GARCIA (SERGIO C.) ON ADMISSION

Amicus Curiae Brief of American Civil Liberties Union Foundation, et al.

Cal.July 27, 2012

FILED Bar Misc. 4186 9202512 JUL 27 2012 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Frank A. McGuire Clerk Deputy IN RE SERGIO C. GARCIA ON ADMISSION APPLICATION FOR LEAVETO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF OF THE AMERICANCIVIL LIBERTIES UNION, AMERICAN IMMIGRATION LAWYERSASSOCIATION, AMERICANCIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICANCIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, ASIAN LAW CAUCUS, LEGAL AID SOCIETY —- EMPLOYMENT LAW CENTER, NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION, AND NATIONAL IMMIGRATION LAW CENTER IN SUPPORT OF APPLICANT SERGIO C. GARCIA Jennifer Chang Newell, Bernard P. Wolfsdorf, SBN 233033 SBN 107657 Michael Tan (Admitted In NY)* American Immigration Lawyers American Civil Liberties Union Association Foundation 1416 2"Street Immigrants’ Rights Project Santa Monica, CA 90401 39 DrummStreet Telephone: 310-570-4088 San Francisco, CA 94111 Fax: 310-570-4080 Telephone: 415-343-0774 Fax: 415-395-0950 Lee Gelernt (Admitted In NY)* American Civil Liberties Union Foundation 125 Broad St., 18"" Floor New York, NY 10004 Telephone: 212-549-2616 Fax: 212-549-2654 Attorneysfor Amici Curiae *Pro Hac Vice Application Pending CERTIFICATE OF INTERESTED ENTITIES The undersigned counsel certifies, pursuant to Rule 8.208 of the California Rules of Court, that she represents the following entities, each of whichis an organization joining in the attached application and amicibrief: AMERICANCIVIL LIBERTIES UNION AMERICAN IMMIGRATION LAWYERS ASSOCIATION AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA ASIAN LAW CAUCUS LEGAL AID SOCIETY — EMPLOYMENT LAW CENTER NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION NATIONAL IMMIGRATION LAW CENTER Dated: July 18, 2012 yirf A nll ___——~ Jenifer Chang Newell7 TABLE OF CONTENTS CERTIFICATE OF INTERESTED ENTITIES.............. essssesssssessseeeeee i TABLE OF CONTENTS.........cscssscssssssessscsscessscsssoscssssssssessesessenssssesseseoess ii TABLE OF AUTHORITIES...............cccssssssssscsscsssessssesesonsssssessnsssneeessesViii APPLICATION FOR LEAVETO FILE AMICI CURIAE BRIEF OF THE AMERICANCIVIL LIBERTIES UNION, AMERICAN IMMIGRATION LAWYERSASSOCIATION, AMERICANCIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICANCIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES, AMERICANCIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, ASIAN LAW CAUCUS, LEGAL AID SOCIETY —- EMPLOYMENT LAW CENTER, NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION, AND NATIONAL IMMIGRATION LAW CENTERIN SUPPORT OF APPLICANT SERGIO C. GARCIA.....ceceeseeee Vili AMICI CURIAE BRIEF OF THE AMERICANCIVIL LIBERTIES UNION, AMERICAN IMMIGRATION LAWYERSASSOCIATION, AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICANCIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, ASIAN LAW CAUCUS, LEGAL AID SOCIETY -— EMPLOYMENT LAW CENTER, NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION, AND NATIONAL IMMIGRATION LAW CENTER IN SUPPORT OF APPLICANT SERGIO C. GARCIAuecccsssenees 1 INTRODUCTION 0.00... sscsscsscsscsscnseeccecsssssssscsscsssssscsnsssscscsssessnesesscescessesens 2 INTERESTS OF AMICT CURTAEQW...ccscsesscssecccsscscsssssnessesssceesossenees 4 ARGUMENT..........cecssssscssssccsssssccasccscssesesscsesssnssesessscsesensscssssssssesesesssssorsesees 8 I. A Person’s Lack of a Valid Immigration Status Indicates Neither That He Has Committed Any Crime, Nor That He Will Be Removed from the United States............... 8 A. Being Present in the United States Without Authorization Is Not a Crime.........ccccccccsssscscsssscscscccssssessees 8 B. An Individual’s Present Lack of a Valid Immigration Status Does Not Mean He Will Be Removed.................006 10 II. The INA Does Not Prohibit an Attorney Who Lacks Work Authorization From Practicing Law..............ssccsees 18 A. A Brief Summaryof the INA’s Employment PYOVISIONS.............c..sscsccscsssrsscsescscesccsssccesssenccessnsseesecsssesessonsenss 19 B. Employment Authorization is Necessary Only When an Individual Seeks to be Employed by an Employer in the United States, 0.0.0.0...ccsssscsscessccsccscccescsssnscsecsessssncoenes 20 III. Retention of an Undocumented Attorney Is Insufficient As a Matter of Law to Constitute Harboring................... 25 CONCLUSION.........ccsccssessssccsscsscsssesssescssssccsescescssssssscssecssssessssessecssscnesacs 32 CERTIFICATE OF COMPLIANCEWu...ccccscsssssssecsscsesssesseessnssssseacens 34 PROOF OF SERVICE.z........cccsscsccssccscccscsccsssserscccsccscssecesersnscsassassosessceace 35 iil TABLE OF AUTHORITIES Federal Cases Arizona v. United States (June 25, 2012 No. 11-182) _US._,_ [_ S.Ct__,__, 2012 WL 2368661]....... 2, 8, 10, 11, 14, 15 Buckv. Stankovic (M.D. Pa. 2007) 485 F. Supp. 24.576 ......ccccessesseesseees 31 Chamber of Commerce v. Whiting (2011) 131 S.Ct. 1968 .......ee4,13 Clark v. Martinez (2005) 543 U.S. 371 viccccccscescsssesecsecssesseseceeeesesseesssesnenes 13 Dada v. Mukasey, (2008) 554 U.S. ecccccecccccssccsssscssssessssssesssessresevesseesees 12 David v. INS, (8th Cir. 1977) 548 F.2d 219 oo. ccccsccccsssseccesseceseeesseseenees 13 DelRio-Mocci v. Connolly Properties, Inc. (3d Cir. 2012) 672 F.3d 241] ooo. cccccccccssssssssssscessscseeesserseeeessteesseseteeseserens 29 Garrett v. City ofEscondido, (S.D. Cal. 2006) 465 F. Supp. 2d 1043.......... 4 INS v. Lopez—Mendoza (1984) 468 U.S. 1032 wo... cieccecssesssssesesesseeseceseeeaes 8 Lozano v. City ofHazleton (3d Cir. 2010) 620 F.3d 170.0...eee4,13 Martinez-Medina v. Holder (9th Cir. 2011) 673 F.3d 1029.0... cceeeeeees 9 McCarthy v. Recordex Services, Inc., 80 F.3d 842 (3d Cir. 1996) ............. 23 Plyler v Doe (1982) 457 U.S. 202 .o.ccccccccsscesesecsssessssesesseescssseseessesenees 12, 30 Reno v. Am.-Arab Anti-Discrimination Comm. (1999) 525 U.S. 471......... 13 Susnjar v. United States (6th Cir. 1928) 27 F.2d 223 ....cccccescecssessseeeeseees 28 United States v. Acosta de Evans (9th Cir. 1976) 531 F.2d 428 ....... 27 United States v. Alabama (N.D. Ala. 2011) 813 F. Supp. 2d 1282............. 29 United States v. Barajas-Montiel (9th Cir. 1999) 185 F.3d 947........... 