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Posts Tagged ‘Sergio Garcia’

Since the California State Legislature took matters into its own hands and passed AB 1024 allowing applicants who satisfy admission requirements — but who are not lawfully present in the United States to be admitted as attorneys in California, no further can kicking down the road was needed. Governor Jerry Brown signed Assembly Bill 1024 into law on October 5th.

So this morning — one day after AB1024 officially became law and in a move that surprised few, the California Supreme Court handed down its decision, In re Garcia on Admission. And with the following words took the lead from the pols in Sacramento and granted undocumented immigrant Sergio C. Garcia admission to practice law in California.

Judges Gavel“Our order to show cause requested briefing on a number of issues raised by the Committee’s motion to admit Garcia to the State Bar, including the proper interpretation of a federal statute — section 1621 of title 8 of the United States Code (hereafter section 1621) — that generally restricts an undocumented immigrant’s eligibility to obtain a professional license but that also contains a subsection expressly authorizing a state to render an undocumented immigrant eligible to obtain such a professional license through the enactment of a state law meeting specified requirements.  Very shortly after we held oral argument in this matter, the California Legislature enacted a statute that was intended to satisfy this aspect of section 1621 and the Governor signed that legislation into law.  (Bus. & Prof. Code, § 6064, subd. (b); Stats. 2013, ch. 573, § 1, enacting Assem. Bill No. 1024 (2013-2014 Reg. Sess.) as amended Sept. 6, 2013.)  The new legislation became effective on January 1, 2014.

“In light of the recently enacted state legislation, we conclude that the Committee’s motion to admit Garcia to the State Bar should be granted.  The new legislation removes any potential statutory obstacle to Garcia’s admission posed by section 1621, and there is no other federal statute that purports to preclude a state from granting a license to practice law to an undocumented immigrant.  The new statute also reflects that the Legislature and the Governor have concluded that the admission of an undocumented immigrant who has met all the qualifications for admission to the State Bar is fully consistent with this state’s public policy, and, as this opinion explains, we find no basis to disagree with that conclusion.  Finally, we agree with the Committee’s determination that Garcia possesses the requisite good moral character to warrant admission to the State Bar and, pursuant to our constitutional authority, grant the Committee’s motion to admit Garcia to the State Bar.”

On Facebook, the elated Garcia posted,“With tears in my eyes I’m happy to report I am being admitted to the bar, thank God! This one is for all of you who dare to dream and by doing so change the world! Love you all! History was made today!” And so with all of the turmoil and the controversy now behind him, look for paralegal Sergio Garcia to be at long last sworn in as a California lawyer.

j0289753“Undocumented immigrant.”

In its first footnote, the Court also made a point of shying away, no doubt to the annoyance of many, especially here in Arizona, of shorthand terms like “illegal alien.” It instead opted to avoid “the potential problematical connotations of alternative terms” and adopted the term undocumented immigrant “to refer to a non-United States citizen who is in the United States but who lacks the immigration status required by federal law to be lawfully present in this country and who has not been admitted on a temporary basis as a nonimmigrant.”

The Court then acknowledged that the federal government has “plenary authority” on immigration and “that provisions of federal law relating to immigration prevail over any conflicting state law.” But thanks to California’s new law, it did not have to delve into how best to interpret 8 USC § 1621 (c) (1) (A), which renders an undocumented immigrant ineligible for any State or local public benefit such as a professional license.

Section 1621(d) grants States the authority to make “an alien who is not lawfully present in the United States” eligible for any State or local public benefit they might otherwise be ineligible for under 1621′s subsections (a) and (d).

No moral turpitude involved.

And with respect to how an undocumented immigrant having broken federal immigration law by his unauthorized presence in the U.S. can nonetheless be sworn to uphold the law — the Court said that since unlawful unauthorized presence does not itself involve moral turpitude or demonstrate moral unfitness,” it does not “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 Court further said that “existing federal limitations on the employment of undocumented immigrants do not justify excluding undocumented immigrants from admission to the State Bar.”

Momentous.

There’s scarcely any doubt that the California high court’s precedential decision today will also help other undocumented law graduates like Cesar Vargas and Jose Godinez-Samperio in other states. As I  while California decisions are not dispositive in other jurisdictions, state courts do tend to pay attention to what California does. So thanks to the California Supreme Court’s decision, Sergio Garcia’s case has again taken on a much more momentous dimension.

