The Wrong “Help” Can Hurt!

The Wrong “Help” Can Hurt: The Importance of Experienced and Licensed Legal Counsel in Immigration Cases and How to Avoid Scams by Fraud Notarios

By Meghan M. Phillips, Esq.[1]

The rapidly changing immigration laws and policies of the United States often require non-citizens or their family members to seek legal assistance. In fact, the complexity of immigration law has earned it comparisons to a maze and the Internal Revenue Code.[2] Studies have shown the extreme importance of counsel to a successful immigration case outcome. In the asylum context, the U.S. Government Accountability Office (GAO) found that asylum applicants who had counsel were twice as likely to win asylum.[3] In the immigration court context, the American Immigration Council found that represented immigrants were four times more likely to be released from detention, eleven more times likely to apply for relief from removal, twice as likely to obtain immigration relief if they were detained, and nearly five times more likely to obtain relief if they were non-detained.[4]

Unlike in the criminal law context where all defendants are provided an attorney if they cannot afford to hire one pursuant to the Sixth Amendment to the U.S. Constitution, immigrants are only afforded the privilege of counsel that they hire and pay for themselves.[5] This is true even when the immigrant is facing removal via immigration court proceedings where the Department of Homeland Security is represented by an attorney, who often argues for the non-citizen’s removal, or when the immigrant is detained and might face obstacles accessing counsel. Although there are exceptions for immigrants with certain mental disabilities, government grants to help certain immigrants like minors obtain counsel, and non-profit organizations that offer pro-bono immigration help, these “free” options cannot meet the demand.[6]

However, the wrong immigration counsel can also hurt. Due to cost or lack of access or information, sometimes immigrants unwittingly are the victims of immigration scams, particularly by persons calling themselves immigration or visa consultants or notarios. In many Spanish-speaking countries, a notario is a notary who often also has legal licensures. In the United States, however, a public notary is not the same as an attorney.[7] In fact, in the United States only two groups of people may provide legal advice and services in an immigration case: (1) attorneys and (2) accredited representatives of non-profit, religious, charitable, or social service organizations established in the U.S. and recognized by the Board of Immigration Appeals (BIA).[8]

Not only do notarios often charge exorbitant sums for unqualified help, they also have been known to: put false information on immigration forms rendering the immigrant inadmissible due to fraud; submit applications that the immigrants either clearly do not qualify for or consent to, which result in them being placed into removal proceedings; or take immigrants’ original documents, which they might refuse to return. They make promises they often cannot keep, and then when the immigrant faces the consequences of fraud, missed deadlines, or ineligibility, are nowhere to be found. For example, they might promise an immigrant a work permit, and submit an asylum application on behalf of an immigrant who does not realize that the notario has done this on their behalf, leading to an ill-prepared or unfounded claim of a fear to return to their country, which could land them in deportation proceedings or, worse, barred from immigration status for life for submitting a fraudulent asylum application.

So how can non-citizens or their families choose the right help and avoid scams?

1. Make sure the help you choose is authorized to give immigration legal advice by:
   1. Asking about the attorney’s state bar license, which you can verify with the relevant state bar website; or
   2. Asking about the accredited representative’s recognition by the Executive Office for Immigration Review (EOIR), which you can verify on EOIR’s website: https://www.justice.gov/eoir/recognition-accreditation-roster-reports.
2. Ask for a written contract before paying anything, which details the services for which you are paying.
3. Never sign a blank form, a form with incorrect information, or a form with information you do not understand. When you sign, you are saying everything is true and correct, and will later be viewed to understand what you are signing. An attorney or accredited representative has the duty to explain to you the information on forms and should not mind taking the time to do so themselves or with an interpreter into a language you understand.
4. Never let anyone keep your original documents.
5. Know what has a government fee and what does not: forms are free and there is no diversity lottery fee, but there are some filing fees for certain forms. An attorney or accredited representative will not charge “fake fees.”
6. Beware of a representative who does not respond to requests for contact, pretends to have “special connections with immigration” to influence outcomes, or threatens to report information you have told them. Real attorneys and accredited representatives have duties to communicate with you, to keep the information you tell them confidential unless you intend to commit a crime or fraud, and to not make guarantees they cannot keep.

