II

106TH CONGRESS

2D SESSION S. 3074

To make certain immigration consultant practices criminal offenses.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 20, 2000

Mr. SCHUMER introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To make certain immigration consultant practices criminal

offenses.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Immigration Protec5 tion Act of 2000’’.

6 SEC. 2. FINDINGS.

7 Congress finds the following:

8 (1) There is an epidemic of fraud directed

9 against aliens engaged in dealings with the Immigra10 tion and Naturalization Service.
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1 (2) Fraudulent immigration consultants target

2 aliens working their way through the maze of immi3 gration law and extract hundreds of thousands of

4 dollars in exchange for promises of help in dealing

5 with the Immigration and Naturalization Service.

6 (3) For example, phony immigration consult7 ants—who lure clients by approaching aliens in line

8 at Immigration and Naturalization Service buildings

9 or by advertising in foreign-language newspapers—

10 promise, for a fee, to help immigrants obtain resi11 dency or green cards by using personal back-channel

12 connections at the Immigration and Naturalization

13 Service or by filing a supposedly necessary applica14 tion.

15 (4) Rather than legitimately assist aliens with

16 the Immigration and Naturalization Service, fraudu17 lent consultants then take one or a succession of fees

18 and either do nothing, or worse, file meritless asy19 lum petitions designed to result in rejection and de20 portation.

21 (5) Fraudulent immigration consultants often

22 pose as immigration lawyers. In particular, some

23 who target Spanish-speaking immigrants become no24 taries public in order to advertise as ‘‘notarios,’’ who

25 are attorneys in Latin America.
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1 (6) Aliens victimized by fraudulent consultants

2 are usually too fearful of deportation, or unsure

3 where to turn, to report the fraud to Government of4 ficials. Consequently, fraudulent consultants operate

5 with near-impunity.

6 (7) Because fraudulent immigration consultants

7 work in the shadows and provide services that are

8 unregulated in many States, it is impossible to de9 termine how many such illegitimate businesses exist.

10 State officials and immigrants’ advocacy groups esti11 mate, however, that the problem of aliens exploited

12 by bogus consultants has grown in recent years, and

13 that thousands of fraudulent consultants are at work

14 across the country.

15 (8) Federal and State efforts to rein in fraudu16 lent immigration consultants have not succeeded in

17 ending the abuse. At the Federal level, there is no

18 jurisdiction to prosecute fraudulent consultants un19 less they participate in the submission of false docu20 ments to the Immigration and Naturalization Serv21 ice. Since many phony consultants scam aliens with22 out filing paperwork with the Immigration and Nat23 uralization Service, they cannot be reached by Fed24 eral law enforcement.
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1 (9) The Department of Justice intended to es2 tablish five Federal-State task forces to combat

3 fraud by immigration consultants in major cities

4 with large immigrant populations. Only one such

5 task force has been established, however—in Los

6 Angeles.

7 (10) Enforcement by State authorities is spo8 radic. Many make no effort to pursue and prosecute

9 bogus consultants. And even when con artists are

10 convicted, most jurisdictions punish fraud against

11 aliens as misdemeanors.

12 SEC. 3. DEFINITIONS.

13 In this Act:

14 (1) ATTORNEY.—The term ‘‘attorney’’ means

15 any person who is a member in good standing of the

16 bar of the highest court of any State, possession,

17 territory, Commonwealth, or the District of Colum18 bia, and is not under any order of any court sus19 pending, enjoining, restraining, disbarring, or other20 wise restricting such person in the practice of law.

21 (2) ACCREDITED REPRESENTATIVE.—The term

22 ‘‘accredited representative’’ means any organization

23 or individual that has been accredited by the Board

24 of Immigration Appeals pursuant to section 292 of

25 title 8, Code of Federal Regulations.
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1 (3) COMPENSATION.—The term ‘‘compensa2 tion’’ means money, property, promise of payment,

3 or any other consideration, provided directly or indi4 rectly.

5 (4) IMMIGRATION CONSULTANT.—The term

6 ‘‘immigration consultant’’—

7 (A) means any individual, organization, or

8 entity who in exchange for compensation or the

9 expectation of compensation, promises to pro10 vide or provides assistance or advice on an im11 migration matter; and

12 (B) does not include any attorney, person

13 employed by and working under the direct su14 pervision of one or more attorneys, or any ac15 credited representative.

16 (5) IMMIGRATION MATTER.—The term ‘‘immi17 gration matter’’ means any proceeding, filing, or ac18 tion affecting the immigration or citizenship status

19 of any person which arises under any immigration or

20 naturalization law, Executive order, Presidential

21 proclamation, or action of the Immigration and Nat22 uralization Service, other component of the Depart23 ment of Justice, the Department of State, or the

24 Department of Labor.
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1 SEC. 4. PROHIBITED ACTS AND CRIMINAL PENALTIES.

