Photo provided by Bryan Cave
Among the challenges faced by immigrants is finding quality legal representation. Many have hired "publicos," a Spanish term used to refer to someone with at least a law license who can provide immigration advice. However, some of these notarios misrepresent themselves, resulting in inadequate misrepresentation, false filings and the risk of deportation for the immigrant.
David Zetoony, an antitrust and consumer protection attorney in Bryan Cave's Washington, D.C. office, recently handled a unique immigration case, successfully applying novel legal arguments and consumer protection laws to prosecute people claiming to help immigrants with their citizenship efforts. Zetoony discussed with Lawdragon his strategies for the case and the implications of the court's decision. He also described the problems faced by immigrants, what the government is doing to prevent immigrant fraud and cases going forward.
Lawdragon: What are the greatest challenges for undocumented workers?
David Zetoony: Most people may not realize how difficult it is for undocumented workers to access our judicial system. One key difficulty for those who have not grown up in the United States is understanding the difference between our civil, criminal and immigration courts. For instance, immigrants often do not know what actions they can take to protect themselves when others harm them - for example, bringing a civil suit - without exposing themselves to deportation.
LD: What got you into immigration law in the first place?
DZ: Ironically, I would not call myself an "immigration lawyer." My practice focuses on antitrust and consumer protection litigation. So how as a corporate lawyer did I get involved in an immigration issue? My interest was sparked by an NPR report that interviewed several individuals who had retained someone that had advertised himself as being a "notario publico," which to most Spanish speakers from South America refers to someone with at least a law license who can provide them with immigration advice. Although the individuals believed that they were being represented by an attorney, and paid the type of fees that one pays to attorneys, in fact the person who had advertised himself as a notario had no legal training or qualifications. This resulted in missed opportunities, false filings and the risk of unnecessary deportation.
To me, the situation sounded like a consumer-protection issue, not an immigration issue. Consumers - in this case documented and undocumented immigrants - were being deceived into retaining the services of consultants. As most states have consumer-protection statutes that prohibit false or deceptive advertising, and allow consumers to seek damages or enjoin advertisers from continuing false practices, it sounded like victims might be able to bring suit against consultants to prevent the consultants from harming more people.
LD: Tell me about Argueta vs. Mejia, the notario publico case you recently handled.
DZ: The case involved two immigrant families who went to an immigration consultant because she claimed that she "had an attorney for each case," and that she, herself, was a "notario publica," and had a "court license." The families retained the immigration consultant and paid her thousands of dollars for her supposed expert advice and services. Only later did they discover that the consultant had no law degree, no court license and no qualification to provide immigration advice.
We alleged that the consultant committed eight violations of Maryland's Consumer Protection Act and 14 violations of Maryland's Immigration Consulting Act. Ultimately, the consultant admitted liability and agreed to a confessed judgment of $100,000 and an injunction prohibiting her from misrepresenting herself. If she violates the injunction, she is liable for an additional $25,000 for each violation.
LD: What makes this case so significant?
DZ: The case is important for a number of reasons. First, it put someone who we believe may have deceived tens, hundreds, or even thousands of people out of business. In fact, since obtaining our judgment other immigration attorneys have told us that their clients were also victimized by the same individual. Second, it demonstrates that state consumer-protection acts can be used successfully against immigration consultants. We hope that other attorneys across the country use this case as an example of how to bring similar suits.
LD: How do you expect the strategies implemented in Argueta vs. Mejia to be used going forward, including the application of the consumer protection laws?
DZ: We have been working with the American Bar Association's Commission on Immigration to encourage other attorneys and law firms to bring civil actions against notarios who defraud immigrants. Together, we have established the website www.fightnotariofraud.org. Most importantly, the website includes a pro bono referral service that allows litigators to register to take notario cases and allows victims and immigration attorneys to recommend cases for possible referral. The website also includes a repository of cases, such as the pleadings in Argueta, consumer education and statutes.
LD: Your firm has filed a petition with the FTC, requesting that it bring cases similar to Argueta across the country and provide guidance to immigrants and their attorneys on what constitutes deceptive practices and consultant fraud. This seems like a creative approach. Please tell me about this.
DZ: On behalf of Catholic Charities of the Archdiocese of Washington, a nonprofit organization that assists immigrants, we petitioned the Federal Trade Commission (FTC) to take action against consultant fraud. Our petition asks the FTC to investigate complaints of consultant fraud and to bring cases against consultants who engage in false and deceptive advertising. The petition also asks the FTC to issue industry guidance that would provide immigration consultants with a better understanding of what they can, and cannot, do when trying to obtain immigrant clients. For instance, we suggested that the guidance recommend that consultants not use the term "notario publico," and that consultants always provide immigrants with a written contract explaining precisely what services the consultant is qualified to provide.
LD: What is Congress doing to protect immigrant rights?
DZ: Senators Feinstein and Kennedy proposed "The Immigration Fraud Prevention Act of 2009" in March of this year. The act would make it a crime to knowingly misrepresent that you are an attorney. The act also instructs the attorney general and the Department of Homeland Security to take steps to detect consultants who engage in deception, and to try to educate immigrants regarding who may provide legal services.
The act is a definite step in the right direction. By proposing to make consultant fraud a crime, the act recognizes that this type of activity not only denies immigrants an ability to meaningfully access our judicial system, but it undermines immigrants' confidence in the law, lawyers and the legal profession.
Although it's unclear if the act will pass the Senate and the House, I hope that it sparks debate about how to best prevent fraud against immigrants. Regardless of what side of the aisle you sit on, or how you feel about immigration into this country, members of both parties should realize that nobody is served by allowing unscrupulous individuals to prey on disadvantaged populations.
LD: What can we expect in terms of the Obama administration's approach to immigration fraud prevention?
DZ: The Obama administration has made clear that it considers consumer protection a top priority. One example of that commitment is the appointment of Jon Leibowitz as the Chairman of the FTC. Leibowitz, in his past decisions as a commissioner, and in his latest press releases, has made clear that the FTC intends to actively pursue industries that engage in misleading practices. We hope that he makes consultant fraud a top priority for the commission.