26, 27 United States v. Cores (1958) 356 U.S. 405 wo.ceeeccccscecssessesseseeesesesesessesseees 9 United States v. Costello (7th Cir. 2012) 666 F.3d 1040................ 29, 30, 31 United States v. General Dynamics Corp. (O.C.A.H.O. 1993) 3 OCAHO 517 [1993 WL 403774] oo... cecscsescccssscsecsssecsscstsevssecesseeesseeeeas 24 United States v. Kim (2d Cir. 1999) 193 F.3d 567 ....ccccccccccsseceseseseeeeneeees 28 United States v. Nguyen (9th Cir. 1995) 73 F.3d 887 ...cccccsecscsssesseees 26, 30 United States v. Ozcelik (3d Cir. 2008) 527 F.3d 88......ccccccccceceseccesennees 28 United States v. Silveus (3d Cir. 2008) 542 F.3d 993 vcccccscesceseseseeees 29 United States v. Tipton (8th Cir. 2008) 518 F.3d 591 oc cccccccsceseeeseeeeee 28 iv United States v. Varkonyi (Sth Cir. Unit A 1981) 645 F.2d 453...28 United States v. Yoshida (9th Cir. 2002) 303 F.3d 1145.00...eee26 United States v. You (9th Cir. 2004) 382 F.3d 958 oo... ccccceecseeeterseneee 26 Villas at Parkside Partners vy. City ofFarmers Branch (Sth Cir. 2012) 675 F.3d 802...ccc ccecccsseccsssseseeeeeseensnsecesseeteeeesseseesssees 3] Zadvydasv. Davis (2001) 533 U.S. 678 ....cccccccccsccssscscesscecsssecessssecesesseeeesaes 13 Zamora-Quezada v. Commissioner ofInternal Revenue (U.S. Tax Ct. Oct. 27, 1997 No. 5194-95), 1997 WL 663164... 3] State Cases Langfeld v. City & County ofSan Francisco, (Super. Ct. S.F. City and County, 2008, No. CPF-08-508341)......... eee 5 Martinez v. The Regents of the University of California (2010) 50 Cal4th 1277 ooo. ccccceseceecsecsneeecceseseneeeesseeesesaeseesaeeesenseseenenees 30 Otten v. San Francisco Hotel Owners Ass’n (1946) 74 CalApp.2d 341 0... .eccecccccccesscssecessseeseeneceessesseeeceressseeeesseeeeseeeas 23 Worthington v. Unemployment Insurance Appeals Board, (1976) 64 CalApp.3d 384 oo... ce eeecceseeseeeseeeesteaeeeeeeessneeseneesaeeeeeseeensneeaas 23 Federal Statutes 8 U.S.C. § LOL et S€q. eeeeeeeecteenessceeeceeeeeeesseeeeceaetseeneessaeeeeseeneesteesneaes 10 8 U.S.C. 8 1158ceecee csecsssteeseeceseesssaeecsaesaeeseessseeseeeseaeeneennereas 11 8 U.S.C. § 1229(a)1)eeeeeeeeceeeeeecseeeeceeeeeseenseeeeesasteneseesenecseeeseneestenneeens 31 8 U.S.C. 8 12298eeeeesecneecneeneeeseeseeseessaeeasseessessassaeesenensseeaeeentes 11, 12 § 1229(C)(6) oes eeeeeeecesessssseseecseesseeecsectecessnerseeesaeessaeessneaeeseeeeeaeees 12 § 1229a(C)(7) .eeeeeccacsesssssseeseecseesaaeecectecesnnesseeeeateesseeseneaeeeaeeeeatees 12 8B U.S.C. 8 L229Dieeecenecneeeaecneeeeceeeceseeseeaeessaetsseseseeneeaeeessaeeateeaeenas 11 8 U.S.C. § 123 1(D)(3) occeescceeeeeenseneceeeceseceseseeseastaseeesseeeatesesaseaneeaeesas 11 8 U.S.C. § 1252eeecccesseeseetseeeeessescceeceeeeeseeeesneeseaesseseesssetaeeseeneeatenaeeeas 12 8 US.C. 8 L254a.ceeeeeteceeceseceeeeaeeseesaeeeetseessaesssesneesesearersnaeeanteneenate 14 8B ULS.C. § 1255 ooceeeseecesceeesnceseenesaeeesnesaseeeesaesetenestaneeterseas 11, 14,17 8 L255) eeecece cece cesccsesessessaeseeesssecsersneeesseesaeecsaeesaeeeseeeees 14, 17 § L255) voceeeeeeesscseseneeseeesseeecseessssaaeeceseesaecesseesaeeeeeeeteaeesas 14 8 U.S.C. 8 U.S.C. 8 U.S.C. 8 U.S.C. 8 U.S.C. §§ 1301-1306. cecccceccsscsssssesssreesessscsessecssessesessssvecsaseesarsessseesessvess 31 § 1324 vaeccccccccsecseesssuccessscsssecessssessesessecsuessssessresssseesssssssvessseesees 27, 29 § 1324(a)(L)(A)ccccsecccrseccsseseseesesecsessecssecasuesssesssuesessesesssessaeesseceseves 26 § 1324(a)(1)(A)(iii) veccccescsseeccssesscserecestesseeesssseeesee 25, 26, 27, 28, 29 § 1324.0 veeccccecsccersscsuecsssssessvecessesssssesessessseeessseessueesesnee 19, 23, 24, 25 §§ 1324a(a)(1)-(2) seccssccecssecsssecessesessesssecsssscsseesssvecssseesssesssesssesssees 19 § 1324a(a)(1)(B)..ccceccssesscsssesssessessesessecessseeesuccsssseessssecessuessneeesssees 19 § 1324a(a)(A)..cccccccescsceesescsssuccssseersecssessareesssecsseesessesesnecen 23, 24, 25 § 1324a(b) voeesceeccsceecssseecssscecsevecsssecesneessusecssucesssssesssuesessaeseseessssees 19 § 1324a(b)(1) cececccecsecsececsssescsseescssuccessecsseessssesersusesesnessassessanecenseess 19 §§ 1324a(€), (f)secscceccsseescsecessercsseccsseccsecesnecsssecsssecessesesseesstecsseeensees 19 § LB2A4D vec cccceseseesssuscessecesucessuccesuecesucceueesueesesecassscsaseseasuesssessuseessees 19 § LOL 1(D) cescececsecscsssscssscscssseesssecessuscestecesuvssssecssssvecssseessssetensecsensecs 3] Federal Rules and Regulations 8 CER. §§ 100.1 ef 50G cesscesesssessssscsssessssssvesssucsssesssssvessssecsssuessrsseessuesssieeesn 10 8 CER. §§ 208.16-18 vcccccecccsesscssessessescssssccssvecsuessesuecesueceessuesesssessseesssseees 11 B CER. § 212.5 ccecccccccsscscsssecsssevssssvscsssesesssecsssusessscserseessnesssssueessssesseesssseees 15 B CER. § 274a1 ccccccccsscscsssesesssecessucsessecsessecssssessseesssssesssuessssseessnseessseee 21, 22 § 27a. 1(L)-(g) cevssccvescessesessececssecsessecessecsssscessseeessevesesuesssssesesses 21, 22 § 274A. 1(h) ccececceccssesccsseecsssvecessesessecseruesesssesssvecessssesssueessseesaseeeenses 21 § 274.0.1(j) ceseccscecscsscscessseccsscecessesserucecsucsasssessssessssssesssseesssuesssseessses 22 8 CER. § 274a.2(a)(2) csscssesecscecscssescossessssesessucesuessessesssseessssuessssuesssuessssvess 19 B CER. § 2740.12 cecccccccssssescssecscssecessevsssssecessucesusessaesesueesssseesesseees 13, 14, 15 §§ 274a.12(a)(10-13).cscecccsececcssesscseescssecsssecssssesesssvecssssesssvesssveseease 13 § 274a.12(C)seccseeccssecsesseeesssucsessveceruesssuecsssessssvessssisesssvesesses 13, 14, 15 B CER. § 1003.1(b)cesscsccssescsssessssecscsssesessuccessecssssesssecesssessssnsesessucssseesssseess 12 B CER. § 1008.2 ccccccccsscsccsseecsssessssececsssecessucsesscessessessucesssecesssecersuessseessssvess 12 24 CAFR. 8 5.508(€) vecccescsseescssecsccsuesersccsssuvsessucssvecssssecssnesssssuesersucesssecssavesen 31 QA CAFR. § 5.520 .ccccccccccscsssesessveccsssesessscssrsvecsssecssesssssesssnesssssuesessseessueessneesen 31 31 CUFAR. § 1020.100(a)(3) secsscccsssecscsssecesssesesseessessessvecssseessesuesessiesesvessnssess 31 Vi 31 CLFAR. § 1020.220(a)(2)(i)(A)(4)(i) cceeccsseccsseceseecssvecssesssseesssessseesseesseeen 30 Other Authorities H.R. Rep No. 99-682, pt. 1 (1986), reprinted in 1986 U.S.C.C.A.N 5649.24 