For more than a decade, Loma International Business Group, Inc., operated out of the seventh floor of the elegant stone building in downtown Baltimore known as “Baltimore’s First Skyscraper.” Loma’s owners, Manuel and Lola Alban, seemed to fit in well with the lawyers, accountants, and government officials who also had offices in the building. Manuel Alban advertised himself as an attorney, and the couple purported to offer legal services to immigrants, particularly from Honduras and El Salvador, who were looking for help in dealing with their immigration status. Over the course of a decade, the Albans filed immigration paperwork for more than 600 clients, charging each hundreds of dollars for their work.
In June 2011, a federal judge shut down Loma for deceptive practices. According to a complaint filed by the Federal Trade Commission (FTC), Manuel Alban was not an attorney, nor were the Albans authorized to provide immigration services, as they claimed. Moreover, more than half of the immigration applications they filed were rejected or denied, often because they filed the wrong form or failed to pay a fee. Collectively, the Albans bilked their clients of tens of thousands of dollars.
The Albans succeeded by using word-of-mouth advertising and preying on their clients’ vulnerability. “Since most consumers have limited English skills,” said the FTC’s complaint, “they place their trust in the Albans to select, prepare, and file the necessary English language immigration forms.”
They also succeeded by exploiting the Byzantine complexity of the immigration system, which is too intimidating for most laypeople to navigate on their own. Jackie Vimo of the New York Immigration Coalition, a nonprofit advocacy group, calls immigration law “second only to the tax code for complexity.” She says her group “strongly advises against” clients applying for an immigration benefit on their own, because the stakes for immigrants are so high. Says immigration lawyer Rachel Van Wormer, “You put the wrong things on your form, and you could be deportable.”
Talk of immigration reform is moving closer to reality, and the legislation that emerges from Congress will determine whether the treacherous path that immigrants already face becomes more dangerous still. While politicians jockey to craft a “tough” bill that piles on hurdles and paperwork for immigrants, unscrupulous entrepreneurs like the Albans are likely salivating over the opportunities.
Immigration advocates already report an uptick in profiteering. Even though legislation has yet to be passed—and even when it has been passed, it will likely take months for the government to issue regulations governing the process—fraudsters are already claiming that visas are available and that a waiting list is being developed. “The ink isn’t even close to dry, and people are creating the false impression that people should start signing up now,” says the New York Immigration Coalition’s Vimo.
In fact, the biggest potential beneficiaries of reform might not be the eleven million undocumented immigrants eager for legal status. Instead, the winners might be waiting in the shadows: an army of “storefront coyotes”—a variation on the notorious profiteers who charge thousands of dollars to smuggle desperate immigrants across the border.
While recent opinion polls show that the majority of Americans support giving illegal immigrants a path to legal status, Americans also want that path to be “earned.” A 2013 poll by the Public Religion Research Institute found, for example, that 63 percent of Americans support a path to citizenship for illegal immigrants “provided they meet certain requirements.” Spelling out those requirements has been central to the current politics of reform, particularly for conservative proponents who feel the only way to pass reform is to mollify the hard right with a restrictive and tortuous path to legal status.
In the March 2013 proposal by the Senate’s bipartisan “Gang of Eight,” for example, the bill summary made it painfully clear that this proposal was no amnesty. After meeting preconditions on border security, “undocumented immigrants will be able to come forward, must submit to and pass background checks, be fingerprinted, pay $2,000 in fines, pay taxes, prove gainful employment, prove they’ve had a physical presence in the U.S. since before 2012 and going to the back of the line, among other criteria. Criminals and those who don’t meet these criteria will be deported.” Moreover, the proposal set an absurdly short timetable—one year—for all immigrants seeking legal status to file their paperwork.
Nevertheless, the first markup of the Senate bill before the Senate Judiciary Committee drew dozens of amendments from senators seeking to make the bill even tougher. Utah Republican Senator Orrin Hatch, for example, filed twenty-four proposed amendments, including one to collect DNA samples from every immigrant seeking legality. Because proponents of reform feel they must bow to pressure that immigrants “earn” legal status, whatever new legislation emerges will likely make an already tortured path to citizenship even more complex.
Ever since Ronald Reagan signed the Immigration Reform and Control Act of 1986, the so-called “amnesty” law that legalized 2.7 million undocumented immigrants, Washington, under pressure from an angry public, has passed ever more draconian restrictions on immigrants, legal as well as illegal. First came the Illegal Immigration Reform and Immigration Responsibility Act of 1996, which banned new immigrants with green cards from receiving government benefits such as Social Security, increased border security and penalties for immigration fraud, and dramatically expanded the list of deportable offenses. Then, after the 9/11 attacks, Congress passed a slew of measures tightening immigration, including the Homeland Security Act of 2002, which created the Department of Homeland Security and put immigration in its purview; the USA PATRIOT Act, which made it easier to deport suspected terrorists; and the REAL ID Act, which made claiming asylum tougher and made driver’s licenses unavailable to undocumented immigrants.