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photoAs concerns the case of the undocumented wanna-be California lawyer Sergio Garcia — it took about a month to get some kind of a resolution. In September, following oral argument, I wondered whether California’s Supreme Court would establish new precedent and settle the law of the question or whether the justices would kick the can down the road to the state legislature.

Jurisprudentially speaking — any conjecture is now moot. Although the Court has yet to hand down its decision, the California Legislature instead took matters into its own hands and passed AB 1024. Authored by State Assemblywoman Lorena Gonzalez, the measure kicks no more cans down the road and allows applicants who satisfy admission requirements — but who are not lawfully present in the United States, to be admitted as attorneys in California. Governor Jerry Brown signed Assembly Bill 1024 into law on October 5th.

Specifically, AB – 1024 states “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.”

First-time Assemblywoman Lorena Gonzalez, an achievement-minded individual with degrees from Stanford, Georgetown and UCLA, is also a lawyer. “For me,” she declared, “this is also personal. My father came to this country as a farmworker. But, for the grace of God, I was born in San Diego County, just a few dozen miles north of the U.S.-Mexico border.  As a result, when I graduated from UCLA School of Law and passed the bar, I never once had to consider that the state would deny me a license to practice law. I am not a better person and am no more deserving than Sergio Garcia and the other dreamers in his position.”

So let the caterwauling begin!

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Photo Credits: “I did not crush this can with my mouth, I did it with water!! Video coming soon!!” by Lane Fournerat at Flickr via Creative Commons-licensed content requiring attribution and no derivative works; “one angry cat” by Guru Sno Studios at Flickr via Creative Commons-licensed content requiring attribution and no derivative works.

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So last week, the case of undocumented lawyer-in-waiting Sergio Garcia was finally argued before the California Supreme Court. The question asked was whether it is legal for an illegal immigrant to be a lawyer in California.

The answer to that question, however, has taken so long that memories need refreshing.

The 36-year old Garcia was illegally brought to the U.S. from Mexico by his parents when he was 17-months old. From all accounts, he’s led an exemplary life. He successfully pursued a higher education, which culminated with graduation from law school and successful passage of the California Bar Exam.

“I’m very deportable.”

Outwardly, Garcia appears confident. He believes he’ll eventually get his license to practice in California. And with the ongoing angst on both sides over illegal immigration, his case has also received a good deal of media attention.

Indeed, the wanna-be lawyer spends a lot of time working the press and engaging in public speaking, including motivational talks about hope, dreams and persistence. All told, he comes across as a likable fellow, even quipping last Thursday to a reporter, “I’m very deportable. And if I don’t shut up, I might be sooner or later.”

I have posted many times on the topic of whether or not undocumented law graduates like Sergio Garcia, Cesar Vargas and Jose Godinez-Samperio can be licensed to practice in their respective state jurisdictions. Indeed, a year ago April, I posted six reasons why undocumented law school grads should be admitted to the bar. And also see “The other “Sergio Garcia” wants to be a California lawyer even without legal U.S. residency.”

And as I posted in August 2012 at “If you can’t practice law — sell tamales,” no matter Eric Holder’s Justice Department and the doom-gloom pundits, I still like the primary argument raised by California Attorney General Kamala Harris in support of Garcia. She argues that 8 U.S.C., 1621(c) is inapplicable because attorney licensing isn’t provided by a state agency but by the plenary power of the California Supreme Court. “Section 1621 does not apply because, although admission to the Bar is surely a professional license, neither of the two statutory qualifications are met. The license to practice law is not provided by ‘an agency of the state,’ but by this Court. Nor is the license provided by ‘appropriated funds of the state;’ instead it is funded by fees paid by its members directly to the State Bar, which is never appropriated by the Legislature.”

California needs one more lawyer?

Boy with his hands on his face uidSo as Garcia’s case slowly wends its way — well past the attention span of a five-year old or of anyone else with a smidgen of interest, you do have to wonder whether or not it matters that the State Bar of California admits one more lawyer to the 179,158 already active on its membership rolls.

There are already over a quarter-million law-credentialed types in the Golden State. So what’s one more? That said, and as though there was a short supply of them, Garcia does say he wants to be a personal injury lawyer!

Still, I was caught off guard when I belatedly found out the oral argument In re Sergio C. Garcia on Admission finally took place last Wednesday and is now available online.

