Sergio Garcia, undocumented immigrant trying to obtain a law license (Jason Doiy)
SAN FRANCISCO — Sergio Garcia’s status as an undocumented immigrant has hung up his admission to the State Bar for more than three years.
But on Thursday, just one day after a new state law on undocumented immigrants took effect, the California Supreme Court took action, ordering Garcia admitted and paving the way for others in his situation to become attorneys in good standing.
“We conclude the fact 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,” Chief Justice Tani Cantil-Sakauye wrote for a unanimous court. Nor does 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.”
How Garcia might lawfully practice without violating federal immigration law is an open question the court left for another day. Garcia plans to hang out a shingle and do plaintiffs personal injury; the Supreme Court described the legality of such an arrangement as “ambiguous.”
The only bone of contention among the justices was how to describe Garcia, a native of the Mexican state of Michoacan who spent half his childhood and all of his adult life in California. Cantil-Sakauye used the phrase “undocumented immigrant,” prompting Justice Ming Chin to file a short separate concurrence pointing out that the court deliberately chose just three years ago to use “unlawful alien.”
Thursday’s decision in In re Garcia is the culmination of a personal journey that began around 2005 when Garcia enrolled in night classes at Cal Northern School of Law in Chico. It could reverberate as far away as New York and Florida, where those states’ highest courts have been weighing similar applications.
“The immigration system is broken, everyone knows it,” said Jerome Fishkin of Walnut Creek’s Fishkin & Slatter, who represented Garcia through most of his case. “This is one small piece in putting the puzzle back together, particularly for immigrant children.”
The California Supreme Court noted it has at least one other application pending from an undocumented immigrant, and a law professor who helped brief the case says more are likely.
Bill Ong Hing, who has taught law at Golden Gate University, Stanford, UC-Davis and now University of San Francisco, said he’s encountered students at each school who’ve revealed their undocumented status to him. “I personally know some attorneys who are undocumented,” he added. “The question never came up in the application process.”
The State Bar only began asking about citizenship status in 2008. When Garcia applied the next year, he answered “pending.” (The U.S. government accepted his visa petition in 1995 but he remains on a waiting list to receive it.)
The State Bar undertook an intense examination of Garcia’s background, sending investigators to his home town and personally interviewing him twice. The Bar eventually threw its support behind Garcia, finding him to be a well-respected, hard-working tax payer. Numerous bar associations, immigration advocacy groups and Latino legislators filed amicus curiae briefs.
But the Supreme Court balked. At a hearing last summer the justices emphasized that federal law appears to require a state Legislature to sign off before a state grants law licenses to undocumented immigrants. Within a week the Legislature enacted Business & Professions Code Section 6064(b), which took effect Jan. 1.
Former State Bar prosecutor Larry DeSha filed an amicus brief urging the court to exercise its veto nevertheless. He argued that by maintaining unlawful residency, Garcia could not genuinely swear to uphold the law. But Cantil-Sakauye disagreed, citing the 1966 case of Terence Hallinan, who was admitted despite a history of arrests for civil disobedience on behalf of minority groups.
“An undocumented immigrant’s unauthorized presence does not constitute a criminal offense under federal law and thus is not subject to criminal sanctions,” Cantil-Sakauye wrote. “Moreover, federal law grants federal immigration officials broad discretion” in enforcing immigration laws.
State Bar President Luis Rodriguez said in a written statement the decision “reaffirms the Committee of Bar Examiners’ finding as not a political decision but rather one grounded in the law,”
Garcia was represented pro bono for years by Fishkin and his wife, Lindsay Slatter. Following the Supreme Court arguments he retained Robert Cooper of Wilson Elser Moskowitz Edelman & Dicker to file supplemental briefs.
“It was our honor to represent him,” Cooper said Thursday.
Garcia wanted an appellate specialist with the resources of a national law firm, Fishkin said. He and Slatter would have liked to stay on the case, but “ultimately it came out the way we all wanted it to,” he said. Later this year, when the Orange County Bar Association honors their work, “Sergio is coming down to give the keynote speech, so we’re all on the same page.”
At the Supreme Court, the justices weren’t on the same page on the side issue of terminology. “The majority opinion does not acknowledge it,” Chin wrote, “but just over three years ago, in Martinez v. Regents of University of California … this court specifically considered how to designate persons in Garcia’s position.”
The court chose “unlawful alien” because the federal law at issue in that case and Garcia’s uses the phrase “an alien who is not lawfully present in the United States.”
“Nevertheless,” Chin wrote, “I consider the question of which term to use to come within the discretion of the opinion’s author. Accordingly, I have signed the majority opinion.”
James Wagstaffe of Kerr & Wagstaffe argued the case for the State Bar. Fishkin argued for Garcia. Deputy Attorney General Ross Moody argued as amicus curiae for AG Kamala Harris. Daniel Tenny argued for amicus curiae U.S. Department of Justice.
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