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California grants law license to man in U.S. illegally
What the California Supreme Court did not do in its ruling regarding Sergio Garcia is address the fact that under federal law, no law firm, business or public agency can legally hire him.
The New York Times
LOS ANGELES — As a teenager in Northern California, Sergio Garcia worked in the almond fields and in a grocery store, earning his way through college and then law school. He passed the California bar exam on his first try, something just half of all candidates do.
But when it came time to apply for his law license, Garcia, a Mexican immigrant, encountered a formidable hurdle: Because he lacked legal status, he could not become a lawyer.
That changed Thursday when the California Supreme Court ruled unanimously that a law passed in fall 2013 by the Legislature allowed Garcia, 36, to be admitted to the state bar and practice law. What it did not do is address the fact that under federal law, no law firm, business or public agency can legally hire him.
The strange turn of events demonstrates the complicated patchwork of immigration laws that is emerging as Congress remains stalled on an overhaul of the immigration laws and states and courts are stepping in and deciding what rights should be granted to the estimated more than 11 million immigrants living illegally in the country.
Courts in Florida and New York are dealing with similar cases involving immigrants seeking to become lawyers, and Robert Morgenthau, the former district attorney of Manhattan, has urged New York’s governor and Legislature to pass a law like California’s.
While California has gone farther than many others, several states have begun to expand opportunities for immigrants living in the U.S. illegally, after a wave of laws passed several years ago in Alabama, Arizona and Georgia and other states to crack down on illegal immigration.
Unauthorized immigrants can receive in-state college tuition in several states, and 11 states and the District of Columbia allow such immigrants to obtain some kind of driver’s license, according to the National Immigration Law Center.
Garcia, in a telephone interview, said he felt that despite the ambiguities, he would be free to open his own practice.
“I can finally fulfill my dream and also leave behind a legacy so that an undocumented student 20 or 30 years from now will take it for granted that they can be an attorney,” he said. “There’s a lot to celebrate. I can open my own law firm, and that’s exactly what I intend to do. There’s no law in this country restricting entrepreneurs.”
Advocates hope Thursday’s decision will open the door to millions of immigrants seeking to enter other professions such as medicine, accounting and teaching.
The court sided with state officials in the case, which pitted them against the White House over a 1996 federal law that bars people who are in the U.S. illegally from receiving professional licenses from government agencies or with the use of public money, unless state lawmakers vote otherwise.
Bill Hing, a law professor at the University of San Francisco, said the court made clear the only reason it granted Garcia’s request is that California recently approved a law that specifically authorizes the state to give law licenses to immigrants living in the U.S. illegally.
The new law, inspired by Garcia’s situation, took effect Wednesday.
In its ruling, the court said California had paved the way for Garcia’s admission to the bar in October, when the Legislature overwhelmingly passed a bill saying that qualified applicants could be admitted to the state bar regardless of their immigration status. The court went on to suggest that immigration status should not be considered any differently from, say, race or religion.
“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,” Chief Justice Tani Cantil-Sakauye wrote in her opinion. “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.”
But in its lengthy ruling, the court appeared to leave aside the issue of employment, saying only that “we assume that a licensed undocumented immigrant will make all necessary inquiries and take appropriate steps to comply with applicable legal restrictions and will advise potential clients of any possible adverse or limiting effect the attorney’s immigration status may pose.”
The U.S. Department of Justice argued that Garcia was barred from receiving his law license because the court’s entire budget comes from the public treasury, a violation of the federal mandate that no public money be used to grant licenses to people who are in the country without permission.
Assistant U.S. Attorney Daniel Tenney did not return a call seeking comment.
The Obama administration’s position in the case came as a surprise to some, since the White House has shielded from deportation people who were brought to the U.S. illegally as children, provided they also graduated from high school, kept a clean criminal record and met other conditions.
At a hearing in September, a majority of the state Supreme Court justices appeared reluctant to grant Garcia the license under current state and federal law, saying they were prohibited from doing so unless the Legislature acted.
And although the federal government argued in a brief that Garcia could not work as an independent contractor, several immigration lawyers said he would legally be allowed to open his own practice and charge clients willing to pay.
Until 2008, the California Bar did not ask applicants for their immigration status, and experts say that several other unauthorized immigrants are already working as lawyers in this and other states. While the state Supreme Court considered Garcia’s case, the state bar association submitted two other names of unauthorized immigrants seeking admission.
Garcia, who was brought by his parents from Mexico when he was 17 months old, moved back and forth. When he returned for good at 17, he applied for a legal visa using his father, who is now a legal permanent resident, as a sponsor, and the court estimated that under current immigration laws it would be several years before he could get a visa.
Michael Olivas, an immigration-law professor at the University of Houston who submitted an amicus brief supporting Garcia’s case, said there were most likely dozens more people like Garcia who will look to enter state bar associations in the coming years. He said that in California, which has more law schools and more Latinos than any other state, the ruling could have a huge impact.
For several years, Garcia has made his living as an inspirational speaker. He plans to focus on personal-injury and debt-negotiations cases and hire other lawyers.
“My dream has always been to be a litigator,” he said. “I want to be in front of a judge.”
Material from The Associated Press is included in this report.