In theory, despite all these new laws the immigration process remains fairly simple: you apply for a visa, become a “lawful permanent resident” (that is, you get a “green card”), and then you apply for citizenship. But in practice, the process has become impossibly protracted. According to the Migration Policy Institute, immigrants from countries where the demand to immigrate is high, such as the Philippines, have waited as long as twenty-four years just for their initial visa.
There are multiple channels to a green card, depending on whether you’re coming to America because of a job, because you have family members who are U.S. citizens or lawful permanent residents, or because you are a refugee from political or physical persecution in your home country. Each channel requires its own set of forms, a myriad of supporting documents and the potential involvement of multiple federal agencies (particularly if something goes wrong): the U.S. Citizenship and Immigration Services (USCIS) to handle the initial application; Immigration and Customs Enforcement to handle any deportation proceedings; and the Department of Justice to handle appeals in the immigration courts if an application is denied or a deportation is contested. Some cases also involve the Customs and Border Protection agency. Each agency, as well as the courts, is also constantly churning out case law, policy memos, and regulations that practitioners must keep up with. A mistake anywhere along the way can lead to deportation; in 2012, Barack Obama’s administration deported a record 409,849 immigrants.
Immigration lawyer Jie Li tells of a client who had taken it upon himself to fill out the green card application for his foreign-born wife. Despite what should have been a straightforward process, the client—who was, ironically, a USCIS employee—committed a paperwork error that triggered deportation proceedings. JoJo Annobil, the lead immigration attorney for the New York Legal Aid Society, describes the current regime as “zero tolerance.” “Every mistake is magnified,” he says. He cites, for example, a client who was a legal resident, the spouse of a U.S. citizen, and the father of three American-born children. Before coming to Annobil, this client had tried to file his paperwork himself, but accidentally sent his forms to the wrong address, thereby missing a crucial deadline—enough to trigger deportation proceedings.
Trying to navigate these treacherous bureaucratic waters on one’s own is madness. But finding capable and honest professional assistance is itself a crapshoot. The market for immigration services is strewn with rip-offs, such as Web sites that charge people for forms that can be downloaded for free from the USCIS. One such site of dubious value is www.us-immigration.com, which mimics a government site and justifies charging for forms with the offer of 24/7 phone advice and “personalized instructions.” The site’s owner, American Immigration Center, Inc., has received enough complaints to earn an F grade from the Better Business Bureau.
Drive through a Latino neighborhood and you’re likely to see signs for “notarios publicos,” immigration consultants who are not lawyers and operate in a legal gray area. While the clerical act of filling out forms is not technically the unauthorized practice of law, offering advice on how to complete a form—or even just making those decisions on someone’s behalf—crosses the legal line. Even if a notario doesn’t blatantly advertise him- or herself as an attorney, as Manuel Alban did, he or she may still be offering unauthorized legal advice.
Notarios also deliberately compound the confusion for consumers by using that title. In many Latin American countries, a notario publico is a respected designation for lawyers (unlike the term “notary public” in the United States, which indicates someone who is legally qualified only to witness signatures). In Mexico, earning the title of notario publico requires passing a special test, having a clean criminal record, and being over the age of twenty-five. Though not every notario in the U.S. is a scam artist, when it comes to immigration law bad advice can be extremely dangerous for unsuspecting clients. “Maybe [the notarios] are ill-intentioned or they’re just ill-informed, but either way you’re left holding the bag,” says Cori Alonso-Yoder, an immigration attorney with the Washington, D.C., nonprofit Ayuda.
Authorities have made some efforts in recent years to step up enforcement against fraud. In 2011, the FTC, the Department of Homeland Security, and the Department of Justice jointly launched the National Initiative to Combat Immigration Services Scams to crack down on notarios and immigration services fraud. The American Immigration Lawyers Association, the specialty bar association for immigration attorneys, also began an effort called Stop Notario Fraud to help educate consumers and encourage them to report suspected fraud.
Nevertheless, enforcement has been relatively weak. The FTC’s case against Loma, for example, was one of merely sixteen federal actions brought against immigration service providers between 2008 and 2011. A major reason for the tepid enforcement is that undocumented immigrants are often reluctant to draw official (and potentially negative) attention to themselves by reporting a crime. In fact, some victims of irresponsible and fraudulent notarios may never get the chance to come forward because the notarios’ errors trigger deportation proceedings. (According to Valeria Treves of the advocacy group New Immigrant Community Empowerment (NICE), this is a tactic notarios explicitly use: they file for immigration benefits that people clearly aren’t eligible to receive, charging fees for each application; their client never gets a visa; and the mistake draws the notice of immigration authorities, who may begin deportation proceedings. Meanwhile, the notario in question escapes scot-free because the client might be too busy fighting deportation proceedings to file a complaint against the notario.)
Moreover, because the FTC doesn’t pursue cases on behalf of individuals, merely filing a complaint doesn’t help a would-be immigrant get his money back—a further disincentive to complain. Even if they wanted to complain, victims of fraudulent notarios are often so financially drained by their experience that they can’t pursue restitution on their own, says immigration lawyer Li.
