CA Supreme Court Says Undocumented Immigrants Can Practice Law

An undocumented immigrant may be admitted to the California State Bar, announced the California Supreme Court. Its decision in the matter of In re: Sergio C. Garcia Admission, was issued on January 2, 2014, just one day after a California law addressing the same issue went into effect.

In October 2013, Gov. Jerry Brown signed AB 1024 into law, making it legal for the California Supreme Court to admit undocumented immigrants to practice law in California.

The law was enacted in response to oral arguments in Mr. Garcia's case, during which the California Supreme Court justices appeared swayed that a federal statute would bar Mr. Garcia's admission, but an exception contained within the law could allow a state to authorize an undocumented immigrant to obtain a professional license.

Mr. Garcia's parents brought him to the Unites States as a baby, returned to Mexico when he was 9, and then returned to the United States when he was 17. His father, a lawful permanent resident who has since become a citizen, filed an immigration visa petition on his behalf on November 18, 1994. It was approved on January 31, 1995. His type of immigration petition, a "Petition for an Alien Relative," is processed as a visa number becomes available. Mr. Garcia has been waiting for 19 years for a visa number. Once he does receive the visa number, he would be eligible to adjust his status to a permanent legal resident.

During that time, Mr. Garcia went to college and law school. He passed the California Bar exam, and was certified as having met all of the qualifications to be licensed as an attorney in California. He did disclose that his immigration status was "Pending" in his application to be admitted to the California State Bar.

The Committee of Bar Examiners found that he met all of the qualifications and submitted his name to be licensed as an attorney in California. The Committee did note his immigration status as an undocumented immigrant, because it was a matter of first impression for the Court.

The California Supreme Court then issued an order for the Committee of Bar Examiners to show cause why Mr. Garcia should be admitted to the California State Bar. In its brief, the Committee of Bar Examiners argued that federal immigration law should not preclude Mr. Garcia's admission.

The U.S. Department of Justice submitted an amicus brief arguing that the 1996 Personal Responsibility and Work Opportunity Reconciliation Act did in fact bar his admission. That law contains a section entitled "Restricting Welfare and Public Benefits for Aliens" that the Justice Department argued restricts an undocumented immigrant's eligibility to obtain a professional license. However, the law 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.

During oral arguments, Justice Liu specifically asked whether an enactment of the state legislature could provide eligibility for a law license, and the attorney for the Justice Department conceded that there would not be any federal prohibition in such a case.

Writing for the majority, Chief Justice Cantil-Sakauye concluded that the passage of the California statute satisfied the federal law, and no other federal statute precluded 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", wrote Cantil-Sakauye.

The Court rejected several arguments made by amicus curiae that public policy should preclude the admission of undocumented immigrants. First, although an undocumented immigrant might be subject to civil sanctions, he or she would not be subject to criminal sanctions, and thus an undocumented status does not in and of itself involve moral turpitude that would justify exclusion from the State Bar, nor would it "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." Second, although the individual could not work as an "employee," and may require the individual to decline taking certain cases due to his or her immigration status, this should not preclude admission to the State Bar.

As such, the Court concluded that "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."

Additionally, the Court agreed with the determination of the Committee of Bar Examiners that Mr. Garcia possessed the requisite good moral character to warrant admission, and therefore granted the Committee's motion to admit Mr. Garcia to the State Bar.

The opinion was joined by all of the justices, with Justice Chin writing a concurring opinion. He disagreed with using the term "undocumented immigrant" arguing that a prior opinion set forth the proper term of "unlawful alien." Justice Chin ultimately concluded that the question of which term to use came within the discretion of the opinion's author.