Why is the Obama Administration Arguing that Undocumented Immigrants Should Not Practice Law?

2104692366_135cb634ca_z(1)Today, the California Supreme Court will hear oral argument in a case that asks whether an undocumented immigrant may receive a license to practice law in California. The Committee of Bar Examiners – the entity charged with deciding who qualifies for a law license in California – supports admitting Sergio Garcia to the bar. So do some 48 organizations and 53 individuals who signed on to “friend of the court” briefs submitted to the California Supreme Court. Of the three opposing arguments filed, two came from individuals but the other came from an unexpected source: the Department of Justice. Not only did DOJ voluntarily weigh in with a hypertechnical argument that is tone deaf to the current debate over undocumented status in this country, but it  took the same position in a Florida case involving a lawfully present and work-authorized recipient of Deferred Action for Childhood Arrivals (DACA), Jose Godinez-Samperio. Even if there was a good legal argument for opposing admission of an unauthorized immigrant to the bar, the rationale makes little sense in the context of an individual who is a DACA beneficiary. In both cases, however, the result DOJ seeks would lead to less socio-economic inclusion of the very immigrants the Obama administration seeks to protect.

Garcia’s story has all the earmarks of the classic immigrant success story. His parents, both farmworkers, brought Garcia to the United States from Mexico as a toddler and he spent his early childhood here. In 1994, at age 17 and after living for a period in Mexico, his parents again brought him to the United States. He has remained here ever since. His father, who by then was a lawful permanent resident, filed a visa petition on his behalf. For the last 18 years, since his petition was approved, Garcia has been waiting for a visa to become available so that he can apply for a “green card.” While waiting, he completed high school and paid his way through college and law school. Now 35, he has been self-employed since 2004, pays his taxes, and has no criminal record. He satisfied the requirements for admission to the bar, having passed the California bar examination the first time he took it and having received a “positive moral character determination” from the State Bar Committee.

In short, Garcia is precisely the type of person the Obama Administration has been urging deserves an opportunity to obtain lawful status and get on a path to citizenship. So why would DOJ oppose his application for a law license?

DOJ argues that obtaining a law license is a public benefit and thus falls within a 1996 federal ban that bars unauthorized immigrants from receiving certain public benefits. The argument itself, however, is both unsound and simplistic and relies on a provision of the 1996 law that defines public benefits to include professional licenses that are provided by appropriated funds of a state government. DOJ argues that because a state court must issue an order granting the law license and because the court is funded by appropriations from the state, the law license qualifies as a public benefit.

The answering brief of the Committee on Bar Examiners explains why the DOJ argument is wrong. The issuance of law licenses in California is entirely paid for by application fees. No state funds – appropriated or otherwise – are involved. DOJ’s argument, taken to its logical conclusion, would render a law license a “public benefit,” even if state appropriations were limited to paying the court’s overhead expenses. This argument strains credibility.  Moreover, as the California Attorney General explained in her brief in support of Garcia, if admitted to the California Bar, Garcia would pay an annual fee, thus subsidizing – rather than draining – the state Bar’s resources.

It is disappointing that DOJ chose such a short-sighted – and ultimately, confusing – position in this case. It is positively baffling that DOJ staked out this same position with respect to lawfully present DACA recipients who have work authorization. Permitting these individuals to practice law is not only legally sound but it also makes sense, ensuring that individuals with something to contribute to this country have the chance to do so irrespective of their current legal status.

Photo Courtesy of CarbonNYC.

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  1. Ali says:

    Garcia returned to Mexico with his mother at age 9 and came here again illegally as an adult at age 17. Funny how you have to gloss over this to try to make his story seem sympathetic. Fact is, had he remained here with his dad, he would have been able to legalize and naturalize when his dad did.

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