BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 634 A
Assembly Member Lieber B
As Amended August 7, 2006
Hearing Date: August 8, 2006 6
Business & Professions Code 3
GMO:rm 4
SUBJECT
International Marriage Brokers
DESCRIPTION
The bill would establish, in addition to the regulations
established by the federal International Marriage Broker
Regulation Act (IMBRA) that was enacted earlier this year,
rules for the conduct of activities by international
marriage brokers (IMBs) in the state, similar to the rules
governing the activities of immigration consultants under
the Immigration Consultants Act (ICA). Thus, the bill
would require, among others, a $50,000 bond to be filed
with the Secretary of State (SOS), filing of a disclosure
form containing specified information, submittal of a
photograph for posting on the SOS Internet Web site, and
the inclusion of specified information to be disclosed to
foreign nationals who are "recruited" for purposes of
matrimonial services provided to clients of the IMBs.
The bill also would provide civil causes of action and
penalties similar to those applicable to immigration
consultants under the ICA, for violations of these rules as
well as the federal rules governing IMBs under the IMBRA.
BACKGROUND
Earlier this year, Congress enacted the IMBRA, which
replaced existing federal law provisions governing the
"mail-order bride" business. Congressional findings state
(more)
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that there is a substantial "mail-order bride" business in
the United States, with approximately 200 companies that
help some 2,000 to 3,500 men in the United States find
wives through mail-order bride catalogs each year. The
findings state that these companies earn substantial
profits. Further, the findings declare that although many
of the mail-order marriages work out, there is a
substantial number of mail-order brides that find
themselves in abusive relationships, and because they are
largely unaware or ignorant of United States immigration
laws, they stay in those relationships and do not report
the abuse. The federal law, until passage of the IMBRA,
only required that certain information regarding
immigration laws, domestic violence and the unregulated
nature of "international matchmaking organizations" be
provided to recruits and provided for civil penalties of
not more than $20,000 per violation.
When the Violence Against Women Act (VAWA) was reauthorized
in January 2006 (Public Law 109-62, H.R. 3402), the
provisions in Section 1375a of Title 8 of the United States
Code pertaining to mail-order brides were repealed and
replaced with the IMBRA. IMBRA generally provides, with
respect to IMBs:
(1) require the production of an informational brochure in
14 languages, and more as appropriate, by the Secretary
of Homeland Security, mailing by the Secretary of State
to each applicant for a nonimmigrant fianc?e visa and
posting on federal Web sites;
(2) prohibit an IMB from providing any personal contact
information, photo or general information about any
person under 18 years of age;
(3) require an IMB to collect background information about
a United States client (seeking a foreign national
recruit) and an attestation from the client regarding
restraining orders issued against the client or any state
or federal arrests or convictions involving specified
crimes or for engaging in prostitution or receiving
proceeds from prostitution, or any state or federal
arrest or conviction for offenses related to controlled
substances or alcohol;
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(4) prohibit the IMB from providing any information to a
United States client about any foreign national client
unless and until the IMB has conducted a search in
relevant registries of sex offenders in states where the
U.S. client had resided and has collected the information
required under paragraph (3) above, and provided the
foreign national client a copy of the records or
background information retrieved from the search; and
(5) require an IMB to obtain the foreign national client's
consent, written in that client's native language, to
release the foreign national client's personal contact
information to the specific U.S. client.
IMBRA also provides for the limited disclosure of certain
information regarding the relationship of the U.S. client
to individuals who were issued protective orders or
restraining orders or who were victims of crimes for which
the U.S. client was arrested or convicted. IMBRA provides
for penalties for misuse of information, for a civil
penalty of not less than $5,000 nor more than $20,000
and/or a criminal penalty of up to 5 years imprisonment for
each violation.
IMBRA specifically states it does not preempt any state law
that provides "additional protections for aliens who are
utilizing the services of an international marriage broker"
nor does it preempt "any other or further right or remedy
available under law to any party utilizing the services of
an international marriage broker."
