[Congressional Record Volume 157, Number 100 (Thursday, July 7, 2011)]
[Senate]
[Pages S4452-S4454]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mrs. FEINSTEIN:
S. 1336. A bill to prevent immigration fraud and for other purposes;
to the Committee on the Judiciary.
Mrs. FEINSTEIN. Mr. President, today I am introducing the Immigration
Fraud Prevention Act of 2011. This legislation would provide a much-
needed tool for prosecutors to use to combat the exploitative actions
of fraudulent lawyers and consultants who take advantage of individuals
seeking immigration assistance.
The Immigration Fraud Prevention Act would punish fraud and
misrepresentation in the context of immigration proceedings. The act
would create a new Federal crime to penalize those who engage in
schemes to defraud immigrants.
Specifically, the act would make it a Federal crime to knowingly and
falsely represent that an individual is an attorney or accredited
representative authorized to represent aliens in immigration
proceedings; and to knowingly defraud or receive money or anything of
value from any person by false or fraudulent pretences,
representations, or promises.
Violations of these crimes would result in a fine, imprisonment of
not more than 5 years, or both.
The bill would also work to combat immigration fraud by increasing
the awareness of notario fraud to immigrants.
The bill would require immigration courts to provide immigrants in
removal proceedings with information about notario fraud.
The bill would require the Justice Department to compile and make
available to the public a list of individuals and organizations that
have been convicted of immigration fraud; and permit only people who
have, within a 12-month period, represented immigrants pro bono appear
on the Justice Department's list of pro bono legal services.
By enacting this bill, Congress would help prevent more victims like
Mr. Ibarra, a Mexican national and father of four, who has resided in
Los Angeles since 1988. Mr. Ibarra hired a so-called ``immigration
specialist'' and paid him over $7,500. In his apartment, Mr. Ibarra
keeps reams of documents that the immigration consultant claimed to
have filed on his behalf but never did--as Mr. Ibarra subsequently
learned from immigration authorities when he was placed into removal
proceedings. I wish I could tell you that this kind of egregious
behavior is uncommon, but sadly, that is not the case.
Last November, the San Francisco City Attorney filed a lawsuit
against a former lawyer who ran an illicit immigration law practice. In
the three decades in which the lawyer was licensed to practice law, he
was reported on numerous occasions to the California bar for his
unethical behavior that included collecting exorbitant fees;
representing clients in a negligent manner; and misleading immigrants
with assurances of favorable outcomes.
Eventually, the lawyer resigned from the legal profession and was
prohibited from representing clients before the Board of Immigration
Appeals. The terms of his resignation prevented him from practicing law
or portraying himself as eligible to practice law. Instead of abiding
by these terms, the lawyer proceeded to set up another law practice
through which he defrauded over two hundred immigrants, depleting many
of these victims of their entire life savings.
I am pleased that last month the Federal Government partnered with
State prosecutors and immigration advocacy organizations to launch a
nationwide campaign to combat these harmful schemes. The enactment of
this bill would enhance the government's ability to achieve the goals
of this national campaign by providing prosecutors with a tough new
Federal criminal law that could be used to convict fraudulent-lawyers
and consultants who prey on immigrants.
Mr. President, I urge support for the Immigration Fraud Prevention
Act of 2011.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1336
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Immigration Fraud Prevention
Act of 2011''.
SEC. 2. MISREPRESENTATION.
(a) In General.--Chapter 47 of title 18, United States
Code, is amended by inserting at the end the following:
``Sec. 1041. Misrepresentation
``Any person who knowingly and falsely represents that such
person is, or holds himself or herself out as, an attorney,
an accredited representative, or any person authorized to
represent any other person before any court or agency of the
United States in any removal proceeding or any other case or
matter arising under the immigration laws (as defined in
section 101(a)(17) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(17)) shall be fined under this title,
imprisoned not more than 5 years, or both.''.
(b) Table of Sections Amendment.--The table of sections for
chapter 47 of title 18, United States Code, is amended by
adding after the item relating to section 1040 the following:
``Sec. 1041. Misrepresentation.''.
