Posted by Yoli/CA on 12/9/09 3:52pm
Msg #313712

Notarizing for illegal alien --

received a call today from ss for a signing. Mrs. borrower has no valid CA ID as she is illegal but does have 2 credible witness. In CA, CW have to swear: 1) individual appearing as the signer is the named person, 2) CW personally knows signer, 3) CW believes circumstances of signer are such that it would be very difficult or impossible for signer to obtain id, 4) signer does not possess any id authorized by law, and 5) CW has no financial interest and is not named in doc to be signed.

Your thoughts/comments on this issue are more than welcomed! TIA.

Reply by Cari on 12/9/09 4:13pm
Msg #313716

if they were married in their foreign country, and

didn't bother to register it here in the US, then its not a valid marriage. But not sure about CA law on this...

Reply by Yoli/CA on 12/9/09 4:14pm
Msg #313717

Re: if they were married in their foreign country, and -huh? n/m

Reply by Cari on 12/9/09 4:19pm
Msg #313718

I'm was thinking that the Mrs. may not need to sign since

'technically' their marriage is not legal here in this country if they got married in a foreign country.

Foreign marriages are automatically recognized here in the US. Unless the couple file their marriage with the courts for US official recognition...

Reply by Cari on 12/9/09 4:20pm
Msg #313719

typo....foreign marriages are NOT automatically recognized.. n/m

Reply by Bob_Chicago on 12/9/09 4:27pm
Msg #313723

Re: typo....foreign marriages are NOT automatically recognized.

Curious as to the source of your info.
I understand that if a marriage is valid where performed , then it
is valid anywhere. ( absent such issues as same sex etc.)
goes beyond full faith a credit clasue for sister states.

Reply by Yoli/CA on 12/9/09 4:31pm
Msg #313725

Re: typo....foreign marriages are NOT automatically recognized.

Now, this I agree with. Bob, this too was my understanding.

Reply by Cari on 12/9/09 4:31pm
Msg #313726

foreign marriages not the same criteria as US marriages.... n/m

Reply by Cam/CA on 12/9/09 6:16pm
Msg #313751

Re: I think you must be mistaken, my marriage in England is

valid and recogized by the US government. I never registered my marriage, I did show proof (via marriage certificate) to the INS, got my green card and eventually citizenship.

Reply by BrendaTx on 12/9/09 6:56pm
Msg #313761

Wonder if Sylvia knows that her marriage to Bruce is in

question! I am pretty sure they married before they came to the US. Sylvia, oh where are you, Queen Mum of Notaries? We miss you!

Reply by BrendaTx on 12/9/09 6:53pm
Msg #313759

I'm invited to a destination wedding outside of the U.S.

in June. I suggest that they'll still be married in the U.S. even though their wedding takes place in a foreign country. I'll have to ask them if they have to register their marriage in once they return to the US.

Lots of young couples are choosing Belize, Mexico, et al. for small family weddings where the family can go and have a super vacation while the wedding takes place. Interesting.

Reply by John_NorCal on 12/9/09 7:35pm
Msg #313768

Validity of foreign marriages

Taken from the US Dept of State website:

In general, unless the marriage breaks U.S. state laws, marriages which are legally performed and valid abroad are also legally valid in the United States. Inquiries regarding the validity of a marriage abroad should be directed to the attorney general of the state in the United States where the parties to the marriage live.

http://www.travel.state.gov/law/info/marriage/marriage_640.html

While this particular page talks about US citizens who want to get married abroad, the main premise is that marriages performed abroad are legal in the US

Reply by MW/VA on 12/9/09 6:19pm
Msg #313752

Re: typo....foreign marriages are NOT automatically recognized..

Where do you get this info, Cari?? It is true that citizenship does not automatically come with marriage to a US citizen.

Reply by JanetK_CA on 12/9/09 8:20pm
Msg #313786

Re: typo....foreign marriages are NOT automatically recognized..

I heard recently that that is a common misperception that marrying an American automatically makes a foreigner a citizen. I believe it was a radio report about a woman under threat of deportation whose late husband was killed in Iraq (or Afghanistan, don't remember). I always thought it was true, also. Very sad...

Maybe it's just true in Hollywood...

Reply by Susan Fischer on 12/9/09 8:28pm
Msg #313788

I believe those who think that confuse the difference

between automatically having a Sponsor if one marries a US Citizen, and Citizenship *attaching* automatically upon a marriage.