Since its effective date of March 6, 2006, IMBRA has been
challenged twice by international marriage brokers, on the
grounds that the restrictions imposed on an IMB regarding
disclosure of personal contact information of its foreign
national clients violates the IMB's rights under the First
and Fifth Amendments to the U.S. Constitution. The first,
European Connections & Tours, Inc. v. Alberto Gonzales as
Attorney General of the United States of America , No.
1:06-CV-0426 (N.D. Georgia), resulted in a temporary
injunction that has now expired, and is awaiting a hearing
in the district court for a permanent injunction, pending
submittal of pleadings by the U.S. Attorney General. The
second, American Online Dating Association v. Gonzales , No.
03:06-123 (S.D. Ohio), resulted in denial of a temporary
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injunction. It too is awaiting a hearing on the request
for a permanent injunction. Litigants and intervenors such
as the Tahirih Justice Center that testified at the
congressional hearings on the IMBRA do not anticipate any
court action for at least one year.
CHANGES TO EXISTING LAW
Existing federal law , the International Marriage Broker
Regulation Act (IMBRA), governs the conduct of individuals
and business organizations that, for a fee, perform dating,
matrimonial, matchmaking services, or social referrals
between United States citizens or nationals or permanent
residents and foreign national clients by providing
personal contact information or otherwise facilitating
communication between individuals.
Existing law , the Immigration Consultants Act (ICA)
regulates the activities of immigration consultants in the
state by, among others, requiring that a bond of $50,000 be
filed with the Secretary of State, that a contract for
services be provided in writing and in the native language
of the client, and that providing for civil causes of
action and civil penalties for violations of the ICA.
This bill would add, to the requirements imposed on IMBs by
the IMBRA, the following requirements for international
marriage brokers (IMBs) in order to conduct business in
California:
(1) file a $50,000 bond with the Secretary of State (SOS);
(2) file a disclosure form with the SOS, containing
specified information about the IMB and including an
agent for the service of process and a photo of the IMB
or IMB's representative(s) in the state;
(3) submit a copy of a valid and current photo
identification to verify the IMB's identity;
(4) provide the recruit with "basic rights" information, as
defined, in the recruit's native language and in the
manner described; and
(5) not make false or misleading statements to a client
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(U.S. citizen or resident) or recruit (the foreign
national) while providing services.
This bill would permit a person aggrieved by a violation to
bring a civil action for injunctive relief or damages and a
civil penalty of up to $100,000 for each violation, and
permit the Attorney General, district attorney or city
attorney to bring such civil action.
This bill would require the Secretary of State to post on
its Web site information demonstrating that the IMB is in
compliance with the bond requirement, as well as
information contained in the disclosure form, and to update
the information at least every 30 days. The SOS would be
authorized to charge a fee to cover the cost of filing the
bond.
This bill would create a group of five appointees (one from
the Department of Justice, two from the Senate, and two
from the Speaker of the Assembly) to draft the "basic
rights information" to be provided to recruits and would
charge the group to complete its draft by June 30, 2007.
This bill would require an IMB operating in the state to
comply with the provisions of the IMBRA (Section 1375a of
Title 8 of the United States Code).
COMMENT
1. Need for the bill
The author states:
Ostensibly, IMBs provide a service that matches
people living in foreign countries who are
interested in marrying a U.S. citizen, with a U.S.
citizen who is interested in finding a mate. IMBs
recruit women in foreign countries - primarily
Asian and countries in the former Soviet republic
to serve as potential spouses. These women are
then advertised on the Internet or in a catalog
created by the IMB. U.S. citizens, primarily men,
peruse the catalog and when they find a woman or
women they are interested in meeting, contract with
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the IMB to provide them with the woman's contact
information and in some cases [arrange] a meeting
with the woman...
Unfortunately, this matchmaking does not always end
happily. Women who are recruited as "brides"
through IMBs are extremely vulnerable to abuse at
the hands of their new spouses. ? Coming to the
U.S. as a foreign recruit is presented to these
women as an attractive way to escape poverty and
build a new, more prosperous life in the United
States?.[but] in an increasing number of cases
women find themselves in dangerous, abusive
relationships which are difficult to escape. The
women are isolated in a foreign country with no
resources, dependant(sic) on their abusers/husband
to maintain their legal immigration status, and
without any support system to assist them in
escaping from the violent relationship?
