BILL ANALYSIS Ó
AB 60
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Date of Hearing: March 17, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB
60 (Gonzalez) - As Amended March 9, 2015
As Proposed to be Amended
SUBJECT: IMMIGRATION SERVICES: ATTORNEYS
KEY ISSUE: SHOULD IMPORTANT CONSUMER PROTECTIONS, ENACTED LAST
YEAR TO PREVENT FRAUD UPON VULNERABLE IMMIGRANT CLIENTS WHO SEEK
IMMIGRATION SERVICES IN ANTICIPATION OF PROSPECTIVE
CONGRESSIONAL REFORM, ALSO EXTEND TO IMMIGRATION SERVICES
OFFERED IN ANTICIPATION OF EXECUTIVE ACTION BY THE PRESIDENT?
SYNOPSIS
According to the author, this bill is an important consumer
protection measure that will protect the vulnerable community
seeking assistance under new immigration rules proposed by
President Obama in a series of executive actions announced on
November 20, 2014 (hereafter "November 20 executive actions").
Like its predecessor, AB 1159 (Ch. 574, Stats. 2013), this bill
seeks to protect immigrants who seek relief under prospective
immigration reform from being charged fees for certain services
before the relief can possibly be obtained. This follow-up
legislation is needed, however, because AB 1159 only applied to
an immigration reform act that is "enacted" by Congress and
signed by the President; thus it does not apply where
prospective immigration reform arises through executive action.
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The bill closes this unanticipated loophole from AB 1159 by
revising the definition of an immigration reform act to also
mean an executive action or order on immigration, as specified,
including the November 20 executive actions.
In light of reported evidence that new scams have surfaced since
the recent executive actions were announced, the author seeks to
ensure that the protections established by AB 1159 also apply to
immigrants who may seek potential relief pursuant to the
executive actions by the President. Among the protections that
would specifically apply in such cases, this bill would prohibit
an attorney or an immigration consultant from demanding, or
accepting the advance payment of, any funds for immigration
reform act services before the enactment or implementation of an
immigration reform act, as defined, and would require any funds
received after the effective date of this bill, but before the
enactment or implementation of an immigration reform act, to be
refunded to the client. The bill would require any funds
received before the effective date of the bill for services not
yet rendered to be either refunded to the client, or deposited
in a client trust account, as specified.
The bill is strongly backed by a wide range of supporters,
including immigrant advocates, Los Angeles city officials, civil
rights organizations, and labor groups. They believe this bill,
like its predecessor, will help reduce fraud and provide
appropriate enforcement tools to curtail fraudulent behavior.
The bill is opposed by a chapter of the American Immigration
Lawyers Association (AILA), who contend that the definition of
immigration reform services is overly broad and that it
unnecessarily ties the hands of immigration attorneys who are
trying to assist immigrants. Proposed amendments seek to
address this concern by narrowing and clarifying that
definition, making technical amendments to clarify the time
frame for certain requirements, and adding an urgency clause.
SUMMARY: Clarifies that existing protections against fraud
related to immigration reform services apply when that
immigration reform arises from executive action, in addition to
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Congressional action. Specifically, this bill:
1)Revises the definition of an "immigration reform act" to
include 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. Further requires the State
Bar to announce and post on its Internet Web site when such an
executive action or order has been issued.
2)Clarifies that "immigration reform act services" do not
include legal services that have an independent value apart
from the preparation of an immigration reform act and other
related initial processes, such as assisting a client in
preventing removal from the United States.
3)Prohibits attorneys and immigration consultants from demanding
or accepting advance payment of any funds from a person for
immigration reform act services in connection with any of the
following:
a) Requests for expanded Deferred Action for Childhood
Arrivals (DACA) pursuant to an immigration reform act, as
defined, before the date the United States Citizenship and
Immigration Services begins accepting those requests.
b) Requests for Deferred Action for Parents of Americans
and Lawful Permanent Residents (DAPA) pursuant to an
immigration reform act, as defined, before the date the
United States Citizenship and Immigration Services begins
accepting those requests.
c) Expanded Provisional Waivers of Unlawful Presence
pursuant to an immigration reform act, as defined, before
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the issuance and effective date of new guidelines and
regulation for those provisional waivers.
d) Any relief offered under any executive action announced
or executive order issued, on or after the effective date
of this bill, 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, before the
executive action or order has been implemented and the
relief is available.
