[House Report 116-533]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-533
======================================================================
FIGHT NOTARIO FRAUD ACT OF 2020
_______
September 24, 2020.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 8225]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 8225) to amend title 18, United States Code, to
prohibit certain types of fraud in the provision of immigration
services, and for other purposes, having considered the same,
reports favorably thereon without amendment and recommends that
the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 4
Duplication of Federal Programs.................................. 5
Performance Goals and Objectives................................. 5
Advisory on Earmarks............................................. 5
Section-by-Section Analysis...................................... 5
Changes in Existing Law Made by the Bill, as Reported............ 7
Purpose and Summary
H.R. 8825, the ``Fight Notario Fraud Act of 2020,'' is
designed to address notario fraud, the practice of the
provision of unauthorized immigration legal services, which has
not been effectively curbed by existing federal, state, and
local efforts. The practice continues to cause irreparable harm
to immigrant communities. Courts across the country, which
often are the first government entities to identify instances
of notario fraud, have recognized the widespread prevalence of
notario fraud.\1\ The negative impact on immigrants and their
families is clear. Furthermore, notarios delegitimize the
immigration system. The proposed explicit criminalization of
notario fraud is necessary to focus criminal fraud prosecution
on widespread scams that target some of the least sophisticated
and most vulnerable individuals in our society.
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\1\See e.g., Mendoza-Mazariegos v. Mukasey, 509 F.3d 1074, 1077 n.4
(9th Cir. 2007) (``[T]he immigration system in this country is plagued
with `notarios' who prey on uneducated immigrants.'').
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Notario grifters are able to continue to carry out their
scams by holding the fear of deportation over the heads of
their victims, many of whom may have legitimate immigration
claims. H.R. 8225 contains a set of strong sanctions for
notarios who act to prevent or dissuade their clients from
reporting their racket. These federal penalties are
particularly important to prevent notarios, who might otherwise
evade civil punishment, from setting up shop elsewhere. The
bill's proposed website and intake functions will help address
underreporting and provide linguistically appropriate
information to vulnerable immigrants. Reports of suspected
notario fraud will focus DOJ prosecutions, while the publicly
available list of notarios will serve as an important resource
to state and local law enforcement.
The ``Fight Notario Fraud Act of 2020'' directly addresses
these fraudulent practices by criminalizing the provision of
fraudulent legal services, certain misrepresentations by
individuals who claim to be authorized to practice immigration
law, and threats and retaliation associated with the provision
of fraudulent legal services. Additionally, the bill would
require the Attorney General to create no fewer than 15 Special
United States Attorney positions to prosecute notario fraud
crimes.
Background and Need for the Legislation
The roots of modern ``notario fraud'' in the United States
stem from a practice in parts of Latin America where ``notarios
publicos,'' (which could be literally translated to ``notaries
public'') are lawyers and, as such, are authorized to provide
legal services.\2\ In the United States, a notary public's
authority is generally limited to witnessing signatures, while
``notario publicos'' in Latin America have a law license and
can represent others in court.\3\ Many Spanish-speaking
immigrants in the United States turn to notaries because, in
Latin American countries, the title of notario publico refers
to a lawyer.\4\
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\2\Jay M. Zitter, Nonlawyer Immigration Consultant's Fraud, Breach
of Fiduciary Duty, Ineffectiveness, or the Like, in Provision of Advice
or Assistance in Immigration Matters, Am. L. Rep., 21 A.L.R.7th Art. 3
(2017).
\3\Amer. Bar Assoc., About Notario Fraud (July 19, 2018), https://
www.americanbar.org/groups/public_interest/immigration/
projects_initiatives/fight-notario-fraud/about_notario_fraud/.
\4\Bianca Carvajal, Combatting California's Notario Fraud, 35
Chicana/o-Latina/o L. Rev. 1, 3 (2017).
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Taking advantage of the literal-sounding translation of
``notario publico,'' some grifters have used the ``notary
public'' title to hold themselves out as authorized to provide
immigration legal advice and services.\5\ Notario fraud schemes
commonly use this seemingly literal translation to dupe
potential clients into believing that the full scope of legal
representation in immigration matters may be secured by hiring
a notary public.\6\ On account of linguistic and cultural
differences in meaning, notario fraud disproportionately
targets immigrants from Latin America who are not fluent
English speakers or familiar with the difference between the
Latin American and American legal systems.\7\
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\5\Catrina L. Guerrero, Divided States of America: Why the Right to
Counsel Is Imperative for Migrant Children in Removal Proceedings, 22
St. Mary's L. Rev. & Soc. Just. 29, 77 (2020).