Joe Patrice at Above the Law posted a decent analysis of the oral arguments, which in the main, made much of the U.S. Department of Justice and its amicus brief opposing Garcia’s admission.

And while the Court spent a lot of time on 8 USC § 1621 and the Justice Department’s opposition, the statute is hardly dispositive to resolve the matter.

Much was also made on whether or not the Personal Responsibility and Work Opportunity Act applies. The Act says state agencies can’t extend so-called public benefits including professional licenses to undocumented aliens. But it’s an open question whether or not the state supreme court is even a state agency.

And besides, it’s well-settled that state courts issue law licenses. It’s a right courts jealously protect. “In the United States, the courts have historically regulated admission to the practice of law before them, and exercised the authority to discipline and ultimately to disbar lawyers whose conduct departed from prescribed standards” wrote Chief Justice Rehnquist in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).

And it was in Theard v. United States, 354 U.S. 278 (1957), where Justice Frankfurter wrote, “The court’s control over a lawyer’s professional life derives from his relation to the responsibilities of a court. The matter was compendiously put by Mr. Justice Cardozo, while Chief Judge of the New York Court of Appeals. ” `Membership in the bar is a privilege burdened with conditions’ (Matter of Rouss, [221 N. Y. 81, 84, 116 N. E. 782, 783]).”

But despite a compelling interest in protecting its sanctified dominion over lawyer regulation, will the California Supremes opt instead to make this a political, i.e., a legislative question? Will the state high court expediently kick the ball instead of the proverbial can down the road to the state legislature or to Congress? Or will the Court render a judicial decision that establishes new precedent and settles the law of the question involved? 

For now, the ball sits squarely on the center circle of the California Supreme Court. And in the next 90 days, Garcia will find out whether or not a landmark decision is made or whether, as he also contends, a denial means an appeal to the U.S. Supreme Court.

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Photo Credits:”California State Supreme Court,” by trophygeek at Flickr via Creative Commons-license requiring attribution; “Giant Gavel,” by Sam Howzit at Flickr via Creative Commons-license requiring attribution; “Tamales are finished,” by Aaron at Flickr via Creative Commons-license requiring attribution; “Spirit of Justice,” by DonkeyHotey at Flickr via Creative Commons-license requiring attribution.

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photoJuana Reyes, an undocumented tamale vendor who was jailed for refusing to stop selling tamales in front of a Sacramento Wal-Mart won’t be getting deported.

The 46-year old unemployed single mother of two, however, did have to first spent 13 days in jail without bail following her June 28th arrest. Her 7-year old daughter and 11-year old son were put in foster care. Fortunately for Juana, an immigration judge ended her federal immigration hold along with the threat of deportation by closing her case. No doubt Juana will be back selling tamales to make her rent money although chances are she’ll no longer be doing it in front of Wal-Mart.

photoJuxtapose this against last Wednesday’s news accounts about all those young immigrants preparing for the new U.S. deferred deportation policy, which is called the “Deferred Action for Childhood Arrivals” program.

Thousands of these so-called ‘Dreamerslined up around the country last week to either obtain information or to fill out application forms.

President Obama’s “Dream Act-Lite” Order allows illegal immigrants between 15 and 30 years of age who have lived in the U.S. continuously for at least five years, have not been convicted of a felony or serious misdemeanor, and have graduated from high school, earned a GED, or served in the military to apply for a two-year work authorization without fear of being deported.

However, thanks to Nebraska’s Dave Heineman and the reliably “Down on Brown” Jan Brewer of Arizona, the program, also known as ‘DREAM Act-lite’ has run into trouble in both states since the two irksomely petty governors have issued orders that such newly documented young immigrants will nonetheless remain ineligible for state benefits like obtaining a driver’s license.

Feds come out against Sergio Garcia.

And then there’s the still pending case of law school graduate Sergio Garcia who can’t practice law in California without a law license but who can’t get licensed — at least not yet, because he was brought illegally to the U.S. as a baby and is therefore, an immigrant without papers.

photoThe Garcia case got even more interesting when earlier this month, the U. S. Justice Department filed an Amicus Brief in opposition, principally because it said that granting Garcia a professional license would violate the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. section 1621, which prohibits state agencies from providing public benefits, including professional licenses, to most undocumented immigrants.

