AB 35 Assembly Bill - Bill Analysis

BILL ANALYSIS Ó

SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session

AB 35 (Hernández)
As Amended April 15, 2013
Hearing Date: July 2, 2013
Fiscal: Yes
Urgency: No
TMW

SUBJECT

Deferred Action for Childhood Arrivals

DESCRIPTION

This bill would provide that only immigration consultants,
attorneys, notaries public, and organizations accredited by the
United States Board of Immigration Appeals are authorized to
charge clients or prospective clients fees for providing
consultations, legal advice, or notary public services
associated with filing a federal Deferred Action for Childhood
Arrivals program (DACA) application. This bill would prohibit
price gouging for those services and provide civil and criminal
penalties for violations, as well as attorney and notary
discipline, as specified.

This bill would add to the list of persons entitled to
unemployment compensation benefits, extended duration benefits,
and federal-state extended benefits a person who is the subject
of a notice of decision regarding DACA and has performed
services while he or she was in receipt of a valid employment
authorization.

This bill would also make technical revisions regarding the
issuance of a state driver's license or identification card to
persons approved under DACA.

BACKGROUND

The Immigration Consultants Act (ICA) was enacted in 1986 to
regulate activities of immigration consultants who perform a
variety of services for persons who seek adjustment of their
(more)

AB 35 (Hernández)
Page 2 of ?

immigrant status at minimal cost. (See SB 2451 (Lockyer, Ch.
248, Stats. 1986.) The explosion of immigration applications, a
result of the 1986 federal and amnesty law revisions,
necessitated the regulation of these persons. The ICA provides
various remedies for a person aggrieved by acts or omissions of
an immigration consultant, including injunctive relief, damages,
and civil penalties. Additionally, a violation of the ICA is a
misdemeanor punishable by a fine between $2,000 and $10,000 for
each client aggrieved by the violation, or a one-year jail term.
On June 15, 2012, the Department of Homeland Security issued a
memorandum calling for deferred action for certain undocumented
individuals who came to the United States as children and have
pursued education or military service. Under this federal
program, the Deferred Action for Childhood Arrivals (DACA),
approved applicants are granted deferred removal action, which
may stop pending deportation proceedings or preclude the federal
government from starting deportation proceedings against them.
DACA does not grant lawful permanent residence or citizenship to
these individuals, but if their applications are granted, they
are lawfully permitted to work in the United States for a period
of two years and may apply for renewal.

This bill seeks to provide additional protections for these
applicants and would provide that only immigration consultants,
attorneys, notaries public, and organizations accredited by the
United States Board of Immigration Appeals are authorized to
charge fees for providing consultations, legal advice, or notary
public services associated with filing a DACA application. This
bill would prohibit price gouging for those services and provide
civil and criminal penalties for violations, as well as attorney
and notary discipline, as specified.

This bill would authorize an employee whose DACA application has
been granted to receive unemployment compensation benefits,
extended duration benefits, and federal-state. This bill would
also make technical revisions regarding the issuance of a state
driver's license or identification card to persons approved
under DACA.

This bill was heard by the Senate Labor and Industrial Relations
Committee on June 12, 2013, and passed out on a vote of 4-0.

CHANGES TO EXISTING LAW

1. Existing federal directive , Deferred Action for Childhood
Arrivals (DACA), provides certain undocumented individuals

AB 35 (Hernández)
Page 3 of ?

relief from removal from the United States or from entering
into removal proceedings for a period of up to two years,
subject to renewal, and eligibility to apply for work
authorization. Individuals who qualify for DACA:
are under 31 years of age as of June 15, 2012;
came to the United States while under the age of 16;
have continuously resided in the United States from June
15, 2007, to the present;
entered the United States without inspection before June
15, 2012, or his or her lawful immigration status expired
as of June 15, 2012;
were physically present in the United States on June 15,
2012, and at the time of applying for DACA;
are currently in school, have graduated from high
school, have obtained a GED, or have been honorably
discharged from the Coast Guard or armed forces; and
have not been convicted of a felony offense, a
significant misdemeanor, or more than three misdemeanors,
and do not pose a threat to national security or public
safety. (See Napolitano, Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the
United States as Children (June 15, 2012) Dept. of Homeland
Security
[as of June 22,
2013].)

