The rite of passage to become an attorney draws to a conclusion when the law school graduate passes the bar in his or her respective jurisdiction(s). At this point, the applicant’s bar application is reviewed to ensure that the character and fitness of the applicant is suitable for admission to the bar. To assist in this process, an applicant is required to disclose any civil or criminal violations that have occurred in his or her past, and any other activities or situations that could be considered a "character issue." We’ve all seen and heard stories of the applicants who are denied acceptance to the bar because of prior conduct that reflects poorly on the character of the applicant. Fraudulent behavior, criminal violations or a failure to disclose a violation to the bar examiners are all examples of typical conduct that prevents admittance to the bar. But what if, after years of exemplary behavior and after achieving high levels of academic success, an applicant is denied admission to the bar through no conduct of his or her own? These are the facts before several state supreme courts with respect to law school graduates and bar applicants who are undocumented immigrants. While each of these cases, like any bar applicant before a supreme court, is very fact-dependent, we will use Sergio Garcia’s case in part to analyze this issue.

The California Supreme Court is one such court wrestling with this set of facts. Garcia, according to the briefs submitted to the court, was brought into the United States by his parents from Mexico when he was an infant and most recently when he was 17 years old, each time without inspection. His father, who is now a U.S. citizen, filed a family petition for his son in 1994 and the petition was approved in 1995. Garcia, however, being an adult son of a U.S. citizen (and thus no longer in the more favorable category of "[minor] child of a U.S. citizen") is now on a long list of individuals who are waiting for their priority dates to become current, at which point Garcia will be able to apply to adjust to legal permanent resident status, a process that in some cases can take decades to complete. Garcia has worked in various positions and paid taxes, worked his way through Cal Northern School of Law, graduated at the top of his class, and passed the California bar exam. The Committee of Bar Examiners in California submitted Garcia’s name, on motion, as an applicant certified for attorney licensure to the California Supreme Court. The motion included Garcia’s immigration status. The Supreme Court issued an order to show cause to the committee as to why its pending motion should be granted and requested that the committee answer several questions and also invited amicus curiae participation.

This situation has fueled an already-heated debate around immigration and immigration reform with roughly 48 amicus curiae briefs filed in support of Garcia’s right to be granted a license, and three briefs in opposition, one filed by the U.S. government. The legal questions the Supreme Court is evaluating, in part, relate to the Personal Responsibility and Work Opportunity Reconciliation Act enacted by Congress in 1996. The PRWORA prohibits certain categories of immigrants from obtaining certain public benefits, unless a state enactment directs otherwise. A "public benefit" includes a professional license. According to the government’s brief, Garcia is an undocumented alien and pursuant to this federal statute may not be granted a license to practice law, as this is a public benefit he is prohibited from receiving under the PRWORA. The legal questions posed are obviously much more complicated than what is stated above and include determining whether the Supreme Court is an agency that issues professional licenses, and whether the agency uses appropriated funds from the government.

Leaving the questions of federal law to the California Supreme Court, philosophically we are left to determine whether granting undocumented immigrants, like Garcia, a license to practice law agrees with the basic tenets of our legal profession. Attorneys are specifically granted a license to practice law to uphold the laws of the United States. In protecting and defending these laws, lawyers are representing clients, which puts lawyers in a position of great responsibility. For this reason, in addition to demonstrating a mastery of the knowledge of the law by completing law school and passing the bar exam, applicants are further required to submit information and subject themselves to background checks relating to their "character and fitness." In being mindful of the above basic elements of the skills and characteristics required of attorneys, and recognizing that this is a highly fact-sensitive analysis, we believe that granting an undocumented immigrant a license to practice law in no way diminishes the legal profession or the high standards by which attorneys are judged as long as that individual meets the "character and fitness" requirements on a case-by-case basis.