H.R. Rep. 99-682, pt. I, at 56-57 (1986) reprinted in 1986 U.S.C.C_.A.N 5649, at 5660-61oececeeeseeeeceeeeesaesaeeceeseesaeeceesessaeeeeeeessaeenseeseaneeees 22 Cal. Pen. Code § 836(a)........ccccccccccssccccssssesesssseecessnseeecsseececcesseeeeceessaeaaaeeeeens 9 vil Bar Misc. 4186 $202512 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE SERGIO C. GARCIA ON ADMISSION APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF OF THE AMERICANCIVIL LIBERTIES UNION, AMERICAN IMMIGRATION LAWYERSASSOCIATION, AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, ASIAN LAW CAUCUS, LEGAL AID SOCIETY —- EMPLOYMENT LAW CENTER, NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION, AND NATIONAL IMMIGRATION LAW CENTER IN SUPPORT OF APPLICANT SERGIO C. GARCIA Jennifer Chang Newell, Bernard P. Wolfsdorf, SBN 233033 SBN 107657 Michael Tan (Admitted In NY)* American Immigration Lawyers American Civil Liberties Union Association Foundation 1416 2™ Street Immigrants’ Rights Project Santa Monica, CA 90401 39 DrummStreet Telephone: 310-570-4088 San Francisco, CA 94111 Fax: 310-570-4080 Telephone: 415-343-0774 Fax: 415-395-0950 Lee Gelernt (Admitted In NY)* American Civil Liberties Union Foundation 125 Broad St., 18" Floor New York, NY 10004 Telephone: 212-549-2616 Fax: 212-549-2654 Attorneysfor Amici Curiae *Pro Hac Vice Application Pending Vill Amici curiae American Civil Liberties Union (ACLU), American Immigration Lawyers Association, ACLU of Northern California, ACLU of San Diego and Imperial Counties, ACLU of Southern California, Asian Law Caucus, Legal Aid Society - Employment Law Center, and National Immigration Law Center (collectively “Amici’’) respectfully request leave pursuant to Rule 8.520(f) of the California Rules of Courtto file the attached brief amici curiae in support of Applicant Sergio C. Garcia.' Each of amici has a strong interest in the issues before this Court. Amicus American Civil Liberties Unionis a nationwide, nonprofit, nonpartisan organization of more than 500,000 members,including approximately 100,000 members in California. The Immigrants’ Rights Project of the ACLU engagesin a nationwide program oflitigation and advocacy to enforce the constitutional and civil rights of immigrants. Amici ACLUof Northern California, ACLU of San Diego and Imperial Counties, and ACLUofSouthern California are the three California-basedaffiliates of the national ACLU. Defending and expandingthe rights of immigrants was oneof the founding principles of the ACLU and continuesas oneofits core missions. ACLU attorneys have developed significant expertise in immigrants’ rights under state and federal law,litigating cases to promote ' Pursuant to Rule 8.200(c)(3), amici state that no party in this case, and no person or entity other than amici, their members, or their counsel, authored the proposed amici brief in whole or in part or made any monetary contribution intended to fund the preparation or submission of the brief. 1X the equal treatment and civic integration of immigrants, protect the historic guarantee to judicial review, challenge draconian enforcement and detention practices, and enjoin unconstitutional state and local laws targeting immigrants. Amicus American Immigration Lawyers Association (AILA)is a national organization comprised of more than 11,000 lawyers practicing in the field of immigration law throughout the United States. AILA’s objectives are to advance the administration of law pertaining to immigration, nationality, and naturalization; to promote reforms in the laws;to facilitate the administration of justice; and to elevate the standard of integrity, honor, and courtesy of those appearing in representative capacity in immigration, nationality and naturalization matters. AILA’s memberspractice regularly before the Department of Homeland Security and before the Executive Office for Immigration Review,as well as before the United States District Courts, Courts of Appeals, and Supreme Court, often on a pro bono basis. AILA has appeared as amicus in many federal courts and somestate court cases in matters involving the proper interpretation of federal immigration laws. As the nation's premier bar association of immigration attorneys, AILA has a unique perspective and abiding interest in the extent to which alienage or immigration status may affect the ability to practice law. The mission of amicus the Asian Law Caucusis to promote, advance,and representthe legal and civil rights of Asian and Pacific Islander communities. The Asian Law Caucus is a memberof the Asian American Center for Advancing Justice. Recognizing that social, economic, political and racial inequalities continue to exist in the United States, the Asian Law Caucus is committed to the pursuit of equality and justice for all sectors of our society, with a specific focus directed toward addressing the civil and humanrights of, among other vulnerable communities, undocumented immigrants. As the oldest Asian Americanlegal rights organization devoted to protecting the civil rights ofall racial and ethnic minorities, we have a stronginterest in protecting the integrity of the core constitutional principle of equal protection under the law for all Americans regardless of their immigration status. As amicus, the Asian Law Caucus agrees that immigration status should notbe a factor in admitting qualified lawyers for service to the bar. Amicus the Legal Aid Society - Employment Law Center (LAS- ELC)is a San Francisco-based non-profit public interest law firm that specializesin litigation on behalf of historically subordinated and underrepresented worker communities, notably including personsofcolor, immigrant workers and language minorities. Among other areas, LAS- ELChas long been concerned with the rights of immigrant workers in the context of the Immigration Reform and Control Act of 1986 (“IRCA”), and Xi in recent years has undertaken substantiallitigation in this regard. As amicus, LAS-ELC hasaninterest in preserving a qualified applicant’s ability to join the Bar, irrespective of her alienage or immigrationstatus. Amicusthe National Asian Pacific American Bar Association (NAPABA)is the national association of Asian Pacific American attorneys, judges, law