In sum, the choice of immigration counsel is extremely important, but trying to “save money” by using an unlicensed notario could be disastrous. Therefore, please do your research and pick a licensed and experienced immigration lawyer or representative for your case. At VFN Immigrants First, we have five licensed attorneys who are admitted to practice both by state bars and EOIR (the immigration court system) and who take their professional duties extremely seriously. We would be happy to help you either start an immigration case or do our best to help you mitigate the harm of a fraud notario.

Please give us a call at 703-369-4738,visit our website, vfnlaw.com, email: mphillips@vfnlaw.com, or stop by our office at 9200 Church Street, Suite 400, in Manassas, Virginia, to learn more or make an appointment for a consultation.

[1] Meghan M. Phillips, Esq., is an associate immigration lawyer with the Immigration Law Practice Group, Immigrants First, at Vanderpool Frostick & Nishanian, PC. She primarily handles family and humanitarian immigration, Special Immigrant Juvenile custody, and removal defense and appeal cases. She is a member of the Virginia State Bar and was admitted to practice before the Eastern District of Virginia and Fourth Circuit Court of Appeals Courts.

[2] See, Castro-O’Ryan v. Dept. of Imm. Nat, 847 F.2d 1307, 1312 (9th Cir. 1987) (“With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’ A lawyer is often the only person who could thread the labyrinth.”) (quoting E. Hull, Without Justice For All 107 (1985)). See also, Lok v. INS, 548 F.2d 37 (2d Cir. 1977) (“Immigration laws bear a “striking resemblance …[to] King Minos’s labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress’s ingenuity in passing statutes certain to accelerate the aging process of judges.”).

[3] See U.S. Government Accountability Office, U.S. Asylum System: Significant Variation Existed in Asylum Outcomes Across Immigration Courts and Judges, GAO-08-940 (Washington, DC, 2008), accessed July 25, 2016, http://www. gao.gov/new.items/d08940.pdf (“Representation generally doubled the likelihood of affirmative and defensive cases being granted asylum . . . .”).

[4] Ingrid Eagly, Esq. and Steven Shafer, Esq., Access to Counsel in Immigration Court, American Immigration Counsel, Sept. 2016, available at: /wp-content/uploads/access_to_counsel_in_immigration_court-1.pdf

[5] See I.N.A. § 240(b)(4)(A) (providing that “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings”); Orantes Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990) (finding that immigrants have a due process right to obtain counsel of their choice at their own expense).

[6] See Franco-Gonzalez v. Holder, 767 F. Supp. 2nd 1034 (C.D. Cal. 2011); see also, U.S. Department of Justice, Executive Office for Immigration Review, “Department of Justice and the Department of Homeland Security Announce Safeguards for Unrepresented Immigration Detainees with Serious Mental Disorders or Conditions,” April 22, 2013, available at: https://www.justice.gov/eoir/pages/attachments/2015/04/21/safeguardsunrepresented-immigration-detainees.pdf; Department of Justice, “Justice Department and CNCS Announce $1.8 Million in Grants to Enhance Immigration Court Proceedings and Provide Legal Assistance to Unaccompanied Children,” September 12, 2014, available at: http://www.justice.gov/opa/pr/justice-department-andcncs-announce-18-million-grants-enhance-immigrationcourt-proceedings.

[7] Federal Trade Commission, Avoid Immigration Scams and Get Real Help, May 2021, available at: https://www.consumer.ftc.gov/articles/avoid-immigration-scams-and-get-real-help.

[8] U.S. Department of Justice, Executive Office for Immigration Review, Who Can Represent You in Immigration Proceedings Fact Sheet, Oct. 2, 2009, available at:  https://www.justice.gov/sites/default/files/eoir/legacy/2009/10/06/WhoCanRepresentAliensFactSheet10022009.pdf.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer