Wall Street Journal
By Joe Palazzolo
September 2, 2013
California's Supreme Court is set Wednesday to consider whether an illegal immigrant is eligible for a license to practice law in the state, in the latest case to pit the federal government against a state over immigration policy.
The California attorney general has thrown her support behind Sergio C. Garcia, who moved from Mexico to Chico, Calif., when he was 17 years old and is seeking admission to the state bar. The U.S. Department of Justice, however, filed a brief last year arguing that federal law prohibits him from receiving a law license.
The Justice Department said Mr. Garcia is forbidden from obtaining a license by a law Congress passed in 1996, the Personal Responsibility and Work Opportunity Reconciliation Act.
Mr. Garcia, who graduated from Cal Northern School of Law in Chico and passed the state bar exam in 2009, said the case is about state sovereignty—not his immigration status.
"The federal government has never controlled who can and cannot be an attorney," Mr. Garcia said. "They are trying to make a federal issue out of something that is within the state's rights."
A Justice Department spokeswoman declined to comment.
Mr. Garcia paid for his education with wages he made as a produce manager at a grocery store as well as with credit cards and proceeds from a self-help book, "Love, Sex and Romance," he wrote in 2006. Lately, Mr. Garcia said he has been supporting himself with motivational-speaking fees and occasional paralegal work. Mr. Garcia, who owns a company that offers paralegal and other support services, plans to open his own law practice.
Mr. Garcia isn't violating any criminal law by remaining in the U.S., but employers are barred from hiring him as long as he is undocumented. The law is grayer on whether a client could legally contract with him, legal experts said. Still, he could use a law license to provide free legal services, or, if he were to leave the country, he could advise foreign companies on U.S. law.
His father, now a U.S. citizen, sponsored Mr. Garcia for a green card when the family moved here in 1994, and Mr. Garcia has been waiting for a visa number ever since. His long wait is typical.
The hearing in San Francisco comes roughly a year after the Obama administration launched a program allowing undocumented immigrants brought to the U.S. as children to remain here and work legally. While Mr. Garcia, who is 36, is too old to participate in the program, his supporters say he is emblematic of the young immigrants the Obama administration has sought to shield because he was brought to this country without having a say in the matter.
The federal government is also opposing an attempt by an undocumented immigrant to gain admission to the Florida bar. Unlike Mr. Garcia, Jose Manuel Godinez-Samperio qualified for the Department of Homeland Security's Deferred Action for Childhood Arrivals program and is now authorized to work in the U.S., according to his lawyer. The Justice Department said in court documents filed with the state Supreme Court that the authorization doesn't entitle him to a professional license.
Larry DeSha, a former prosecutor for the State Bar of California, said Mr. Garcia should be denied admission because his immigration status could affect his ability to represent clients.
Mr. Garcia could be arrested and deported, leaving his clients suddenly without a lawyer, Mr. DeSha said. He also questioned whether Mr. Garcia could take the oath of an attorney to support the laws of the U.S. and California, given that he is in violation of a civil immigration statute.
More than half a million people have applied for the deferred action, or DACA, program since August 2012, according to U.S. Citizenship and Immigration Services.
A recent survey of 1,608 program participants found that 42% expect to obtain a master's degree, a professional degree or a law degree.
Another 17% said they aspired to be medical doctors or Ph.D.s, according to the survey, conducted by Harvard University's National UnDACAmented Research Project.
Caesar Vargas, who was brought to the U.S. illegally as a child, has applied for admission to the New York bar and is awaiting a decision. He is a part of a group called the Dream Bar Association, whose members, like himself, are undocumented but have received or are seeking law degrees. The group's 13 members include law students in Arizona, Idaho and Texas, he said.
The dispute in California contrasts with the federal government's confrontation with Arizona over a state law that created new immigration crimes and penalties. The U.S. Supreme Court in June struck down parts of the measure, ruling that they conflicted with federal government's domain over immigration policy, as the Justice Department had argued.
In the California case, the script is flipped, with the state is arguing that the federal government has no authority to decide who receives a license to practice law. Such decisions rest with the California Supreme Court in an arrangement that "has long been held to be a core attribute of state sovereignty," state Attorney General Kamala Harris wrote in a court brief.
The federal law cited by the Justice Department prohibits states from providing illegal immigrants with public benefits, unless states pass laws to contrary. The law was calculated to create political ramifications for state legislators who approved public benefits for illegal immigrants. It defines public benefit to include a "professional license…provided by an agency of a State or local government or by appropriated funds of a State or local government."
The California Supreme Court operates using funds appropriated by the state, and thus it is barred from issuing Mr. Garcia his license, according to the Justice Department.
Mr. Garcia and his supporters say the law prohibits only professional licenses that are paid for or subsidized by appropriated state funds. But the state bar association, which takes the lead role in assessing whether candidates are fit to become an attorney, is funded by membership fees.
The California Supreme Court then grants admission based on the bar association's recommendation, but no public funds are appropriated to the function, Ms. Harris argued in her brief.
For more information, go to: www.beverlyhillsimmigrationlaw.com