SEC. 3. IMMIGRATION SCHEMES TO DEFRAUD ALIENS.
(a) In General.--Chapter 63 of title 18, United States
Code, is amended by inserting at the end the following:
``Sec. 1352. Immigration schemes to defraud aliens
``Any person who, in connection with any matter arising
under the immigration laws (as defined in section 101(a)(17)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))
or any matter the offender claims or represents to arise
under such immigration laws, knowingly executes a scheme or
artifice to--
[[Page S4453]]
``(1) defraud any person; or
``(2) obtain or receive money or anything else of value
from any person by means of false or fraudulent pretenses,
representations, or promises,
shall be fined under this title, imprisoned not more than 5
years, or both.''.
(b) Table of Sections Amendment.--The table of sections for
chapter 63 of title 18, United States Code, is amended by
adding at the end the following:
``Sec. 1352. Immigration schemes to defraud aliens.''.
SEC. 4. LISTS OF COUNSEL FOR ALIENS.
Section 239(b)(2) of the Immigration and Nationality Act (8
U.S.C. 1229(b)(2)) is amended to read as follows:
``(2) Current lists of counsel.--The Attorney General shall
compile and update, not less frequently than quarterly, lists
of persons who, during the most recent 12 months, have
provided pro bono representation of aliens in proceedings
under section 240 that--
``(A) include a description of who may represent the alien
in the proceedings, including a notice that immigration
consultants, visa consultants, and other unauthorized
individuals may not provide such representation; and
``(B) shall be provided in accordance with subsection
(a)(1)(E) and otherwise made generally available.''.
SEC. 5. LIMITATION ON REPRESENTATION.
Section 239(b) of the Immigration and Nationality Act (8
U.S.C. 1229(b)) is amended--
(1) by redesignating paragraph (3) as paragraph (4); and
(2) by inserting after paragraph (2) the following:
``(3) List of prohibitions.--The Attorney General shall--
``(A) compile a list of specific individuals,
organizations, and practices that the Attorney General has
determined are prohibited in the provision of representation
in immigration proceedings, including individuals who have
been convicted for a violation of section 1041 or 1352 of
title 18, United States Code;
``(B) update the list compiled pursuant to subparagraph (A)
not less frequently than quarterly; and
``(C) make such list available to the general public.''.
______
By Mr. WHITEHOUSE:
S. 1338. A bill to amend chapter 5 of title 31, United States Code,
to establish the Office of Regulatory Integrity within the Office of
Management and Budget; to the Committee on Homeland Security and
Governmental Affairs.
Mr. WHITEHOUSE. Mr. President, I rise to speak about two bills that I
am introducing today to address a serious and persistent threat to the
integrity of our government: regulatory capture.
Over the last 50 years, Congress has tasked an alphabet soup of
regulatory agencies to administer our laws through rule-making,
adjudication, and enforcement. Protecting the proper functioning of
these regulatory agencies has led me to the topic of regulatory
capture. I held a hearing on the subject last year in the Senate
Judiciary Committee and now am filing two bills that will make our
government more resistant to the ever-growing power of special
interests. I urge my colleagues to join me in passing these important
good-government measures.
At bottom, regulatory capture is a threat to democratic government.
``We the People'' pass laws through a democratic and open process.
Powerful interests then seek to ``capture'' the regulatory agencies
that enforce those laws so that they can avoid their intended effect,
turning laws passed to protect the public interest into regulations and
enforcement practices that benefit limited private interests.
This concept of ``regulatory capture'' is well-established in
regulatory and economic theory.
In 1913, Woodrow Wilson wrote this: ``If the government is to tell
big business men how to run their business, then don't you see that big
business men . . . must capture the government, in order not to be
restrained too much by it?''
The first dean of the Woodrow Wilson School, Marver Bernstein, wrote
that a regulatory commission will tend over time to ``become more
concerned with the general health of the industry,'' and try ``to
prevent changes which will adversely affect'' the industry. This, he
said, ``is a problem of ethics and morality as well as administrative
method''; ``a blow to democratic government and responsible political
institutions.'' Ultimately he said it leads to ``surrender'': ``The
commission finally becomes a captive of the regulated groups.''
