BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 442
Assemblymember Arambula
As Amended April 1, 2009
Hearing Date: June 9, 2009
Civil Code
ADM
SUBJECT
Notaries Public
DESCRIPTION
This bill would provide that a notary public may reasonably rely
on a Matricula consular issued by the government of the United
States of Mexico as proper identification (ID) to prove the
identity of an individual who executes a written instrument.
BACKGROUND
A notary public is a public officer appointed and commissioned
by the Secretary of State to serve the public in non-contentious
matters generally concerning estates, deeds, powers-of-attorney,
foreign and international business, and other written
instruments. A notary's main functions are to take
acknowledgements of various written instruments, administer
oaths and affirmations, take depositions and affidavits, certify
copies of powers of attorney under the Probate Code, demand
acceptance and payment of foreign and inland bills of exchange
or promissory notes, and to protest nonpayment and nonacceptance
of bills and notes.
A certificate of acknowledgment is the form most frequently
completed by a notary public. In the certificate of
acknowledgment, the notary public certifies: 1) that the signer
personally appeared before the notary public on the date
indicated in the county indicated; 2) the identity of the
signer; and 3) that the signer acknowledged executing the
document.
(more)
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Under current law, the identity of the signer of an
acknowledgment may be established by the notary public's
reasonable reliance on any one of a number of documents,
including, among others, a California driver's license or ID
card, a U.S. or foreign passport, an employee ID card, and a
driver's license issued by a Mexican public agency authorized to
issue driver's licenses. The identification document must be
current or have been issued within five years and must contain a
photograph, description of the person, signature of the person,
and an identifying number. Current law does not allow a notary
public to rely on a Matricula consular, an ID card issued by the
Mexican Government through its consulates. This bill would add
the Matricula consular to the list of valid identification
documents.
CHANGES TO EXISTING LAW
Existing law provides that the acknowledgment of an instrument
may not be taken unless the officer (notary public) taking it
has satisfactory evidence that the person making the
acknowledgment is the individual who is described in and who
executed the instrument. (Civ. Code Sec. 1185(a).)
Existing law provides that "satisfactory evidence" means the
absence of any information, evidence, or other circumstances
that would lead a reasonable person to believe that the person
making the acknowledgment is not the individual he or she claims
to be plus the use of any one of various specified ways of
establishing the proper identity of the person making the
acknowledgment (such as the oath or affirmation of a credible
witness). (Civ. Code Sec. 1185(b).)
Existing law provides that the officer may reasonably rely on
the presentation of any one of the following, provided that the
document is current or has been issued within five years and
contains a photograph and description of the person named on it,
is signed by the person, and bears a serial or other identifying
number:
A passport issued by a foreign government.
A driver's license issued by a state other than California or
by a Canadian or Mexican public agency authorized to issue
driver's licenses.
An ID card issued by a state other than California.
An ID card issued by any branch of the Armed Forces of the
U.S.
An inmate ID card issued on or after January 1, 1988, by the
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Department of Corrections and Rehabilitation (DCR), if the
inmate is in custody.
An employee ID card issued by an agency or office of the State
of California, or by an agency or office of a city, county, or
city and county in this state.
An inmate ID card issued prior to January 1, 1988, issued by
the DCR, if the inmate is in custody. (Civ. Code Sec.
1185(b)(4).)
This bill would add a Matricula consular issued by the
government of the United States of Mexico to the list of proper
identifications specified in Civil Code Section 1185(b)(4) that
an officer may reasonably rely on.
COMMENT
1.Stated need for the bill
The author writes:
Lack of identification prevents individuals from accessing
many services, such as having their documents notarized.
Powers of Attorney or Carta Poder [power of attorney] going to
a foreign country, general or living will, grant deeds, and
all documents to be recorded require notarization. It is
critical that people be able to identify themselves for
notarization purposes. Documents that are notarized add
verification and authenticity, protect families from
litigation and fraud, and help families preserve what is
lawfully theirs.
2.Description of the Matricula consular and process for
obtaining
The Matricula consular is an official ID card issued by the
Mexican Government through its consulate offices to Mexican
nationals residing outside of Mexico regardless of their
emigration status. In 2002, Mexican consulates in the U.S.
began issuing a new High Security Consular ID called the
Matricula Consular de Alta Seguridad (MCAS) (Consular
Matriculation of High Security), also known as the Mexican CID
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card. The card contains a photo, digitalized signature, and
individual number. Fingerprints are taken and stored in the
matricula database as biometric information. The Mexican
consular network in the U.S. (47 consulates) maintains a single
database.
To obtain a Matricula consular an applicant must: 1) appear in
person; 2) present an original birth certificate to prove
Mexican nationality; 3) present an official government issued
photo ID to prove identity; and 4) present proof of address
(utility bill, lease, certified mail) under the same name (a
married woman may present proof of address under her husband's
name, as long as she presents her marriage certificate).