The Tahirih Justice Center has documented nearly 50
cases nationwide in which foreign recruits (the
preferred term for "mail-order brides") find
themselves victims of domestic violence, forced
labor and even murder. The most prominent case,
which received nationwide attention, was the murder
of Anastasia King in Washington by a man who
brought her to the U.S. after choosing her from an
IMB catalog. In California, a half-dozen cases
have been documented over the past decade; many
more are doubtlessly unreported.
The author stated, at the hearing on IMBs before the
Senate Business and Professions Committee, that there are
70 IMBs operating in California. A quick check on the
Internet Web sites named by the author's staff showed
numerous businesses offering women from all over the
world for dating or matrimonial purposes.
2. AB 634 protections to complement those in IMBRA
The just-enacted IMBRA has yet to be implemented fully at
the federal level. Already it is being challenged by
international immigration brokers and their "trade
associations" on the basis that restrictions placed on
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communications they make to clients and foreign recruits
constitute an infringement upon their constitutional
right to free speech under the First Amendment. Although
there have only been two challenges launched so far (with
opposite results), for the time being it certainly seems
that even the courts will be involved in sorting out the
restrictions that can be imposed on international
marriage brokers.
However, since the IMBRA specifically provides that it
does not preempt non-conflicting or additional remedies
that states may provide, AB 634 could in fact regulate
those international marriage brokers that conduct
business in the state or that offers California
residents, for a fee, matrimonial or other related
services involving foreign nationals who are "recruited"
for these purposes.
a. Prerequisites to doing business as an IMB in
California
Most of the provisions in AB 634 mirror those
applicable to immigration consultants under the
Immigration Consultants Act (ICA). The most important
of those provisions would require an IMB, prior to
engaging in the business of or acting in the capacity
of an IMB, to:
1) post a $50,000 bond with the Secretary of
State (SOS), for the benefit of any person damaged
by any fraud, misrepresentation, misstatements,
unlawful acts or omissions, or failure to provide
services contracted for by the IMB or employees or
agents of the IMB.
The ICA requires an immigration consultant to
maintain the bond at $50,000 so that if any portion
of the bond is used, it must be replenished in order
for the immigration consultant to be in compliance.
SHOULD THIS BILL ALSO PROVIDE THAT THE BOND SHALL BE
MAINTAINED AT THE $50,000 LEVEL AT ALL TIMES?
2) file a disclosure statement with the SOS
containing information such as the IMB's name,
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business address, phone number, agent for service of
process, all Internet Web sites and domain names
owned or operated by the IMB, the name, business
address, phone number and agent for service of
process of the corporation or partnership employing
the IMB. With this disclosure statement, each
person acting as an IMB must submit a copy of a
valid and current photo identification (such as a
driver's license, passport, or other identification
card acceptable to the SOS).
3) provide the foreign national recruit with "basic
rights information, " which shall include (as
defined in the bill) information about human rights,
immigration relief and services, emergency
assistance and resources, domestic violence victim
rights under California law, the legal rights of
immigrant victims of abuse and other crimes.
The bill would require this information to be
"provided in the recruit's native language and
displayed in a manner that separates the basic
rights information from any other information given
to the recruit and that is easily accessible and
highly visible." AB 634 would create a group
charged with the drafting of the "basic rights
information" that an IMB would be required to
provide to a recruit, to be completed by June 30,
2007. From the language of the bill, development of
a California information brochure is implied, though
not concretely required.