\6\Barroso v. Gonzales, 429 F.3d 1195, 1197 n.2 (9th Cir. 2005).
\7\Edgar Flores, Legal Service Awareness of the Latino Population
in Southern Nevada, 19 Tex. Hisp. J. L. & Pol'y 33, 35 (2013).
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i. Effect of Notario Fraud
Notarios often gain the trust of the immigrant families
they defraud, making extravagant promises and preying on the
desperation of families.\8\ The effect of this breach of trust
can be dire and far-reaching. Notarios often make mistakes in
these filings and proceedings, which can result in irreversibly
negative immigration consequences for their clients. A
notario's legal errors can lead to an unfavorable review in
immigration courts and may prejudice the immigrant-appellant on
appeal.\9\ Fly-by-night notarios may skip town with important
documentation immigrants need to file for immigration
relief.\10\ Or they may apply for relief without the immigrant-
applicant's knowledge.\11\ A notario's advice to a parent may
impact the separate and independent relief a child applicant
may have.\12\ Notario grifters also take hard-earned money out
of the pockets of persons desperate for assistance with their
immigration cases, sometimes amounting to thousands of
dollars.\13\ The impact of notario fraud can also have a
fundamentally destabilizing effect on immigrant children. One
family that fell victim to a notario grifter witnessed one of
their children have a dramatic drop in school achievement over
the course of the ten-year scam to which they were
subjected.\14\ Currently, equitable relief for this malfeasance
is not available in the immigration proceedings and, even
worse, defrauded immigrants can be charged with filing false
claims.\15\
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\8\John Roemer, Legal Consultants Prey on California Immigrants
Across State, CAL. BAR JOURNAL, http://www.calbarjournal.com/
November2016/TopHeadlines/TH1.aspx (last visited Aug. 28, 2020).
\9\Barroso v. Gonzales, 429 F.3d 1195, 1208 (9th Cir. 2005)
(reviewing a case where notario failed to appear at a proceeding).
\10\See e.g., Nunez v. Gonzales, 231 F. App'x 666, 667 (9th Cir.
2007) (examining a circumstance where a notario took an immigrant
applicant's visa).
\11\See id. at 668.
\12\C.J.L.G. v. Barr, 923 F.3d 622, 637 (9th Cir. 2019).
\13\See Steph Solis, Statewide Sweep Nets 28 New Jersey Businesses
Accused of Defrauding Immigrants, North Jersey (Nov. 9. 2018), https://
www.northjersey.com/story/news/new-jersey/2018/11/09/nj-notario-fraud-
ag-cites-28-businesses/1941891002/.
\14\Mary Dolores Guerra, Lost in Translation: Notario Fraud-
Immigration Fraud, 26J. CIVIL RIGHTS & ECON. DEVELOPMENTS 34 (2011).
\15\Amer. Bar Assoc, About Notario Fraud (July 19, 2018), https://
www.americanbar.org/groups/public_interest/immigration/
projects_initiatives/fight-notario-fraud/about_notario_fraud/.
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ii. Reporting and Retaliation
Immigrants have been defrauded of hundreds or even
thousands of dollars by unscrupulous notarios only to find out
they will not receive the services they were promised and, in
some cases, these individuals find themselves in worse
conditions than when they originally sought help with their
immigration matters. After they discover that they have been
bilked, many immigrants are afraid to report notarios.\16\ By
some estimates, only one in every hundred cases is
reported.\17\ In one civil action initiated by the Federal
Trade Commission in 2011, investigators recovered evidence of
2,785 defrauded immigrants, but only 99 consumer complaints
associated with the notario grifter--a reporting rate of 3.55
percent.\18\ Because many of the victims of notarios also do
not have legal immigration status, they fear negative
immigration outcomes if they even attempt to bring a
complaint.\19\
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\16\Id. at 28.
\17\Lorelei Laird, Underreporting Makes Notario Fraud Difficult to
Fight, ABA J. (May 1, 2018), https://www.abajournal.com/magazine/
article/underreporting_notario_fraud.
\18\Id.
\19\Guerra, 26 J. CIVIL RIGHTS & ECON. DEVELOPMENTS at 28.
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Hearings
The Committee has not addressed notario fraud in a hearing
or taken up this or previous versions of this legislation
previously.
Committee Consideration
On September 15, 2020, the Committee met in open session
and ordered the bill, H.R. 8225, favorably reported by a voice
vote, without amendment.
