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Federal Law does not preempt California's Immigration Consultant's Act
by Uthman Law Office
Defendant Sara Arcelia Salcido was in the business of obtaining visas for her clients that would allow them to stay in the United States legally. The Immigration Consultants Act (Bus. & Prof. Code, §§ 22440–22449) (Act) makes it illegal for a person to act as an "immigration consultant" unless they pass a background check and file a bond. Defendant failed to comply with these provisions.
Defendant was convicted on one count of unlawfully engaging in the business of an immigration consultant, a misdemeanor. (Bus. & Prof. Code, §§ 22440, 22441.) The prosecution argued that each time defendant took money from a client in exchange for providing immigration services, she was committing theft by false pretenses, because she was not a legally qualified immigration consultant under state law. The trial court agreed convicting her on six counts of grand theft (Pen. Code, §§ 484, 487, subd. (a)) and two counts of petty theft (Pen. Code, §§ 484, 488. Defendant was placed on probation for five years. On appeal, Salcido argued that Federal Law preempted state regulation.
Preemption Principles.
The supremacy clause of the United States Constitution vests Congress with the power to preempt state law. Federal agencies, acting pursuant to authorization from Congress, can issue regulations that override state requirements.
Types of preemption
Express preemption: Applies when Congress defines the extent to which its enactments preempt state law.
Conflict preemption: Applies when it is impossible to comply with both state and federal law simultaneously.
Obstacle preemption: Applies when state law stands as an obstacle to the full accomplishment and execution of congressional objectives.
Field preemption: applies when federal regulation is comprehensive and leaves no room for state regulation.
Although a state law determining who may provide immigration-related services, is a matter of federal interest and a proper subject of federal regulation, it does not regulate who may enter or remain in the United States and the states' historic police powers include the regulation of consumer protection. The presumption against preemption applies fully here.
Relevant Federal Law.
Congress has authorized the Secretary of Homeland Security to "establish such regulations … as he deems necessary for carrying out his authority." (8 U.S.C. § 1103(a)(3).) Pursuant to this authorization, the Department of Homeland Security (DHS) has adopted a set of regulations specifying who can provide representation before the USCIS. (8 C.F.R. §§ 1.1, 1.2, 292.1 (2018).)3Link to the text of the note
Under these regulations, "representation" is defined as including both "practice" and "preparation." (8 C.F.R. § 1.2 (2018).)
Only five classes of people are authorized to provide "representation": (1) attorneys in good standing; (2) law students, provided they are under the supervision of an attorney and do not receive compensation; (3) "reputable individuals," who are of good moral character, provided they have a preexisting relationship with the client and do not receive compensation; (4) "accredited representatives," who have been authorized by the EOIR; and (5) "accredited officials" of the client's foreign government. (See 8 C.F.R. § 292.1(a), (e) (2018); see also 8 C.F.R. § 1.2 (2018) [defining attorney].)
Relevant State Law.
The Act provides: "It is unlawful for any person, for compensation, other than persons authorized to practice law or authorized by federal law to represent persons before the Board of Immigration Appeals or the United States Citizenship and Immigration Services, to engage in the business or act in the capacity of an immigration consultant within this state except as provided by this chapter." (Bus. & Prof. Code, § 22440, italics added.)
"A person engages in the business or acts in the capacity of an immigration consultant when that person gives nonlegal assistance or advice on an immigration matter." (Bus. & Prof. Code, § 22441, subd. (a).)
"Immigration matter," as relevant here, means "any proceeding, filing, or action affecting the immigration or citizenship status of any person which arises under immigration and naturalization law, executive order or presidential proclamation, or action of the United States Citizenship and Immigration Services." (Bus. & Prof. Code, § 22441, subd. (b).)
"Nonlegal assistance or advice" includes:
"(1) Completing a form provided by a federal or state agency but not advising a person as to their answers on those forms.
"(2) Translating a person's answers to questions posed in those forms.
"(3) Securing for a person supporting documents, such as birth certificates, which may be necessary to complete those forms.
"(4) Submitting completed forms on a person's behalf and at their request to the United States Citizenship and Immigration Services.
"(5) Making referrals to persons who could undertake legal representation activities for a person in an immigration matter." (Bus. & Prof. Code, § 22441, subd. (a).)
Salcido argued that acting as an "immigration consultant" under California law overlaps with "representation" under federal law. She asserted that California law permits what federal law prohibits—namely, it permits federally unauthorized persons (if they comply with California's stringent requirements) to provide "representation."
The Court found no conflict, because it is possible to comply with both state and federal law simultaneously. California state law does not say that a person who has complied with all of the requirements of the Act can fill out forms (which can constitute "representation," at least in some circumstances). Rather, it says that a person who has not complied with all of the requirements of the Act cannot fill out forms. Thus, the Act does not allow anyone to violate federal law. A person still must be federally authorized in order to provide any kind of "representation."
ELECTRONIC SEARCH CONDITION OF PROBATION
In this same case a probation condition required defendant to "submit to immediate search and seizure of computers, memory storage devices, electronic mail, internet accounts, and data and information contained therein; with or without reasonable cause by the probation officer or law enforcement." Defendant argued that this condition was unreasonable and unconstitutional.
A probation condition is unreasonable if it 1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. (People v. Anderson (2010) 50 Cal.4th 19, 32
There is no evidence that defendant's crimes involved computers or the Internet. And using computers or the Internet is not, in itself, criminal. The issue is whether this condition relates to future criminality.
Probation conditions authorizing searches aid in deterring further offense and in monitoring compliance with the terms of probation. By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. (People v. Olguin, supra, 45 Cal.4th at p. 380.)
The Court found no difference between an electronic search condition and any other search condition and ruled the electronic search condition was reasonably related to supervising a probationer's rehabilitation and compliance with the law. (In re P.O. (2016) 246 Cal.App.4th 288, 295–
The state has an interest in promoting the defendant's rehabilitation while protecting the public. The challenged electronic search condition serves this purpose.
People v. Salcido; E067578; issued 5/2/19; published 5/13/19; C/A 4th, Div. 2
Posted in: Immigration and New Case Law
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