As a result of all these factors, only 716 complaints were filed against immigration services providers in 2012, according to the FTC’s Consumer Sentinel Network Data Book. That’s four more than the number of complaints filed against modeling agencies (712), and a couple hundred fewer than were filed against funeral homes (936).
Even if all the notarios were shut down and every visa seeker were assigned a credentialed immigration attorney, the difficulty of finding reliable advice and assistance would persist. Part of the problem is that immigration law is both very complex and poorly paid. The result is that it’s not a high-demand specialty for young law school graduates. “The immigration bar has a bad reputation because there are a lot of bad immigration lawyers out there,” says George Washington University immigration law professor Alberto Benitez.
This problem is compounded by the fact that immigration lawyers often have to earn their paychecks on volume, because most of their clients aren’t rich. “Their bread and butter is doing as many cases as they possibly can,” says Benitez.
“You’re not going to make it otherwise.” Like doctors paid by the number of patients they see and the number of tests they order, immigration lawyers have an incentive to take as many clients as they can—and to file as many applications as they can, even if the clients are unlikely to benefit.
While many excellent private immigration lawyers are out there, the most reliable source of quality assistance is from immigration services nonprofits. But these organizations are crushed by overwhelming demand. Alonso-Yoder’s Ayuda, for example, is one of just 765 nonprofits nationwide that provide free or low-cost legal help to immigrants. One of the three immigration attorneys on staff, Alonso-Yoder works in a windowless office in the Takoma Park neighborhood of D.C., handling about sixty to seventy cases at a time. Her small clinic typically sees twenty new clients a week for consultations, many of whom she turns away due to lack of capacity. The immigration law clinic at George Washington University, directed by law professor Benitez and staffed with the help of law students, faces far more demand than it can handle. In March, the clinic stopped taking new clients for 2013.
The current immigration legal services market, then, is riddled with fraud, under-regulated, and chronically lacking in competent professionals. Now imagine what will happen if Washington passes an immigration bill that sends eleven million new customers with far more technically demanding cases into this system.
The most obvious way to protect immigrants from falling victim to fraud or errors is to recognize the tremendous complexity of the existing structure. Congress should resist the urge to pile on even more onerous requirements in an effort to show how “tough” the new regime will be. But politically, it’s hard to see how that will happen. Already, a sizeable percentage of hard-right conservatives have favored a system that will encourage “self-deportation”—specifically, making requirements so onerous that immigrants choose to leave rather than try to make it through the process. According to the Public Religion Research Institute’s survey, 56 percent of Americans who identify with the Tea Party favor self-deportation, although a majority of Americans overall do not.
Since any immigration bill that gets through Congress will also likely contain legalization requirements far more draconian than what most Americans consider reasonable, can anything be done to make the path toward legal status less perilous for prospective citizens?
The answer is yes. The current Gang of Eight plan, for example, calls for “initial entry, adjustment, and citizenship assistance grants” for nonprofits that provide immigration services. These would help organizations like Ayuda expand their staff and increase the number of clients they can take on. The plan also mandates the creation of the public-private United States Citizenship Foundation to help administer these grants and collect best practices for delivering immigration services.
While these provisions lack the specific commitment of resources to make them real, the inclusion of proposals such as these in the final bill could go a long way toward helping immigrants meet the law’s onerous requirements while avoiding scammers. Congress could go further by eliminating the ban, imposed in 1996, on federally funded “legal services corporations”—such as the Legal Aid Society—from assisting undocumented clients. Given that a principal objective of immigration reform is to bring undocumented immigrants into legal status, this restriction is counterproductive.
A second step is to facilitate tougher enforcement against unscrupulous providers, including notarios. Ayuda’s Alonso-Yoder, for example, is encouraging increased reporting of fraud by helping more victims get restitution. Her group has launched a new effort called Eradicate Notario Deceit, which will provide low-cost legal representation to notario victims who want their money back. In addition to encouraging more reporting, suing notarios will put them on notice that they can no longer act with impunity.
The Gang of Eight plan also includes a provision requiring anyone who helps prepare an immigration form to sign it, just as tax preparers are currently required to sign the returns they work on. That requirement could help make providers more accountable for bad service and bring fraudulent and incompetent ones to the attention of authorities.
A final step is to improve the overall quality of immigration attorneys. One way to do that is to encourage the creation of a special accreditation or certification by private or state bar associations, equivalent to a Good Housekeeping Seal of Approval. This would require no statutory change by Congress, but it would help excellent lawyers distinguish themselves and would raise the prestige of immigration law more generally, which could attract more aspiring attorneys to the profession.
The passage of immigration reform could be a tremendous victory for all immigrants, not just the eleven million undocumented immigrants currently living in the shadows. But the current debate also carries the seeds of a potential tragedy—the creation of a system that is so complex, so onerous, and so likely to lead to the exploitation of immigrants that it might be more merciful not to pass any reform legislation at all.