professors, and law students. NAPABArepresents the interests of over 40,000 attorneys and more than 60 local Asian Pacific American bar associations, who work variouslyin solo practices, large firms, corporations, legal services organizations, non-profit organizations, law schools, and government agencies. NAPABA’s members include immigration attorneys with significant expertise in immigration law issues. Since its inception in 1988, NAPABAhasservedasthe national voice for Asian Pacific Americansin the legal profession and has promotedjustice, equity, and opportunity for Asian Pacific Americans. NAPABAengagesin civil rights advocacy on various fronts and hasa particular interest in ensuring thatall well-qualified individuals are able to join the profession and practice law. As amicus, we believe that immigration status should not be an impedimentto joining the bar for an otherwise qualified applicant. Amicus National Immigration Law Center (NILC)is a national legal advocacy organization based in Los Angeles whose mission is to defend and promotethe rights and opportunities of low-income immigrants and their family members. NILC has earned a national leadership reputation for Xu its expertise in the legal rights of immigrants in a wide variety of areas, including immigration law, employment, and accessto public benefits and educational opportunities. Since 1979, NILC haslitigated key cases regarding immigrants’ rights, written basic legal reference materials relied on bythefield, trained countless advocates and attorneys, and provided technical assistance on a wide rangeof legal issues affecting low-wage immigrants. NILCinterest in the outcomeofthis case arises out of a concern that citizenship or immigration status not be a prerequisite for the practice of law. Amici have a strong interest in promoting the equal treatment of noncitizens, regardless of immigration status. Protecting the ability of noncitizens to obtain law licensesis in line with principles of fundamental fairness and equal opportunity and advancesthe goals of each of the amici. In light of the influential nature of this Court’s jurisprudence, amici also have an interest in urging the correct application of federal immigration law in this important case, as this Court’s approach mayinfluence otherstates’ decisions whetherto license undocumented immigrants for the practice of law. Amici(or their members) collectively have special expertise in statutory immigration law issues, having litigated numerouscases involving interpretation of the federal immigration laws, including the federal employmentand harboring laws, as well as the federal laws concerning Xlil immigration status and removal. For example, the ACLU and NILC recently filed an amici curiae brief in this Court in Martinez v. The Regents of the University of California (2011) 50 Cal.4th 1277. Amici also have litigated or participated as amici curiae in other federal and California cases concerning statutory immigration law issues. (See, e.g., Villas at Parkside Partners v. City ofFarmers Branch(Sth Cir. 2012) 675 F.3d 802 [concerning immigration status and rental to undocumented immigrants]; Lozano v. City ofHazleton (3d Cir. 2010) 620 F.3d 170 [concerning immigration status, harboring, and employmentof unauthorized aliens] judg. vacated and cause remandedfor further consideration in light of Chamber of Commerce v. Whiting (2011) 131 S.Ct. 1968; Keller v. City of Fremont (D. Neb. 2012 Nos. 8:10CV270, 4:10CV3140)__ F. Supp. 2d __, _ [2012 WL 537527, at *10]; Garrett v. City ofEscondido, (S.D. Cal. 2006) 465 F. Supp. 2d 1043 [concerning immigration status and rental to undocumented immigrants]; Langfeld v. City & County ofSan Francisco, (Super. Ct. S.F. City and County, 2008, No. CPF-08-508341) [as amici] [concerning whether the San Francisco municipal ID ordinance conflicted with federal harboring laws].) Amici seek to assist this Court’s consideration of this matter by addressing three specific immigration law issues relating to Questions3, 4, and 5 of this Court’s Order to Show Cause in order to demonstrate that the nation’s immigration laws pose no obstacle to the admissions of noncitizens XIV like Mr. Garcia who may currently lack a valid immigration status. First, amici clarify two common misconceptions regarding undocumented immigrants, explaining that the fact that a noncitizen is present in the United States without a valid immigration status indicates neither that any federal criminal law has been violated, nor that the federal government desires to remove (or will remove) him. Underthe federal system, immigration status is a complex legal and policy determination that may change overtime, and numerouspersonscurrently lacking federal permission to remain in the country may well eventually receive such permission. Second, amici explain that the provisions of the INA (and related regulations) restricting employmentof unauthorized aliens would not preclude an undocumented attorney from practicing law, because an attorney can practice law in a numberof ways that would not involve an employmentrelationship. Third, amici write to make absolutely clear that the conduct andintent involvedin a client’s retaining an undocumented attorney for the purpose of obtaining legal assistance would be wholly insufficient as a matter of law to trigger liability under the federal “harboring”statute, 8 U.S.C. § 1324(a)(1)(A)(ii). XV For the foregoing reasons, antici respectfully request that the Court accept the accompanyingbrieffor filing in this case. ~submitted, Dated: July 18th, 2012 Dorf Al Jenifer Chong 1.ell Jennifer Chang Newell, Bernard P. Wolfsdorf, SBN 233033 SBN 107657 Michael Tan (Admitted In NY)* American Immigration Lawyers American Civil Liberties Union Association Foundation 1416 2" Street Immigrants’ Rights Project Santa Monica, CA 90401 39 DrummStreet Telephone: 310-570-4088 San Francisco, CA 94111 Fax: 310-570-4080 Telephone: 415-343-0774 Fax: 415-395-0950 Lee Gelernt (Admitted In NY)* American Civil Liberties Union Foundation 125 Broad St., 18” Floor New York, NY 10004 Telephone: 212-549-2616 Fax: 212-549-2654 Attorneysfor Amici Curiae *Pro Hac Vice Application Pending xvi Bar Misc. 4186 $202512 