A German gal who worked for me was in her third year of her marriage to US Guy, and he was a real jerk. She couldn't leave/divorce him until either the time limit was up, or she had completed the process of becoming a Citizen.

They had two beautiful girls, and I hope it all worked out for her.

Reply by JanetK_CA on 12/9/09 9:29pm
Msg #313797

That makes sense. Thanks. n/m

Reply by Yoli/CA on 12/9/09 4:29pm
Msg #313724

Re: I'm was thinking that the Mrs. may not need to sign since

Didn't know that, Cari. Do you mean to say that if a couple, married in Mexico, emigrates to the US, then does not file with the US courts for recognition ... then their marriage is not valid and they can legally marry someone else in the US????

Reply by CaliNotary on 12/9/09 5:53pm
Msg #313746

Her marital status is meaningless in this situation

And this is exactly why CA law doesn't address marriage or legal vs illegal. How on earth are we as notaries supposed to definitely determine the legal status of a person or the legality of their marriage which may or may not have actually taken place?

The law is designed to make it pretty idiot-proof for us. You don't need to know a thing about the person, you just need to ID them based on the list of acceptable identification documents. The only place any sort of personal judgment enters into it is how the notary interprets the credible witness requirement. Which is a loophole that the SOS really needs to fix, but for now it is what it is.

Reply by Robert/FL on 12/11/09 11:07am
Msg #313992

Re: if they were married in their foreign country, and

You are entirely incorrect. Unless the marriage is illegal under U.S. law (same sex, bigamy, etc.), a foreign marriage is legally recognized in the U.S. without any requirement of registration.

Reply by Linda_H/FL on 12/9/09 4:22pm
Msg #313720

I guess the question is...how long has she been here

and why doesn't she have ID? Where is she from?

Do YOU feel she meets the criteria for CW's? This has been discussed here before and opinions vary.

Good Luck!!

Reply by Yoli/CA on 12/9/09 4:32pm
Msg #313727

At this point, this is just brainstorming as

ss still has not approved my fee.

However, it does bring up some interesting points.

Reply by YumaAgent on 12/9/09 4:25pm
Msg #313722

Had the same situation, however, Deed vested as an unmarried individual, but married 3 yrs after. Lender aware of marital situation and wanted NBS to sign marital documents--some docs required notarization.

Spouse (illegal alien) did not have any identification other than her birth certificate and an expired "green card." Our state law requires at least one type of photo identification, either driver license, state i.d., military i.d., etc. Nevertheless, I declined on the assignment.

Reply by Cari on 12/9/09 4:35pm
Msg #313728

If she is Mexican, does she have Matricular Consular card?

or an expired green card, or birth certificate? something?

Reply by CaliNotary on 12/9/09 5:47pm
Msg #313744

CA is very specific about what is acceptable ID

"Something" just won't cut it. If they don't have what's listed in the handbook, it doesn't matter what else they do have.

Reply by GOLDGIRL/CA on 12/9/09 4:44pm
Msg #313730

Use of 2 CIWs in CA has been discussed endlessly - ranging from notaries who use them at the drop of a hat to those who would never under any circumstances. However, the fact that this woman is an illegal (do you know this for sure?) raises other concerns - maybe not within our realm of responsibility - but illegal is illegal - not only are you stretching the ID requirements (at least that's how I look at it; I only use CIWs under the worst of circumstances) but you're doing this for somebody who's breaking our laws (along with millions of other illegals, of course) but I wouldn't touch it. We're aiding somebody to enjoy our rights and privileges - and they're here illegally? Of course, if you don't do it, the SS will move on to someone who will....

Reply by CH2inCA on 12/9/09 4:56pm
Msg #313733

GoldenGirl; if we use that train of thought, notaries would never travel to prisons or jails to notarize any document. Or is it just certain laws broken that we should discriminate against?

Does the Mrs have a driver's lic, from her home country?

Whew, may have to toss that fish back in the water.

Reply by Linda_H/FL on 12/9/09 5:01pm
Msg #313736

Only US, Canadian or Mexican DL's are acceptable.

Reply by CaliNotary on 12/9/09 5:45pm
Msg #313743

IMO this is a situation that DOES fit the CW requirement

Somebody correct me if I'm wrong, but I don't believe that CA notary law addresses the issue of citizenship or legal status in the country. So since it's not in there, it's not an issue as far as notarizing goes. It's not our place to be making up rules that don't exist just because it somehow seems like a situation that should be covered in the handbook.