4)Clarifies that any advance payment of funds for immigration
reform act services that was received after October 5, 2013,
but before the enactment or implementation of the immigration
reform act for which the services were sought, shall be
refunded to the client promptly, but no later than 30 days
after the receipt of the funds.
5)Makes technical and clarifying changes to ensure that existing
provisions for handling advance payments apply to funds that
were received prior to the effective date of the amendments
made by this bill, rather than October 5, 2013 (the date that
AB 1159 became effective.)
6)Adds an urgency clause to have this bill take effect
immediately upon being signed into law.
EXISTING LAW:
With respect to both attorneys and immigration consultants:
1)Defines "immigration reform act" as any pending or future act
of Congress that is enacted after [October 5, 2013] but before
January 1, 2017, including but not limited to the "Border
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Security, Economic Opportunity, and Immigration Modernization
Act" (S. 744, 2013), as specified. Further requires the State
Bar to announce and post on its Internet Web site when an
immigration reform act has been enacted. (Business and
Professions Code Sections 6240(a) and 22442.5(b)(1). All
further references are to this code unless otherwise stated.)
2)Defines "immigration reform act services" as services offered
in connection with an immigration reform act that are
necessary in the preparation of an application and other
related initial processes in order for an undocumented
immigrant, as specified, to attain lawful status under the
immigration reform act. (Sections 6240(b); Section
22442.5(b)(2).)
3)Provides that it is unlawful for an attorney or immigration
consultant to demand, or accept advance payment of, any funds
from a person for immigration reform act services before the
enactment of an immigration reform act. Further provides that
any funds received after [October 5, 2013] but before the
enactment of an immigration reform act must be promptly
refunded to the client, as specified. (Section 6242(a) and
(b); Section 22442.6(a) and (b).)
4)Provides that if an attorney or immigration consultant
providing immigration reform act services accepted funds prior
to the effective date of this section, and the services
provided in connection with payment of those funds were
rendered, the client shall promptly be provided with a
statement of accounting describing services rendered. Further
provides that any funds received before [October 5, 2013], for
which immigration reform act services were not rendered prior
to the effective date, shall be either refunded to the client
or shall be deposited in a client trust account. (Section
6242(c); Section 22442.6(c).)
With respect to immigration consultants only:
5)Makes it unlawful for any person, for compensation, other than
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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, to engage in the business or act in the capacity of
an immigration consultant within this state except as
provided. (Section 22440.)
6)Prohibits an immigration consultant to literally translate
from English into another language, in any document, any words
or titles, including "notary public," "notary," "licensed,"
"attorney," or "lawyer" that imply the person is an attorney,
as specified, and provides that a person who violates the
translation prohibition is liable for a civil penalty not to
exceed $1,000, as specified. (Section 22442.3.)
7)Requires an immigration consultant, as defined, who provides
immigration reform act services to establish and deposit into
a client trust account any funds received from a client prior
to performing those services. Funds may be withdrawn only
after certain services or documents have been completed, as
specified by the written contract between the consultant and
client. (Section 22442.5.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: According to the author:
In 2013, AB 1159 (Gonzalez) was signed into law as a
safeguard for immigrant families seeking immigration
services in anticipation of Congress passing
immigration reform. Families were protected from
practices that have led to immigration fraud, such as
"advance fees," in which a client provides payment to
an attorney or consultant for immigration services
prior to the enactment of the law by which the
services would be executed.
The statute does not, however, prevent an attorney
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from demanding or accepting the advance payment of
immigration services relevant to the President's
executive action because of the existing definition of
an "immigration reform act." AB 60 aims to extend
existing protection against advance fees to immigrant
families seeking relief under President Obama's
executive action relating to immigration (in order to)
close this unexpected loophole under AB 1159. This
bill will ensure that Californians do not fall prey to
any ongoing immigration services fraud.