Secondary requirements include: 1) telephone number; 2) next of
kin information; 3) if a married woman wishes to use her married
name, she must present an original marriage certificate; and 4)
in case of a lost or stolen ID, the applicant must provide a
police report to obtain a new Matricula consular.
3.Security features of the Matricula consular
The Mexican Ministry of Foreign Affairs (SRE) describes the
visible and hidden security features of the MCAS, the High
Security Matricula Consular:
Visible security features
Green security paper, with the Official Mexican
Seal watermarked in a special security pattern.
Photograph cancelled with Advantage technology
seal which changes from green to brown.
Under fluorescent light, the letters "SRE"
appear all over the front.
The same special serial issue number on both
the front and back.
Infrared band on upper back, and, since 2005,
the new model has an over bi-dimensional ID bar code.
Hidden security features; front side
The MCAS's hidden security features can only be seen with a
special decoder, provided by the Mexican consulates.
The word "Mexico" is printed on the left side,
next to the holder's picture and "Matricula Consular Consular
ID" at the bottom.
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"SRE" is printed three times on the right side.
"SRE" is also printed over the holder's picture
along with his or her name.
Turning the decoder 90 degrees on the lower
left corner of the picture, "SRE" and the holder's birth date
appear.
Hidden security features; back side
The MCAS issued since 2005, includes a
Bi-dimensional Bar Code and Optical Character Recognition.
On all previous MCAS, "Doc-u-Lock" codified
text appears on the green bar where the holder's name, date of
expiration, serial number and issuing office's name appear.
In both types of MCAS, rotating the decoder 90
degrees, "SRE" appears several times.
1.Examples of entities that currently recognize the Matricula
consular as a valid form of ID
The Los Angeles Mexican Consulate (LAMC) reports that, as of
2005, 178 banks in the U.S. accept the Matricula consular as a
valid form of ID to open a bank account. Several major banks,
including Bank of America, US Bank, and Wells Fargo are among
the banks accepting Matricula consular. The LAMC also reports
that 377 cities, 163 counties, and 1,180 sheriffs' and police
departments nationwide recognize the Matricula consular as a
valid form of ID. Also in 2005, the Los Angeles Board of
Supervisors approved an amendment to existing Board policy
regarding acceptance of Foreign Consulate Identification Cards
for identification purposes only. In March 2009, the City of
Los Angeles announced a new program to help low-income
households open bank accounts. Banks participating in the
program, including Bank of America and Citibank, will not
require new applicants to produce a Social Security number and
will accept other forms of recognized of identification,
including the Matricula consular.
According to various sources, the Federal Reserve has not
specifically stated that banks should allow the use of Matricula
Consular, but it does not object to their use as a form of
identification. In a 2002 report to Congress, the U.S. Treasury
Department stated that "the regulations [governing a non-U.S.
person seeking to open an account] state that financial
institutions may accept one or more of the following: a U.S.
taxpayer identification number; a passport number and country of
issuance; an alien identification card number; or the number and
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country of issuance of any other government-issued document
evidencing nationality or residence and bearing a photograph or
similar safeguard." (Emphasis added.) "Thus, the proposed
regulations do not discourage bank acceptance of the 'matricula
consular' identity card that is being issued by the Mexican
government to immigrants."
Finally, Bank on America, Governor Schwarzeneggar's 2008
initiative to help Californians open bank accounts, encourages
financial institutions to relax identification requirements when
opening a bank account to include Mexican CID cards.
2.Some have raised concerns about accepting the Matricula
consular
In 2003, in testimony before the House Judiciary Committee on
Immigration, Border Security, and Claims on Consular ID Cards,
the FBI stated:
It is believed that consular ID cards are primarily being
utilized by illegal aliens in the United States. ? The U.S.
Government has done an extensive amount of research on the
Matricula Consular to assess its viability as a reliable means
of identification. The Department of Justice and the FBI have
concluded that the Matricula Consular is not a reliable form
of identification, due to the non-existence of any means of
verifying the true identity of the card holder.
The FBI testimony lists a number of problems that, in its view,
allows criminals to fraudulently obtain Matricula consular
cards. These include lack of a centralized database, lack of a
network between consulates, ease with which birth certificates
can be forged, and ease with which an illegal alien can obtain a
Marticula consular. The FBI believed, at least in 2003, that
the cards were vulnerable to both fraud and forgery, which could
lead to the threat of criminal activities, including money
laundering, check fraud, alien smuggling, identity theft, and
terrorist threats.