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE SERGIO C. GARCIA ON ADMISSION AMICI CURIAE BRIEF OF THE AMERICANCIVIL LIBERTIES UNION, AMERICAN IMMIGRATION LAWYERSASSOCIATION, AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, ASIAN LAW CAUCUS, LEGAL AID SOCIETY — EMPLOYMENT LAW CENTER, NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION, AND NATIONAL IMMIGRATION LAW CENTER IN SUPPORT OF APPLICANT SERGIO C. GARCIA Jennifer Chang Newell, Bernard P. Wolfsdorf, SBN 233033 SBN 107657 Michael Tan (Admitted In NY)* American Immigration Lawyers American Civil Liberties Union Association Foundation 1416 2”Street Immigrants’ Rights Project Santa Monica, CA 90401 39 DrummStreet Telephone: 310-570-4088 San Francisco, CA 94111 Fax: 310-570-4080 Telephone: 415-343-0774 Fax: 415-395-0950 Lee Gelernt (Admitted In NY)* American Civil Liberties Union Foundation 125 Broad St., 18" Floor New York, NY 10004 Telephone: 212-549-2616 Fax: 212-549-2654 Attorneysfor Amici Curiae *Pro Hac Vice Application Pending INTRODUCTION This case concerns the application of Sergio C. Garcia, a noncitizen whocurrently lacks explicit federal permission to remain in the United States, to be licensed as a lawyer in California. Although the Committee of Bar Examiners of the State Bar of California recommendsMr. Garcia’s admission, this Court has issued an Order to Show Cause asking the parties to address whether federal immigration law precludes his admission or would counsel against his admission as a matter of policy. Amici, several nonprofit organizations with expertise in immigration law matters, write to explain that the nation’s immigration laws pose no obstacle to the admission of noncitizens like Mr. Garcia who maycurrently lack a valid immigration status, addressing three specific immigration law issues relating to Questions 3, 4, and 5 of the Court’s Order to Show Cause. ASan initial matter, amici agree with the parties that immigration statusis irrelevant to one’s capacity to serve as a memberofthe bar, and that undocumentedattorneys can make important, unique, and diverse contributionsto the practice of law. As the United States Supreme Court recently observedin a different context, “[t]he history of the United States is in part madeofthe stories, talents, and lasting contributions of those who crossed oceansand deserts to come here.” (Arizona v. United States (June 25, 2012 No. 11-182)__U.S.__,__ [__S.Ct__,__, 2012 WL 2368661, at *18].) Amici also agree with the parties that 8 U.S.C. § 1621 does not preclude this Court from granting a bar license to an undocumented immigrant. In this brief, we address three points concerning the requirements of the Immigration and Nationality Act (“INA”). First, amici clarify two common misconceptions regarding undocumented immigrants, explaining that the fact that a noncitizen is present in the United States without a valid immigration status indicates neither that any federal criminal law has been violated, nor that the federal government desires to remove (or will remove) him. Indeed, under the federal system, immigration status is a complex legal and policy determination that may change over time, and numerous personscurrently lacking federal permission to remain in the country may well eventually receive such permission. Second, amici explain that the provisions of the INA (and related regulations) restricting employment of unauthorized aliens would not preclude an undocumentedattorney from practicing law, because an attorney can practice law in a numberof ways that would not involve an employmentrelationship. Third, amici write to make absolutely clear that the conduct and intent involved in a client’s retaining an undocumented attorney for the purpose of obtaining legal assistance would be wholly insufficient as a matter of law totrigger liability underthe federal “harboring”statute, 8 U.S.C. § 1324(a)(1)(A)(iii). INTERESTS OF AMICI CURIAE Amicus American Civil Liberties Union (ACLU)is a nationwide, nonprofit, nonpartisan organization of more than 500,000 members. The Immigrants’ Rights Project of the ACLU engagesin a nationwide program of litigation and advocacyto enforce the constitutional and civil rights of immigrants. Amici ACLU of Northern California, ACLU of Southern California, and ACLU of San Diego and Imperial Counties are the three California-basedaffiliates of the national ACLU. The ACLU hasspecial expertise in statutory immigration law issues, havinglitigated numerous cases involving interpretation of the federal laws concerning employment, harboring, and immigrationstatus. (See, e.g., Lozano v. City ofHazleton (3d Cir. 2010) 620 F.3d 170 [ immigration status, harboring, and employment] judg. vacated and cause remandedfor further consideration in light of Chamber of Commerce v. Whiting (2011) 131 S.Ct. 1968; Garrett v. City ofEscondido, (S.D. Cal. 2006) 465 F. Supp. 2d 1043 [immigration status and rental]; Langfeld v. City & County ofSan Francisco, (Super.Ct. S.F. City and County, 2008, No. CPF-08-508341) [as intervenors] [whether municipal ID ordinance conflicted with federal harboring laws].) Amicus American Immigration Lawyers Association (AILA) is a national organization comprised of more than 11,000 lawyers practicing in the field of immigration law throughout the United States. AILA’s objectives are to advance the administration of law pertaining to immigration, nationality, and naturalization; to promote reformsin the laws; to facilitate the administration of justice; and to elevate the standard of integrity, honor, and courtesy of those appearing in representative capacity in immigration, nationality and naturalization matters. AILA’s members practice regularly before the Department of Homeland Security and before the Executive Office for Immigration Review, as well as before the United States District Courts, Courts of Appeals, and Supreme Court, often on a pro bono basis. AILA has appeared as amicus in many federal courts and somestate court cases in matters involving the proper interpretation of federal immigration laws. As the nation's premier bar association of immigration attorneys, AILA has a unique perspective and abiding interest in the extent to which alienage or immigration status may affect