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Abstract

On February 7, 2005, legislators introduced in the Maryland General Assembly a bill entitled “Consumer Protection – Immigration Consulting Services.” Designated as House Bill 691, the legislation sought to protect Maryland consumers through a series of civil and criminal provisions targeting consultants for unauthorized immigration legal practice. Primarily, House Bill 691 limited the types of services an immigration consultant could offer and the claims she could make regarding those services. In addition, the law required that the consultant provide the client with a posted disclaimer regarding the scope of the service, and a written contract prior to the provision of any assistance. The proposed legislation also provided for criminal and civil penalties resulting from violation of any of its provisions. The civil penalties included fees paid to the consultant, attorney’s fees, and other damages. During the bill’s hearings, Maryland legislators listened to testimony on the consequences for families who entrust their immigration cases to unscrupulous immigration consultants. One woman testified that her husband had been deported to Mexico after heeding the advice of an immigration consultant. Following these hearings, the House passed the bill 121 to 5 and the Senate passed it unanimously. On May 26, 2005, then-Governor Robert Ehrlich signed the Immigration Consultant Act into law. The Washington Post hailed the legislation as a move “that would give people who use immigration consultants more protection” and immigrant advocates viewed the Act as responding to “one of the biggest legal issues in our community.” Part I of this article examines the phenomenon of so-called “notario fraud” and its causes. While many authors have commented on the preconceived cultural and linguistic notions that lead recent arrivals to seek of the advice of notarios, I suggest that cultural misconceptions alone do not account for the rise of these service providers. Instead, many immigrants turn to notarios and immigration consultants fully knowing that they lack the formal legal training of an attorney. The immigrants do so because these consultants often represent the most accessible source of assistance available to the many low-income immigrant consumers who are largely isolated from authorized legal providers. Part II evaluates and proposes solutions for dealing with the problem of notario legal representation through state legislation. Many legal scholars and practitioners have pointed to the importance of unauthorized practice of law regulations in limiting notario representation. By contrast, this Part argues that immigrant advocates should follow in Maryland’s footsteps and harness the stronger legal protections available in state consumer protection and criminal law to curb abuses. Like unauthorized practice of law regulations, this approach will work to discourage fraud, but will also more effectively target and weed out bad practice. While the unauthorized practice of law serves as a blanket prohibition on unlicensed practice regardless of the practitioner’s effectiveness, the enforcement of consumer and criminal laws will permit competent notarios to continue their vital work in a vastly underserved community. Finally, this Part suggests practices by which states can implement criminal and consumer protection laws, including legislation that specifically targets notarios, to best protect and serve immigrant consumers. Part III assesses the Maryland Immigration Consultant Act’s fulfillment of Part II’s proposals and the relative success of the law in responding to these abuses. Investigation of the Act reveals that while it was thoughtfully crafted to allow for easy and effective targeting of harmful practice, ineffective implementation has robbed the legislation of realizing its full potential. The Maryland Immigration Consultant Act uses principles of consumer protection –including provisions for a private consumer right of action and criminal penalties for violation of the act – yet consumers have received little relief from unscrupulous consultants despite the existence of this promising legislation. This is because a legislative scheme created to address the havoc wrought by consumer isolation from adequate legal processes necessarily requires aggressive state enforcement and outreach to overcome that isolation and ensure effective implementation. As of yet, the state of Maryland has not taken necessary measures to ensure the Maryland Immigration Consultant Act fulfills its consumer protection mandate. Part IV concludes with suggestions for reform on the federal level and with projections for the fate of Maryland’s Immigration Consultant Act, now in its fifth year. The Act represents a relatively novel form of legislation and there are a limited number of jurisdictions that have adopted laws regulating immigration consultants. This Article offers the Maryland law as an instructive example to states considering implementing similar statutes.