Since it is truly impossible for an illegal alien to get an acceptable US issued ID, and it would be extremely difficult for them to get a valid passport from their home country if they don't already have one, I would find the use of credible witnesses perfectly acceptable in this situation.

Reply by Notarysigner on 12/9/09 5:49pm
Msg #313745

Re: IMO this is a situation that DOES fit the CW requirement

I did a search for the words "illegal alien" in the 2009 notary handbook, nada....

Reply by CaliNotary on 12/9/09 5:57pm
Msg #313747

Re: IMO this is a situation that DOES fit the CW requirement

Of course it wouldn't. There is no way the SOS is going to put the burden of determining somebody's legal status on the notary.

Reply by desktopfull on 12/9/09 8:54pm
Msg #313793

HUH? People in jail have valid identification, this person

is and illegal alien with none. I don't discriminate against illegal aliens, I report them to ICE!!!

Reply by PAW on 12/10/09 9:15am
Msg #313822

Re: HUH? People in jail have valid identification, this person

I didn't read that this is an ID issue, for persons in jail. Rather, performing notarial duties for people who break the law. A convicted criminal in jail is an "illegal" something or other has the same rights to notarial practices as everyone else. Why shouldn't this extend to an immigrant who is here illegally? The issue isn't whether or not the person is illegal, but whether or not the notarial act is legal.

Reply by desktopfull on 12/11/09 9:24pm
Msg #314061

Re: HUH? People in jail have valid identification, this person

If the person here illegally doesn't have any indentification that is required to notarize their signature then the notarial act wouldn't be legal. I personally would not believe anyone that an illegal alien produced for a CW, but that's my option. I don't trust people that don't have any respect for this country's immigration laws and believe that they need to return to what ever country they came from and then return legally if they want to live here, period. I was responding to someone claiming that not notarizing for this person would mean you couldn't notarize for those in jail because they broke the law. They were comparing apples to oranges.

Reply by John Schenk on 12/11/09 9:34pm
Msg #314065

Re: HUH? People in jail have valid identification, this person

Agree with that, Bro!

JJ

Reply by CaliNotary on 12/11/09 9:42pm
Msg #314067

Re: HUH? People in jail have valid identification, this person

"I personally would not believe anyone that an illegal alien produced for a CW, but that's my option."

Is that actually your option? I don't know what FL law says about credible witnesses, but in CA there is nothing in the law that allows us to make the determination of whether the witness is actually credible or not.

You are a public servant, you need to take your personal bias out of your role as a notary public. I don't feel that differently than you do about illegal immigration, but when it comes to notarizing things, my personal feelings don't matter, and I'm sure not going to use my personal feelings to find an excuse not to do my job.

Reply by desktopfull on 12/12/09 6:24am
Msg #314090

Re: HUH? People in jail have valid identification, this person

Cali, if they can't produce proper ID ( that which is required by FL statues) and inform me that they are an illegal alien and can't get the proper ID required then I'm not going to notarize anything for them, because they can't provide anything (or anyone that I would believe) to prove to me who they are and I'm not going to take the word of someone that they may produce, whom I don't know, to verify who they are. I refused to risk losing my seal, possible fines up to $10,000.00 or jail because I notarize an illegal alien's signature. As far as I'm concerned, my only duty as a public servant in this case is to report the person to the proper authorities.

Reply by Regal/NC on 12/9/09 4:59pm
Msg #313735

Just adhere to CA id requirements. End of story! n/m

Reply by Notarysigner on 12/9/09 5:11pm
Msg #313738

Re: Just adhere to CA id requirements. End of story!

From the 2009 Cal handbook, page 40...

§ 1185. Acknowledgments; requisites
(a) The acknowledgment of an instrument shall not be taken unless the officer taking it has
satisfactory evidence that the person making the acknowledgment is the individual who is
described in and who executed the instrument.
(b) For the purposes of this section “satisfactory evidence” means the absence of any
information, evidence, or other circumstances that would lead a reasonable person to believe
that the person making the acknowledgment is not the individual he or she claims to be and
any one of the following:
(1)(A) The oath or affirmation of a credible witness personally known to the officer, whose
identity is proven to the officer upon presentation of any document satisfying the requirements
of paragraph (3) or (4), that the person making the acknowledgment is personally known to
the witness and that each of the following are true:
(i) The person making the acknowledgment is the person named in the document.
(ii) The person making the acknowledgment is personally known to the witness.
(iii) That it is the reasonable belief of the witness that the circumstances of the person making
the acknowledgment are such that it would be very difficult or impossible for that person to
obtain another form of identification.
(iv) The person making the acknowledgment does not possess any of the identification
documents named in paragraphs (3) and (4).
(v) The witness does not have a financial interest in the document being acknowledged and
is not named in the document.
(B) A notary public who violates this section by failing to obtain the satisfactory evidence
required by subparagraph (A) shall be subject to a civil penalty not exceeding ten thousand
dollars ($10,000). An action to impose this civil penalty may be brought by the Secretary
of State in an administrative proceeding or any public prosecutor in superior court, and shall
be enforced as a civil judgment. A public prosecutor shall inform the secretary of any civil
penalty imposed under this subparagraph.

