Undocumented Alien Can Practice Law in Calif.
SAN FRANCISCO (CN) - The California Supreme Court unanimously approved an undocumented immigrant's admission to the State Bar on Thursday, a day after a state law allowing him to obtain a professional license took effect.
Sergio C. Garcia, 36, came to the U.S. with his parents in 1994 as a 17-year-old. Garcia's father - as a permanent legal resident - filed an immigration visa petition on behalf of his son, which officials accepted in 1995.
But the crushing backlog of Mexican nationals who are seeking legal residency means that 19 years later, Garcia still hasn't received a visa number.
Despite this, Garcia managed to graduate from high school and Cal State Chico, and received his law degree from Cal Northern School of Law in 2009. He passed the bar examination that same year.
The committee that approves State Bar applications extensively investigated Garcia, and found that his "outstanding moral character and significant contributions to the community" made him an attractive candidate for the Bar. But federal law generally bars undocumented immigrants from obtaining professional licenses.
At a hearing in September, Chief Justice Tani Cantil-Sakauye said the state's high court was bound by those federal restrictions, but added that federal law also allows state governments to override them. Days later, the Legislature amended business and professions statutes to authorize undocumented immigrants to practice law upon successful completion of the usual requirements.
The law took effect on Jan. 1. Today, and despite friend-of-the-court objections by the Justice Department, Cantil-Sakauye said the change in law allows the California Supreme Court to give Garcia a license to practice law.
"By explicitly authorizing a bar applicant 'who is not lawfully present in the United States' to obtain a law license, the statute expressly states that it applies to undocumented immigrants - rather than conferring a benefit generally without specifying that its beneficiaries may include undocumented immigrants - and thus 'affirmatively provides' that undocumented immigrants may obtain such a professional license so as to satisfy the requirements of federal law," the chief justice wrote, citing the high court's ruling in Martinez v. Regents of University of California.
The Martinez challenge came in 2010 after the Legislature amended state education law to exempt undocumented immigrants from much higher out-of-state tuition and fees at state universities.
And although the Justice Department had argued that Garcia's unlawful presence in the U.S. necessarily prevents him from taking the attorney's oath to support the Constitution, federal and state laws, Cantil-Sakauye wrote that illegal activities by themselves have never definitively kept attorneys from practicing law in California.
"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," the chief justice wrote. "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), 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. 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 state's high court noted, however, that Garcia's immigration status would likely limit his future employment prospects. The new law itself outlined the likelihood that Garcia could be disqualified from representing clients before the U.S. Citizenship and Immigration Services agency, and that most law firms would shy away from knowingly hiring an undocumented worker.
"We conclude there is no state law or state public policy that would justify precluding undocumented immigrants, as a class, from obtaining a law license in California," Cantil-Sakauye wrote. "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."
According to the Los Angeles Times, Garcia currently makes his living as a motivational speaker.