Existing law , the Immigration Consultants Act (ICA), prohibits
any person, for compensation, other than persons authorized to
practice law or authorized by federal law to represent persons
before the Board of Immigration Appeals or the United States
Citizenship and Immigration Services, from providing
immigration consultant services unless that person has
complied with the requirements under the ICA, which include
passing a background check conducted by the Secretary of
State, receiving authorization by the Department of Consumer
Affairs to provide a written contract to a client, and filing
a $50,000 bond with the Secretary of State. (Bus. & Prof.
Code Sec. 22440 et seq.)

Existing law provides that a person engages in the business or
acts in the capacity of an immigration consultant when that
person gives non-legal assistance or advice on an immigration
matter, including, but not limited to: (1) completing a form
provided by a federal or state agency but not advising a

AB 35 (Hernández)
Page 4 of ?

person as to their answers on those forms; (2) translating a
person's answers to questions posed in those forms; (3)
securing for a person supporting documents, such as birth
certificates, which may be necessary to complete those forms;
(4) submitting completed forms on a person's behalf and at
their request to the United States Citizenship and Immigration
Services; and (5) making referrals to persons who could
undertake legal representation activities for a person in an
immigration matter. (Bus. & Prof. Code Sec. 22441.)

Existing law , the ICA, provides for a civil penalty up to
$100,000 for each violation and makes a violation of the ICA a
misdemeanor punishable by a fine between $2,000 and $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. (Bus. & Prof. Code Sec. 22445.)

Existing law , the State Bar Act, regulates the licensing and
discipline of attorneys. (Bus. & Prof. Code Sec. 6000.)

Existing law provides for the regulation and discipline of
notaries public. (Gov. Code Sec. 8200.)

This bill would prohibit practices that amount to price
gouging when a client or prospective client solicits services
associated with filing a DACA application.

This bill would define "price gouging" to mean 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.

This bill would apply the civil and criminal penalties under
ICA to violations regarding DACA application services.

This bill would provide that an attorney who violates the DACA

AB 35 (Hernández)
Page 5 of ?

application provisions would be subject to discipline under
the State Bar Act.

This bill would provide that a notary public who violates the
DACA application provisions would be subject to revocation or
suspension of his or her commission as a notary public and
penalties pursuant to the notary public regulations.

2. Existing law provides that an immigrant employee, who was
lawfully admitted as a permanent resident at the time services
were performed, was lawfully present for purposes of
performing the services, or was permanently residing in the
United State under color of law at the time services were
performed, is entitled to unemployment benefits, extended
duration benefits, and federal-state extended benefits.
(Unemp. Ins. Code Sec. 1264; 26 U.S.C. Sec. 3304(a)(14)(A).)

This bill would extend those unemployment benefits to an
immigrant whose DACA application was granted, who performed
the services under a valid employment authorization, and who
was lawfully present for purposes of performing those
services.

3. Existing law provides that a person approved under DACA can
use any federal document demonstrating favorable action by the
federal government for acceptance into DACA for the purposes
of being authorized to receive an original driver's license
from the Department of Motor Vehicles (DMV). (Veh. Code Sec.
12801(a).)

Existing law authorizes the DMV to issue an original driver's
license to a person who submits proof of presence in the
United States as authorized under federal law pursuant to DACA
and either a social security account number or ineligibility
for a social security account number. (Veh. Code Sec.
12801(b).)

This bill would also authorize the DMV to issue a California
identification card to a person who has satisfied the above
requirements.

COMMENT

1. Stated need for the bill

The author writes:

AB 35 (Hernández)
Page 6 of ?

On July 15, 2012, the U.S. Department of Homeland Security
issued a directive calling for prosecutorial discretion in the
enforcement of the country's immigration laws toward
immigrants meeting several criteria. That criteria was set to
largely coincide with the nation's DREAMer population-that is
young undocumented immigrants who have been in the country for
several years, have graduated from a U.S. high school, have
served at least two years in college or the military and have
no felonies or serious criminal offenses. The program was
called the Deferred Action for Childhood Arrivals and became
more commonly known as "Deferred Action" or DACA. The program
was officially implemented on August 15, 2012. According to
[United States Citizenship and Immigration Services]
statistics as issued in the February 21, 2013 White House
Immigration Action Newsletter, 438,372 applications had been
received through February14, 2013, and 119,466 of those had
come from California. This meant that 27.3 [percent] of the
applications submitted came from young immigrants currently
residing in California.

