California on Immigration—Great Steps Forward and New Requirements for Immigration Attorneys

Author: on 10/08/2013


shutterstock_89347900Governor Jerry Brown signed several bills last week that will make a huge difference for many immigrants.  “While Washington waffles on immigration, California’s forging ahead,” Governor Brown said. “I’m not waiting.”  The bills are mostly positive, but one creates new requirements for AILA members practicing in California.

First, undocumented immigrants in California will be able to obtain driver’s licenses which is great news, not just for immigrants and their families, but also for many law enforcement agencies and insurance companies who supported such a measure for safety and security reasons.  This isn’t likely to be instantaneous; according to reports, the licenses are expected to become available to immigrants no later than January of 2015.  However, there is talk that the licenses could become available as early as late 2014.  They also won’t be just like other licenses, instead they will have a special designation on the front and a caution that the document is not a form of identification at the federal level; a sort of scarlet letter.  California isn’t alone; my state joins ten others that already had similar measures.  But California is the biggest state to pass a bill like this; an estimated 1.4 million drivers are expected to apply for the licenses during the first three years.

Governor Brown also signed the TRUST Act—which will prohibit local law enforcement from detaining immigrants charged with minor crimes in order to let federal authorities know about them for immigration violations.  If an immigrant were charged with a serious offense, then they could be held for 48 hours and transferred to federal authorities for potential deportation.  We’re delighted that Governor Brown signed the TRUST Act, along with bills allowing undocumented immigrants to obtain law licenses and one that criminalizes employers who “induce fear” by threatening exposure of a person’s status as someone who entered the country illegally.  AB 524 prevents employers from using the reporting threat to stop workers from complaining about workplace abuses, unsafe working conditions and wage theft. SB 666 allows an employer’s business license to be suspended or revoked for retaliation against workers based on immigration status.  Governor Brown also vetoed a bill that would have allowed noncitizens to serve as jury members.

So those were all big steps forward for immigrants and advocates.

Governor Brown also signed AB1159, a bill that was of tremendous concern to AILA.  The law’s intention is to protect potential victims of immigration fraud.  At its onset, AB1159 sought to regulate the practice of Immigration Law in California.  AILA raised major concerns about the bill earlier in the summer when the state legislature was taking up the measure, including the fact that some requirements could endanger attorney/client privilege, make it more difficult if not impossible for lawyers to offer pro bono or low cost services, and even prevent lawyers from advising clients on how changes in the law might impact their case or how to prepare for change.

Due to the staunch advocacy led by the California Chapter Chairs, AILA’s Executive Committee, and many AILA members, AILA was able to correct the misguided efforts of the California State Bar and the bill’s authors. After long negotiations, the bill’s author agreed to take out the onerous requirements against Immigration Attorneys, while continuing to tighten requirements against immigration consultants and notarios.

AB 1159 prohibits Immigration Attorneys from entering into contracts relating to Immigration Reform before the law is actually signed into law by the President.  AILA carved out an exception for preparatory and investigatory work, like requesting FOIA’s, background checks, and post-conviction relief.  If money has been collected by an attorney for a law that does not exist, the attorney must refund the money or place it in an attorney/client trust fund.

Additionally, AB 1159 requires all attorneys that enter into contracts relating to an Immigration Reform Bill to inform the client where they can report complaints.  The California State Bar will create the document, translate it into various different languages, and post it on their website.  After reaching this compromise, AILA withdrew its opposition to the bill.

The bill also increased the amount of bond that immigration consultants must carry from $50,000 to $100,000 as of July 1, 2014.  It also prohibits the use of the term “notario,” which has been misconstrued as someone who is qualified to give legal advice.  The bill also provides that a person who violates the ban on the use of the term “notario” is subject to a civil penalty of up to $1,000 per day for each violation.

While the bill is far from perfect, AILA remains at the forefront of promoting ethical lawyering and preventing the unauthorized practice of law.  AILA has been advocating against the unauthorized practice of law way before it became politically expedient to do so.  AILA will continue to monitor other state legislatures for similar bills and reach out to legislatures to ensure the best method in which to combat immigration fraud at all levels, including the new fraud frontier – internet notarios or “net-tarios.”

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