the ability to practice law. The mission of amicus the Asian Law Caucusis to promote, advance,and representthe legal and civil rights of Asian and Pacific Islander communities. The Asian Law Caucus is a memberof the Asian American Center for Advancing Justice. Recognizing that social, economic, political and racial inequalities continue to exist in the United States, the Asian Law Caucus is committed to the pursuit of equality and justice for all sectors of our society, with a specific focus directed toward addressing the civil and humanrights of, among other vulnerable communities, undocumented immigrants. As the oldest Asian American legal rights organization devoted to protecting the civil rights of all racial and ethnic minorities, we havea strong interest in protecting the integrity of the core constitutional principle of equal protection under the law for all Americans regardless of their immigration status. As amicus, the Asian Law Caucus agrees that immigration status should not be a factor in admitting qualified lawyers for service to the bar. Amicus the Legal Aid Society - Employment Law Center (LAS- ELC)is a San Francisco-based non-profit public interest law firm that specializes in litigation on behalf of historically subordinated and underrepresented worker communities, notably including personsofcolor, immigrant workers and language minorities. Among other areas, LAS- ELC haslong been concerned with the rights of immigrant workers in the context of the Immigration Reform and Control Act of 1986 (“IRCA”), and in recent years has undertaken substantiallitigation in this regard. As amicus, LAS-ELChasaninterest in preserving a qualified applicant’s ability to join the Bar, irrespective of her alienage or immigration status. Amicus National Asian Pacific American Bar Association (NAPABA)is the national association of Asian Pacific American attorneys, judges, law professors, and law students. NAPABArepresents the interests of over 40,000 attorneys and more than 60 local Asian Pacific American bar associations, who work variously in solo practices, large firms, corporations, legal services organizations, non-profit organizations, law schools, and government agencies. NAPABA’s membersinclude immigration attorneys with significant expertise in immigration law issues. Since its inception in 1988, NAPABAhasservedas the national voice for Asian Pacific Americansin the legal profession and has promotedjustice, equity, and opportunity for Asian Pacific Americans. NAPABAengagesin civil rights advocacy on various fronts and has a particular interest in ensuring that all well-qualified individuals are able to join the profession and practice law. As amicus, we believe that immigration status should not be an impedimentto joining the bar for an otherwise qualified applicant. Amicus National Immigration Law Center (NILC)is a national legal advocacy organization based in Los Angeles whose mission is to defend and promote the rights and opportunities of low-income immigrants and their family members. NILC has earned a national leadership reputation for its expertise in the legal rights of immigrants in a wide variety of areas, including immigration law, employment, and access to public benefits and educational opportunities. Since 1979, NILC haslitigated key cases regarding immigrants’ rights, written basic legal reference materials relied on bythefield, trained countless advocates and attorneys, and provided technical assistance on a wide range of legal issues affecting low-wage immigrants. NILC’s interest in the outcomeofthis case arises out of a concern that citizenship or immigration status not be a prerequisite for the practice of law. ARGUMENT I. A Person’s Lack of a Valid Immigration Status Indicates Neither That He Has Committed Any Crime, Nor That He Will Be Removed from the United States. Amici begin by addressing two common misconceptions concerning undocumented immigrants: that their mere presenceis a crime, and that the federal governmentaffirmatively desires to remove, and will remove,all persons lacking a valid immigration status. To the contrary, a noncitizen whois present in the United States without authorization need not have violated any federal criminal law to arrive in that circumstance. Moreover, immigration status is fluid and complex. Manypersonslacking a valid status may haveeither implicit or explicit permission to remain in the United States. And manypersons whopresently lack status may acquire the right to remain permanently in the United States. As a result, it would be incorrect to assume that an undocumented immigrant applying for a bar license resides here against the wishes of the federal government,or that he would necessarily face removal from the United States in the near future. A. Being Present in the United States Without Authorization Is Not a Crime. The U.S. Supreme Court recently reaffirmed that, “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States.” (Arizona, supra, 2012 WL 2368661, at p *13 [citing INS v. Lopez— Mendoza (1984) 468 U.S. 1032, 1038].) The federal statutes are plain on this point, as no federal law makesit a crimeto be present in the United States without a valid immigration status. Rather, such presenceis prohibited only by civil federal immigration laws. (See Martinez-Medinav. Holder (9th Cir. 2011) 673 F.3d 1029, 1035-36.) Significantly, presence without a valid immigration status is not synonymouswithillegal entry into the United States.” Thus, although federal law criminalizesillegal entry, 8 U.S.C. § 1325, andillegal re-entry, 8 U.S.C. § 1326, no provision makesit a crime to be present without authorization or removable without other conduct. (Cf. Martinez-Medina, supra, 673 F.3d at p. 1035 [noting an admission ofillegal presence does not constitute probable cause of a criminal violation of illegal entry or reentry].) The distinction between entering the United States and being present in the United States without a valid immigration status is important. For example, a person mayenter the United States lawfully on a visa, but may remain beyondthe period authorized by the visa. Such a person would be present without authorization and removable, but would not have illegally