Like AB 1159, This Bill Seeks to Prevent Immigration Fraud
Associated with Services Offered to Obtain Relief Under
Prospective Federal Immigration Reform. For several years, the
Obama administration and Congressional Democrats and Republicans
have been engaged in challenging political discussions over
potentially sweeping changes to federal immigration law. While
the outcome of that debate in Washington is far from certain,
some individuals in California have apparently sought to charge
immigrants for various legal and paralegal or quasi-legal
services ("immigration reform act services") that cannot
appropriately be performed prior to such reform taking place and
some kind of relief actually being available. As evidenced by
numerous examples of advertisements provided by the author to
this Committee, various services in anticipation of prospective
but uncertain immigration reform are being targeted to
Spanish-speaking immigrants.
According to the author and supporters, a large number of people
are at risk of exploitation given the potential size of the
immigrant pool that may be affected. Undocumented immigrants
may be particularly vulnerable to abuse by unscrupulous
businesses and individuals because of the risks they face in
asserting their rights as consumers and victims of fraud or
other wrongdoing. Like its predecessor, AB 1159 (Ch. 574,
Stats. 2013), this bill seeks to protect immigrants seeking
potential relief under prospective immigration reform from being
charged fees for certain services before such relief can
possibly be obtained pursuant to the relevant immigration reform
act. This bill is specifically needed because AB 1159 was
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worded in a way that its protections only apply with respect to
an "immigration reform act" that is "enacted," or in other
words, the result of legislation passed by Congress and signed
into law by the President.
In light of the recent immigration executive actions announced
by President Obama on November 20, 2014, the author subsequently
introduced this legislation to ensure that the same protections
established by AB 1159 in 2013 shall apply to protect immigrants
who may be targeted by those now offering services to obtain
potential relief pursuant to the executive actions set forth by
the President. To mitigate the need for continual follow-up
legislation every time new federal immigration reform is
proposed and corresponding immigration reform services are
offered in anticipation, the bill also seeks to apply these
protections to future immigration reform efforts, whether they
arise from either legislation enacted by Congress, or executive
action ordered by the President.
Background on Recent Immigration Reform Efforts. On June 27,
2013, the United States Senate passed S. 744, known as the
Border Security, Economic Opportunity, and Immigration
Modernization Act of 2013. Approved by a bipartisan 68-32 vote
in the Senate, this historic legislation proposed to make broad
changes to federal immigration law. Among other things, the
bill would have created a pathway to citizenship for many
immigrants who do not now have legal immigration status. These
immigrants would have been able to apply for a special
registered provisional immigrant (RPI) status if they had been
physically present in the U.S. on or before December 31, 2011,
and met various other criteria.
On July 10, 2013, AB 1159 (which previously had a different
author and addressed an unrelated subject) was amended to guard
against immigration services fraud upon those seeking potential
relief under S.744, should it have ultimately become federal
law. AB 1159 was signed by Governor Brown as an urgency measure
and its protections took effect on October 5, 2013. However, S.
744 was never passed by the U.S. House of Representatives and
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died later in the 113th Congress without reaching the
President's desk. During that time, the protections established
under AB 1159 were in effect under California law.
On November 20, 2014, President Obama announced a series of
executive actions on immigration. According to the United
States Citizenship and Immigration Services (USCIS), the primary
agency responsible for implementing them, these initiatives
include:
1)Expanding the population eligible for the Deferred Action for
Childhood Arrivals (DACA) program to people of any current age
who entered the United States before the age of 16 and lived
in the United States continuously since January 1, 2010, and
extending the period of DACA and work authorization from two
years to three years.
2)Allowing parents of U.S. citizens and lawful permanent
residents to request deferred action and employment
authorization for three years, in a new Deferred Action for
Parents of Americans and Lawful Permanent Residents (DAPA)
program, provided they have lived in the United States
continuously since January 1, 2010, and pass required
background checks.
3)Expanding the use of provisional waivers of unlawful presence
to include the spouses and sons and daughters of lawful
permanent residents and the sons and daughters of U.S.
citizens.