Regulatory capture has been the subject of work by Nobel laureate
George Stigler in his article ``The Theory of Economic Regulation.''
Students of administrative law know how well established the doctrine
of ``regulatory capture'' or ``agency capture'' is in that field.
Last year, a senior fellow at the Cato Institute wrote in the Wall
Street Journal about ``a striking example of regulatory capture.'' He
described the phenomenon this way: ``Agencies tasked with protecting
the public interest come to identify with the regulated industry and
protect its interests against that of the public. The result:
Government fails to protect the public.'' His example was the Minerals
Management Service, in relation to the BP oil spill.
The failures of MMS in the lead up to the oil spill in the Gulf of
Mexico, the cozy relationship between MMS officials and industry
executives, and the shameful behavior of some MMS employees are
archetypal symptoms of regulatory capture. But the report of the
commission on the Gulf oil spill never mentioned ``regulatory
capture.''
That is a pretty strong signal that regulatory capture isn't getting
the attention it deserves.
When you think about the century-long academic and policy debate
about regulatory capture, and when you look at the cost of recent
disasters in areas regulated by the Minerals Management Service, the
Mine Safety and Health Administration, and the Securities Exchange
Commission, it seems pretty evident that Congress should be concerned
not only about those prior incidents, but about addressing the threat
of future regulatory capture. The experts I have spoken with in my home
state of Rhode Island certainly understand that regulatory capture
matters. They don't want a captured agency to allow the next oil spill
or other man-made disaster to happen in our state, or for a financial
agency to allow speculators to wipe out the savings of our citizens.
Surely constituents of each of the members of this body would agree
whole-heartedly.
That is why I am introducing two pieces of legislation today.
The first bill is called the Regulatory Capture Prevention Act. It
would create an office within the Office of Management and Budget with
the authority to investigate and report regulatory capture. The office
would ensure that abuses were not overlooked, and sound the alarm if a
regulatory agency were overwhelmed by a more sophisticated and better-
resourced regulated industry. Scrutiny and publicity are powerful tools
for protecting the integrity of our regulatory agencies. This bill
would employ them to prevent powerful interests from coopting our laws.
The second bill is called the Regulatory Information Reporting Act.
It would shed extra sunlight into regulatory agencies by requiring them
to report to a public Web site the following: first, the name and
affiliation of each party that comments on an agency regulation;
second, whether that party affected the regulatory process; and
finally, whether that party is an economic, noneconomic, or citizen
interest. By centralizing this information for public and congressional
scrutiny, the bill would create a simple dashboard for hints of
regulatory capture in agency rulemaking.
As the Senate considers these bills, we should remember how much
agreement exists about regulatory capture. During the hearing I chaired
on regulatory capture last year, all of the witnesses, from across the
ideological spectrum, agreed on each of the following 7 propositions.
First, regulatory capture is a real phenomenon and a threat to the
integrity of government. Second, regulated entities have a concentrated
incentive to gain as much influence as possible over regulators,
opposed by a diffuse public interest. Third, regulated industries
ordinarily have substantial organizational and resource advantages in
the regulatory process when compared to public interest groups. Fourth,
some regulatory processes lend themselves to gaming by regulated
entities seeking undue control over regulation. Fifth, regulatory
capture by its nature happens in the dark--done as quietly as possible;
no industry puts up a flag announcing its capture of a regulatory
agency. Sixth, the potential damage from regulatory capture is
enormous. Finally, effective congressional oversight is key to keeping
regulators focused on the public interest.
[[Page S4454]]
With that as a starting point, I am hopeful that the Senate can agree
on legislation to address this very real problem. Administrative law
may not be the most glamorous subject, but I hope to work with
colleagues on both sides of the aisle to eliminate regulatory capture.
This is so important because for as long as there are regulatory
agencies, regulated industries, and money, there will be efforts at
regulatory capture. We owe it to our country to do everything possible
to defeat such efforts to capture our government of the people, by the
people, and for the people.
____________________