IMBRA already requires the Secretary of Homeland
Security to develop, in consultation with
nongovernmental organizations with expertise on the
legal rights of immigrants, an informational
pamphlet that includes information on the following
subjects: the fianc?e and marriage-based
immigration process; the illegality of domestic
violence and sexual assault and child abuse;
domestic violence and sexual assault services in the
U.S., including national hotlines; the legal rights
of victims of abuse and other crimes, including
access to protective orders; the obligations of
parents to support their children; marriage fraud
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and the penalties for committing the fraud; a
warning concerning the potential use of a fianc?e
visa by U.S. citizens with a history of committing
domestic violence, abuse or other sexual assault or
other crimes that may not have resulted in a
criminal record; notification of the requirement
that IMBs provide foreign national recruits with
background information on U.S. clients from searches
of national sex offender registries and as collected
from the clients.
IMBRA also requires the pamphlet, to be available
for distribution within 120 days of the effective
date of the enacting measure, to be translated into
14 specified languages [Russian, Spanish, Tagalog,
Vietnamese, Chinese, Ukrainian, Thai, Korean,
Polish, Japanese, French, Arabic, Portuguese, Hindi]
and such other languages that the Secretary of State
may determine, revised every two years, mailed to
every applicant for a fianc?e visa together with the
application, made available at all consular posts,
and posted on the Web sites of the U.S. Department
of State and the U.S. Department of Homeland
Security. The brochure may already be available by
the time this bill is enacted.
Considering the depth of information in the IMBRA
pamphlet and its universal availability once
developed and produced, AB 634 should probably limit
the "basic rights information" brochure to be
drafted to California-specific and local information
only, and require the IMBs to provide the federal
brochure plus whatever state- or locally-produced
additional information may be or become available.
In addition to questions of whether the five-member,
unpaid drafting group can finish its work by June
30, 2007, what staff they would have, and how often
and where they would meet, the practical
implementation of this vague mandate to produce a
California informational brochure raises red flags.
For example, the IMBRA brochure will be produced and
translated into 14 plus languages. Does this mean
that the California "basic rights information"
[whatever form it takes] should also be translated
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into those languages? It would seem so, since the
bill requires that the "basic rights information" be
given in the recruit's native language. Further, it
is not clear when the IMB must provide the basic
rights information to the foreign national recruit.
The bill requires that no "further services" may be
provided until the "basic rights information" is
given, but does not define at what point providing
"further services" begins. This could cause some
confusion on the part of the IMBs who may be
recruiting foreign nationals for clients in
different parts of the country or different parts of
the state (which would mean different local resource
contacts).
It would certainly be useful for a foreign national
recruited to meet a California citizen or permanent
resident to have information about the differences
between federal and state laws on domestic violence
and child custody issues, and about local resources
that may be available in the event of emergencies.
The manner by which this information is made useful
and delivered to the foreign recruit, however, is
problematic. Lastly, without any appropriation, it
is doubtful that the group charged with production
of this brochure will be able to meet its mandate.
SHOULD THIS PORTION OF THE BILL BE BETTER FLESHED
OUT?
OR, SHOULD THE DEVELOPMENT OF THIS
CALIFORNIA-SPECIFIC INFORMATION PIECE BE HELD IN
ABEYANCE UNTIL THE FEDERAL BROCHURE IS AVAILABLE IN
ORDER TO ASCERTAIN WHAT INFORMATION SHOULD BE ADDED
AND HOW?
In addition to the brochure information to be
provided to recruits, IMBRA also would require the
IMB to provide the recruit information the IMB has
gathered about the U.S. client, including results of
searches of national sex offender databases and
information disclosed by the U.S. client related to
other visa applications, marriages, etc.
b. Other requirements
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In addition to these prerequisites to doing business
in California, AB 634 would require an IMB:
(1) to refrain from providing any further services to
the recruit or the client until the IMB has obtained
and provided the recruit with the informational
brochure described above;
(2) to obtain, prior to the release of any contact
information of a recruit, the recruit's consent to
the release of that information;
IMBRA already requires this consent to be in
writing, in the foreign client's primary language,
signed, and the information released only to the
specific U.S. client.
SHOULD THIS CONSENT TO RELEASE INFORMATION
AT LEAST MIRROR FEDERAL LAW?
(3) to not make false or misleading statements to a
client or recruit in the course of providing
services to that client or recruit.
