Amended in Assembly March 9, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 60


Introduced by Assembly Member Gonzalez

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(Principal coauthor: Senator De León)

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(Coauthors: Assembly Members Alejo, Baker, Chávez, Chu, Dahle, Cristina Garcia, and Weber)

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December 10, 2014


An act to amendbegin delete Section 6240end deletebegin insert Sections 6240, 6242, 22442.5, and 22442.6end insert of the Business and Professions Code, relating to immigration services.

LEGISLATIVE COUNSEL’S DIGEST

AB 60, as amended, Gonzalez. Immigrationbegin delete services: attorneys.end deletebegin insert services.end insert

Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation. Existing law prohibits an attorney from demanding or accepting the advance payment of any funds from a person before the enactment of an immigration reform act, as defined,begin insert that is enacted after October 5, 2013, and before January 1, 2017,end insert and requires any funds received during a specified time to be refunded to the client promptly, but no later than 30 days after the receipt of any funds, as provided. Existing law requires the State Bar to provide specified information relating to immigration reform act services on its Internet Web site.

This bill would revise the definition of an immigration reform act to includebegin delete Executive Order No. ____, issued by the President on ____, 2014, relating to immigration.end deletebegin insert any immigration reform act enacted after October 5, 2013, the President’s executive actions on immigration announced on November 20, 2014, or any future executive action or order that authorizes an undocumented immigrant who either entered the United States without inspection or who did not depart after the expiration of a nonimmigrant visa, to attain a lawful status under federal law. This bill would require the State Bar to announce and post on its Internet Web site when an executive action or order described above has been enacted. This bill would provide that it is unlawful to demand or accept the advance payment of any funds for immigration reform act services in connection with requests for expanded Deferred Action for Childhood Arrivals, requests for Deferred Action for Parents of Americans and Lawful Permanent Residents, expanded Provisional Waivers of Unlawful Presence, or other future relief, as provided, under federal law.end insert

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Existing law provides for the regulation of a person engaged in the business or acting in the capacity of an immigration consultant, and provides that a violation of these provisions is a crime. Existing law requires an immigration consultant to establish a client trust account and to deposit in this account any funds received from the client prior to performing immigration reform act services, as defined, for that client. Existing law prohibits an immigration consultant from demanding or accepting the advance payment of any funds from a person before the enactment of an immigration reform act, as defined, that is enacted after October 5, 2013, and before January 1, 2017, and requires any funds received during a specified time to be refunded to the client promptly, but no later than 30 days after the receipt of any funds, as provided. Existing law prescribes civil penalties, not to exceed $1,000 per day for each violation, for immigration consultants who violate these provisions.

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This bill would revise the definition of an immigration reform act to include any immigration reform act enacted after October 5, 2013, the President’s executive actions on immigration announced on November 20, 2014, or any future executive action or order that authorizes an undocumented immigrant who either entered the United States without inspection or who did not depart after the expiration of a nonimmigrant visa, to attain a lawful status under federal law. This bill would require the State Bar to announce and post on its Internet Web site when an executive action or order described above has been enacted. This bill would provide that it is unlawful to demand or accept the advance payment of any funds for immigration reform act services in connection with requests for expanded Deferred Action for Childhood Arrivals, requests for Deferred Action for Parents of Americans and Lawful Permanent Residents, expanded Provisional Waivers of Unlawful Presence, or other future relief, as provided, under federal law.

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Because a violation of these provisions by an immigration consultant would be a crime, this bill would impose a state-mandated local program.

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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.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

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

P3    1

SECTION 1.  

Section 6240 of the Business and Professions
2Code
is amended to read:

3

6240.  

For purposes of this article, the following definitions
4apply:

5(a) “Immigration reform act” means either of the following:

6(1) Any pending or future act of Congress that is enacted after
7October 5, 2013,begin delete but before January 1, 2017, including, but not
8limited to, the federal act known as the “Border Security, Economic
9Opportunity, and Immigration Modernization Act” (S. 744, 2013),end delete

10 that authorizes an undocumented immigrant who either entered
11the United States without inspection or who did not depart after
12the expiration of a nonimmigrant visa, to attain a lawful status
13under federal law. The State Bar shall announce and post on its
14Internet Web site when an immigration reform act has been
15enacted.

begin delete

16(2) Executive Order No. ____, issued by the President on ____,
172014, relating to immigration.

