Introduction

The number of scam artists preying upon immigrants seeking assistance in obtaining legal residence, work authorization, or citizenship has risen dramatically in recent years. Many unscrupulous consultants claim that they are attorneys or that they have close connections to the Immigration and Naturalization Service (INS). Others use titles such as notary public or notario to deceive people into believing that they are lawyers. In many Spanish-speaking countries, a notario is an attorney, often possessing more credentials than other lawyers.

In many areas, honest and responsible immigration consultants provide a real service. Unfortunately, there are almost always dishonest consultants, and frequently dishonest attorneys as well. Victims of these scams not only lose large sums of money but also are likely to suffer serious harm to their immigration status.

There are a number of reasons why immigrants are targeted. Many new immigrants feel a sense of desperation about their immigration status. Their dreams of permanent residency in the United States often lead them to believe the outrageous claims of unscrupulous consultants. The problem is compounded by the lack of affordable legal services nationwide. To make matters worse, many legal aid offices are barred from helping certain categories of immigrants. The few organizations that do exist are often overwhelmed with requests for help.

Typical Scams

Those seeking to adjust their legal status or obtain work authorization in the United States are often bewildered by the complex immigration laws in this country. Frequent changes and adjustments in these programs make understanding immigration law even more difficult. Unscrupulous immigration consultants take advantage of these circumstances in many different ways.

Typical scams include:

• Charging exorbitant fees for immigration services and then failing to file any documents
• Filing false asylum claims on behalf of victims who do not speak or read English and have no idea what the application contains
• Charging fees to prepare applications for nonexistent immigration programs or for legitimate programs for which the client does not qualify, such as asylum or labor certification.

Recent Cases and Developments

• Columbia Legal Services in Washington filed a lawsuit against an immigration consultant for allegedly persuading more than 2,000 undocumented immigrants to sign up for voluntary deportation. Many hoped to take advantage of a supposed “10 year law” that the consultant allegedly told them was a sure route to a work permit and legal permanent residence. Few actually qualified for the program and about 150 of these immigrants are now facing deportation. (more)
• The District Attorney in Los Angeles on March 20, 2001 announcedan immigration fraud sweep.(da.co.la.ca.us/ imigration.htm)
• California Attorney General sued unbonded immigration consultants (http://caag.state.ca.us/newsalerts/2003/03-033.htm)
• The Federal Trade Commission has issued a consumer alert about immigration consultants who charge exorbitant rates and make unrealistic claims about the Diversity Lottery.(more) The U.S.currently issues about 50,000 visas annually under what is known as the "Green Card Lottery." Except for a few countries that have a high rate of immigration to the U.S., individuals from most countries can apply for the lottery as long as they meet certain requirements. For more information about the Lottery, click here.

The Mexican American Legal Defense and Educational Fund (MALDEF), the Midwest Immigrant & Human Rights Center (MIHRC) and private attorney Steve Saltzman sued the I.N.S. alleging that the Chicago I.N.S. office was aware of a widespread problem of “immigration consultants” erroneously advising individuals to apply for legal permanent residence many years before they would become eligible, but still accepted these applications for processing. http://www.maldef.org/news/press.cfm?ID=126

Legal Remedies to Challenge Immigration Consultant Fraud

This discussion is most appropriate for attorneys and others interested in the range of legal claims available to challenge immigration consultant fraud. Information more suitable for consumers is available at "Preventing Fraud" below.
Beware of Dishonest Immigration Consultants.

Specific Immigration Consultant Statutes

Many states have enacted statutes regulating immigration consultants. Most of these statutes exempt accredited representatives. An accredited representative is a nonattorney working for an organization accredited by the Board of Immigration Appeals. (8C.F.R. §292.1(a)(4). Nonattorneys who work for nonprofit agencies or law school legal clinics are also generally exempt from state immigration consultant statutes. All of these statelaws prohibit immigration consultants from providing legal assistance. Several specify limited services that the consultant may lawfully perform. The remedies for violations of these statutesvary from state to state. Most statutory violations constitute a misdemeanor. In some states, repeat violations raise the crime to a felony. Several of the statutes also provide a private right ofaction.

The following is a current list of state immigration consultant statutes:

Arizona: Ariz. Rev. Stat. Ann §§12-2701-12-2704

California: Cal. Bus. & Prof. Code §22440-44

Illinois: 815 Ill. Comp. Stat. 505/2AA

Michigan: Mich. COmp. L. Ann §338.3451

Minnesota: Minn. Stat. §325E.031

New Jersey: N.J. Stat. Ann. §2C:21-31

New Mexico: N.M. Stat.Ann. §§36-3-1 to 36-3-10

Oregon: OR. Rev. Stat. §9.280

Washington: Wash. Rev. Code §§19.154.010 to 19.154.902

Some states regulate immigration consultant services through laws governing the notary public profession. See, e.g., Colorado: Colo. Rev. Stat. §12-55-110.3, North Carolina: N.C. Gen. Stat. §10A-9, Michigan: Mich. Comp. L. Ann. §55.291; Oklahoma: Okl. Stat. Ann. Tit. 49 §6; Tennessee: Tenn. Code Ann. §8-16-402; Texas: Tex. Gov. Code §406.017.