entered and would not be subject to any criminal chargeas a result of the visa overstay. * Moreover, the offense of illegal entry occursat the time of entry and is not a continuing offense for which a person present without authorization could be arrested absent a warrant, unless that offense was committed in the presenceof the arresting officer. (United States v. Cores (1958) 356 U.S. 405, 408 fn. 6; Cal. Pen. Code § 836(a).) B. An Individual’s Present Lack of a Valid Immigration Status Does Not Mean He Will Be Removed. It is simply incorrect to assumethat lack of a valid immigration status indicates that a noncitizen will be removed from the UnitedStates. Rather, whether a noncitizen will be permitted to remain in the United States is a complex legal and policy judgment based on numerousfactors, including not only enforcementpriorities, but humanitarian considerations, foreign relations concerns, and other factors reflected in the federal immigration laws. Under the complex federal system, immigration status is far from static, and present lack of explicit permission to remain in the United States is by no means determinative of whether a noncitizen will be subject to removal. Numerouspersons whopresently lack status may receive permission from the federal governmentto stay, whether permanently or temporarily. “Federal governance of immigration and alien status is extensive and complex.” (Arizona, supra, 2012 WL 2368661, at p. *5.) The INA andits implementing regulations set forth detailed removal procedures which determine whether a person may remainin the country. (See 8 U.S.C. §§ 1101 et seqg.; 8 C.F.R. §§ 100.1 et seq.; see also Arizona, supra, 2012 WL 2368661, at p. *5 [explaining that “Congress has specified which aliens may be removed from the United States and the procedures for doing so.”].) It is those procedures, which include multiple discretionary decisions by 10 federal officials, that determine whether an individual may remain in the United States—notan individual’s immigrationstatus at the outset of the process. Extensive procedural protections are generally applicable to immigrants in removal proceedings, such as a pre-removal adversarial proceeding before a federal immigration judge, including notice and an opportunity to be heard. (See 8 U.S.C. § 1229a.) During removal proceedings, the INA providesthat certain immigrants whoare otherwise removable may obtain relief from removal, including relatives of U.S. citizens, certain individuals who would suffer hardship upon deportation, and individuals fleeing persecution andtorture. (See 8 U.S.C. §§ 1158 [asylum]; 1229b [cancellation of removal]; 1255 [adjustmentof status]; 1231(b)(3) [withholding of removal]; 8 C.F.R. §§ 208.16-18; see also Arizona, 2012 WL 2368661, at *5-*6 [noting availability of discretionary relief from removal].) Thus, under the system established by Congress,it is simply impossible . . . to determine [ex ante] which aliens the Federal Governmentwill eventually deport, which the Federal Government will permit to stay, and which the Federal Governmentwill ultimately naturalize. Until an undocumentedalien is ordered deported by the Federal Government, no [one] can be assured that the alien will not be found to have a federal permissionto reside in the country, perhaps even as a citizen. Indeed, even the Immigration and Naturalization Service cannot predict with certainty whether 11 any individualalien hasa right to reside in the country until deportation proceedings have run their course. (Plyler v Doe (1982) 457 U.S. 202, 241 fn. 6 (conc. opn. of Powell, J.); see also id. at 236 (conc. opn. of Blackmun,J.) [“[T]he structure of the immigration statutes makesit impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported”’); id. at 226 (maj. opn. of Brennan, J.) [“In light of the discretionary federal powerto grantrelief from deportation, a State cannotrealistically determine that any particular undocumentedchild will in fact be deported until after deportation proceedings have been completed.”].) Notably, even an immigration judge’s issuance of a removal orderis not a conclusive determination regarding whether a noncitizen may remain, because Congress enabled individuals to seek reconsideration, reopening, and administrative and judicial review of their removal orders. (See 8 U.S.C. §§ 1229a(c)(6), (7) [motions to reconsider and reopen removal proceedings], 1252 [judicial review]; 8 C.F.R. §§ 1003.1(b) [administrative appeal] and 1003.2 [motions to reopen administrative appeal]; see generally Dada v. Mukasey, (2008) 554 U.S. 1, 18 [describing motions to reopen as an “important safeguard”of the noncitizen’s rights].) Further, some individuals with final removal orders who have exhaustedtheir appeals maystill be permitted to remain and work in the United States, such as personsreleased from detention because their removal is not reasonably 12 foreseeable. (See Clark v. Martinez (2005) 543 U.S. 371; Zadvydasv. Davis (2001) 533 U.S. 678.) Moreover, even apart from the removal process, numerous categories of persons wholack a valid immigration status are permitted to reside here with the full knowledge of the U.S. government. (See Lozano v. Hazleton (3d Cir. 2010) 620 F.3d 170, 222 judg. vacated and cause remanded for further consideration in light of Chamber of Commercev. Whiting (2011) 131 S.Ct. 1968; Pl.’s Mot. for Prelim. Inj. and Mem. of Law in Supp. Thereof, at 4-6, United States v. Arizona (D. Ariz. docketed July 6, 2010 No. 2:10-CV-1413-PHX-SRB) 703 F. Supp. 2d 980, ECF No. 6 [hereinafter “U.S. SB 1070 Mot.”] [noting DHS’s authority “to permit aliens, including those who would otherwise be inadmissible, to temporarily enter and remain”in the U.S.].) For example, DHShaslong exercised discretion to place an otherwise removable noncitizen in a “deferred action” category, allowing the person to remain in the country on humanitarian grounds. (See, e.g., David v. INS, (8th Cir. 1977) 548 F.2d 219, 223 & fn. 5; see also, e.g., Reno v. Am.