In the first several months of the program, our office heard
anecdotally from [the California Rural Legal Assistance
Foundation] and the Mexican Consulate that many young
immigrants wishing to apply were scared of filling out their
own paperwork, for fear of filling something out incorrectly
and possibly facing deportation as a consequence. While these
two organizations were providing assistance for free, many
prospective applicants felt more secure contracting
professionals for pay, such as private attorneys and notary
publics. Accordingly, professionals were providing services
that were not within their scope of practice and even worse,
others without any license, certification, or waiver were
providing legal services for pay upward of $1,000.

In a workshop our office attended at the Mexican Consulate
Office in Sacramento, where presenters talked about the
importance of applying to the DACA program only after they are
certain they meet the criteria. Otherwise, applicants could
potentially face deportation.

Since August 15, 2012, of the 438,372 applications received, a
total of 14,738 of applications have been rejected. If 27.3
[percent] of these rejected applications came from California,
an estimated 4,023 applications were rejected from our state
in a matter of 6 months. That is an estimated 670 CA

AB 35 (Hernández)
Page 7 of ?

applications rejected per month.

If any of these rejected applications were filled out with the
paid assistance of an individual without a license or
performing work outside of their scope of practice, this
should be considered consumer fraud.
Thus, the bill creates consumer protections by ensuring that
professional assistance acquired for purposes of filling out a
DACA application should be consistent with scope of practice
laws so that the consumer is protected and has recourse to
pursue action from the regulatory body of the licensed or
certified individual if any wrong doing was committed by the
professional.

The bill also clarifies that people becoming eligible for the
DACA program be eligible for a California identification card
and unemployment insurance benefits consistent with the law.
In addition, the bill calls for people who have been approved
to the DACA program be eligible for state administered health
care programs.

2. Providing DACA applicant protection

Under the federal Deferred Action for Childhood Arrivals
program, specified individuals living in the United States can
obtain a temporary two-year relief from deportation and obtain a
federal work permit. This bill would provide that only
immigration consultants, attorneys, notaries public, and
organizations accredited by the United States Board of
Immigration Appeals are authorized to charge clients or
prospective clients fees for providing consultations, legal
advice, or notary public services associated with filing a
federal Deferred Action for Childhood Arrivals program (DACA)
application. This bill would also prohibit price gouging for
those services and provide civil and criminal penalties for
violations, as well as attorney and notary discipline, as
specified.

The author argues this bill is necessary to provide protection
from unscrupulous immigration consultants to individuals
applying to DACA. Proponent, the California Immigrant Policy
Center (CIPC), reports that "[o]ver the years, we have found
that immigrant communities are often targeted by a variety of
bad actors that rely on the fact that community members may be
afraid to report crimes and act as witnesses due to fear of
detention or deportation under federal immigration enforcement

AB 35 (Hernández)
Page 8 of ?

policies. Additionally, applying for deferred action is quite a
difficult, often confusing process, and mistakes or errors could
have severe consequences that could lead to a denial or
potentially a Notice to Appear in an administrative proceeding
for immigration enforcement purposes, if fraud is involved among
the parties completing the application. Given these challenges,
CIPC believes that specifying who may engage in this work is
important to ensure that assisters of applicants maintain a
certain level of care. We also believe it is necessary to
protect the applicants themselves from being price gouged by
being pressured to contract for services or end up working with
someone who may push forward a fraudulent application. . . ."

The American Academy of Pediatrics, in support, writes that
"[r]ecent data show that there are 1,760,000 potential DACA
beneficiaries in the United States, 26 [percent] of which reside
in California, more than any other state in the country.
Currently, only about one-third have applied as of March 2013.
Despite meeting criteria for filing a DACA application, many
young immigrants and their families fear being deported and lack
the funds to pay additional fees imposed by unauthorized
preparers for filing an application. Immigrant youth already
face several challenges in reaching their goals to attend
college and finding a job, despite having lived in the United
States for several years. This bill is an important start to
facilitate their path to a better future."

Notably, this bill would provide DACA applicant protection under
the Immigration Consultants Act (ICA), which was established to
protect immigrants applying for legal residence and citizenship
from individuals who were taking money for immigration
applications but not properly processing the documents or
failing to do entirely. To curb these practices, the ICA
provides for a civil penalty up to $100,000 for each violation
and makes a violation of the ICA a misdemeanor punishable by a
fine between $2,000 and $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.

