Sergio Garcia speaks at The Coalition for Humane Immigrant Rights of Los Angeles in August 2013. The California Supreme Court on Thursday granted a law license to Garcia, even though he is living in the United States illegally. (AP/Nick Ut)
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.
The decision could reverberate in New York, where at least one undocumented immigrant has passed the bar exam and applied for admission.
“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,” California 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.
“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.
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.
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.
In New York, Cesar Vargas, a 30-year-old graduate of the CUNY Law School, has applied for admission and is awaiting the decision of the Appellate Division, Second Department.
According to the New York Times, the character and fitness committee praised him as “stellar,” but said his application should be rejected because of his immigration status.
Cesar Vargas was 5 years old when he arrived from Puebla, Mexico, with his mother in 1990. While in college, he knew that because of his status, he would not enjoy the high salary and prestige of a law firm. But he decided to take up law anyway, Vargas told Associated Press.
“I always wanted to go to school; I always loved to learn,” Vargas said. “In high school when I was told I could not go to college because of my status, it was something that really struck me. It made me want to fight more.”
Vargas has founded DRM Capitol Group, a lobbying firm pushing for the approval of the Dream Act, a federal bill that would pave the path to citizenship for immigrant children illegally brought to the United States by their parents.
Vargas said he was able to pay for school because CUNY helped him through a private fund. He also got a scholarship from the Puerto Rican Bar Association and accepted donations and his family’s help. He worked part-time at a restaurant, seven days a week.
“It was very difficult. It was a challenge,” said Vargas, who worked as an intern for the Brooklyn district attorney’s office, the state Supreme Court and former Congressman Anthony Weiner.
@|Scott Graham is a reporter for The Recorder, an affiliate of the Law Journal. He can be contacted at firstname.lastname@example.org. Associated Press contributed to this story.