Reply by Teresa/FL on 12/9/09 6:14pm
Msg #313750

I have used CWs for this situation

About 3 years ago, in a situation that sounds almost identical to what you are describing, I used two CW to identify a woman who was signing as a non-obligated spouse on a home refinance.

I made sure to follow the rules per Florida law and had both witnesses sign CW affidavits as well as obtaining signatures in my log book. One signed affidavit was sent back with the signed docs and I retained the other for my records.

In over 15 years as a Florida notary I have only used CW four times.

Reply by Calnotary on 12/9/09 6:36pm
Msg #313754

Re: I have used CWs for this situation

I have done a few the same with CW. And I knew that they were illegal aliens, they told me that!
I wouldn't keep a copy of the notarized doc though.

Reply by Teresa/FL on 12/9/09 6:41pm
Msg #313756

Re: I have used CWs for this situation

To clarify, I have the CWs sign 2 CW Affidavits. I send one back with the signed document package and keep one for my records. This is acceptable in Florida. I do not keep copies of any other documents I notarize.

Reply by John_NorCal on 12/9/09 7:12pm
Msg #313764

This whole discussion points to.....

the need to follow the individual state requirements. First as Calinotary states below the marital status does not matter, we are not allowed to make any to the signers capacity. A suggestion was made about a Mexican matricular card, expired ID, birth certificate or something. Each of those recommendations have a flaw or some type or are not allowed. I agree with Cali again, even though he is not a fan of credible witnesses, that in this case a CW is perfectly acceptable. So Yoli just follow CA law, as I'm sure you will, and don't over think this one.

Reply by Cari on 12/9/09 7:18pm
Msg #313765

if you do this signing, let us know what title says....

good luck...

Reply by desktopfull on 12/9/09 8:16pm
Msg #313785

Since the person has no regard for our laws in the first place (which is evidenced by the fact that the person is here illegally), I absolutely would not give any credibilty to any witnesses that the person would produce to prove their identity. I would not take this assignment for any price. But I would happily direct ICE to this persons location.

Reply by GOLDGIRL/CA on 12/10/09 12:45am
Msg #313807

I'm stickin' to my guns and would not notarize anything for her. And we can't compare an illegal alien having free access throughout this country to an inmate who's stuck in jail. Of course, we would notarize for a prisoner (provided they had proper ID). The crime is irrelevant; the point is the law has caught up with them. And I don't need to reference the notary code, searching for an OK (or not) to acknowledge her signature. I simply would not get involved with any document signed by somebody I knew was illegal. I have visions of being at trial and being asked: "So even though you knew so-and-so was in this country illegally, you still used the oaths of two CIWs to ID her because you knew she could never get CA acceptable ID (because she was in this country illegally), and because you notarized her signature she was able to .... blah, blah blah." No thanks. One way around this for her - does she have Mexico DL? CA allows that for ID - and nobody would ever need to know anything else about her!

Reply by Yoli/CA on 12/10/09 8:32am
Msg #313821

Thank you all for all the input!

When ss initially called me, they stated she had no CA ID but did have 2 credible witnesses. Told them I'm reluctant to use CW as they have to swear to (& read off the criteria). Further told them ID could be Canadian or Mexican DL or passport stamped by US, did not have to be CA ID. Quoted them my fee, which they then had to get approved and would call me back.

Never heard back from them. Wonder if they got someone to do it cheaper with other available ID....

Reply by TulsaNotary on 12/11/09 12:47am
Msg #313953

Re: Thank you all for all the input!

Yoli/CA, do you have to know either of the CWs?

Reply by CaliNotary on 12/11/09 1:16am
Msg #313955

That's not required in CA n/m