This bill would also specify that an attorney who violates the
provisions in this bill is subject to discipline under the State
Bar Act, which provides licensing requirements for the practice
of law in California and provides disciplinary and suspension
procedures for violations thereof. Additionally, this bill
would provide that a person who violates the notary public
regulations in connection with a DACA application is subject to

AB 35 (Hernández)
Page 9 of ?

the disciplinary procedures for notaries public.

By authorizing only specified individuals, who must possess
heightened skills to assist individuals applying to the DACA
program, this bill would further the purpose of the ICA in
protecting individuals who are requesting assistance to obtain
lawful work and residence authorization. By providing civil and
criminal penalties for violations, this bill seeks to preclude
unscrupulous conduct perpetrated against individuals who are
trying to conform to federal law.

3. Providing unemployment benefits to DACA

Existing law provides that an immigrant employee, who was
lawfully admitted as a permanent resident at the time services
were performed, was lawfully present for purposes of performing
the services, or was permanently residing in the United States
under color of law at the time services were performed, is
entitled to unemployment benefits, extended duration benefits,
and federal-state extended benefits. (Unemp. Ins. Code Sec.
1264; 26 U.S.C. Sec. 3304(a)(14)(A).) This bill would extend
those unemployment benefits to an immigrant whose DACA
application was granted, who performed the services under a
valid employment authorization, and who was lawfully present for
purposes of performing those services.

The author argues this bill is necessary to provide appropriate
unemployment benefits to DACA workers. The California Primary
Care Association, in support, writes: "Among other things, this
bill would make participants in the [DACA] program eligible for
Medi-Cal benefits. Legal residents in California are entitled
to Medi-Cal benefits under a state-only option that waives the
federal five-year waiting period for Medicaid eligibility. This
bill essentially would treat DACA participants as legal
residents and is consistent with existing law regarding such
eligibility. It is also consistent with pathway to citizenship
initiatives being considered by the federal government."

The Community Clinic Association argues in support: "Clinics in
[Los Angeles] County serve over 1 million low-income, uninsured
and underserved individuals, some of whom may be eligible to
receive temporary relief from deportation and a federal work
permit. The timely implementation of a 'path to wellness' along
with a path to citizenship, which AB 35 contributes to, would be
beneficial for both clinics and the patients they serve.
Further, AB 35 would provide a coverage source for more clinics'

AB 35 (Hernández)
Page 10 of ?

uninsured patients."

The Mexican American Legal Defense and Education Fund (MALDEF),
in support, states that "[u]nemployment is another benefit which
DACA approved individuals are eligible for under federal law.
First, there would be a 'base period', as all unemployment
insurance benefits (UIB) applicants need to have had a
connection to the work force as lawfully present individuals
during the based period, which goes back about 15 months, and
then ahead for a year. DACA recipients would generally need to
work for at least 12-15 months with that status first to
establish their eligibility for UIB. AB 35 seeks to codify
eligibility for this population in California law."

Given that lawful immigrants authorized to work in the United
States who perform services for employers required to
participate in the unemployment program are already authorized
to receive unemployment benefits, it is arguably an appropriate
extension of these benefits to immigrant employees who are
lawfully working under the DACA program.

4. Extension of authorization for California identification card

Existing law provides that a person whose DACA application has
been granted can use any federal document demonstrating
favorable action by the federal government for acceptance into
DACA for the purposes of being authorized to receive an original
driver's license from the Department of Motor Vehicles (DMV).
(Veh. Code Sec. 12801(a).) With this documentation, the DMV is
then authorized to issue an original driver's license to a
person who also provides either a social security account number
or documentation that the person is ineligible for a social
security account number. (Veh. Code Sec. 12801(b).)

In support, MALDEF argues that "AB 35 seeks to further clarify
California law to ensure that DACA approved individuals are
eligible for a California ID. Currently, the DMV already
accepts the lawful presence documents DACAs receive to be
eligible for a California ID. However, AB 35 . . . seeks to
clarify that these individuals are eligible for a California ID
to ensure that there are not any administrative issues moving
forward which may cause a DACA approved individual to be denied
critical access to a California ID."

