Law
12:34 am
Wed September 4, 2013

Is It Legal For Undocumented Immigrant To Practice Law?

Originally published on Thu January 2, 2014 12:44 pm

On Wednesday, the California Supreme Court holds oral arguments in a case that will determine whether Sergio Garcia, an undocumented immigrant, can become a licensed attorney.

The case has drawn attention from legal groups across the country and comes amid the larger national fight over immigration reform.

On the side of Garcia are the State Bar of California and the California attorney general. Opposing his admission to the bar is the Justice Department, among others.

'This Is The Country I Know'

Garcia was born in Mexico. His parents brought him to the U.S. when he was 17 months old. He moved back and forth between the two countries until he came to California permanently when he was 17. At that time, immigration officials approved Garcia for a green card. That was possible because his dad had a green card. Garcia himself would have to wait to get his own green card until one became available.

He's been waiting for nearly 19 years.

In the meantime, he worked his way through college, law school, and passed the state bar exam.

"I am 36 years old," he says. "This is the home I know. This is the country I know. And this is the country I want to work for and fight for."

But because he's undocumented, the U.S. Justice Department says he's not eligible to receive a law license.

"To have somebody tell you cannot fulfill your American dream after you have done everything that was required of you and complied with every rule that's out there. It's a very difficult time and it's been a trying time," Garcia says.

'He's Here Illegally'

Larry DeSha, a former prosecutor with the State Bar of California, disagrees with that group's position that Garcia should be granted a law license.

"He can't say he is going to fulfill his duties as attorney when one of those duties is to uphold all federal laws, when he's here illegally," DeSha says. "And no one can administer the oath to him knowing he's going to be illegal the minute he puts his hand down. And the other thing is clients can't pay him money. And any client who finds out that he is illegal has to fire him under federal law. "

Although the Justice Department opposes Garcia's admission to the bar, it has declined to make anyone available for an interview.

State Money Or Annual Dues?

California law actually allows anyone with some form of legal status — including people with a student visa — to get a law license.

But a federal law passed in 1996 prohibits entities funded with state money from granting undocumented immigrants professional licenses. Because the California Supreme Court is funded with state money, the U.S. Justice Department says it is prevented from admitting Garcia into the bar.

"The U.S. Department of Justice has an expansive and incorrect reading of this provision," says Brian Nelson, a staff lawyer with the California attorney general's office, which supports Garcia's admission. Nelson says it's not state money that funds the licensing of attorneys, but rather annual dues lawyers pay to the State Bar, and therefore, no state money is used.

"It would really run counter to all of California and the federal government's policies to promote this type of individual who has been so self-sufficient and is working and looking to make a big and important contribution," Nelson says.

Whether the California Supreme Court decides to license Garcia as an attorney will resolve just one dispute in the larger debate over illegal immigration. But it will undoubtedly carry symbolic weight, and is likely to influence similar cases pending in other states. After Wednesday's hearing, a decision is expected within 90 days.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

STEVE INSKEEP, HOST:

The California Supreme Court hears arguments today in a case that will determine whether an undocumented immigrant can become a licensed attorney. The State Bar of California and the California attorney general both support this idea. The United States Department of Justice says no - or at least is urging the state to say no. This case has drawn attention from legal groups across the country and comes amid the larger national fight over immigration. Emily Green reports.

EMILY GREEN, BYLINE: Sergio Garcia was born in Mexico. His parents brought him to the U.S. when he was 17 months old. He moved back and forth between the two counties until he came to California permanently when he was 17. At that time, immigration officials approved Garcia for a green card. That was possible because his dad had a green card.

But Garcia himself would have to wait to get his own green card until one became available. He's been waiting for nearly 19 years. In the meantime, he worked his way through college, law school, and passed the State Bar exam.

SERGIO GARCIA: I'm 36 years old. This is the home I know. This is the country I know. And this is the country I want to fight for and work for.

GREEN: But because he's undocumented, the U.S. Justice Department says he's not eligible to receive a law license.

GARCIA: To have someone tell you that you cannot fulfill your American dream after you have done everything that has was required of you and complied with every rule that's out there, it's a very difficult time and it's been a trying time.

LARRY DESHA: He can't say he is going to fulfill his duties as attorney when one of those duties is to uphold all federal laws, when he is here illegally.

GREEN: Larry DeSha is a former prosecutor with the State Bar of California. And he disagrees with the Bar that Garcia should be granted a law license.

DESHA: And no one can administer the oath to him knowing he is going to be illegal the minute he puts his hand down. And the other thing is clients can't pay him money. And any client who finds out that he is illegal has to fire him under federal law.

GREEN: Although the U.S. Justice Department opposes Sergio Garcia's admission to the Bar, it's declined to make anyone available for an interview. California law actually allows anyone with some form of legal status - including people with a student visa - to get a law license.

But a federal law passed in 1996 prohibits entities funded with state money from granting undocumented immigrants professional licenses. Because the California Supreme Court is funded with state money, the U.S. Justice Department says it's prevented from admitting Sergio Garcia into the Bar.

BRIAN NELSON: The U.S. Department of Justice has an expansive and incorrect reading of this provision.

GREEN: Brian Nelson is a staff lawyer with the California attorney general's office, which supports Garcia's admission. Nelson says it's not state money that funds the licensing of attorneys but rather annual dues lawyers pay to the State Bar - and therefore no state money is used.

Whether the California Supreme Court decides to license Sergio Garcia as an attorney will resolve just one dispute in the larger debate over illegal immigration. But it will undoubtedly carry symbolic weight and is likely to influence similar cases pending in other states. After this morning's hearing, a decision is expected within 90 days. For NPR News, I'm Emily Green in San Francisco. Transcript provided by NPR, Copyright NPR.

Related program: