Finsten, Esq., ABA Commission on Immigration. Also including materials created by Julianne Donnelly from Catholic Legal Immigration Network, Inc

OverviewNotary v. Notario Publico

Consequences to Victims

Individuals Authorized to Undertake Representation in Immigration Court

Limits On What a Notary May Do

State Penalties for Unlawful Practice of Immigration Law

How to Lodge a Complaint

Notary vs. Notario PublicoNotaryNotary NotarioNotario

A Notary may:– Take acknowledgements;– Administer oaths;– Take depositions;– Certify copies of documents

not recordable in the public records;

– Show that a disinterested party duly notifies the validity of a document;

– Show that a signer is indeed who s/he says s/he is and that his/her reasons for signing are genuine.

May charge a fixed fee for services, established by the State of California, not to exceed $10.

In Latin American countries, a notario publico is considered a high ranking official that must be a legal professional with the title of lawyer.A Notario Publico (outside of the U.S.) may:– Be an arbitrator;– Be a mediator;– Issue judicial proceedings;– Ensure that documents such

as by laws of companies, wills, deeds, powers of attorney, real estate purchases and establishment of trusts do not include any legal inconsistencies.

Must charge based on an established fee schedule, which can reach thousands in U.S. dollars.

Notary v. Notario Publico(The Problem)

Although “notario,” or the equivalent, in many other countries means that an individual is an attorney, this is not the case inthe United States.Thousands of immigrants are victimized by people who exploit this confusion and falsely represent themselves as “notarios.”Common schemes include:

Promising a quick work permit, then filing a fraudulent asylum application, leading to an order of removal (deportation).

– Important to know whether removal ordered “in absentia”

Falsely representing that a notario can reduce sentences on convictions or prepare complex appeals.Filing petitions for people barred by law from getting the benefit they seek.

Consequences

Removal orders

Applications for relief considered abandoned

Persons made vulnerable to denial of benefits for allegedly providing false information (e.g., where the victim didn’t see or sign what the notario filed on their behalf)

Thousands of dollars extorted from victims

People Who May Undertake Representation in Immigration Court

• A licensed attorney• A law student supervised and accompanied by an

attorney• A BIA Accredited Representative (associated with a

BIA accredited Organization) (see 8 CFR 292.2)� To verify whether a person (non-attorney) or agency is authorized

to provide immigration legal services check the website of the Executive Office for Immigration Review (EOIR) at http://www.usdoj.gov/eoir/statspub/raroster.htm , for the most current list of agencies and individuals authorized to provide immigration legal services.

• A reputable individual who has a relationship with the immigrant which pre-exists the representation and who receives no payment for their assistance

� See: 8 C.F.R. § 292.1(a)(1)-(6)

Limits of What a Notary May Do Regarding Immigration Matters

May not prepare legal documents or act as a legal advisor unless he or she is a licensed attorney.

Can provide clerical, secretarial, or translation assistance with immigration forms, so long as they don’t provide legal advice, and they may notarize these forms.

State Penalties For Unlawful State Penalties For Unlawful

Practice of Immigration LawPractice of Immigration Law

Basic Charging Statute for UPLThe Unauthorized Practice of Law is governed by Business and Professions Code §§6125-6133.

“No person shall practice law in CA unless the person is an active member of the State Bar.”(§6125)

“Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized…to practice law in this state at the time of doing so, is guilty of a misdemeanor…”(§6126(a))

Basic Charging Statute for UPL (Penalties)

Up to one year in jail or $1000 fine, or both (§6126(a))

Contempt of Court sanctions (§6127)

Additional remedies and penalties “…in any enforcement action brought in the name of the people of the State of CA by the AG, a DA or a city attorney, acting as a public prosecutor.”:– Actual Damages

– Restitution of all amounts paid

– Amount of penalties and tax liabilities incurred…

– Reasonable attorney’s fees and costs…

– Prejudgment interest…

– Appropriate equitable relief… (§6126.5)

The Court is to award relief in §6126.5 directly to victims. (§6126.5(b))

Definition of “Practice of Law”

Neither §6126 of the B & P Code, no any other CA statute, defines the practice of law.

However, the CA Supreme Court and court of appeals have developed a definition that serves the purpose of “…definitively establishing, for the jurisprudence of this state, the meaning of the term ‘practice law’.”

– Birbower,Montalban, Condo & Frank, P.C. v. Superior Court, 17 Cal.4th 119, 127-128 (Cal. 1998)

Definition of “Practice of Law”

“Practice Law” as used in §§6125 and 6126 means:– …the doing and performing services in a court of

justice in any matter depending therein throughout the various stages and in conformity with the adopted rules of procedure. It includes legal advice and

counsel and the preparation of legal instruments and contracts by which the legal rights are secured

although such matter may or may not be pending in a court.

Id.

Notary Act – Government Code §§ 8200-8230

Any notary public who is not an attorney, and advertises in a language other than English, shall post with that advertisement, a notice in English and in the other language:– The statement: “I am not an attorney and, therefore, cannot give

legal advice about immigration or any other legal matters.””

– The fees set by statute which a notary public may charge. (§8219.5)

Literal translation of the phrase "notary public" into Spanish, hereby defined as "notario publico" or "notario," is prohibited. (§8219.5)

The Secretary of State may suspend or revoke the notary’s commission for failure to comply with these provisions. (§8219.5)

Notary Act

No notary public who holds himself or herself out as being an immigration specialist, immigration consultant or any other title or description reflecting an expertise in immigration matters shall advertise in any manner whatsoever that he or she is a notary public. (§8223)

Notary Act

“Whenever it appears to the Secretary of State that any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this chapter or any rule or regulation prescribed under the authority thereof, the Secretary of State may apply for an injunction, and upon a proper showing, any court of competent jurisdiction has power to issue a permanent or temporary injunction or restraining order to enforce the provisions of this chapter…” (§8222)

Notary Act

It shall be a misdemeanor for any person who is not a duly commissioned, qualified, and acting notary public for the State of California to do any of the following: – Represent or hold himself or herself out to the public

or to any person as being entitled to act as a notary public.

– Assume, use or advertise the title of notary public in such a manner as to convey the impression that the person is a notary public.

– Purport to act as a notary public. (§8227.1)

Permissible Non-Representation, CA Immigration Consultant Act

Calif. Bus. & Prof. Code § 22440-22447

Permits immigration consultants to perform non-legal immigration assistance:– Transcribing answers on forms

– Translating Q&As on forms

– Getting supporting docs

– Submitting completed forms

– Referrals to legal representation

Must pay a $50K bond to CA

Rules re files, contracts, written notice– i.e.-Contract must include provision that client may report

complaints to the Office of Immigrant Assistance of the DOJ and UPL complaints to the State Bar of California. §22442

Immigration Consultant Act

An IC must conspicuously display a sign in boldface type, in English and in native language of clientele:

– A statement that the IC is not an attorney.Additional requirements - §22442.2

“An IC shall not, with the intent to mislead, literally translate, from English into another language, the words or titles, including, but not limited to, “notary public,” “notary,” “licensed,”“attorney,” “lawyer,” or any other terms that imply that the person is an attorney…” §22442.3

– “Literal Translation” – translation w/out regard to the true meaning of the word. Id.

Penalties for Violating Consultant Act

Civil penalties (§22445 and §22446.5)– Fine of up to $100,000 per violation

– Case may be brought by any person injured for injunctive relief or damages or both.

Actual damages; treble damages; reasonable attorneys' fees

– Case may be brought by the AG, a DA or a city attorney (does not preclude an action brought by an injured person.)

Injunctive relief; restitution; other equitable relief

Criminal penalties (don’t apply to minor violations-- i.e. failure to post notice)– First violation = misdemeanor w/ $2K to $10K fine per offense

OR imprisonment for not more than 1 year

– Second violation = felony punishable by state prison

SOL = 4 years from discovery of the commission of the offense.

