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Greg Siskind on Immigration Law and Policy

California Supreme Court Agrees to Granting Law License to Undocumented Immigrant

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Interesting case. I'm aware of several cases around the country where individuals lacking a legal immigration status are pursuing degrees that will eventually require them to get a license to enter their professions. California's legislature has just passed legislation which was signed by the Governor that permits granting law licenses to people in this position and the California Supreme Court has just formally agreed that Sergio Garcia should be admitted to the state bar.

The court agreed that there was no state law barring Mr. Garcia's admission and that he met the moral character requirements. The court also noted that "there is no other federal statute that purports to preclude a state from granting a license to practice law to an undocumented immigrant."

This is interesting given the White House chose to weigh in on the case to persuade the California Supreme Court to deny issuing the license. And once again we have the Jeckyl and Hyde White House which is the champion of immigration reform and has enacted the DACA program, yet has deported more immigrants than any of his predecessors and often aggressively opposes states seeking to move pro-immigration measures like this one.

Sergio Garcia came to the US as a 17 month year old baby. He left the US for a few years during his childhood and then reentered when he was 17 years old. His current age and age at reentering the US mean he doesn't qualify for DACA. But the fact that he's been in the US for nearly 36 years, graduated from high school, college and law school in the US and passed the extremely difficult California bar exam should mean something. Well, it means something to all three branches of the California government as the state legislature, the Governor and now the state's Supreme Court have all signed off on granting Mr. Garcia his law license. The Court also noted that there are at least two more cases pending in California with similar issues.

I thought one of the more interesting discussions in the decision related to the question of whether a person being out of legal immigration status means that a bar applicant cannot meet the requirement to faithfully discharge the laws of the United States. Here's what the decision had to say about this subject:

Past California cases, however, do not support the proposition, implicit in amicus curiae‟s contention, that the fact that a bar applicant‟s past or present conduct may violate some law invariably renders the applicant unqualified to be admitted to the bar or to take the required oath of office. In Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 459, this court explained that “every intentional violation of the law is not, ipso facto, grounds for excluding an individual from membership in the legal profession. [Citations.] There is certain conduct involving fraud, perjury, theft, embezzlement, and bribery where there is no question that moral turpitude is involved. On the other hand, because the law does not always coincide exactly with principles of morality there are cases that are crimes that would not necessarily involve moral turpitude.‟ [Citation.] In such cases, investigation into the circumstances surrounding the commission of the act must reveal some independent act beyond the bare fact of a criminal conviction to show that the act demonstrates moral unfitness and justifies exclusion or other disciplinary action by the bar.”

We conclude the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude
or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California. Although an undocumented immigrant‟s presence in this country is unlawful and can result in a variety of civil sanctions under federal immigration law (such as removal from the country or denial of a desired adjustment in immigration status) (8 U.S.C. §§ 1227(a)(1)(B), 1255(i)), an undocumented immigrant‟s unauthorized presence does not constitute a criminal offense under federal law and thus is not subject to criminal sanctions. Moreover, federal law grants federal immigration officials broad discretion in determining under what circumstances to seek to impose civil sanctions upon an undocumented immigrant and in determining what sanctions to pursue. (See, e.g., Arizona v. United States, supra, 567 U.S. ___, ___ [183 L.Ed.2d 351, 366-367].) Under current federal immigration policy it is extremely unlikely that immigration officials would pursue sanctions against an undocumented immigrant who has been living in this country for a substantial period of time, who has been educated here, and whose only unlawful conduct is unlawful presence in this country. Under these circumstances, we conclude that the fact that an undocumented immigrant‟s presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the State Bar.

The court addressed the tricky question of how one without legal status could be employed as a lawyer without violating federal law. It is true that being employed without work authorization would violate IRCA and it is also possible that an individual could be barred from representing a client in a federal matter where an agency barred persons lacking legal status from practicing in front of that agency. However, the court notes that there are other instances where that wouldn't be an issue such as taking on pro bono matters. They noted that the question of practicing as a solo lawyer was a violation of immigration law was a matter that was not entirely clear.

Another interesting argument the court bought was that foreign lawyers are sometimes eligible to take the California bar exam even if they are not living in the US and those individuals can get a California law license. The assumption is that those individuals will comply with US work visa rules and the mere fact that they lack authorization to work in the US when they seek the license doesn't prohibit them from applying.

In the end, the California Supreme Court was willing to allow Mr. Garcia to take this next step in moving forward with his dream of being a lawyer. Hopefully, Congress and the White House will take the next actions to allow that dream to be realized.

And I'd ask the President to explain why he considers Mr. Garcia worth going to court to oppose while making the opposite argument in the case of slightly younger DACA beneficiaries. Do people like Mr. Garcia actually become morally unworthy when they've been here longer? Perhaps we need to think about expanding DACA to include people like Mr. Garcia?

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Updated 01-02-2014 at 10:24 PM by GSiskind

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Comments

  1. Jack2's Avatar
    "Under current federal immigration policy it is extremely unlikely that immigration officials would pursue sanctions against an undocumented immigrant who has been living in this country for a substantial period of time, who has been educated here, and whose only unlawful conduct is unlawful presence in this country."

    So if the federal executive branch doesn't care, why should we? That is just embarrassing coming from a court oflaw. Does the law matter at all to these people? Not when it comes to immigration apparently.
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