Committee Votes
No record votes occurred during the Committee's
consideration of H.R. 8225.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report. Additionally, in reviewing
H.R. 8225, the Committee found that the Department of Justice's
current efforts to curb notario fraud were deficient. Despite
limited initiatives in the past decade to target notario fraud,
the Fraud Section of the Criminal Division of the Department
Justice has failed to dedicate any meaningful resources to
combat notario fraud or hired attorneys with the language
skills to communicate with victims of notario fraud. The
Committee concurred with the bill's sponsor that the Immigrant
and Employee Rights Section of the Civil Rights Division of the
Department of Justice is better suited to prosecute these cases
given the cadre of Spanish-speaking attorneys it has on its
staff and the robust intake system it already has in place.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office (CBO). The Committee
has requested but not received from the Director of the CBO a
statement as to whether this bill contains any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures.
Duplication of Federal Programs
No provision of H.R. 8225 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
8225 would enhance the Federal government's ability to
prosecute notario fraud and promote the reporting of notario
fraud schemes. Additionally, the creation of an online database
of individuals convicted of notario fraud would provide the
public with information on how to avoid notario fraud scams.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 8225 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title. This section establishes the bill's
short title as the ``Fight Notario Fraud Act of 2020.''
Sec. 2. Fraud Prohibited. To make unlawful notario fraud
schemes, this section adds three distinct acts that impose
criminal liability.
(a) Fraud. This subsection makes illegal the act of
knowingly executing a scheme, in connection with any matter
authorized by or arising under the immigration laws or by a
person who claims that they are authorized under immigration
law to act, that defrauds another person or obtains anything of
value by false pretenses, representations, or promises. The
possible penalty for violating this section is imprisonment for
up to a one year; the imposition of a fine; or both.
(b) Misrepresentation. This subsection makes unlawful a
false representation that someone is an attorney or an
accredited representative under federal immigration law in any
matter arising under immigration law. The possible penalty for
violating this section is imprisonment for up to one year; the
imposition of a fine; or both.
(c) Threats and Retaliation. This subsection criminalizes
the communication of threats and prohibits retaliation in
connection with notario fraud schemes. In order to be culpable
under this section, a person must perpetrate a notario fraud
scheme under the Frauds subsection--(a) above--and contravene
one of the threats and retaliation prohibitions detailed in
this subsection.
In connection with a notario fraud scheme, this subsection
makes unlawful the act of threatening to report another person
to Federal authorities or State law enforcement authorities
working in conjunction with or pursuant to Federal authority.
This subsection also imposes a criminal penalty if, in
connection with a notario fraud scheme, someone acts to
adversely affect another person's immigration status, perceived
immigration status, or attempts to secure immigration status
for a person that either (1) impacts or results in the removal
of the person from the United States; (2) leads to the loss of
immigration status; or (3) causes the person seeking to apply
for an immigration benefit to lose an opportunity to apply for
such an immigration benefit that would have provided
immigration status and for which a person was, on its face,
eligible.
This subsection also criminalizes, in connection with a
notario fraud scheme, the demand or retention of money or
anything else of value for services fraudulently performed;
services not performed; services withheld; or threats to
withhold services to be performed.
The possible penalty for violating this subsection is
imprisonment for up to one year; the imposition of a fine; or
both.
(d) Gravity of Offense. This subsection establishes
criminal penalties for large-scale or particularly harmful
notario fraud schemes. Any person who is found culpable for
notario fraud under either Fraud, Misrepresentation, or Threats
and Retaliation crimes and causes the cumulative loss to all
victims that exceeds $10,000 may be imprisoned not more than
three years; fined under this title; or both.
Any person who commits a notario fraud scheme by violating
the Frauds or Misrepresentation crime and (1) impacts or
results in the removal of the person from the United States;
(2) leads to the loss of immigration status; or (3) causes the
person seeking to apply for an immigration benefit to lose an
opportunity to apply for such an immigration benefit that would
have provided immigration status and for which a person was, on
its face, eligible, may be imprisoned for not more than three
years; fined under this title; or both.
(e) Information sharing and Enforcement. Pursuant to this
subsection, the Immigrant and Employee Rights Section of the
Civil Rights Division of the Department of Justice shall have
primary enforcement responsibility for this section and shall
be consulted prior to a United States Attorney initiating an
action under this section.
This subsection also requires the Immigrant and Employee
Rights Section to establish procedures to receive and
investigate complaints of fraudulent immigration schemes from
the public; publish information on the Internet aimed at
protecting consumers from notario fraud; and maintain on the
Internet a list of individuals who have been convicted of
unlawful conduct under this Act or have been found by a State
or Federal agency to have unlawfully provided immigration
services.