CA Penal CodeFalse or Misleading Statements in Preparing Immigration Matters Cal. Penal § 653.55-§653.61 = misdemeanor– Punishable by up to 6 mo.s jail / $2.5K fine; Civilly

enforceable– Action may be brought by AG, DA, County Counsel, City

Attorney, or City Prosecutor.– Action may be brought upon the complaint of any person

injuredMay recover greater of actual damages or $500; andCosts of the suit, including Attorneys’ fees.

Grand Theft Cal. Penal § 487– Elements: (1) false statements (2) w/ intent to defraud V

and (3) V defrauded– Max sentence varies based on whether value of property

taken is > $400 (felony) or < $400 (misdem.)

Illegal Practice – Bus. & Prof. Code §16240

Every person who practices, offers to practice, or advertises any business, trade, profession, occupation, or calling, or who uses any title, sign, initials, card, or device to indicate that he or she is qualified to practice any business, trade, profession, occupation, or calling for which a license, registration, or certificate is required by any law of this state, without holding a current and valid license, registration, or certificate as prescribed by law, is guilty of a misdemeanor.

False Advertising – Bus. & Prof. Code §17500 et seq.

It is unlawful for any person…with the intent directly or indirectly to dispose of real or personal property or to performservices…to make or disseminate…any statement which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading. §17500Governed by the “capacity to deceive” legal standard. Not necessary to prove intent to defraud, reliance, or actual injury.– Committee on Children’s Television v. General Foods, 35 Cal.3d

197 (1983).

Criminal Penalties – fine up to $2500 and up to 6 months in jailCivil Penalties up to $2500 per violation – for public agenciesInjunctive ReliefRestitutionCosts – for specified public agencies

Unfair Competition – Bus. & Prof. Code §17200 et seq.

Any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising

Civil liability up to $2,500 per violation

Injunctive Relief

Restitution

If the victims included senior citizens or disabled persons, up to $2,500 additional penalty per violation

Sample Cases

The People of the State of CA v. Trust International (2004)– AG obtained temp. restraining orders against 3

Sacramento Immigration Consultants

The People of the State of CA v. Immigration World Wide Services (2003)– Settled lawsuits against 13 individuals violating state

laws regulating business of Immigration consulting. Judgments included closure of one of the firms and more than $200,000 in civil penalties, costs and restitution.

How to Lodge a How to Lodge a

ComplaintComplaint

How to Lodge Complaints

CA State Bar Association– Submit written complaint form to: Office of the Chief

Trial Counsel, Intake State Bar of CA, 1149 S. Hill St., LA CA 90015

– 800-843-9053; www.calbar.org

Immigration Court (EOIR)– Submit written complaint (form E-44) to EOIR Office

of the General Counsel, ATTN: Bar Counsel, 5107 Leesburg Pike, Ste. 2600, Falls Church VA 22041

US Citizenship and Immigration Services– Submit E-44 to USCIS Office of the Chief Counsel,

ATTN: Bar Counsel, 70 Kimball Ave., Room 103, S. Burlington, VT 05403

How to Lodge Complaints

CA Dept. of Justice, Office of Immigration Assistance– 888-587-0557; www.caag.state.ca.us

– Online Consumer Complaint Form

Better Business Bureau– 408-278-7400; http://sanjose.bbb.org

County of Santa Clara Consumer Protection Division–– 408408--792792--28802880

Some Things to Keep in Mind When Filing A Complaint With the Secretary of State’s Office, the UPLC and/or

the Attorney General’s Office

The purpose of filing this type of complaint is not necessarily to get money back from the immigration consultant but to notify the state agency about possible deceptive and unfair business practices. If enough complaints are filed about the same immigration consultant, the state agency might take action against the individual to stop the deceptive or unfair practices.

Remember: it is the client’s decision as to whether to file a complaint against an immigration consultant. If you decide to assist a client, you should make sure that the client understands the pros and cons of filing such a complaint.

– For example, the anti-immigrant sentiment that is apparent in many states might lead some state officials to question whether they should report undocumented people to the Department of Homeland Security.