By Daniel Colbert, ACLR Featured Blogger

1/25/2014

          As Congress debates comprehensive immigration reform, one of the widespread abuses it should address is one of which immigrants are the victims: notario fraud. Narrowly defined, notario fraud is the unauthorized provision of legal services to individuals seeking help with their immigration status, but it can also include others falsely holding themselves out as experts in immigration.

          Language and cultural barriers, as well as the threat of deportation, make immigrants vulnerable to fraud in many contexts, but a quirk of language creates a unique opportunity for exploitation. In many Latin American countries, the term “notario publico” refers to someone licensed to practice law.[1] American notary publics who may have no expertise at all in law or immigration can advertise to recent immigrants using a term that implies a certification to practice immigration law.

          As a result, notario fraud is ubiquitous among immigrant communities. According to one study, 13 percent of immigrants consulted a notario for help dealing with immigration agencies, and that percentage increases for Latin American immigrants.[2] Most alarmingly, 47 percent of undocumented immigrants and 49 percent of asylum-seekers had used the services of a notario. Those figures are the most recent available, but they come from a 1996 survey; one must imagine that the demand for notario services has only increased since then.

          Many of these notarios lack the skills needed to navigate the immigration process correctly. The forms they submit to immigration agencies often contain errors or false statements.[3] Unfortunately, the fees paid to these unlicensed and unprepared notarios are not the only cost immigrants bear; they also suffer negative consequences in the form of unnecessary deportations or even civil or criminal liability.[4]

Existing remedies and Their Shortcomings

            The biggest barrier to prosecuting fraudulent immigration service providers is a lack of reporting. For obvious reasons, immigrants – especially those with questions regarding their legal status – are reluctant to contact authorities to report a crime. Outreach and community policing strategies can help,[5] but the USCIS has also stressed capacity building with NGOs that serve immigrant communities.[6]

            For those immigrants who do report a crime, there are reasons to doubt that they are protected from adverse consequences of that reporting. U visas encourage crime reporting by ensuring victims will not be deported. Unfortunately, those visas are only available for victims of certain enumerated crimes, of which notario fraud is not one. There may be certain fact patterns under which some notario fraud victims qualify as a victim of an enumerated crime, but there is no blanket rule guaranteeing a U visa to notario fraud victims.[7]

            When notario fraud is prosecuted, it is under general fraud statutes, rather than any specific statute directed at notarios. In some cases, the prosecution may be able to get stricter penalties under the Sentencing Guidelines’ “vulnerable victims” provision, but immigration status does not automatically make a victim “vulnerable.”[8]

Proposed Legislation

            Effective legislation addressing notario fraud must therefore create specific penalties for fraudulent notarios, protect victims from negative consequences of reporting, and build capacity among community organizations that serve immigrants. The Protecting Immigrants from Legal Exploitation Act, introduced in 2013, addresses each of these goals.[9]

            First, the bill would make it a federal crime to defraud someone in connection with immigration law. It would also direct the Department of Homeland Security and the Department of Justice to require immigration service providers to identify themselves on the documents they helped prepare, and it would give the Attorney General authority to seek civil injunctions against notarios.

            More importantly, the bill encourages reporting by protecting victims against adverse consequences. It allows victims of notario fraud to withdraw or correct any incorrectly prepared documents prepared by a fraudster. Furthermore, it removes the bar on reentry for immigrants who left the country after receiving incorrect advice from a fraudulent notario.

             Finally, the bill also creates an education initiative informing immigrants about requirements for immigration practitioners and creates grants for nonprofit organizations to assist with immigration applications. Educating immigrant communities through groups with existing relationships in those communities will increase the effectiveness of the bill’s other provisions.

            Any reforms in immigration law will change the way immigrants interact with the government and will require even more expertise to navigate. Congress ought to recognize that immigrants – documented or not – are vulnerable to a particularly pernicious sort of fraud, against which they need additional protection. Passing H.R. 2936 will go a long way to give law enforcement agencies the tools they need to prosecute fraudsters who prey on these immigrants.