Should Public Policy Favor Inclusion When It Comes to Bar Admissions?
By Lorelei Laird
Jan 1, 2013, 10:49 am CST
The law professors’ amicus brief argues that California public policy is also in favor of inclusion—particularly the California Dream Act of 2011, which makes students illegally brought to the United States eligible for state financial aid.
In an interview, UCLA School of Law immigration law professor Hiroshi Motomura takes it further.
“Though they’re here against the law, I think this country invited them here,” he says. “Congress set up a … tough line against illegal immigration, but when you look at it closely, the system is set up in such a way that they’re allowed to be hired. That’s what undermined a lot of respect on all sides about the system.”
Motomura believes it’s significant that Congress has not chosen to make it a felony to be present in the U.S. illegally. In fact, illegal presence itself is only a civil violation. People who enter without inspection, like bar applicants Sergio Garcia and Cesar Vargas, also commit misdemeanors; but visa overstayers like Jose Manuel Godinez-Samperio do not. Thus, Motomura says, it’s important to distinguish between types of immigrants who are out of status: “a bright line between legal and illegal” is too simple.
That’s the basis of another argument put forth in favor of admission: Not all immigrants are the same, under the law or in how they use their opportunities. Many of the briefs praise Garcia and Godinez-Samperio for being hardworking, ambitious students who might under other circumstances be welcomed as new Americans. That’s a marked contrast with Section 1621, which expressly says its purpose is to discourage aliens from depending on public resources. And both applicants note that they are in the group that Immigration and Customs Enforcement is least likely to deport because they have no criminal records and aren’t responsible for their presence in the United States.
The briefs in opposition don’t see any of this as relevant. Both emphasize that because Garcia is in violation of the law, he cannot be entrusted to uphold it. Retired California bar prosecutor Larry DeSha finds the issue dispositive, saying there would be no barrier left if Garcia’s application for a green card were approved.
The DREAM Bar Association itself also filed amicus briefs in Florida and California (authored by counsel for the Mexican American Legal Defense and Educational Fund). In both cases, it made an argument that no other party took up: That the student-college relationship is an implied contract that states may not impair without a good reason.
And one amicus brief in support came from a less obvious quarter: the National Center for Lesbian Rights, which noted that immigrant communities include gay, lesbian, bisexual, transgender and HIV-positive people. The NCLR argued that such people have historically been excluded from law (and other professional) licensing because of prejudice, as have immigrants. It urged the California Supreme Court not to let “unfounded perceptions of immorality and criminality,” or disloyalty to the U.S. and its laws, decide the case for Garcia and others like him.