(See http://www.uscis.gov/immigrationaction )
On December 10, 2014, this bill was introduced to further the
objectives of AB 1159 and protect consumers seeking services in
connection with the President's executive actions announced
three weeks earlier. On February 16, 2015, however, a federal
court in Texas issued a preliminary injunction to temporarily
prevent the federal government from implementing the DAPA and
expanded DACA programs pursuant to the November 20 executive
actions executive actions. USCIS had planned to begin accepting
applications for the expanded DACA program on February 18, 2015,
while the DAPA program was expected to begin taking applications
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sometime in May 2015. At the time of this analysis, the
Department of Homeland Security was not accepting requests for
either DAPA, or the expanded DACA programs, pending an appeal of
the case. (See "Federal Court Halts DAPA and Expanded DACA
Programs", Center for Migration Studies, 2/17/15, located at
http://cmsny.org/federal-court-halts-dapa-and-expanded-daca-progr
ams .)
Revised Definition of "Immigration Reform Act" and "Immigration
Reform Act Services." Under existing law, an "immigration
reform act" is defined as an act of Congress that is enacted
after October 5, 2013 (the effective date of AB 1159) but before
January 1, 2017 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 lawful status under federal law. "Immigration reform act
services" are defined as services offered in connection with an
immigration reform act that are necessary in the preparation of
an application and other related initial processes in order for
an undocumented immigrant to attain lawful status under the
immigration reform act. In order to extend existing protections
to immigration reform established by executive action, this bill
redefines "immigration reform act" to explicitly include the
President's November 20 executive actions on immigration as well
as any future executive action or order that similarly
authorizes a pathway to citizenship for undocumented immigrants.
In opposition to the bill, the American Immigration Lawyers
Association (AILA) contends that the definition of immigration
reform act services (which includes the phrase "services offered
in connection with an immigration reform act . . . and other
related initial processes") is overly broad, particularly when
applied to restrict fees for services related to the November 20
executive actions on immigration, as this bill seeks to do.
AILA contends that this broad language unnecessarily restricts
immigration attorneys from gathering even basic background
information to assess a client's potential options (including,
e.g. criminal background checks, USCIS client files, past court
filings) regardless of whether immigration reform actually
occurs. Furthermore, according to AILA, "Refusing to allow
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immigration attorneys to do their jobs and obtain the
documentation necessary to determine a client's options places
immigrants at a huge disadvantage legally and points them in the
direction of the very people who take advantage of them -
notarios, unlicensed document preparers and immigration
consultants."
The Committee notes, however, that an acknowledged purpose of
the bill is to specifically regulate attorneys who are engaged
for the purpose of serving clients regarding an immigration
reform act, rather than any lawyer whose services in another
type of matter might tangentially or incidentally touch on a
client's potential eligibility for legalization or adjustment of
immigration status. Such peripheral issues might arise, for
example, in the course of representation in a criminal matter,
employment dispute, domestic violence case or retaliatory
eviction challenge where the purpose of the representation is
not immigration status. Moreover, with respect to engagement
for the purpose of immigration law, the Committee notes that the
definition relates only to services regarding an immigration
reform act and would not be implicated in the provision of
lawful and appropriate preliminary or preparatory work for
clients, such as obtaining records and documentation, for use in
applications or filings under any other immigration or other
law, or for lawful and appropriate procedures or processes for
determining or obtaining legal relief under other immigration or
other laws. Nevertheless, to address opponents' concerns that
the definition is overly broad, the author proposes to amend the
bill to clarify that immigration reform act services do not
include legal services that have an independent value apart from
the preparation of an immigration reform act and other related
initial processes, such as assisting a client in preventing
removal from the United States.