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18(2) The President’s executive actions on immigration announced
19on November 20, 2014, or any future executive action or order
20that authorizes an undocumented immigrant who either entered
21the United States without inspection or who did not depart after
22the expiration of a nonimmigrant visa to attain a lawful status
P4    1under federal law. The State Bar shall announce and post on its
2Internet Web site when an executive action or order has been
3issued.

end insert

4(b) “Immigration reform act services” means services offered
5in connection with an immigration reform act that are necessary
6in the preparation of an application and other related initial
7processes in order for an undocumented immigrant, who either
8entered the United States without inspection or who did not depart
9after the expiration of a nonimmigrant visa, to attain a lawful status
10under an immigration reform act.

11begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 6242 of the end insertbegin insertBusiness and Professions Codeend insertbegin insert is
12amended to read:end insert

13

6242.  

(a) It is unlawful for an attorney to demand or accept
14the advance payment of any funds from a person for immigration
15reform act servicesbegin delete before the enactment of an immigration reform
16act.end delete
begin insert in connection with any of the following:end insert

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17(1) An immigration reform act as defined in paragraph (1) of
18subdivision (a) of Section 6240, before the enactment of that act.

end insert
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19(2) (A) Requests for expanded Deferred Action for Childhood
20Arrivals (DACA) under an immigration reform act as defined in
21paragraph (2) of subdivision (a) of Section 6240, before the date
22the United States Citizenship and Immigration Services begins
23accepting those requests.

end insert
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24(B) Requests for Deferred Action for Parents of Americans and
25Lawful Permanent Residents (DAPA) under an immigration reform
26act as defined in paragraph (2) of subdivision (a) of Section 6240,
27before the date the United States Citizenship and Immigration
28Services begins accepting those requests.

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29(C) Expanded Provisional Waivers of Unlawful Presence under
30an immigration reform act as defined in paragraph (2) of
31subdivision (a) of Section 6240, before the issuance and effective
32date of new guidelines and regulations for those provisional
33waivers.

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34(D) Any relief offered under any executive action announced
35or executive order issued, on or after the effective date of the act
36adding this subparagraph, that authorizes an undocumented
37immigrant who either entered the United States without inspection
38or who did not depart after the expiration of a nonimmigrant visa
39to attain a lawful status under federal law, before the executive
40action or order has been implemented and the relief is available.

end insert

P5    1(b) Any funds received after begin delete the effective date of this section,end delete
2begin insert October 5, 2013,end insert but before the enactment of an immigration
3reform act, shall be refunded to the client promptly, but no later
4than 30 days after the receipt of the funds.

5(c) (1) If an attorney providing immigration reform act services
6accepted funds for immigration reform act services prior tobegin delete the
7effective date of this section,end delete
begin insert October 5, 2013,end insert and the services to
8be performed in connection with payment of those funds were
9rendered, the attorney shall promptly, but no later than 30 days
10afterbegin delete the effective date of this section,end deletebegin insert October 5, 2013,end insert provide
11the client with a statement of accounting describing the services
12rendered.

13(2) (A) Any funds received beforebegin delete the effective date of this
14sectionend delete
begin insert October 5, 2013,end insert for which immigration reform act services
15were not rendered prior tobegin delete the effective date of this section,end deletebegin insert October
165, 2013,end insert
shall be either refunded to the client or deposited in a
17client trust account.

18(B) If an attorney deposits funds in a client trust account
19pursuant to this paragraph, he or she shall provide a written notice,
20in both English and the client’s native language, informing the
21client of the following:

22(i) That there are no benefits or relief available, and that no
23application for such benefits or relief may be processed, until
24enactment of an immigration reform act and the related necessary
25federal regulations or forms, and that, commencing withbegin delete the
26effective date of this section,end delete
begin insert October 5, 2013,end insert it is unlawful for
27an attorney to demand or accept the advance payment of any funds
28from a person for immigration reform act services before the
29enactment of an immigration reform act.