Up until the Feds came down on Garcia, the preponderance of amicus briefs had been in support, including one from the similarly situated New York undocumented law school graduate Cesar Vargas. More notably, the Committee of Bar Examiners of the California State Bar and the state’s chief law enforcement official, California Attorney General Kamala Harris, had also come out in support of Garcia.

But notwithstanding the position of Eric Holder’s Justice Department and the doom-gloom of some pundits, I still like Kamala Harris’s primary argument, which is that 8 U.S.C., 1621(c) is inapplicable because attorney licensing isn’t provided by a state agency but by the California Supreme Court. “Section 1621 does not apply because, although admission to the Bar is surely a professional license, neither of the two statutory qualifications are met. The license to practice law is not provided by ‘an agency of the state,’ but by this Court. Nor is the license provided by ‘appropriated funds of the state;’ instead it is funded by fees paid by its members directly to the State Bar, which is never appropriated by the Legislature.”

photoOf course, despite all those supportive amicus briefs, it could still turn out badly for Garcia.

This, though, would speak volumes for what it’s come to, which is that someone like Garcia, “an otherwise qualified undocumented immigrant” stands a better chance of selling tamales than of practicing law.

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Photo Credits: “chicken tamale from mom’s tamales,” by Jim Winstead, jimw, at Flickr via Creative Commons-licensed content requiring attribution; “IMG_1973,” by longislandwins at Flickr via Creative Commons-licensed content requiring attribution; “Eric Holder – Caricature,” by DonkeyHotey at Flickr via Creative Commons-licensed content requiring attribution; “Taco stand,” by bradleyolin at Flickr via Creative Commons-licensed content requiring attribution.

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photoNot to put too cynical a point on it, but in a last-minute reelection year ‘Hail Mary’ pass over hard-nosed Republican opponents of Obama’s DREAM Actlegislation, the President yesterday issued an Executive Order permitting young migrants who came here as children to remain in the U.S.

Now this Executive Order is more “Dream Act-Lite” than Dream Act. But of the stalled Dream Act, This is why I support the Dream Act and agree in particular, with that pundit who asked, “We educated these children, shouldn’t they give back to our economy?

Predictably, President Obama’s new immigration policy via executive order wasn’t welcomed by everyone. Under the “deferred action” policy, the Department of Homeland Security will no longer initiate the deportation of illegal immigrants who came to the United States before age 16; who have lived here for at least 5 years; who are under 30; in school; or high school graduates; or those with a GED or equivalent; or who have been in military service with an honorable discharge; and who have clean criminal records.

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But as concerns , with a stroke of the presidential pen, there’ll now be one more reason — not just six why undocumented law school grads should be admitted to the bar.

The change has potentially positive implications for the legal arguments made by Sergio Garcia, Cesar Vargas and Jose Godinez-Samperio in their still pending petitions to gain admission to practice law. Since the 3 undocumented immigrant law school graduates appear to satisfy the new policy’s announced criteria, the licensing authorities will no longer find themselves in the previously and embarrassingly likely circumstance of having just approved new lawyers on the eve of their deportations. Furthermore, the policy change may provide state supreme courts and apprehensive lawyer licensing boards with additional legal and political cover.

photoIn announcing the new policy change, the president explained that “eligible individuals who do not present a risk to national security or public safety will be able to request temporary relief from deportation proceedings and apply for work authorization.”

Fingering the finger-waggers.

photoObama’s political opponents are hissing fitting and stepping on each others’ heads  in condemnation. For one, Arizona’s finger wagging Jan Brewer called Obama’s immigration announcement “outrageous.” And in a line a staffer must’ve fed the governor — who shares the same empty-headed erudition as Paris Hilton — Brewer described the president’s action as “backdoor amnesty.”

The news also found at least one lawmaker threatening to sue over it. And let’s not even delve into the haters who think the solution to illegal immigration are such life-threatening measures as laying minefields at the Mexican border.

photoSo of course the new policy directive leaves Obama open to the accusation of shamelessly pandering for Latino votes in November. The Executive Order comes only now in the waning months of his first term.

Moreover, the Executive Order may be short-lived. It will be hawked out faster than a cocker spaniel biting a jalapeño by ole Mitt should Obama lose reelection. photoNevertheless, it buoys the president’s base and infuriates his opponents — and it may yet boost the chances of at least 3 lawyers-in-waiting.