State Statutes Prohibiting Unfair and Deceptive Business Practices (UDAP)

Every state and the District of Columbia have enacted at least one statute broadly applicable to most consumer transactions, aimed at preventing consumer deception and abuse in the marketplace.

UDAP statutes may be used to challenge unfair, deceptive, or fraudulent practices.UDAP claims may also be based on unauthorized practice oflaw statutes, discussed below. However, in most cases it is not necessary for the UDAP action to be based on a violation of another statute. For a list of state UDAP statutes and more information about these powerful tools, see National Consumer Law Center, Unfair and Deceptive Acts and Practices. (NCLC publications)

State Statutes Prohibiting the Unauthorized Practice of Law

State laws governing the unauthorized practice of law may also be utilized, either through public agency enforcement or in some instances by private lawsuits.

In most states, nonattorneys are prohibited from practicing law. The definition of practice of law varies, but in most cases nonattorneys are allowed to make legal forms available to consumersand to complete these forms at the direction of the consumer. They are not, however, permitted to give legal advice pertainingto the particular facts of an individuals’ case. For example, they cannot advise a particular immigrant thatfiling asylum is the best way for that person to obtain legal status.

In most states, an unauthorized practice of law (UPL) violation does not give riseto a private right of action.However, private individuals may be able to utilize stateUDAP statutes in order to obtain civil remedies. In addition, most UPL statues provide for criminal penalties. The American Bar Association publishes a summary of UPL statutes and case law and other information on this topic. (www.abanet.org)

State Contract Translation Statutes

A few states require businesses to give consumers translations of contracts if they negotiate (or in some cases advertise) in other languages. Many of these statutes provide for cancellation of the contract if the seller (or immigration consultant) fails to provide a requiredtranslation. (See Contract Translation Statutes Information)

Other Causes of Action

In addition to UDAP and UPL statutes, many states have enacted other general consumer protection statues that may govern practitioner activity. False advertising statues should also be considered. In addition, common law causes of action, such as fraud and breach of contract, may be pled against unscrupulous notarios.

To Find Out More

For a more extensive analysis of these issues, see Loonin, Michon, and Kinnecome, & quot; Fraudulent Notarios, Document Preparers, and Other Nonattorney Service Providers: Legal remedies for a Growing Problem & quot;, 31 Clearinghouse Review 327 (November/December 1997) (www.povertylaw.org)

The Immigrant Legal Resource Center (www.ilrc.org) is another organization that works on immigration consultant fraud issues. Much of their work is focused on encouraging law enforcement officers to actmore aggressively against unscrupulous consultants.The organization also has a project to assist immigrants bring cases against consultants in small claims court.

ILRC has a report, "Immigration Consultant Fraud: Laws and Resources" aimed at assisting District Attorneys and others to prosecute immigration consultant fraud."

Preventing Fraud

Immigration consultant fraud occurs largely because there is a lack of affordable legal assistance in this country. As long as low-income people have difficulty accessing thelegal system, there will likely be nonattorneys vying for theirbusiness. Not allimmigration consultants are rip-off artists, and in some casesclients feel more comfortable doing business with them.Too often, however, the consultants lack the required skills and/or intentionally aim to rip off unsuspecting consumers.

One important solution to the problem of nonattorney scams is to continue to advocate for expansions in free or sliding scale legal services and probono commitments. For information about available free legal resources in immigrationmatters, see www.usdoj.gov/eoir/probono/states.htm

There are also preventative steps that clients and their advocates can take, including:

1. Contacting local and state regulatory agencies (usually bar organizations) to check whether legal providers claiming tobe attorneys are in fact licensed to practice law.

2. Working with law enforcement to encourage criminal prosecution of offenders.

3. Advising clients of their rights when using nonattorney services, including:

• In most cases, a right to receive a written contract (and inmany cases three days to cancel those contracts)
• In many cases, a right to a translated copy of the contract
• In many cases, a right to a contract explicitly stating in bold letters that the provider is not an attorney.

Rights vary significantly depending on state law.

The consumer education hand-out below is written for clients.This information is adapted in part from other consumer education brochures on this topic including those prepared by Public Counsel Law Center in Los Angeles (www.publiccounsel.org), The Immigrant Legal Resource Center (www.ilrc.org), and the New York City Mayor’s Office of Immigrant Affairs and Language Services. www.ci.nyc.ny.us/ html/imm/home.html. State advocates should feel free to adapt the information below to conform to specific requirements or additional protections available in their states.