This bill would authorize the DMV to also issue a California
identification card to persons approved under DACA. This

AB 35 (Hernández)
Page 11 of ?

provision extends the existing driver's license program, which
was established in AB 2189 (Cedillo, Skinner, Ch. 862, Stats.
2012) and required by DACA, to provide DACA approved individuals
with a California identification card.

Support : American Academy of Pediatrics; American Federation of
State, County and Municipal Employees, AFL-CIO; California
Catholic Conference; California Immigrant Policy Center;
California Labor Federation, AFL-CIO; California Primary Care
Association; Coalition for Humane Immigration Rights of Los
Angeles; Coalition of California Welfare Rights Organizations,
Inc.; Community Clinic Association of Los Angeles County;
Mexican American Legal Defense and Educational Fund

Opposition : None Known

HISTORY

Source : Author

Related Pending Legislation : AB 60 (Alejo), among other things,
would add a sunset date of January 1, 2015, to the provision
authorizing the Department of Motor Vehicles to issue a driver's
license to a person who submits proof of federally authorized
presence in the United States. AB 60 is currently in the Senate
Committee on Transportation and Housing and has been set for
hearing on July 2, 2013.

Prior Legislation :

AB 2189 (Cedillo, Skinner, Ch. 862, Stats. 2012) See Comment 4.

AB 630 (Chu, Ch. 605, Stats. 2004) increased the regulation of
immigration consultants by requiring fingerprinting, background
checks, authorizing the Secretary of State (SOS) to issue cease
and desist orders, and requiring the SOS to post information on
its Internet web site regarding immigration consultants. AB 630
also increased the statute of limitations for prosecuting
actions under the Immigration Consultants Act (ICA) to four
years.

AB 2189 (Chu, 2004) would have required a corporate security to
notify the district attorney's office if an immigration
consultant's bond is canceled, withdrawn, or reduced below the
minimum required by statute. AB 2189 was vetoed by Governor

AB 35 (Hernández)
Page 12 of ?

Schwarzenegger.

AB 534 (Vargas, Ch. 384, Stats. 2003) regulated contracts used
by immigration consultants.

AB 1999 (Correa, Ch. 705, Stats. 2002) authorized the Attorney
General, district attorney and city attorney to seek civil
penalties of up to $100,000 for violations of the ICA.

SB 1194 (Romero, Ch. 304, Stats. 2001) made it unlawful for a
person who has not complied with the bonding requirement to hold
himself or herself out to be an immigration consultant and
repealed the sunset provision in the bonding law re: recovery of
damages against the bond.

AB 1079 (Polanco, Ch. 336, Stats. 2000) increased the bonding
requirement from $25,000 to $50,000.

AB 1858 (Romero, Ch. 674, Stats. 2000) regulated advertisements
by immigration consultants, required a statement that an
immigration consultant is not an attorney, and increased the
penalty on immigration consultants who conduct the unauthorized
practice of law from $10,000 to $100,000 per violation.

AB 2687 (Margett, Ch. 194, Stats. 2000) clarified that a notary
public is not qualified and bonded as an immigration consultant
and may not enter data provided by a client on immigration
forms.

SB 1348 (Committee on Business and Professions, Ch. 790, Stats.
1997) increased the immigration consultant bond requirement from
$10,000 to $25,000.

SB 2238 (Committee on Business and Professions, Ch. 879, Stats.
1998) made technical revisions to the law governing immigration
consultants.

SB 1978 (Haynes, Ch. 633, Stats. 1996) revised various deposit
accounts to make them consistent, including deposit accounts of
immigration consultants.

AB 2520 (Napolitano, Ch. 561, Stats. 1994) required an
immigration consultant to conspicuously display in the office a
notice that contains information about the consultant and to
make certain disclosures.

AB 35 (Hernández)
Page 13 of ?

AB 3137 (Escutia, Ch.562, Stats. 1994) required an immigration
consultant to post a $10,000 bond with the SOS and to maintain
the bond for use by persons damaged by actions of the
immigration consultant.

SB 2451 (Lockyer, Ch. 248, Stats. 1986) See Background.

Prior Vote :

Senate Committee on Labor and Industrial Relations (Ayes 4, Noes
0)
Assembly Floor (Ayes 58, Noes 16)
Assembly Committee on Appropriations (Ayes 14, Noes 3)
Assembly Committee on Transportation (Ayes 13, Noes 2)
Assembly Committee on Judiciary (Ayes 9, Noes 0)

**************