Restrictions on Advance Fees Before Any Immigration Reform Takes
Effect. Under existing law enacted by AB 1159, attorneys and
immigration consultants are prohibited from demanding any funds,
or from accepting advance payment of any funds, for immigration
reform act services prior to the enactment of an immigration
reform act. It should be noted that the prohibition is directed
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at services for a fee; if no fee is charged, this law is not
triggered. Under AB 1159, the reason for this prohibition
appears to be plain: before proposed legislation has been signed
into law, it is impossible to know who might be eligible and
what steps would be needed to submit an application. The
prohibition therefore targeted attorneys and immigration
consultants who were advertising and collecting fees for highly
questionable services in connection with immigration reform that
had not been enacted and may never have been enacted. At the
time AB 1159 was approved by the Legislature, S. 744 awaited an
uncertain fate in the U.S. House of Representatives. The fact
that S. 744 was ultimately never enacted into law highlights the
value of the kinds of protections that were established by AB
1159 during that interim period when it appeared that
immigration reform might soon be enacted.
This bill seeks to ensure that restrictions on advance fees
established by AB 1159 apply to services offered in connection
with prospective immigration reform arising either from
legislation enacted by Congress (as is the case under existing
law) or from executive action. In response to the November 20
executive actions 20, 2014 executive actions, the bill
specifically prohibits advance fees for services related to
requests for relief under the expanded DACA program and the DAPA
program before the date the USCIS begins accepting those
requests, as well as for services related to expanded
Provisional Waivers of Unlawful Presence before the issuance and
effective date of new guidelines and regulations for those
waivers. In addition, for any future executive action or order
that similarly authorizes an undocumented immigrant to attain a
lawful status, as specified, the bill would prohibit advance
fees for such services before the executive action or order has
been implemented and the relief is available.
In opposition to the bill, AILA contends that restrictions on
advance fees for immigration reform services that currently only
apply to prospective Congressional reform are less appropriate
when imposed on immigration reform services related to the
President's November 20 executive actions, as this bill seeks to
do. The reason for this is that while it may be impossible to
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render services related to prospective Congressional action
until the legislation is enacted and the parameters of such
reform are known, in the case of the November 20 executive
actions, they contend, the parameters of potential relief are
already known and able to be acted upon right now,
notwithstanding current litigation that led to the February 16,
2015 injunction. The author contends, however, that it is
precisely because the potential relief proposed by the executive
actions may never be available (i.e. if invalidated by a court)
that this bill is necessary to protect vulnerable immigrants
from being charged for services to prepare for relief that may
never be made available.
In order to reflect that the bill is not limited only to
legislative immigration reform that is "enacted" by Congress,
the author proposes to amend various provisions of the bill to
apply to "enactment or implementation" of an immigration reform
act to include reform established by executive action or order.
Provisions on Handling Advance Fees Collected Before This Bill
Takes Effect. AB 1159 became effective on October 5, 2013,
immediately upon being signed by Governor Brown. It provides
that if fees were collected before AB 1159 was in effect and the
services were rendered, the attorney must provide the client
with a statement of accounting for those services. For fees
that were collected after AB 1159 took effect but before
enactment of an immigration reform act, and where the services
had not been rendered, the law requires those fees to be
refunded or placed in a client trust account, presumably within
30 days of AB 1159 taking effect. If placed in a trust account,
the attorney or immigration consultant must provide a specified
notice in English and the client's native language. Any advance
fees received after the effective date of the bill, but before
the enactment of an immigration reform act, must be returned to
the client.
As proposed to be amended, the bill makes a series of technical
amendments to ensure that these provisions for handling advance
payments apply to funds that were received prior to the
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effective date of the amendments made by this bill, rather than
October 5, 2013, the date that AB 1159 became effective. These
proposed amendments are intended to ensure that the consumer
protections established by AB 1159 and this bill seamlessly
apply to fee agreements made since AB 1159 but also those made
subsequent to the November 20 executive actions on immigration.
Reform of Immigration Consultants Act. 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 immigrant status at minimal
cost. The explosion of immigration applications, a result of
the 1986 federal amnesty law revisions, necessitated the
regulation of these persons. Existing law imposes various
requirements on those who act in the capacity of an immigration
consultant. Consultants must pass a background check, provide
clients with a written contract in English and the client's
native language, conspicuously display a statutory notice with
specified information (including that the consultant is not an
attorney), and file a $100,000 surety bond with the Secretary of
State. Existing law also prohibits consultants from making
false or misleading statements, making guarantees or promises
unless it is in writing and there is a basis in fact for the
promise or guarantee, and making any statement that the
consultant can obtain special favors.
