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AB-638 Immigration consultants.(2017-2018)

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Date Published: 05/30/2017 02:00 PM
AB638:v96#DOCUMENT

Amended  IN  Assembly  May 30, 2017
Amended  IN  Assembly  April 24, 2017
Amended  IN  Assembly  March 23, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 638


Introduced by Assembly Member Caballero Members Caballero and Gonzalez Fletcher

February 14, 2017


An act to amend and repeal Section 6126.4 of, to amend, add, and repeal repeal, and add Section 6126.7 of, to add Section 22449.5 to, and to repeal and add Chapter 19.5 (commencing with Section 22440) of Division 8 of, the Business and Professions Code, and to amend and repeal Section 8223 of the Government Code, relating to immigration consultants.


LEGISLATIVE COUNSEL'S DIGEST


AB 638, as amended, Caballero. Immigration consultants.
(1) Existing law regulates the practice of immigration consultants who provide nonlegal assistance or advice in an immigration matter. Existing law prohibits any person, for compensation, from engaging in the business or acting in the capacity of an immigration consultant in this state, unless that person complies with the regulations in state law governing the practice of immigration consultants, is an attorney, or is authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services.
This bill would repeal those provisions, as well as related provisions, as of January 1, 2019, and, instead, by January 1, 2019, prohibit any person, for compensation, from engaging in the business or acting in the capacity of an immigration consultant in this state, as provided. The bill would, notwithstanding that prohibition, authorize specified actors to act in the capacity of an immigration consultant, including attorneys and a person or entity authorized under federal law to represent persons before the United States Department of Homeland Security or the United States Department of Justice. The bill would provide that attorneys and organizations accredited by the Executive Office for Immigration Review shall be the only individuals authorized to charge clients or prospective clients a fee for providing services associated with filing an application related to an immigration matter. The bill also would prohibit attorneys and organizations accredited by the Executive Office for Immigration Review from participating in practices that amount to price gouging, as defined, when a client or prospective client solicits these services. The bill would make it unlawful for any person engaged in business or acting in the capacity of an immigration consultant to do specified acts.
The bill would require the Secretary of State, by January 1, 2019, to notify any person who was registered as an active immigration consultant at any time on or after January 1, 2016, that immigration consulting is prohibited as of January 1, 2019. The bill would require a person who was registered as an active immigration consultant at any time on or after January 1, 2016, to provide each existing client specified files in his or her possession by March 1, 2018, and to, until January 1, 2020, post a sign on his or her place of business informing the public of the prohibition on immigration consulting.
This bill would establish both criminal and civil penalties for a violation of the provisions described above, and would thereby impose a state-mandated local program. The bill would provide that a violation of certain provisions of the State Bar Act that make it an unauthorized practice of law for any person who is not an attorney to literally translate from English into another language the phrases “notary public,” “notary,” “licensed,” “attorney,” “lawyer,” or any other terms that imply that the person is an attorney constitutes a violation of these provisions.
(2) Existing law provides that, under specified conditions, a public entity has a privilege to refuse, and to prevent another from disclosing, official information acquired in confidence by a public employee in the course of his or her duty, and not open, or officially disclosed, to the public prior to the time the claim of privilege is made. Under existing law, custodial or peace officer records are accessible provided that the information is relevant to the subject matter involved in the pending litigation.
This bill would deem any client records or information obtained during the scope of an investigation relating to immigration consultants as privileged as official information.
(3) Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 6126.4 of the Business and Professions Code is amended to read:

6126.4.
 Section 6126.3 shall apply to a person acting in the capacity of an immigration consultant pursuant to Chapter 19.5 (commencing with Section 22440) who advertises or holds himself or herself out as practicing or entitled to practice law, or otherwise practices law.
This section shall remain in effect only until January 1, 2019, and as of that date is repealed.

SEC. 2.

 Section 6126.7 of the Business and Professions Code is amended to read:

