Should undocumented immigrant get a law license? California court to decide.

The California Supreme Court heard oral arguments Wednesday about whether it should grant a law license to Sergio Garcia, who put himself through college and law school and passed the bar exam.

By , Staff writer

Go to law school, pass the bar, get a license to practice law: It’s a path that thousands of Americans have followed. Now, several immigrants – who don’t have citizenship or a green card but have been able to take the first two steps – say that they, too, should be allowed to practice law.

The California Supreme Court heard oral arguments Wednesday about whether it should grant a law license to Sergio Garcia. He was brought by his family from Mexico as a baby, returned to Mexico for part of his youth, and then came back to the United States at age 17 when his father (now a US citizen) became a permanent resident.

Mr. Garcia’s visa application was approved in 1995, but he is still waiting to receive it. He put himself through college and law school and passed the California bar exam.

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Garcia’s case and similar ones in Florida and New York exemplify one way that state and local authorities are wrestling with what to do as an increasing number of undocumented immigrants who have been living and attending school in the US bump up against barriers to productive participation in their chosen careers.

In the past decade, even before they were called “DREAMers,” these immigrants accessed more education, so states will keep encountering cases “until we find a fix to the current inadequacies in our federal immigration system,” says Nicholas Espiritu, a staff attorney at the National Immigration Law Center in Los Angeles, which joined in a brief supporting Garcia. “These individuals have waited long enough, and we as a society are served by letting them give back to the state and the country,” he says.

Others supporting Garcia include the California attorney general, the state’s Committee of Bar Examiners, the American Civil Liberties Union, and various immigrant advocacy groups.

Opponents range from the US Department of Justice (DOJ) to groups that typically oppose “amnesty” or any policies that might encourage more illegal immigration.

“This is a case designed to push the envelope and see just how far we can bend the law to accommodate illegal aliens,” says Bob Dane, a spokesman for the Federation for American Immigration Reform in Washington. “Aside from it not passing the litmus test for good old-fashioned common sense, allowing an illegal alien to be admitted to the bar creates a precedent for endless other professional certifications and licensing, from electricians to airline pilots.”

One of the main legal questions in Garcia’s case is whether the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 should apply. This federal law states, in part, that certain categories of aliens cannot receive “any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government,” unless a state law specifically allows it.

Garcia’s supporters argue that law licenses are issued by courts, not agencies, and that it’s a matter of state sovereignty to decide whom to admit to the bar. But the DOJ brief argues that the law’s “sweeping language demonstrates that Congress intended to act comprehensively” in denying professional law licenses, including those for lawyers. Many of the California Supreme Court justices made comments Wednesday indicating agreement with the DOJ, the Associated Press reported.

Former California prosecutor Larry DeSha also argued in a brief that federal law prohibits Garcia from being paid for legal services and that he is “not qualified to practice law because he continually violates federal law by his presence in the United States.”

[Editor's note: The following statement was added after initial publication.] "The law is the law, but this shows yet again that our broken immigration system is hurting the economy," said Robert Whithorne, a White House spokesman, in an e-mail to the Monitor. "Many folks that are denied professional licenses because of their immigration status are seeking to establish businesses that would create jobs and contribute to the recovery."

Supporters of Garcia say his presence in the country is a matter of shifting policies and civil laws and doesn’t indicate violation of criminal law. There’s no question about his moral character, which is relevant to practicing law, they say. They add that although he could not legally be employed by a US company until his immigration status changes, he would have options such as offering pro bono assistance, opening a solo practice, or consulting for foreign employers.

The Florida Supreme Court is considering a similar case, with one key difference: The catalyst in the case, Jose Godinez-Samperio, is a graduate of law school who received a work permit last year through President Obama’s deferred-action program (DACA) for certain immigrants brought to this country when children.

“We have a stake in Jose because we’ve already invested in him,” said US Rep. Kathy Castor (D) of Florida when announcing that he would be her guest at the State of the Union address this past February.

Many supporters of comprehensive immigration reform hold up the stories of such high-achieving undocumented immigrants as reason for their cause.

A Gallup poll this summer, asking Americans about six policy changes that Congress is considering as part of such reform, found that 78 percent supported allowing engineers and scientists from other countries who earn graduate degrees in the US to remain here to work.  It did not ask about other professional degrees.

A different survey of about 1,600 participants in DACA found that 42 percent of them plan to obtain a master’s degree, law degree, or other professional degree, says Roberto Gonzales, a Harvard professor who has helped conduct the National UnDACAmented Research Project.

Professor Gonzales has also tracked a group of 150 undocumented youths in California for 10 years, and he says that among the half that graduated from high school, 35 finished college and about 18 have gone on to graduate programs, including law schools.

“They very strongly subscribe to the American dream, despite their own legal limitations,” Gonzales says. Because each step of their education has afforded them praise and other rewards, for many “that’s very seductive, and it allows them to suspend this reality that they’re undocumented and at some point in their lives the floor is going to fall out from under them and they’re not going to have opportunities.”

 While some may qualify for DACA and find jobs that match their skills, that policy is only temporary, and it doesn’t apply to people like Garcia in the California case, because he is too old to qualify.

Caesar Vargas is among the aspiring undocumented lawyers who don’t want to wait. He’s anticipating a decision on his application to the New York bar and helps run the DREAM Bar Association to support others in his situation.

In California, Garcia said after Wednesday’s arguments that he’s optimistic, but if he doesn’t prevail, he’ll push for a change in state law or take his case to federal court, perhaps all the way up to the US Supreme Court, the Associated Press reported.

On the legislative side, he’d probably have an ally in California Assemblymember Luis Alejo, who introduced a resolution that passed the state legislature last year, commending Garcia for his hard work and expressing the view that an applicant’s immigration status should not be the determining factor in deciding whether to approve a law license.

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