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Credits: “IMG_0176,” by longislandwins at Flickr Creative Commons-licensed content requiring attribution;”Barack Obama – Caricature,” by DonkeyHotey at Flickr via Creative Commons-licensed content requiring attribution; “Jan Brewer – the Guard,” by DonkeyHotey at Flickr via Creative Commons-licensed content requiring attribution;”IMG_5328″ by Odenosuke at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution; “Not for the Timid,” by Tony Alter, Tobyotter at Flickr Creative Commons-licensed content requiring attribution.

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Yesterday, the California Supreme Court issued a press release announcing its unanimous decision to rule on the case of Sergio Garcia, an undocumented immigrant law school graduate trying to get admitted to practice law in California.

Unlike Florida’s Bar Examiners who recently faced a similar situation involving undocumented law school graduate Jose Godinez-Samperio, the California Committee of Bar Examiners didn’t leap over their responsibility by asking for an advisory opinion. Instead, after reviewing Garcia’s passing bar examination results and deliberating on his moral character determination, the California Bar Examiners certified Garcia’s admission to the bar.

But after filing their routine motion to the supreme court to have Garcia admitted, the court exercised a prerogative it believes it has and opted instead to unanimously take the decision out of the hands of the bar examiners. The California Supreme Court will decide the matter for themselves – - – and not just concerning Sergio Garcia but with respect to the broader issue of undocumented law school graduates and whether they can practice law in California.

In its Order, the California high court asked that five specific questions be briefed. Clearly, these are more highly focused than the general question asked of the Florida Supreme Court: “Whether Undocumented  Immigrants Are Eligible for Admission to The Florida Bar.”

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Among the issues the California court wants briefed are:

1. Does 8 USC § 1621, subdivision (c) apply and preclude this court’s admission of an undocumented immigrant to the State Bar of California? Does any other statute, regulation, or authority preclude the admission?

[Note: 8 USC § 1621 is the U.S. Code section entitled, "Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits." The relevant subdivision (c) to be interpreted maintains that nonqualified aliens and nonimmigrants under the Immigration and Nationality Act are not eligible for any "State or local public benefit." The statutory definition of "benefits" includes "the issuance of a professional license to, or the renewal of a professional license." Only foreign national applicants not physically present in the United States are excepted.]

2. Is there any state legislation that provides — as specifically authorized by 8 U.S.C. section 1621, subdivision (d) — that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions, and, if not, what significance, if any, should be given to the absence of such legislation?

3. Does the issuance of a license to practice law impliedly represent that the licensee may be legally employed as an attorney?

4. If licensed, what are the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law?

5. What, if any, other concerns arise with a grant of this application?

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The California Supreme Court also directed that by June 18,2012, the Bar Examiners and Garcia file opening briefs in support of the Committee’s motion. The Court also invited others to file amicus curiae briefs in support or opposition, especially from California and U.S. Attorneys General. Highly instructive for proponents would be a close reading of the amicus curiae brief arguments filed in support of Godinez-Samperio in Florida by the Dream Bar Association.

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These include threshold jurisdictional questions, preemption, due process, and one that I think underscores the futility of belatedly locking the barn door after the horse has gotten out, i.e., that student-college contractual relationships are circumscribed by the Contracts Clauses of Article I, section 10, clause 1 of the United States Constitution.

This logically leads to the economic waste argument I find so troubling. Why now disingenuously deny a license to practice after having already allowed an undocumented immigrant to take the Law School Admissions Test; enroll in a state accredited law school; take and complete the required curriculum; pay obscene amounts for tuition, fees, and books; graduate; sit for and pass the bar exam; and submit to a moral character determination? And now you want to bar the barn door?

I’ve previously blogged on the topic of undocumented law school graduates and indeed, last month, gave six reasons why undocumented law school grads Cesar Vargas, Jose Godinez-Samperio and Sergio Garcia ought to be licensed.

But since the California Supreme Court has historically had an inordinate amount of influence among U.S. state courts, while not dispositive in those other jurisdictions, those courts tend to pay attention to what California does. Thanks to the California Supreme Court’s announcement yesterday, Sergio Garcia’s case has just taken on a much more momentous dimension.

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A colleague gently chided me last month for apparently being obtuse when I blogged about those three undocumented law school grads: Sergio Garcia, Cesar Vargas and Jose Godinez-Samperio.

I’ve blogged before about the problems facing talented minors illegally brought into the U.S. by their parents.

