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Constitutional Law

DOJ Says Federal Law Bans Top Calif. Court from Admitting ‘Unlawfully Present Alien’ to State Bar

Posted Aug 3, 2012 6:01 AM CDT
By Martha Neil

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A bar examiners committee and the state attorney general have recommended that Sergio C. Garcia be admitted to the California bar, even though he is an undocumented immigrant.

But in a Wednesday filing responding to the state supreme court's request for an opinion, the Department of Justice disagreed. In its view, a 1996 federal law that denies public benefits to illegal immigrants "prohibits this court from issuing a law license to an unlawfully present alien," the DOJ wrote. The law, the feds said, was drafted in an effort to "preclude undocumented aliens from receiving commercial and professional licenses issued by states and the federal government," according to the Mercury News and the San Francisco Chronicle.

The state supreme court has not yet decided the issue. Having heard from the DOJ, however, it is now in a position to do so. State Attorney General Kamala Harris earlier provided an opinion that Garcia should be admitted, also offering her view in response to a request from the state's top court.

Garcia, who is now 35, was brought to this country by his parents when he was a toddler. His 1995 application for legal residency is still pending.

His lawyer, Jerome Fishkin, argues that Garcia could legally practice law as an independent contractor, even though he could not legally work as a law firm employee due to his current immigration status.

He also criticizes the DOJ for not squarely addressing in its brief what Fishkin says is a California state law provision in its business and professions code that squarely addresses his situation and authorizes the issuance of a law license, reports the Associated Press.

"It's an escape hatch for law applications and law admission for people who are not qualified to have Social Security numbers, which essentially are undocumented and certain out of country immigrants," says Fishkin.

Similar cases are looming in Florida and New York.

Additional coverage:

ABAJournal.com: "Can an Undocumented Immigrant Be Admitted to Practice? California Supreme Court Must Decide"

ABAJournal.com: "California Supreme Court Considers Whether to Grant Law License to Illegal Immigrant"

Updated on Aug. 8 to add a link to the 1996 federal law.

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