While IMBRA requires an IMB to make specified
disclosures to a foreign national recruit about a
U.S. client, it does not prohibit the making of
false or misleading statements to the client about
the foreign national recruit or to the recruit about
the client. Therefore this provision would be
unique to California.
A violation of this provision of AB 634 would
subject an IMB to the penalty provisions, discussed
in Comment 3.
c. California Secretary of State's role
Besides filing and monitoring compliance with regard
to the bonds filed by persons who want to operate as
IMBs in the state, the Secretary of State (SOS) would
be required to post on its Internet Web site
information demonstrating:
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(1) bond compliance by the IMB;
(2) relevant information about the IMB (i.e., name,
business address and phone, Internet Web sites or
domain names); and
(3) a photograph of each person engaged in the IMB
business or acting in the capacity of an IMB.
However, the bill would not require the IMB to
submit photographs of its owner, agents, or
employees acting as IMBs.
SHOULD THE IMB BE REQUIRED TO SUBMIT THESE PHOTOS?
The SOS would be required to update the information on
its Web site at least every 30 days.
Lastly, the SOS would be authorized to charge and
collect fees to cover the cost of filing the bond.
3. Penalties for violations
Under IMBRA, a violation or attempted violation of its
provisions subjects the IMB to a civil penalty of not
less than $5,000 nor more than $25,000 by an action of
the Attorney General. Additionally, the IMB could be
subject to a criminal penalty of up to 5 years in prison,
where the violation affects interstate commerce.
This bill would establish a civil cause of action for an
aggrieved person to seek injunctive relief or damages or
both. The bill also provides for a civil penalty of up
to $100,000 for each violation, to be assessed in a civil
action brought by a person injured by the IMB or by the
Attorney General (AG), district attorney or city
attorney. An action brought by the AG, district attorney
or city attorney would not preclude an individual action
brought by the injured person. These are similar to ICA
provisions applicable to immigration consultants.
While AB 634 attempts to mirror the ICA, it leaves out
certain provisions, such as Business & Professions Code
22446.5, which provides that in an action for injunctive
relief or for damages, the court shall award actual
damages plus treble damages or $1,000 per violation,
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whichever is greater, and reasonable attorney's fees to a
prevailing plaintiff. These statutory penalties are
similar to those recoverable under the Unruh Civil Rights
Act and similar Civil Code provisions (except those Civil
Code provisions impose a higher statutory penalty of
$4,000 now). This provision could be helpful
specifically where there has not been any major injury or
damage done to a client or recruit, but the pattern of
violations may indicate continuing problems with an IMB.
The ICA also provides that any party who claims a
violation has occurred may bring a civil action for
injunctive relief and, upon prevailing, recover
reasonable attorney's fees. Again, where no recruit or
client wants to come forward and prosecute an IMB, a
third party, such as a citizen acting as a private
attorney general, or the AG, district attorney or city
attorney himself or herself should be able to bring an
action under a provision similar to the ICA here.
Lastly, the ICA requires the AG, district attorney or
city attorney to seek relief for an injured person as
well when the AG, district attorney or city attorney
seeks the civil penalty of up to $100,000 per violation
against an errant immigration consultant. This provision
of the ICA was added in 2002 to ensure that an injured
person's civil cause of action is also prosecuted when
the AG, district attorney or city attorney seeks the
heavy civil penalty for a violation. Unfortunately this
was not incorporated into AB 634.
SHOULD THESE OTHER PENALTY PROVISIONS BE AMENDED INTO THE
BILL?
Support: Sisters of the Holy Names of Jesus and Mary;
California Alliance for Consumer Protection;
California National Organization for Women; National
Council of Jewish Women; Organizaci?n en California
de Lideres Campesinas, Inc. (Organization of
Farmworker Women Leaders in California); California
State Commission on the Status of Women; The Women's
Building; 49 individuals
Opposition: None Known
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HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Asm. Jud. (Ayes 8, Noes 0)
Asm. Appr. (Ayes 18, Noes 0)
Asm. Flr. (Ayes 79, Noes 0)
Sen. B., P. & E.D. (Ayes 3, Noes 2)
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