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But between mouthfuls at lunch, my lawyer friend thought I hadn’t articulated clearly enough where I stood. Say what? Ambiguity from a lawyer? (Also, in case he ever wants to have lunch again, that’s not my lawyer buddy in the accompanying photo).

So it’s timely to bring up the topic again especially on the day when the U.S. Supreme Court heard oral arguments over Arizona’s SB 1070 anti-illegal immigration law.

The state law, which has been emulated by five other states – none of them border states, was enacted as one local pundit explained today, not because Arizona’s residents are racist or “because they want the cops chasing little children but because they’re fed up with what passes for federal enforcement of immigration laws.”

I wouldn’t know about all that. No doubt there were people in the 1950′s who weren’t supporting miscegenation laws because they were racists and against interracial marriage. No, some thought they were fighting a Communist plot threatening to undermine the country.

But as for SB 1070, here’s what I do know. The bill provided a convenient “secure the borders” fig leaf for those folks also harboring politically-incorrect inclinations like the senate bill’s author, Russell Pearce who still finds it difficult to explain away some of the company he’s kept.

“Yes, amigo.”

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So to clear up any uncertainty, let me quote that more important guy who often says, Let me be clear.” On the question: “Should undocumented immigrants be eligible for admission to the state bar?” My answer is, “Yes, amigo.”

The six reasons why.

First, a state board of bar examiners is charged only with inquiring into the competency and character of applicants for admission to practice. If on completing their inquiry and on not finding an applicant deficient in fitness or capacity, it must admit him.

The bar examiners have no right to contravene the 14th Amendment’s Due Process Clause to deprive a candidate “the opportunity to qualify for the practice of law.” They can require “high standards of qualifications” but in applying permissible standards, officers of the State cannot exclude an applicant when there is no basis for finding that he fails to meet these standards, or when their action is invidiously discriminatory.” See Rudolph Schware, Petitioner, v. Board of Bar Examiners of New Mexico 353 U.S. 232 (1957), where bar examiners refused to let Schware take the New Mexico bar exam because he had not shown “good moral character” — mainly because he once belonged to the Communist Party.

Second, I think a blanket rule can’t and shouldn’t be applied for bar admissions. For good or ill, when it comes to satisfying the competency and moral character requirements to practice law in a jurisdiction, each candidate independently stands or falls on their own merits.

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And if lawyers know anything, they know the unpredictability of state bars. Indeed, just last month, for instance, a divided court admitted a convicted felon to the NY bar

And depending on the jurisdiction, a convicted felon can become an attorney after passing a background check. For another example, Marie Ferreboueuf successfully overcame her past to practice law in California.

So excuse me for missing the proportionality discussion while trying to figure out where Godinez-Samperio’s overstayed tourist visa fits into the felonious hierarchy of “good moral character” determinations.

Third, it matters that all 3 candidates were unlawfully brought into the U.S. by their parents. As minors, they lacked capacity to consent. Indeed, in the case of Sergio Garcia, the would-be California lawyer even asks whether it’s right to impose a moral duty on a blameless baby unlawfully brought into the country through no fault of his own. “What was my moral duty at 17 months?,” he asks.

Fourth, I don’t know that we even get to Plyler v. Doe 457 U.S. 202 (1982) since it only applies to educating illegally admitted students up to 12th grade – - – not college let alone law school. In Plyler, the U.S. Supreme Court struck down a Texas statute withholding funds from local school districts for the education of children not “legally admitted” into the United States, and which had authorized local school districts to deny them enrollment. The Court found the law violated the Equal Protection Clause of the Fourteenth Amendment.

Still, I can see the policy support underpinning Plyler, i.e., children should not be penalized for the illegal acts of their parents and that there are higher future social costs incurred when access to education is barred as a means to upward mobility.

Fifth, foreign trained, non-resident lawyers are already permitted to sit for bar exams in some states and to be admitted to practice in the U.S.

Sixth, and perhaps most persuasively are the pragmatic, economic reasons – - grounded in incentive theory and value-maximization, i.e., that ‘the law abhors waste.’

It’s inefficient and wasteful to discard years of sweat equity and economic investment by failing to “maximize the economic well-being” of people living here almost their entire lives.

Admittedly, an imperfect comparison but it reminds me of the doctrine of economic waste in contract cases and how destruction of perfectly good and usable property rarely makes sense.