30(ii) That he or she may report complaints to the Executive Office
31for Immigration Review of the United States Department of Justice,
32to the State Bar of California, or to the bar of the court of any state,
33possession, territory, or commonwealth of the United States or of
34the District of Columbia where the attorney is admitted to practice
35law. The notice shall include the toll-free telephone numbers and
36Internet Web sites of those entities.

37begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 22442.5 of the end insertbegin insertBusiness and Professions Codeend insert
38begin insert is amended to read:end insert

39

22442.5.  

(a) An immigration consultant who provides
40immigration reform act services shall establish and deposit into a
P6    1client trust account any funds received from a client prior to
2performing those services for that client.

3(b) For purposes of this section, the following definitions apply:

4(1) “Immigration reform act” means begin delete any pending or future act
5of Congress that is enacted after the effective date of this section
6but before January 1, 2017, including, but not limited to, the federal
7act known as the “Border Security, Economic Opportunity, and
8Immigration Modernization Act” (S. 744, 2013), that authorizes
9an undocumented immigrant who either entered the United States
10without inspection or who did not depart after expiration of a
11nonimmigrant visa, to attain a lawful status under federal law. The
12State Bar shall announce and post on its Internet Web site when
13an immigration reform act has been enacted.end delete
begin insert either of the following:end insert

begin insert

14(A) Any pending or future act of Congress that is enacted after
15October 5, 2013, that authorizes an undocumented immigrant who
16either entered the United States without inspection or who did not
17depart after the expiration of a nonimmigrant visa, to attain a
18lawful status under federal law. The State Bar shall announce and
19post on its Internet Web site when an immigration reform act has
20been enacted.

end insert
begin insert

21(B) The President’s executive actions on immigration announced
22on November 20, 2014, or any future executive action or order
23that authorizes an undocumented immigrant who either entered
24the United States without inspection or who did not depart after
25the expiration of a nonimmigrant visa to attain a lawful status
26under federal law. The State Bar shall announce and post on its
27Internet Web site when an executive action or order has been
28issued.

end insert

29(2) “Immigration reform act services” means services described
30in Section 22441 that are provided in connection with an
31immigration reform act.

32(c) The immigration consultant providing immigration reform
33act services for the client may withdraw funds received from that
34client only in compliance with either of the following:

35(1) After completing one or more of the itemized services
36described in paragraph (1) of subdivision (b) of Section 22442,
37and only in the amount identified as the cost of that service or
38those services pursuant to paragraph (2) of subdivision (b) of
39Section 22442.

P7    1(2) After completing one or more of the documents listed, and
2only in the amounts listed, pursuant to paragraph (4) of subdivision
3(b) of Section 22442.

4begin insert

begin insertSEC. 4.end insert  

end insert

begin insertSection 22442.6 of the end insertbegin insertBusiness and Professions Codeend insert
5begin insert is amended to read:end insert

6

22442.6.  

(a) It is unlawful for an immigration consultant to
7demand or accept the advance payment of any funds from a person
8for immigration reform act servicesbegin delete before the enactment of an
9immigration reform act, as defined in subdivision (b) of Section
1022442.5.end delete
begin insert in connection with any of the following:end insert

begin insert

11(1) An immigration reform act as defined in subparagraph (A)
12of paragraph (1) of subdivision (b) of Section 22442.5, before the
13enactment of that act.

end insert
begin insert

14(2) (A) Requests for expanded Deferred Action for Childhood
15Arrivals (DACA) under an immigration reform act as defined in
16subparagraph (B) of paragraph (1) of subdivision (b) of Section
1722442.5, before the date the United States Citizenship and
18Immigration Services begins accepting those requests.

end insert
begin insert

19(B) Requests for Deferred Action for Parents of Americans and
20Lawful Permanent Residents (DAPA) under an immigration reform
21act as defined in subparagraph (B) of paragraph (1) of subdivision
22(b) of Section 22442.5, before the date the United States Citizenship
23and Immigration Services begins accepting those requests.

end insert
begin insert

24(C) Expanded Provisional Waivers of Unlawful Presence under
25an immigration reform act as defined in subparagraph (B) of
26paragraph (1) of subdivision (b) of Section 22442.5, before the
27issuance and effective date of new guidelines and regulations for
28those provisional waivers.