6126.7.
 (a) It is a violation of subdivision (a) of Section 6126 for any person who is not an attorney to literally translate from English into another language, in any document, including an advertisement, stationery, letterhead, business card, or other comparable written material, any words or titles, including, but not limited to, “notary public,” “notary,” “licensed,” “attorney,” or “lawyer,” that imply that the person is an attorney. As provided in this subdivision, the literal translation of the phrase “notary public” into Spanish as “notario publico” or “notario,” is expressly prohibited.
(b) For purposes of this section, “literal translation of” or “to literally translate” a word, title, or phrase from one language means the translation of a word, title, or phrase without regard to the true meaning of the word or phrase in the language that is being translated.
(c) (1) In addition to any other remedies and penalties prescribed in this article, a person who violates this section shall be subject to a civil penalty not to exceed one thousand dollars ($1,000) per day for each violation, to be assessed and collected in a civil action brought by the State Bar.
(2) In assessing the amount of the civil penalty, the court may consider relevant circumstances presented by the parties to the case, including, but not limited to, the following:
(A) The nature and severity of the misconduct.
(B) The number of violations.
(C) The length of time over which the misconduct occurred, and the persistence of the misconduct.
(D) The wilfulness of the misconduct.
(E) The defendant’s assets, liabilities, and net worth.
(3) The court shall grant a prevailing plaintiff reasonable attorneys’ fees and costs.
(4) A civil action brought under this section shall be commenced within four years after the cause of action accrues.
(5) In a civil action brought by the State Bar under this section, the civil penalty collected shall be paid to the State Bar and allocated to the fund established pursuant to Section 6033 to provide free legal services related to immigration reform act services to clients of limited means or to a fund for the purposes of mitigating unpaid claims of injured immigrant clients under Section 22447, as directed by the Board of Trustees of the State Bar. The board shall annually report any collection and expenditure of funds for the preceding calendar year, as authorized by this section, to the Assembly and Senate Committees on Judiciary. The report required by this section may be included in the report described in Section 6086.15.
(d) This section shall remain in effect only until January 1, 2019, and as of that date is repealed.

SEC. 3.

 Section 6126.7 is added to the Business and Professions Code, to read:

6126.7.
 (a) It is a violation of subdivision (a) of Section 6126 for any person who is not an attorney to literally translate from English into another language, in any document, including an advertisement, stationery, letterhead, business card, or other comparable written material, any words or titles, including, but not limited to, “notary public,” “notary,” “licensed,” “attorney,” or “lawyer,” that imply that the person is an attorney. As provided in this subdivision, the literal translation of the phrase “notary public” into Spanish as “notario publico” or “notario,” is expressly prohibited.
(b) For purposes of this section, “literal translation of” or “to literally translate” a word, title, or phrase from one language means the translation of a word, title, or phrase without regard to the true meaning of the word or phrase in the language that is being translated.
(c) (1) In addition to any other remedies and penalties prescribed in this article, a person who violates this section shall be subject to a civil penalty not to exceed one thousand dollars ($1,000) per day for each violation, to be assessed and collected in a civil action brought by the State Bar.
(2) In assessing the amount of the civil penalty, the court may consider relevant circumstances presented by the parties to the case, including, but not limited to, the following:
(A) The nature and severity of the misconduct.
(B) The number of violations.
(C) The length of time over which the misconduct occurred, and the persistence of the misconduct.
(D) The wilfulness of the misconduct.
(E) The defendant’s assets, liabilities, and net worth.
(3) The court shall grant a prevailing plaintiff reasonable attorneys’ fees and costs.
(4) A civil action brought under this section shall be commenced within four years after the cause of action accrues.
(5) In a civil action brought by the State Bar under this section, the civil penalty collected shall be paid to the State Bar and allocated to the fund established pursuant to Section 6033 to provide free legal services related to immigration reform act services to clients of limited means or to a fund for the purposes of mitigating unpaid claims of injured immigrant clients under Section 22447, as directed by the Board of Trustees of the State Bar. The board shall annually report any collection and expenditure of funds for the preceding calendar year, as authorized by this section, to the Assembly and Senate Committees on Judiciary. The report required by this section may be included in the report described in Section 6086.15.
(d) In addition to any other remedies and penalties prescribed by this article, a person who violates this section shall be subject to the remedies and penalties provided by Chapter 19.5 (commencing with Section 22440) of Division 8.
(e) This section shall become operative on January 1, 2019.

SEC. 4.

 Chapter 19.5 (commencing with Section 22440) is added to Division 8 of the Business and Professions Code, to read:
CHAPTER  19.5. Immigration Consultants

22440.
 For purposes of this chapter, the following terms have the following meanings:
(a) “Compensation” means money, property, or anything else of monetary value.
(b) “Immigration matter” means any proceeding, filing, or action affecting the immigration or citizenship status of any person which arises under immigration and naturalization law, nonimmigrant visa, executive order or presidential proclamation, or action of the United States Citizenship and Immigration Services, Department of Homeland Security, the United States Department of State, or the United States Department of Labor.