And it’s why I also agree with Judge Posner that “the common law is best explained as if the judges were trying to maximize economic welfare.” [1]

One can also point to the debate over the 1964 Civil Rights Act and how antidiscrimination rules were advocated in defense of another underclass explaining thereby that, The failure of our society to extend job opportunities to the Negro is an economic waste. The purchasing power of the country is not fully developed.” [2]

And it is this last rationale that we’re committing economic waste, which provides the foundation for ‘The Dream Act.’ Having spent the resources to train and educate talented young people like Sergio Garcia, Cesar Vargas and Jose Godinez-Samperio, how can we now turn them away from making their contributions to society?

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[1] Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977) p. 5.

[2] H. Rep. no 9014, 88th Cong. 1st Sess., 1963, 149 (views of additional Republican Sponsors).

Credits: “Meating people is easy” by joshbousel posted at Flickr via Creative Commons-licensed content for noncommercial use requiring attribution and share alike distribution; Fig Leaf for David, D. Brucciani & Co, ca. 1857. V&A Museum no. REPRO.1857A-161, by VAwebteam under Creative Commons Attribution-ShareAlike 3.0 License at Wikipedia Commons.

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photoIn the past couple of weeks, another reporter contacted me to inquire about the status of the other “Sergio Garcia” who wants to be a California lawyer. Garcia passed the California State Bar Exam but his admission to practice has been held up pending a moral character determination since he disclosed that he’s an undocumented immigrant. Garcia was brought illegally into the U.S. by his parents when he was 17-months old.
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The matter was first reported last July, which is when I first blogged about it. But since then, the state bar’s been decidedly mum as has apparently, Garcia and his lawyer. No one’s talking.

But putting aside the question of why Garcia even wants to be a lawyer, regardless of the outcome, it’ll be controversial. There’s no way to ‘split the baby’ on this one.

Antecedent and subsequent cases.

Although news reports last summer indicated that Garcia’s case was without precedent, it turns out that there was another similarly situated California law grad in 2010, Luis Perez, an Undocumented UCLA law grad in a legal bind.

A quick search of the Cal Bar’s website, however, didn’t turn up a Perez with a UCLA Law School sheepskin. So although he was profiled by the Los Angeles Times’ Hector Tobar, Perez’s status is unknown and unfortunately Tobar did not respond to an email query asking about Perez’s current circumstances. At the time of Tobar’s November 26, 2010 story, Perez hadn’t yet taken the February bar exam so it’s no known how he did on the exam.

One hopes, though, that Perez wasn’t haunted by the dreaded ‘famous last words’ when he told Tobar, “People used to tell me, ‘Why go to college if you can’t get a real job when you graduate.’ If I had listened to those people, I wouldn’t have done anything with my life.

Cesar Vargas and Jose Godinez-Samperio.

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As it turns out now, besides Luis Perez, Sergio Garcia isn’t alone in his predicament. The Associated Press reporter who recently called to ask if I could update her about Garcia was working on a related story involving a different “Mexican immigrant with a NYC law degree in limbo.”  His name is Cesar Vargas. He entered the country illegally in 1990 when he was 5. And like Garcia, Vargas passed his state bar exam but now awaits a determination from the lawyer licensing authorities about whether or not he’ll be able to practice law. Also see “CUNY Law Grad Reveals Undocumented Status, Fears He Can’t Practice Despite Passing NY Bar.”

And in Florida, there’s the comparable case of Jose Godinez-Samperio. The state supreme court has been asked to rule on whether undocumented immigrants are eligible for admission to the Florida Bar, Case SC11-2568, which was brought by the Florida Board Of Bar Examiners concerning Jose Godinez-Samperio, a Florida State University College of Law graduate and undocumented immigrant.

Like Garcia and Vargas, Godinez-Samperio was also brought over from Mexico as a child. See “Undocumented immigrant asks Florida Supreme Court for chance to practice law” and Undocumented Law Grad Can’t Get Driver’s License, But Hopes for Fla. Supreme Court OK of Law License.”

Ironically, if ever there was a ‘poster child’ for the DREAM Act, it’d have to be Godinez-Samperio – - – non-English speaking 4th grader turned high school valedictorian and Eagle Scout. No wonder the Tampa Bay Times editorialized this week, “Don’t deny law school graduate fruits of his labor.”

photoAnd notwithstanding that bar admission moral character applications now belatedly inquire into immigration status, increasingly undocumented immigrant students are ‘outing’ themselves.
They’re doing so despite the risk of deportation, persistent nativism and virulent antipathy toward illegal immigration. See, for instance, “Hard life “on their own” for three illegal immigrant students” and more recently, Daniel Olivera, illegal immigrant vying for Texas A & M Student Body President.