In this subsection, the Act instructs the Attorney General
to establish no fewer than 15 Special United States Attorney
positions in districts the Attorney General determines, after
analyzing data following each decennial census, to be most
affected by fraud described this Act.
Additionally, this subsection requires that, where the
victim of an offense prosecuted under this Act cannot be
located, any restitution ordered must be deposited in the Crime
Victims Fund.
(f) Severability. The bill also contains a severability
clause that would preserve the remaining provisions if any
other element or elements of the legislation were to be
overturned in court.
(g) Immigration Laws. This section provides that the term
``immigration laws'' has the meaning given that term in the
Immigration and Nationality Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 47--FRAUD AND FALSE STATEMENTS
* * * * * * *
Sec.
* * * * * * *
1040. Fraud in connection with major disaster or emergency benefits.
1041. Schemes to defraud persons in any matter arising under immigration
laws.
* * * * * * *
Sec. 1041. Schemes to defraud persons in any matter arising under
immigration laws
(a) Fraud.--Any person who knowingly executes a scheme or
artifice, in connection with any matter authorized by or
arising under the immigration laws, or any matter that such
person claims or represents is authorized by or arises under
the immigration laws to--
(1) defraud any other person; or
(2) obtain or receive money or anything else of value
from any other person by means of false or fraudulent
pretenses, representations, or promises,
shall be fined under this title, imprisoned not more than 1
year, or both.
(b) Misrepresentation.--Any person who knowingly makes a
false representation that such person is an attorney or an
accredited representative (as such term is defined under
section 1292.1(a)(4) of title 8, Code of Federal Regulations
(or any successor regulation)) in any matter arising under the
immigration laws shall be fined under this title, imprisoned
not more than 1 year, or both.
(c) Threats and Retaliation.--Any person who violates
subsection (a) and knowingly--
(1) threatens to report another person to Federal
authorities or State law enforcement authorities
working in conjunction with or pursuant to Federal
authority;
(2) acts to adversely affect another person's
immigration status, perceived immigration status, or
attempts to secure immigration status that--
(A) impacts or results in the removal of the
person from the United States;
(B) leads to the loss of immigration status;
or
(C) causes the person seeking to apply for an
immigration benefit to lose an opportunity to
apply for such an immigration benefit that
would have provided immigration status and for
which a person was prima facie eligible; or
(3) demands or retains money or anything else of
value for services fraudulently performed or not
performed or withholds or threatens to withhold
services promised to be performed,
shall be fined under this title, imprisoned not more than 1
year, or both.
(d) Gravity of Offense.--
(1) Cumulative loss.--Any person who violates
subsection (a), (b), or (c) such that the cumulative
loss to all victims exceeds $10,000 may be imprisoned
not more than 3 years, fined under this title, or both.
(2) Retaliation.--Any person who violates subsection
(a) or (b) and causes the harm described in subsection
(c)(2) may be imprisoned not more than 3 years, fined
under this title, or both.
(e) Information Sharing and Enforcement.--
(1) In general.--The Immigrant and Employee Rights
Section of the Civil Rights Division of the Department
of Justice--
(A) shall have primary enforcement
responsibility for this section and shall be
consulted prior to a United States Attorney
initiating an action under this section;
(B) shall establish procedures to receive and
investigate complaints of fraudulent
immigration schemes from the public that are
consistent with the procedures for receiving
and investigating complaints of unfair
immigration-related employment practices; and
(C) shall maintain and publish on the
internet, information aimed at protecting
consumers from fraudulent immigration schemes,
as well as a list of individuals who have been
convicted of unlawful conduct under this
section or have been found by a State or
Federal agency to have unlawfully provided
immigration services.
(2) Special united states attorneys.--The Attorney
General shall establish no fewer than 15 Special United
States Attorney positions in districts the Attorney
General determines, after analyzing data following each
decennial census, to be most affected by the fraud
described in subsections (a), (b), and (c).
(3) Restitution.--There shall be deposited in the
Crime Victims Fund established under section 1402 of
the Victims of Crime Act of 1984 (34 U.S.C. 20101) any
restitution ordered for an offense under this section
if the victim of such offense cannot reasonably be
located.
(f) Severability.--If any provision of this section, or the
application of such a provision to any person or circumstance,
is held to be unconstitutional, the remainder of this section
and the application of the remaining provisions of this section
to any person or circumstance shall not be affected thereby.
(g) Immigration Laws.--In this section, the term
``immigration laws'' has the meaning given that term in section
101(a)(17) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(17)).
* * * * * * *