22441.
 A person engages in the business or acts in the capacity of an immigration consultant when that person gives legal or nonlegal assistance, advice, or services on an immigration matter. That assistance or advice includes, but is not limited to, the following:
(a) Drafting an application, brief, document, petition, or other paper, or completing a form provided by a federal or state agency in an immigration matter.
(b) Advising a person as to the supporting documents which may be necessary to complete any application, brief, document, petition, or other paper provided by a federal or state agency in an immigration matter.
(c) Submitting completed forms on a person’s behalf to the United States Citizenship and Immigration Services or any other entity in connection with an immigration matter.
(d) Making referrals to persons who could undertake legal representation activities for a person in an immigration matter.

22442.
 (a) (1) It is unlawful for any person, for compensation, to engage in the business or act in the capacity as an immigration consultant in this state, except as provided by this chapter.
(2) A violation of this subdivision shall also constitute a violation of subdivision (a) of Section 6126 as an unlawful practice of law.
(b) Notwithstanding subdivision (a), the following persons may act in the capacity as an immigration consultant:
(1) A person, or qualified designated entity authorized by federal law to represent persons before the United States Department of Homeland Security or the United States Department of Justice.
(2) An attorney, or a paralegal working under the direction and supervision of an attorney.
(3) An employee of a nonprofit tax-exempt corporations from helping clients complete application forms in an immigration matter free of charge or for a nominal fee, including reasonable costs, consistent with that authorized by the Executive Office for Immigration Review under Section 292.2 of Title 8 of the Code of Federal Regulations.
(c) Attorneys and organizations accredited by the Executive Office for Immigration Review shall be the only individuals authorized to charge clients or prospective clients fees for providing consultations, legal advice, or any other services associated with filing any application related to an immigration matter.
(d) (1) Attorneys and organizations accredited by the Executive Office for Immigration Review shall be prohibited from participating in practices that amount to price gouging when a client or prospective client solicits services associated with filing an application related to an immigration matter.
(2) For the purposes of this section, “price gouging” means any practice that has the effect of pressuring the client or prospective client to purchase services immediately because purchasing them at a later time will result in the client or prospective client paying a higher price for the same services.
(3) In addition to the civil and criminal penalties described in Section 22446, a violation of this subdivision by an attorney shall be cause for discipline by the State Bar pursuant to Chapter 4 (commencing with Section 6000) of Division 3.
(e) This chapter does not authorize a notary public to engage in the business or act in the capacity of an immigration consultant, unless that person would otherwise be authorized pursuant to subdivision (b). However, this chapter does not prohibit a notary public from providing services that he or she is authorized to provide under any other law, including Chapter 3 (commencing with Section 8200) of Division 1 of Title 2 of the Government Code.

22443.
 It is unlawful for any person engaged in the business or acting in the capacity of an immigration consultant to do any of the following acts:
(a) Make false or misleading statements to a client while providing services to that client.
(b) Make any guarantee or promise provided to a client, unless the guarantee or promise is in writing and the person has some basis in fact for making the guarantee or promise.
(c) Make any statement that the person can or will obtain special favors from or has special influence with the United States Citizenship and Immigration Services, or any other governmental agency, employee, or official, that may have a bearing on a client’s immigration matter.
(d) Charge a client a fee for referral of the client to another for services which the referring party cannot or will not provide to the client.

22444.
 (a) By January 1, 2019, the Secretary of State shall notify any individual or entity registered as an active immigration consultant at any time on or after January 1, 2016, and listed on the Secretary of State’s Internet Web site pursuant to subdivision (e) of former Section 22443.1, of the prohibition on immigration consulting under this chapter and the operative date of that prohibition.
(b) By March 1, 2019, any individual who was registered as an active immigration consultant at any time on or after January 1, 2016, shall provide each existing client a full and complete copy of his or her file or any other records that the consultant has regarding that client, and shall return to that client any original documents that the client had provided to the consultant. The former immigration consultant may charge his or her former client reasonable fees for photocopying of any records, not to exceed fifty cents ($0.50) per page.
(c) A person who was registered as an active immigration consultant at any time on or after January 1, 2016, shall, until January 1, 2020, post a clear and conspicuous sign, using the language developed by the Secretary of State, on his or her business informing the public of the prohibition on immigration consulting in the state. The Secretary of State shall develop, and provide to the former consultant, appropriate language for this purpose.
(d) Notwithstanding Section 22449, this section shall become operative on January 1, 2018.

22445.
 Any client records or information obtained during the scope of an investigation relating to immigration consultants by any state or local officer shall be privileged as official information within the meaning of Section 1040 of the Evidence Code.

