Mountain Law: New law aimed at curbing abuse of immigrants by notaries (column)
Notaries are occasionally asked to notarize documents that are in a foreign language. This is permissible under Colorado law because our notaries are not vouching for the contents of a document, but rather that the person appearing in front of them is authentic and acting willingly. (There are also requirements that the notary and person appearing in front of them must be able to communicate in the same language, and the notary certificate itself must be in English.) All of this is consistent with the nature of Colorado notaries as fulfilling a mere ministerial role, not persons giving legal advice. The law is similar throughout the United States.
In other countries, however, notaries are the equivalent of attorneys, or at least highly-trained legal professionals. In addition to authenticating documents, they are often authorized to prepare legal documents and advise clients in a manner that would require a law license in Colorado. As a result of this, people used to the system in other countries sometimes mistakenly go to Colorado notaries seeking legal advice. In turn, some unscrupulous Colorado notaries take advantage of immigrants seeking such advice by using titles or advertising that wrongly suggests expertise in immigration matters and promising benefits that are not available in exchange for advance payment. In the worst cases, such scams have broken up families.
Ironically, there was a reported uptick in scams directed at immigrants after President Obama took executive actions in November 2014 aimed at protecting from deportation millions of undocumented parents of US citizens and lawful permanent residents (referred to as “DAPA” for “Deferred Action for Parents of Americans”) and young undocumented immigrants who entered the country as children (referred to as “DACA” for “Deferred Action for Childhood Arrivals). DAPA and DACA were first blocked by a federal appeals court and then this was effectively upheld by a U.S. Supreme Court split 4-4 in the case of U.S. v. Texas decided in June 2016. The Supreme Court decision by the eight-person court was one line long and provided no precedent, but it also had a profound impact.
In an effort to address concerns about immigrant abuse, Colorado passed a law known as HB16-1391 in May 2016, just before that Supreme Court decision. The law was spearheaded by Hispanic Democrats Dan Pabon, Dominick Moreno and Joseph Salazar, ultimately received bipartisan support and was signed into law by Gov. Hickenlooper. The law also received support from many in the immigrant community.
In brief, HB16-1391 prevents Colorado notaries who are not lawyers from advising clients regarding immigration matters. The law further prevents notaries from using titles such as “immigration consultant,” “immigration specialist,” “notario publico” or “notario,” that suggest skill or expertise in immigration-law matters. The law does not prevent notaries from offering services such as translating or transcribing statements. In the case of notaries who are not attorneys and advertise — including by signage — their services in a language other than English, the law requires the advertisement to include a special advisement in both English and the language of the advertisement stating that the notary is not an attorney, may not give legal advice and is not an expert in immigration matters. The notice refers immigrants to the Colorado Attorney General’s Office or Colorado Supreme Court to report suspected fraud.
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HB16-1391 comes on the heels of another Colorado immigration law passed in 2013 that allows immigrants to obtain drivers licenses if they have lived in the state for at least two years and pay income taxes. That law has been poorly implemented, in part because Republican opponents have severely limited funding and staffing for DMV offices that provide the licenses.
It remains to be seen if HB16-1391 will effectively curb abuse of immigrants by notaries.
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.
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