And just two weeks ago, Uriel Alberto interrupted a state legislative hearing in North Carolina and declared, “I am undocumented and I am unafraid.” He’s been jailed but has become a rallying point in North Carolina

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Credits: “llegal_Aliens_Crosswalk_Sign” by Floyd Brown via Creative Commons-licensed content for noncommercial use requiring attribution and share alike distribution at Flickr; “11_29_10 SIM Rally in Support of the DREAM Act-1,” Photo by Jason Pramas for Open Media Boston, www.openmediaboston.org. Creative Commons BY-NC-SA 2010 Jason Pramas, at Flickr.

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Getting admitted to practice law can be challenging. In most jurisdictions, it means not only succeeding on a rigorous bar exam but also passing a moral character and fitness evaluation. And contrary to Bette Midler who once said, “I have my standards. They’re low, but I have them,” most jurisdictions do impose comparatively high standards on who can practice as a lawyer in a given state.

Several years ago in Arizona, for example, the case of In re: James Joseph Hamm resulted in denying James Hamm, a candidate for bar admission, a license to practice in Arizona. Hamm was denied admission because of a first-degree murder conviction arising out of a 1974 drug deal and robbery.

As the Arizona Supreme Court has stated in assessing such attorney admission cases, “The central component of our assessment is, all times, protection of the public.” See In re Arrotta, 208 Ariz. 509, 512 (2004). Also see In re King,  212 Ariz. 559 (2006) and In re Lazcano 223 Ariz. 280 (2010).

“What was my moral duty at 17 months?”

But in California, the Golden State’s Committee of Bar Examiners is now facing a historic issue. It is a question of apparent first-impression, Can an Undocumented Immigrant Be Admitted to Practice? California Supreme Court Must Decide.”

In asking the question, the Committee seeks a conclusive answer to make its Determination of Moral Character in the application of Sergio Garcia, an undocumented immigrant who wants to be a lawyer but who unlawfully entered this country with his parents when he was 17 months and as one of my buddies used to say, “no bigger than a Fried Minnow.”

(I refer, of course, to ‘the other Sergio Garcia,‘ a wanna-be California lawyer and not the famous PGA golfer from Spain, Sergio Garcia Fernández).

Lawyer-candidate Garcia told the Daily Journal that he has been waiting for permanent legal residency for 17 years and with respect to the bar’s character evaluation, in echoes of the Debate over the Dream Act, he questions whether it’s right to impose a moral duty on a blameless baby brought unlawfully into the U.S. through no fault of his own. He asks, “What was my moral duty at 17 months?”

But on the other hand, this poses another conundrum. That “a person who is charged with upholding the law and administering the judicial system” as an officer of the court would himself be outside the law is enough to warrant news headlines and head-shaking perplexity from the proverbial person on the street.

What’s good moral character?

For those wanting to practice law in California, California’s Determination of Moral Character is an extensive gauntlet. It asks for detailed information from as far back as high school, including all residential addresses and employment, DMV Clearance and positive character references from friends, past employers, and even a clean bill of ethical health from the law school the applicant attended.

Drunks, deadbeats, druggies, deceivers, and of course, convicted felons, will face a high hurdle. Also see Debra Murphy Lawson’s “Tales from the Character and Fitness Trenches.”

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“Good moral character” includes but is not limited to qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the law, and respect for the rights of others and the judicial process.” See Chapter 4, Rule 4.40 Moral Character Determination, ADMISSION TO PRACTICE LAW IN CALIFORNIA

A frothing issue.

But since we live in times where illegal immigration causes many to lather up and froth at the mouth, this makes the case of wanna-be lawyer Sergio Garcia especially astounding in its provocations.

Already in other states, for instance, to show they aren’t second-rate pikers to Arizona’s SB 1070, some state legislatures have passed new laws to crack down or chill illegal immigration. These include what’s being termed a “Controversial Georgia Immigration Law and in “Alabama, the nation’s toughest immigration law.”

So how Garcia’s undocumented immigrant’s candidacy for admission to practice law plays out in California will be closely-watched. Politics and contentious national polemics aside, because of his emigrant past, California’s Committee of Bar Examiners holds his future in the balance.

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