end insert
begin insert

29(D) Any relief offered under any executive action announced
30or executive order issued, on or after the effective date of the act
31adding this subparagraph, that authorizes an undocumented
32immigrant who either entered the United States without inspection
33or who did not depart after the expiration of a nonimmigrant visa
34to attain a lawful status under federal law, before the executive
35action or order has been implemented and the relief is available.

end insert

36(b) Any funds received afterbegin delete the effective date of this section,end delete
37begin insert October 5, 2013,end insert but before the enactment of an immigration
38reform act, as defined in subdivision (b) of Section 22442.5, shall
39be refunded to the client promptly, but no later than 30 days after
40receipt of any funds.

P8    1(c) (1) If an immigration consultant providing immigration
2reform act services accepted funds prior tobegin delete the effective date of
3this section,end delete
begin insert October 5, 2013,end insert and the services provided in
4connection with payment of those funds were rendered, the
5consultant shall promptly, but no later than 30 days afterbegin delete the
6effective date of this section,end delete
begin insert October 5, 2013,end insert provide the client
7with a statement of accounting describing the services rendered.

8(2) (A) Any funds received beforebegin delete the effective date of this
9section,end delete
begin insert October 5, 2013,end insert for which immigration reform act services
10were not rendered prior tobegin delete the effective date of this section,end deletebegin insert October
115, 2013,end insert
shall either be refunded to the client or shall be deposited
12in a client trust account pursuant to Section 22442.5.

13(B) If an immigration consultant deposits funds in a client trust
14account pursuant to this paragraph, he or she shall comply with
15all applicable provisions of this chapter, including Section 22442,
16and shall provide to the client a written notice, in both English and
17in the client’s native language, that there are no benefits or relief
18available, that no application for such benefits or relief may be
19processed until enactment of an immigration reform act and the
20related necessary federal regulations and forms, and that
21commencing withbegin delete the effective date of this section,end deletebegin insert October 5,
222013,end insert
it is unlawful for an immigration consultant to demand or
23accept the advance payment of any funds from a person for
24immigration reform act services before the enactment of an
25immigration reform act.

26(d) (1) In addition to the remedies and penalties prescribed in
27this chapter, a person who violates this section shall be subject to
28a civil penalty not to exceed one thousand dollars ($1,000) per day
29for each violation, to be assessed and collected in a civil action
30brought by any person injured by the violation or in a civil action
31brought in the name of the people of the State of California by the
32Attorney General, a district attorney, or a city attorney.

33(2) In assessing the amount of the civil penalty, the court may
34consider relevant circumstances presented by the parties to the
35case, including, but not limited to, the following:

36(A) The nature and severity of the misconduct.

37(B) The number of violations.

38(C) The length of time over which the misconduct occurred,
39and the persistence of the misconduct.

40(D) The willfulness of the misconduct.

P9    1(E) The defendant’s assets, liabilities, and net worth.

2(3) If the Attorney General brings the action, one-half of the
3civil penalty collected shall be paid to the treasurer of the county
4in which the judgment was entered, and one-half to the General
5Fund. If a district attorney brings the action, the civil penalty
6collected shall be paid to the treasurer of the county in which the
7 judgment was entered. If a city attorney brings the action, one-half
8of the civil penalty collected shall be paid to the treasurer of the
9city in which the judgment was entered, and one-half to the
10treasurer of the county in which the judgment was entered.

11(4) The court shall grant a prevailing plaintiff reasonable
12attorneys’ fees and costs.

13begin insert

begin insertSEC. 5.end insert  

end insert
begin insert

No reimbursement is required by this act pursuant to
14Section 6 of Article XIII B of the California Constitution because
15the only costs that may be incurred by a local agency or school
16district will be incurred because this act creates a new crime or
17infraction, eliminates a crime or infraction, or changes the penalty
18for a crime or infraction, within the meaning of Section 17556 of
19the Government Code, or changes the definition of a crime within
20the meaning of Section 6 of Article XIII B of the California
21Constitution.

end insert


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