Columns Illegal Immigrants can Become Licensed Attorneys in California

  1. Yesterday the California Supreme Court ruled that a Mexican immigrant, living illegally in the United States for 20 years, may not be barred from becoming a state licensed attorney. Despite acknowledging that an undocumented immigrant's presence in the country was an ongoing violation of federal law, the court ruled that illegal immigrants, as a class, may not be denied admission to the State Bar solely as a result of their unlawful status. As a result, could your California immigration lawyer also be an undocumented / illegal immigrant?

    The Story of Sergio Garcia, Attorney at Law


    While not quite an "attorney at law" just yet, he's close to reaching that lifelong dream. When Sergio Garcia was a year and a half old, his parents took him to the United States from Mexico using a tourist visa. After the expiration of the visa, his family overstayed and lived as undocumented immigrants for the next 7 years. Garcia returned to Mexico with his mother at age 9 and his father stayed behind and was eventually able to become a U.S. citizen. When he was 17, the Garcia and his mother decided to return to the United States to pursue "the American dream." They entered the United States illegally, hiding from authorities in the back of a flatbed truck.

    american-dream-sign.jpg
    Garcia's father applied for an immigrant visa in 1994 and was approved in the following year. Sergio Garcia was told that there was a long waiting list for his own visa eligibility, one that could take at least ten years for approval. This did not prevent Mr. Garcia from moving forward with his life. In his early twenties, Mr. Garcia received a diploma from a California community college and, shortly thereafter, obtained a paralegal certificate. Garcia later applied to Cal Northern School of Law, where a valid Green Card was not a bar to admission. Shortly after graduating in 2009, he took the California state bar exam and passed.

    Now 36 years old, Sergio Garcia may still need to wait several more years to be able to legalize his status. With the revival of the Dream Act (Development, Relief, and Education for Alien Minors), the Obama administration recently instituted an immigration policy to halt the deportation of individuals under 30 years of age who entered the United States illegally prior to their 16th birthday. Garcia is too old and unable to be included within the exemption. Proponents of Mr. Garcia claim that he's exactly the kind of case for which an exception should be made and is within the spirit of what the Obama administration wishes to accomplish. Opponents argue that making an illegal immigrant an officer of the court couldn't represent a more backwards result. It continues to blur the dwindling differences between an illegal immigrant and a legal citizen in the United States.

    Governor Jerry Brown Enacts the "Trust Act"


    On October 5, California governor, Jerry Brown, signed several bills into law which enhanced and protected the rights of illegal / undocumented immigrants. Assembly Bill No. 1024, Chapter 573 was approved by Governor Brown on October 05, 2013 and acted as a means to remove legal obstacles in Garcia's case. Section 1621 of Title 8 of the United States Code generally restricts the ability of undocumented immigrants to obtain a professional license, although it does contain a provision respecting the enactment of state law. AB 1024 authorizes the Supreme Court of the State of California to admit to the practice of law those who have fulfilled all requirements for the admission to the State Bar, even though the applicant may not be lawfully present in the United States.

    THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

    SECTION 1. Section 6064 of the Business and Professions Code is amended to read:
    6064. (a) Upon certification by the examining committee that the applicant has fulfilled the requirements for admission to practice law, the Supreme Court may admit the applicant as an attorney at law in all the courts of this state and may direct an order to be entered upon its records to that effect. A certificate of admission thereupon shall be given to the applicant by the clerk of the court.
    (b) Upon certification by the examining committee that an applicant who is not lawfully present in the United States has fulfilled the requirements for admission to practice law, the Supreme Court may admit that applicant as an attorney at law in all the courts of this state and may direct an order to be entered upon its records to that effect. A certificate of admission thereupon shall be given to the applicant by the clerk of the court.​

    No Undocumented Immigrant Jurors, Only Attorneys


    While the law permits an illegal immigrant to become an officer of the court in California, it does not extend the right to lawful permanent residents to serve as members of a jury. Governor Brown vetoed Assembly Bill AB 1401, reportedly reasoning that serving on a jury is an even greater and more important privilege (akin to voting rights) than serving as a state licensed attorney. (Considering how many emails I receive requesting advice on how to "get off" of jury duty, I'm guessing that many citizens might disagree with Governor Brown on this particular issue.)

    Court Opinion In Re: Sergio Garcia S2012512


    In Re: Sergio C. Garcia on Admission - S202512[/URL]), under the California Constitution, the California State Supreme court has the authority and bears the responsibility for determining the issue of admission to the State Bar. The court found that the legislation signed by the Governor satisfied federal requirements and removed obstacles that would preclude the court from determining whether Garcia could be admitted to the State Bar.

    The question then turned to whether Garcia's unlawful presence in the country as an illegal / undocumented immigrant would preclude him from being "morally fit" to become a member of the California Bar. In Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 459, intentional acts that resulted in the breaking of civil law (civil disobedience charges) did not preclude the applicant from being considered morally fit and licensed to practice law. And since Garcia's presence in the country does not amount to a criminal offense (only civil sanctions), the court found that his unlawful presence in the United States for over 17 years would not be considered a crime concerning "moral turpitude." A crime involving moral turpitude is one where the individual exhibits a depraved attitude and lack of morality with regard to the duties and respect that a person owes to fellow members of society. Being convicted of such a crime (such as theft or murder) would not only preclude an applicant from becoming an attorney, but could also potentially subject a lawful immigrant to deportation. California Chief Justice Tani Cantil-Sakauye concluded 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... 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."​

    But the decision doesn't end here. From Sergio Garcia's website and his online professional profile, it would appear that he hopes to begin a career as a personal injury and automobile accidents attorney. While the court ruled that it can admit Garcia to the State Bar, it did acknowledge that federal law would present some barriers to Garcia's freedom to act and be compensated as an attorney in all respects.

    All of the briefs agree that even if an undocumented immigrant is granted a license to practice law, federal law would prohibit an undocumented immigrant who lacks work authorization from practicing law as an “employee” of a law firm, corporation, or governmental entity. (See 8 U.S.C. § 1324a(a)(1)(A).) There is also general agreement that a licensed undocumented immigrant would not violate federal law if he or she provided legal services on a pro bono basis or outside the United States.​

    Dream or Nightmare Decision?


    Champions of the court's decision believe that allowing undocumented immigrants the right to receive state professional licenses is the remedy for the extremely long wait periods that hopeful immigrants face. An Amicus brief filed in opposition by Larry DeSha, a retired former prosecutor for the State Bar of California, highlights an awkward perception of immigration law and essentially the respect for the law itself. "Whether, and to what extent" he will comply with all laws related to the use of his license in the future cannot be taken seriously, given that Mr. Garcia has already broken the immigration laws for more than 17 years as an adult and plans to do so for another five to ten years." While the full impact of this decision remains unclear, one trend may be predictable - an increase in a new class of students applying to law school.
    Jurisdiction:
    • California
    • US Federal

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

Comments

To make a comment simply sign up and become a member!