Bus. & Prof. Code Sec. 22440

Section 22440 et seq. of California Business and Professions Code governs nonlawyers who offer non-legal assistance in immigration matters in California. Under Business and Professions Code Sec. 22440 et seq., 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. To plead a cause of action under this statute, plaintiff must plead:

1. defendant’s violation of the statute;
2. direct and proximate cause; and,
3. resulting injury to plaintiff.

Bus & Prof. Code § 22446.5.

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(a). That assistance or advice includes, but is not limited to, the following:

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.

(Id.)

Other Parties with Standing to Sue

Bus. & Prof. Code § 22446.5(b) states: “Any other party who, upon information and belief, claims a violation of this chapter has been committed by an immigration consultant may bring a civil action for injunctive relief on behalf of the general public and, upon prevailing, shall recover reasonable attorneys’ fees and costs.”

Unclean Hands Doctrine as Defense to ICA Violation

“[A]s a matter of law the unclean hands doctrine is not an affirmative defense to an ICA cause of action.” Mendoza v. Ruesga (2008) 169 Cal.App.4th 270, 282.

“Application of the doctrine would allow unscrupulous immigration consultants to go unpunished and undermine the protective purposes of the legislation.” Id.

“The dishonesty of undocumented immigrants cannot be countenanced, of course, but the Legislature was undoubtedly aware of that potential when it enacted the ICA and subsequent amendments.” Id. citing Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2520 (1993-1994 Reg. Sess.) at 3-4 ("Victims include undocumented immigrants who are poor, have little knowledge of the United States' legal system, and who are desperate to gain work authorization, amnesty, or other protection from deportation"). “Yet, while consistently expanding protections for immigrants, the Legislature has imposed no obligations on them or limitations on their recovery.” Id.

Possible Damages Under Mendoza v. Ruesga

“Again, the ICA is principally intended to curb fraud, a cause of action that existed at common law.” Mendoza v. Ruesga (2008) 169 Cal.App.4th at 287. “Further, conduct by an immigration consultant giving rise to relief under the ICA may also give rise to punitive damages for breach of fiduciary duty or intentional infliction of emotional distress.” Id. “Although the ICA allows the recovery of compensatory damages, it does not provide for punitive damages.” Id.