22446.
 (a) (1) A person who violates this chapter shall be subject to a civil penalty not to exceed one hundred thousand dollars ($100,000) for each violation, to be assessed and collected in a civil action brought by any person injured by the violation or in a civil action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney. An action brought in the name of the people of the State of California shall not preclude an action being brought by an injured person.
(2) The court shall impose a civil penalty for each violation of this chapter. In assessing the amount of the civil penalty, the court may consider relevant circumstances presented by the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.
(3) Any action brought pursuant to this section by the Attorney General, a district attorney, or a city attorney shall also seek relief under subdivision (c) of Section 22447.
(4) If the Attorney General brings the action, one-half of the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered, and one-half to the General Fund. If a district attorney brings the action, the civil penalty collected shall be paid to the treasurer of the county in which the judgment was entered. If a city attorney brings the action, one-half of the civil penalty collected shall be paid to the treasurer of the city in which the judgment was entered, and one-half to the treasurer of the county in which the judgment was entered.
(b) In addition to the provisions of subdivision (a), a violation of this chapter is a misdemeanor punishable by a fine of not less than two thousand dollars ($2,000) or more than ten thousand dollars ($10,000), as to each client with respect to whom a violation occurs, or imprisonment in the county jail for not more than one year, or by both fine and imprisonment. However, payment of restitution to a client shall take precedence over payment of a fine.
(c) A second or subsequent violation of Section 22443 22443 or 22444 is a misdemeanor subject to the penalties specified in subdivisions (a) and (b). A second or subsequent violation of any other provision of this chapter Section 22442 is a felony punishable by imprisonment in state prison. county jail.
(d) A criminal action brought pursuant to this section shall be commenced within five years after discovery of the commission of the offense.

22447.
 (a) A person claiming to be aggrieved by a violation of this chapter by an individual or entity who is engaged in the business or acting in the capacity of an immigration consultant in violation of this chapter may bring a civil action for injunctive relief or damages, or both. If the court finds that the defendant has violated a provision of this chapter, it shall award actual damages, plus an amount equal to treble the amount of actual damages or one thousand dollars ($1,000) per violation, whichever is greater. The court shall also grant a prevailing plaintiff reasonable attorneys’ fees and costs.
(b) Any other party who, upon information and belief, claims that an individual or entity has engaged in the business or acted in the capacity of an immigration consultant in violation of this chapter may bring a civil action for injunctive relief on behalf of the general public and, upon prevailing, shall recover reasonable attorneys’ fees and costs.
(c) The Attorney General, a district attorney, A district attorney or a city attorney who claims a violation of this chapter has been committed by an individual or entity engaged in the business of or acting in the capacity of an immigration consultant, may bring a civil action for injunctive relief, restitution, and other equitable relief against the immigration consultant in the name of the people of the State of California.
(d) A civil action brought under this chapter shall be set for trial at the earliest possible date, and shall take precedence over all other cases, except older matters of the same character and matters to which special preference may be given by law.

22448.
 Any civil action to enforce any cause of action pursuant to this chapter shall be commenced within five years after the cause of action has accrued. The cause of action is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the violation.

22449.
 Except as provided in Section 22444, this chapter shall become operative on January 1, 2019.

SEC. 5.

 Section 22449.5 is added to the Business and Professions Code, to read:

22449.5.
 This chapter shall remain in effect only until January 1, 2019, and as of that date is repealed.

SEC. 6.

 Section 8223 of the Government Code is amended to read:

8223.
 (a) A 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 not advertise in any manner whatsoever that he or she is a notary public.
(b) A notary public qualified and bonded as an immigration consultant under Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions Code may enter data, provided by the client, on immigration forms provided by a federal or state agency. The fee for this service shall not exceed fifteen dollars ($15) per individual for each set of forms. If notary services are performed in relation to the set of immigration forms, additional fees may be collected pursuant to Section 8211. This fee limitation shall not apply to an attorney, who is also a notary public, who is rendering professional services regarding immigration matters.
(c) This section shall not be construed to exempt a notary public who enters data on an immigration form at the direction of a client, or otherwise performs the services of an immigration consultant, as defined by Section 22441 of the Business and Professions Code, from the requirements of Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions Code. A notary public who is not qualified and bonded as an immigration consultant under Chapter 19.5 (commencing with Section 22440) of Division 8 of the Business and Professions Code may not enter data provided by a client on immigration forms nor otherwise perform the services of an immigration consultant.
(d) This section shall remain in effect only until January 1, 2019, and as of that date is repealed.

SEC. 7.

 The Legislature finds and declares that Section 3 of this act, which adds Section 22445 of the Business and Professions Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
It is necessary to protect the privacy of client records obtained during the course of an investigation.

SEC. 8.

 The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 8.SEC. 9.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.