2 (a) PROHIBITED ACTS.—It shall be unlawful for any

3 immigration consultant intentionally, or with reckless dis4 regard for the truth to—

5 (1) make any false or misleading statement to

6 any client, prospective client, or the public while pro7 viding, offering, or advertising services;

8 (2) make any statement indicating or implying

9 that the immigration consultant can or will obtain

10 special favors from, or has special influence with,

11 any government agency;

12 (3) retain any compensation for any service not

13 performed;

14 (4) refuse to return any document supplied by,

15 prepared on behalf of, or paid for by, any client or

16 prospective client, even in the event of a fee dispute;

17 (5) select forms to be filed with any government

18 agency in connection with an immigration matter;

19 (6) provide information to any government

20 agency without the client’s knowledge and consent;

21 (7) engage in the unauthorized practice of law

22 in connection with an immigration matter, as such

23 is defined by applicable State statutes, regulations,

24 rules or municipal ordinances, in conjunction with

25 an immigration matter; and
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1 (8) hold himself or herself out to any client,

2 prospective client, or to the public as engaging in or

3 entitled to engage in the practice of law, or uses any

4 title in any language, such as ‘‘notario’’ or ‘‘notary

5 public’’, to convey attorney status.

6 (b) CRIMINAL PENALTIES.—Any immigration con7 sultant who commits any act set forth in subsection (a)

8 shall be fined under title 18 of the United States Code,

9 imprisoned not more than five years, or both.

10 SEC. 5. ADVERTISEMENT DISCLAIMER, NOTICE AND WRIT11 TEN CONTRACT.

12 (a) ADVERTISEMENT DISCLAIMER.—It shall be un13 lawful for an immigration consultant to make any adver14 tisement unless the advertisement includes a statement

15 that the immigration consultant is not an attorney, that

16 the consultant cannot provide legal advice or select forms

17 for use by clients or prospective clients and that he or

18 she cannot obtain special favors from and has no special

19 influence with, the Immigration and Naturalization Serv20 ice.

21 (b) NOTICE.—It shall be unlawful for an immigration

22 consultant to perform immigration consulting services un23 less, in any office in which an immigration consultant

24 meets with clients or prospective clients, the immigration

25 consultant has conspicuously displayed a notice, not small-
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1 er than 12 inches by 20 inches and in boldface print no

2 smaller than one inch in height, that includes—

3 (1) a statement that the immigration consultant

4 is not an attorney, cannot select forms for use by

5 the client, and cannot provide legal services in any

6 immigration matter; and

7 (2) a statement that the immigration consultant

8 cannot obtain special favors from, and has no special

9 influence with, the Immigration and Naturalization

10 Service.

11 (c) WRITTEN CONTRACT.—It shall be unlawful for an

12 immigration consultant knowingly to act in an immigra13 tion matter unless the person has entered into a written

14 contract (in both English and the other principal language

15 of the client, if not English) with the client that includes—

16 (1) a description of all services to be performed

17 by the person under the agreement;

18 (2) the amount to be paid by the client;

19 (3) a statement, printed on the face of the con20 tract in boldface type no smaller than 10 point, that

21 the person is not licensed and authorized to practice

22 law in the State in which the immigration consultant

23 services are to be performed and is unable to per24 form legal services;
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1 (4) a statement, printed on the face of the con2 tract in boldface type no smaller than 10 point, that

3 any document provided to the immigration consult4 ant in connection with the immigration matter may

5 not be retained by the immigration consultant and

6 must be returned to the client at any time requested

7 by the client;

8 (5) a statement that the client may rescind the

9 contract within 72 hours of the time it is executed

10 and receive a full refund of all monies paid to the

11 immigration consultant; and

12 (6) a statement certifying that a copy of the

13 contract has been provided to the client upon execu14 tion of the contract.

15 (d) CRIMINAL PENALTIES.—Any immigration con16 sultant who knowingly fails to perform any requirement

17 set forth in this section shall be fined under title 18 of

18 the United States Code, imprisoned not more than one

19 year, or both.

20 SEC. 6. CIVIL ENFORCEMENT.

21 (a) AGGRIEVED PARTIES.—Any person aggrieved by

22 reason of any violation of section 4 or 5 may commence

23 a civil action in any appropriate United States district

24 court for the relief set forth in subsection (d).
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1 (b) CIVIL ACTIONS BY THE ATTORNEY GENERAL.—

2 If the Attorney General of the United States has reason3 able cause to believe that any person or group of persons

4 is being, has been, or may be injured by reason of any

5 violation of section 4 or 5, the Attorney General may com6 mence a civil action in any appropriate United States dis7 trict court for the relief set forth in subsections (d) and

8 (e).

9 (c) CIVIL ACTIONS BY STATE ATTORNEYS GEN10 ERAL.—If the Attorney General of a State has reasonable

11 cause to believe that any person or group of persons is

12 being, has been, or may be injured by reason of any viola13 tion of section 4 or 5, such Attorney General may com14 mence a civil action in the name of such State, as parens

15 patriae on behalf of persons residing in such State, in any

16 appropriate United States district court for the relief set

17 forth in subsections (d) and (e).