All attorneys are administered an oath upon being sworn in as an attorney. In Pennsylvania, we are required to attest as follows:

"I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the constitution of this commonwealth and that I will discharge the duties of my office with fidelity, as well to the court as to the client, that I will use no falsehood, nor delay the cause of any person for lucre or malice."

Given that the very mission of an attorney is to uphold the laws of the states and of the United States, how can we admit an attorney whose very immigration status is not authorized? There are many attorneys admitted to practice law across the United States who have their share of speeding tickets, minor criminal violations and perhaps even more salacious types of violations. No one would argue that a violation of the law, absent facts indicating anything more significant, makes an individual unfit, on that sole basis, to practice law. At least in Garcia’s case, when entering the United States, he was brought by his parents when he was a minor, thus any claims of "illegal entry" fall squarely on his parents’ shoulders and not on Garcia. And in other cases, decisions made in one’s minority should not be the sole controlling factor in barring an otherwise qualified individual from being admitted to practice law. Further, Garcia is currently seeking to become a permanent resident through his adjustment of status application. Only because of the long delays associated with the visa quota system is he not already a lawful resident of the United States. Perhaps if this process were swift or otherwise easier to accomplish, it would be acceptable to require that bar applicants be legal residents in order to obtain passage to the bar.

Permitting undocumented immigrants to obtain a license to practice law is also consistent with current immigration policy in the United States. A memo released by the Department of Homeland Security in June 2012 titled "Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children" specifically states that undocumented immigrants who came to the United States as children are not to be prosecuted absent other circumstances. The memo states in part, "Our nation’s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstance of each case." This sentiment is precisely our suggested approach to undocumented immigrants who are seeking a license to practice law. Each application should be reviewed on a case-by-case basis for determination of whether that individual can uphold the laws of the United States with moral character consistent with other approved applicants. Preventing an undocumented immigrant from receiving a license to practice law solely because of that person’s immigration status, which in many cases was created through the actions of adult family members and not the applicant, is inconsistent with current policy.

In addition to the question of whether an undocumented immigrant can uphold the laws of the government, we must assess whether an undocumented immigrant’s character and fitness is such that he or she should be admitted to practice law. As stated by the Pennsylvania Board of Bar Examiners, the purpose of the character and fitness portion of the bar exam is to determine if the applicant’s "record of conduct justifies the trust of clients, adversaries, courts and others." We believe that status as an undocumented immigrant, especially one who came to this country as a child, is not indicia of evidence that such an individual is not trustworthy. This is especially the case when the individual fully discloses this undocumented immigration status on the bar application. Absent additional facts to the contrary, there is little plausible connection between an individual’s immigration status and his or her trustworthiness or fitness to practice law.

Assuming that an individual otherwise meets the requirements to be admitted to the bar in a jurisdiction, is it fair to deny admission on conduct that is wholly or largely the conduct of the applicant’s parents or family? In no other scenario, in the legal profession or otherwise, do we punish an individual for the conduct of those around him or her. This idea is confined to situations where the "accomplice" is somehow culpable for the activities of the other individuals, such as crimes that occur during the commission of a felony. Denying an individual’s livelihood, at worst, and denying his or her ability to pursue a career choice, at best, for the conduct of others is in violation of a basic element of our justice system relating to punishing those responsible for the crimes.

Finally, from a public policy perspective, there should be no policies furthered by any state that discourage motivated individuals from obtaining an education, advanced college degree, or otherwise pursuing meaningful careers in the United States. To discourage those estimated 10.8 million undocumented immigrants from pursuing those highly positive activities would serve no useful purpose for the United States. •

YL Editorial Board

Peter C. Buckley, Chairman

Leigh Ann Buziak

Shaune Ferrara

Teresa Jurgensen

Amber Racine

Preston Satchell

Royce Smith

Rob Stanko

Marisa Tilghman

Djung Tran

Nakul Warrier

Meredith Wooters

The Editorial Board of Young Lawyer is composed of members of the legal profession. They serve voluntarily and are independent of Young Lawyer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed op-ed pieces.