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California court grants undocumented immigrant the right to practice law

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STORY HIGHLIGHTS
  • Sergio C. Garcia was born in Mexico and moved to U.S. with parents, without papers
  • Though he is undocumented, he graduated from law school in California
  • Court says his immigration status does not disqualify him from practicing law

By Tom Watkins

California's Supreme Court ruled on Thursday that the state's bar can admit a man who graduated from law school and passed the state bar but is an undocumented immigrant.

"We conclude 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," the court concluded in its 34-page decision.

The unanimous ruling, written by Chief Justice Tani Cantil-Sakauye, concerned the case of Sergio C. Garcia, 36, who was born in Mexico in 1977 and taken to California by his parents when he was 17 months old.

He remained there until 1986, when he and his parents returned to Mexico. Eight years later, at age 17, Garcia again returned to California with his parents and without documentation, though his father had obtained permanent resident status in the United States.

That year, Garcia's father filed an immigration visa petition on his son's behalf, which federal immigration officials accepted in 1995. But, 19 years later, the visa has not been granted, even though Garcia has lived in the state since 1994.

After graduating from high school, he attended Butte College, California State University at Chico and Cal Northern School of Law, which awarded him a law degree in 2009. That year, he passed the California bar exam but was not admitted because of his immigration status, even though the body that issues the licenses -- the Committee of Bar Examiners -- recommended that he be allowed to practice.

The matter ended up in the California state court system.

The state's Supreme Court noted that an argument had been made that an undocumented immigrant cannot properly take the oath of office "since he will be in violation of federal law while he takes the oath and at all times later until he either becomes legal or leaves the United States."

But it said prior cases in the state did not invariably support the proposition that, because an applicant's conduct may violate a law, he was not qualified to be admitted to the bar or to take the oath of office.

It cited a 1966 case, Hallinan v. Committee of Bar Examiners, that concluded that "every intentional violation of the law is not, ipso facto, grounds for excluding an individual from membership in the legal profession."

Immigration officials would be unlikely to pursue sanctions against an undocumented immigrant who had been living in the United States for years and educated in this country and whose sole unlawful conduct was his presence in this country.

"Under these circumstances, we conclude that the fact that an undocumented immigrant's presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the State Bar."

The Obama administration opposed Garcia's admission to the bar, saying that federal law demanded that legislation be enacted granting an undocumented immigrant the right to practice, according to a summary published by lawprofessors.typepad.com.

The Justice Department said no one was available to comment on the case.

Last year, the state legislature took up the matter, passing a bill that allowed the court to admit "an applicant who is not lawfully present in the United States [who] has fulfilled the requirements for admission to practice law..." That "greased the skids" in making the court's work easier, said Dan Kowalski, editor of Bender's Immigration Bulletin and himself an immigration attorney.

"I think it's a natural, logical decision," he told CNN in a telephone interview, adding that he expected other states to follow suit.

 

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