18 (d) RELIEF.—In any civil action brought under this

19 section, the court may award appropriate relief, including

20 temporary, preliminary, or permanent injunctive relief and

21 compensatory and punitive damages, as well as the costs

22 of suit and reasonable fees for attorneys and expert wit23 nesses. Injunctive relief may include, where appropriate,

24 an order temporarily or permanently enjoining the defend-
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1 ant from serving as an immigration consultant in any im2 migration matter.

3 (e) CIVIL PENALTIES.—In addition to the relief pro4 vided for in subsection (d), which the Attorney General

5 or any State Attorney General may seek on behalf of ag6 grieved parties, the court may also assess a civil penalty

7 not exceeding $50,000 for first violations, and $100,000

8 for subsequent violations, when sought by the Attorney

9 General of the United States or any State Attorney Gen10 eral.

11 SEC. 7. TASK FORCES.

12 (a) ESTABLISHMENT OF TASK FORCES.—The Attor13 ney General shall establish task forces composed of Fed14 eral investigatory and prosecutorial personnel, and any

15 State or local personnel who may be assigned by States

16 to serve, in the eight districts determined by the Attorney

17 General to contain the largest numbers of aliens subject

18 to violations of sections 4 and 5. Such task forces shall

19 investigate, criminally prosecute, and bring civil suits

20 based on violations of sections 4 and 5, section 274C of

21 the Immigration and Nationality Act, section 1546 of title

22 18, United States Code, and any other applicable Federal

23 or State laws.

24 (b) AUTHORIZATION OF APPROPRIATIONS.—
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1 (1) IN GENERAL.—There is authorized to be

2 appropriated to the Department of Justice

3 $7,000,000 for each of fiscal years 2001, 2002, and

4 2003 to carry out this section.

5 (2) AVAILABILITY OF FUNDS.—Amounts appro6 priated pursuant to paragraph (1) are authorized to

7 remain available until expended.

8 SEC. 8. OUTREACH BY IMMIGRATION AND NATURALIZA9 TION SERVICE.

10 (a) OUTREACH PROGRAM.—The Commissioner of

11 Immigration and Naturalization shall establish a program

12 to inform aliens about—

13 (1) the obligations of immigration consultants

14 under this Act;

15 (2) methods of law enforcement, redress, and

16 assistance under this Act and any other related law,

17 regulation, or program established by the Immigra18 tion and Naturalization Service or other Federal,

19 State, or local agency; and

20 (3) the hotline to be established under sub21 section (b).

22 (b) HOTLINE.—The Commissioner of Immigration

23 and Naturalization shall establish a toll-free hotline to be

24 used by aliens and others with knowledge or information

25 of violations of sections 4 and 5, section 274C of the Im-
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1 migration and Nationality Act, section 1546 of title 18,

2 United States Code, or any related State or local laws.

3 Callers shall be permitted to provide information anony4 mously. In situations deemed appropriate by the Commis5 sioner of the Immigration and Naturalization Service, call6 ers or information provided by callers shall be forwarded

7 to appropriate Federal or State law enforcement authori8 ties.

9 (c) AUTHORIZATION OF APPROPRIATIONS.—

10 (1) IN GENERAL.—There is authorized to be

11 appropriated to the Department of Justice

12 $7,000,000 for each of fiscal years 2001, 2002, and

13 2003 in order to carry out this section.

14 (2) AVAILABILITY OF FUNDS.—Amounts appro15 priated pursuant to paragraph (1) are authorized to

16 remain available until expended.

17 SEC. 9. CONFIDENTIALITY.

18 (a) IN GENERAL.—Except as otherwise provided in

19 this section, neither the Attorney General nor any other

20 official or employee of the Department of Justice or any

21 bureau or agency thereof may use the information pro22 vided by any person (including an alien not lawfully

23 present in the United States) in relation to a violation of

24 sections 4 and 5 for any purpose other than to carry out

25 this Act. If such information is provided by an alien not
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1 lawfully present in the United States, such information

2 shall not be used for the purpose of identifying or remov3 ing the person from the United States or imposing other

4 sanctions against the person.

5 (b) EXCEPTION.—Subsection (a) shall not apply if

6 the Attorney General or other official or employee of the

7 Department of Justice, or bureau or agency thereof, deter8 mines that the information was not provided in good faith

9 in conjunction with a credible report relating to a violation

10 of this Act, but was provided in order to evade the applica11 tion of Federal immigration law.

12 (c) CRIMINAL PENALTY.—Whoever knowingly uses

13 information in violation of this section shall be fined not

14 more than $10,000.

15 SEC. 10. NONPREEMPTION OF MORE PROTECTIVE STATE

16 AND LOCAL LAWS.

17 The provisions of this Act supersede State laws, regu18 lations, and municipal ordinances only to the extent such

19 State and local laws impede the application of any provi20 sion of this Act. States and municipalities may impose re21 quirements supplementing those imposed by this Act.

Æ