State law requires that notaries be legal residents of the United States.
By: Blake Stephens
In 2012 President Obama issued an executive order allowing certain illegal immigrants to avoid deportation, under specific conditions and requirements. The Deferred Action for Childhood Arrivals program gives eligible illegal immigrants renewable two-year work permits, but does not give them legal status or a route to citizenship.
Despite this, North Carolina Secretary of State Elaine Marshall is actively certifying illegal immigrants under the DACA program who have employment authorization cards as notaries public, the North State Journal reported.
According to the National Notary Association, to be come a notary one must be at least 18 years of age and be a legal resident of the state with no criminal record, with most states requiring applicants to be fluent in English.
North Carolina law requires that notaries be legal residents of the United States; speak, read and write the English language; and complete a six-hour course.
As a result, Marshall, who is a Democrat, and the North Carolina government may be in violation of state law.
The National Notary Association defines a notary public as “an official of integrity appointed by state government to serve the public as an impartial witness in performing a variety of official fraud-deterrent acts related to the signing of important documents.”
According to the association, a notary’s duty is “to screen the signers of important documents — such as property deeds, wills and powers of attorney — for their true identity, their willingness to sign without duress or intimidation, and their awareness of the contents of the document or transaction.”
The North State Journal reported that Marshall and her staff have been using employment authorization cards in place of green cards in order to allow the DACA immigrants to be certified.
In the Journal’s investigation, an anonymous journalist went to a travel agency where a DACA immigrant was working as a notary to inquire about the process she went through to become certified.
For confirmation, he asked her if she was a citizen, to which she answered no, and said that she had answered no on the application.
The journalist replied, “OK, and then you sent them something like a green card or something?”
The notary answered, “Yeah, I showed them my — it’s like a work authorization.”
The journalist asked to see the card, and she responded that she didn’t have it with her.
She said it was at home with her passport. However, she did have her driver’s license, a special issue for DACA immigrants.
The notary recapped by saying, “I put ‘no’ [not a citizen] on there, and then I just showed them my card, my work authorization card, and they said that was fine.”
“So she knew you were DACA and she said we need the card and that would be OK?” asked the journalist.
“Yes,” she replied.
The journalist then called the notary public section of the North Carolina secretary of state’s office and asked an unidentified staffer whether the requirement to be a legal resident could be fulfilled by the DACA work permit.
The staffer replied, “Yes, you would just send us a copy of [the DACA work authorization], a front and back copy.”
In a follow-up with George Jeter, Marshall’s director of communications, he told the journalist that state officials believe their actions to be legal and that a noncitizen could in fact become a notary, referring to the Supreme Court ruling in Bernal v. Fainter.
“You can become a notary even if you are not a citizen,” Jeter said.
“The U.S. Supreme Court has ruled on that very topic,” he continued. “That would be Bernal v. Fainter, and Fainter was the secretary of state in Texas, and they definitively said that as long as you’re a legal resident and you meet, basically, the morals part of that stuff, you can be a notary.”
In that case, the court struck down a Texas law requiring a notary to be a citizen, arguing that it violated the equal protection clause of the 14th Amendment.
The North Carolina officials believe the DACA policy documents authorize employment based on the premise that the DACA immigrants are living in the country legally.
However, this rationale doesn’t line up with the U.S. Department of Homeland Security’s mandates on DACA immigrants.
The department’s website specifies the limitations of DACA in regard to legal status.
Deferred action does not provide an individual with lawful permanent resident status or any legal status in the United States. It confers no legal immigration status, nor a pathway to citizenship. Only Congress, acting through its legislative authority, can confer these benefits. It remains for the executive branch, however, to set forth policy for the exercise of prosecutorial discretion within the framework of the existing law.
A clearer breakdown of this concept was stated by Melissa Crow, director of the Legal Action Center at the American Immigration Council, who wrote on behalf of the Supreme Court on SCOTUSblog.
“An individual with deferred action is by definition lawfully present in the United States,” Crow wrote. “But just because someone is lawfully present does not mean that he or she has a lawful immigration status — a term of art that refers to being in the United States in a specific immigrant or non-immigrant visa classification and complying with its terms. As the government explained in its petition for certiorari, ‘lawful presence’ is merely a reflection of its decision to grant a favorable exercise of prosecutorial discretion.”
Based on these findings, there appears to be a disparity between what federal and state law permits and what Marshall and her office are allowing in terms of DACA immigrants being certified as notaries.
Further investigations may still come. In the meantime, Marshall is running for re-election as secretary of state, an office she has held since 1997.