In 2003, the Center for Immigration Studies (CIS), issued a
Backgrounder titled "IDs for Illegals - The 'Matricula Consular'
Advances Mexico's Immigration Agenda." The CIS is an
independent, non-partisan, non-profit research organization
"animated by a pro-immigrant, low-immigration vision which seeks
fewer immigrants but a warmer welcome for those admitted." The
CIS report argues that there are a number of concerns about the
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use of Matricula consular cards for identification purposes in
the U.S., such as: 1) the cards are used by illegal aliens to
circumvent U.S. immigration law; 2) the card is not a secure
identity document because it is often based upon false breeder
documents; 3) no safeguards are in place to prevent multiple
issuance of cards to the same individual; 4) the card reduces
the risk of arrest, jail, and deportation; and 5) the card may
become a shield to hide criminal activity.
In response to these concerns, the author makes the following
observations. We have a new administration in the White House
and it is too soon to know what position the new President will
take with respect to the use of Matricula consular in the U.S.
In 2005, after the two reports discussed above were released,
the Mexican Government increased the security measures for the
cards. (See Comment 3.) The consulates now have a networked
database. The dangers of identity theft, forgery,
counterfeiting, and other criminal activities are of as much
concern with respect to U.S. IDs as they are with Matricula
consular cards. A recent AP article discussed a number of
instances in which government investigators were able to obtain
U.S. passports using phony documents. Finally, employee IDs
issued by public entities are an allowed form of identification
for purposes of acknowledging executed documents. It is highly
likely that Matricula consular cards are more secure than
employee ID cards, given the process through which an individual
obtains a Matricula consular card.
3.Opposition
The National Notary Association (NNA) opposes AB 442 on the
grounds that it may not be a secure or reliable form of
identification. The NNA writes:
There simply is no need for this legislation when the Civil
Code has already provided more secure forms of identification
documents - including Mexican driver's licenses and passports
- to identify Mexican nationals. ? The enactment of this
legislation would require Notaries to recognize a card of
proven unreliability, weakening the California notarial system
that protects the public from forged real property deeds (and
other important documentary transactions) and prevents
identity crimes. ? Notaries in this state must not be forced
to accept a card that the U.S. Department of Justice and the
Federal Bureau of Investigation declare is not a trustworthy
identifier.
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The author and supporters respond that since 2002 a number of
significant steps have been taken by the Mexican government to
improve the Matricula consular card and the consular database
security and reliability procedures. The author and supporters
assert that these improved processes and procedures make the
Matricula consular ID card as secure and reliable as other forms
of identification used to establish the identity of persons for
notarization purposes.
Support : California Catholic Conference; La Raza Lawyers'
Association, Central Valley Chapter; California La Raza Lawyers
Association; California League of United Latin American
Citizens; Immigration Legal Resource Center; Chicano Federation
of San Diego, Inc.; PICO California; Central Valley Partnership
for Citizenship; Law Office of Gilbert Zavala; California Rural
Legal Assistance Foundation; Alianza Latinoamericana por los
Derechos de los Inmigrantes
Opposition : National Notary Association
HISTORY
Source : Author
Related Pending Legislation :
SB 461 (Correa, 2009) would provide that a Matricula consular be
added to the list of documents that provide satisfactory
evidence that the person making the acknowledgment is the
individual who is described in and who executed the instrument.
This bill is virtually identical to AB 442 and is in the Senate
Judiciary Committee. SB 461 is a two-year bill.
AB 99 (De Leon, 2009) would allow secondhand and coin dealers to
rely upon a Matricula consular as a form of identification in
addition to another item bearing an address. This bill is in
the Senate Public Safety Committee.
Prior Legislation :
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AB 1870 (De Leon, 2008) would have allowed secondhand and coin
dealers to rely upon a Matricula consular as a form of
identification in addition to another item bearing an address.
This bill was vetoed.
AB 522 (Diaz, 2003), among other things, would have required
every city, county, and city and county officer or employee to
accept for purposes of personal identification an ID card issued
by the Mexican Consulate Office, the same as a driver's license
or ID card issued by the DMV, or Matricula Consular, except as
specified. The bill would also have limited the use of a
Matricula Consular, or information collected from, or appearing
thereon. This bill was vetoed.
AB 25 (Nunez, 2002), among other things, would have required
state agencies to accept as valid identification of a person a
foreign ID card issued by another nation, as defined, to its
citizens or nationals, subject to specified exceptions, if
specified requirements are met. The bill would have provided
that a foreign ID card would not by itself establish eligibility
for employment, voter registration, or public benefits. This
bill died on the Senate Inactive File.
ACR 229 (Diaz and Firebaugh, Resolution Chapter 187, 2002),
urged cities and counties throughout California, including their
respective agencies, to accept the Mexican Consular ID cards,
known as the "Matricula Consular," as an official form of
identification.
Prior Vote :
Assembly Judiciary Committee (Ayes 6, Noes 3)
Assembly Floor (Ayes 43, Noes 29)
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