As described previously, AB 1159 prohibited not only lawyers but
immigration consultants from demanding or accepting advance
payment of any funds from a person for immigration reform act
services before the reform is enacted. It also required
consultants who provide immigration reform act services to
deposit any funds received into a client trust account and only
withdraw funds upon completing an itemized service or document.
This bill revises the ICA to require immigration consultants to
follow the same restrictions placed upon attorneys with respect
to advance fee payments and required practices for depositing or
refunding advance fees already collected. The bill revises the
definitions of "immigration reform act" and "immigration reform
act services" under the ICA to mirror those applied to
immigration attorneys. The proposed technical amendments
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discussed above with respect to attorneys would also be made to
appropriate corresponding sections of the ICA.
ARGUMENTS IN SUPPORT: The bill is strongly supported by
immigrant advocates, Los Angeles city officials, civil rights
organizations, and labor, among others. For example, Asian
Americans Advancing Justice (AAAJ) writes in support:
There are approximately 1.6 million people in
California that could potentially benefit from
President Obama's executive action. As a result of the
President's announcement, there has been an increase
of eligible immigrants seeking immigration related
services from attorneys and consultants. These
services are being wrongly advertised as promises that
they can get their documents via an expedited process,
despite the fact that the United States Citizenship
and Immigration Services (USCIS) has not even started
to release and process applications.
This bill will address the serious concerns that have
been raised by law enforcement and the community as it
pertains to potential immigration fraud. The newly
created safeguards will prevent fraud from occurring
within vulnerable immigrant communities in California.
As an organization that provides immigration services,
we have seen community members who have been taken
advantage of by unscrupulous attorneys and immigration
preparers, and notary services, more commonly known as
"notarios". We understand the importance of laws that
protect individuals and immigrant families from
unscrupulous immigration services.
As an official with practical experience in combatting
immigration-related scams, Los Angeles City Attorney Mike Feuer
writes in support:
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In the wake of President Obama's executive action on
immigration my office is concerned that immigrants
will be targeted and victimized by an increasing
number of scams attempting to take advantage of the
evolving immigration rules and regulations. In fact,
this has become such a concern in Los Angeles that my
office has initiated a comprehensive enforcement and
education campaign. . . This legislation would close a
loophole by applying safeguards and consumer
protections to immigrants seeking services under the
current executive action (and) is a much needed
effort.
ARGUMENTS IN OPPOSITION: In addition to the specific concerns
cited above, AILA opposes this bill because of the purported
negative impact the bill will have upon immigration attorneys
and their clients. They state:
This bill will further deter future immigration
attorneys from entering into this field to begin with,
directly reducing the amount of competent immigration
attorneys willing and available to help serve this
population. The majority of clients in immigrant
communities will not be able to find or afford "good
attorneys" who are in compliance, increasing the
likelihood that those clients seek out less expensive
services by notarios or unlicensed and unregistered
attorneys.
New legislation aimed at licensed attorneys that is so
restrictive and overly broad and unnecessarily binds
the help we can provide is not the solution to address
this area of consumer fraud. The AILA Southern
California chapter calls upon the California State
Legislature to act responsibly by considering the
significant concerns and negative ramifications such
an overly broad bill will have on the practice of
immigration law and vulnerable consumers in the State
of California.
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REGISTERED SUPPORT / OPPOSITION:
Support
Asian Americans Advancing Justice- Los Angeles
California Catholic Conference
California Communities United Institute
California Labor Federation
Community Coalition
Los Angeles City Attorney Mike Feuer
Los Angeles Mayor Eric Garcetti
Mujeres Unidas y Activas
United Farm Workers (UFW)
Over 20 individuals
Opposition
American Immigration Lawyers Association- Southern California
Chapter (AILA)
Analysis Prepared
by: Anthony Lew/JUD./(916) 319-2334
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