-Arab Anti-Discrimination Comm. (1999) 525 U.S. 471, 483-87 [recognizing extent of discretion in removal proceedings].) Federal law also authorizes certain categories of noncitizens to receive federal permission to work, and implicitly to stay, in the country even though they maylack a valid immigration status. (See 8 CER. §§ 274a.12(a)(10-13), (c)(8-11, 14, 18-20, 22, 24); accord U.S. SB 13 1070 Mot., at p. 5 [certain individuals “may be provided employment authorization while the federal governmentevaluates [their] immigration status’’].) Persons with pending applications to adjust to lawful permanent resident status, such as survivors of domestic violence, asylum applicants and others, are also permitted to remain in the country without formal status. (See 8 U.S.C. §§ 1254a; 1255(i), (m); 8 C_F.R. § 274a.12(c)(8,9, 19).) Notably, persons with a “deferred action”classification, a work permit, or a pending immigration application are nonetheless presentin the United States without any formal immigration status. Asthese aspects of the federal immigration scheme demonstrate, [a] principal feature of the removal system is the broad discretion exercised by immigration officials.” (Arizona, 2012 WL 2368661, at p. *5.) The federal government’s discretion includes the powerto decline to initiate removal proceedings against a removable noncitizen, to deem removalof certain categories of removable noncitizens (such as noncriminals) a low enforcementpriority, or to grant affirmative permission to remain in the United States. As the Supreme Court recently explained: Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workerstrying to support their families, for example, likely pose less danger than alien smugglers or aliens who commita serious crime. The equities of an individual case may turn on manyfactors, including whetherthe alien has children born in the United States, long ties to the community, or a record of 14 distinguished military service. Somediscretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. (Id. at p. *6; see also 8 C.F.R. §§ 212.5 [parole], 274a.12(c)(14) [deferred action]; Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration EnforcementPriorities of the Agencyfor the Apprehension, Detention, and Removal of Aliens (June 17, 2011) available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial- discretion-memo.pdf [hereinafter “Morton Memorandum’’].) Indeed, just last month, the Secretary of Homeland Security announcedthat certain undocumented young people who cameto the United States as children will be able to seek deferred action and be permitted to remain in the country on a temporary basis.’ Qualified individuals will receive deferred action for two years, subject to renewal, and the opportunity to seek a work permit. Even noncitizens subject to final orders of removalwill be eligible to apply. (See Memorandum from Janet Napolitano, Secretary of HomelandSecurity, to David V. Aguilar, Acting Commissioner, U.S. Customs and BorderPatrolet al., Exercising * Applicants must have come to the United States before the age of 16; be under the age of 30; lived in the country continuously for five years; graduated from high school, obtained a GED,or servedin the military; and have no or a very minor criminal record. 15 Prosecutorial Discretion with Respect to Individuals Who Cameto the United States as Children (June 15, 2012) available at http://www.dhs.gov/xlibrary/assets/s l-exercising-prosecutorial-discretion- individuals-who-came-to-us-as-children.pdf.) Individuals eligible for this new federal policy are, by definition, present in the United States without a valid immigrationstatus. Although Mr. Garcia may notbe eligible for deferred action under this particular policy, he is a prime example of someone who,while currently lacking a valid immigration status, resides here with the knowledge andtacit approval of the federal government, and is a low priority for removal under the agency’s prosecutorial discretion guidelines. Mr. Garcia was brought by his parents from Mexico to the United States when he was 17 months old. He lived in the country until around the age of eight or nine, at which point his parents took him back to Mexico. The family returned when Mr. Garcia was 17 years of age. He haslived in the United States since that time, graduating college and law school, and passing the California Bar Examination. (Opening Br. of the Comm. of Bar Examiners of the State Bar of California at 1 [hereinafter “State Bar Br.’’].) Moreover, Mr. Garcia is waiting to adjust his status to lawful permanentresidence. His father, who wasa lawful permanentresidentat the time, and who has since becomea US. citizen, filed a Form I-130 petition for an immigrant visa for his son on November18, 1994. That 16 petition was approved in January 1995. Since that time—for more than 17 years—Mr. Garcia has been waiting, without a valid immigration status, for his priority date to become current. (/d.. at 1 & fn. 3.) Once his priority date finally becomescurrent, he will be eligible to adjust his status to lawful permanentresidence without having to leave the country. (See 8 U.S.C. § 1255(G).) In light of these equities, Mr. Garcia clearly would merit a favorable exercise of prosecutorial discretion; he is a low priority for removal. (See Morton Memorandumat4 [listing factors].) ok 2g ok In sum,the fact of a bar applicant’s presence in the United States without authorization does not meanthat he has violated any criminal laws, that he is likely to be removed from the United States in the near future, or even that he remains in the United States without the knowledgeor permission of the federal government. To the contrary, under the federal system, immigration status is fluid and a person wholacks permission to remain in the United States at one point in time may well be granted such permission, either permanently or temporarily. * Asthis caseillustrates, there is an extremely long waitingline for persons born in Mexico based on per country limitations. Because Mr. Garcia is Mexican-born,his petition would have had to have been filed before June 8, 1993 to be “current” this month. In contrast, persons born in other countries whosepetitions were filed by their U.S. citizen parents prior to July 8, 2005, are eligible to apply for immigrant visas in July 2012. (See U.S. Departmentof State, Visa Bulletin for July 2012, available at http://www.travel.state.gov/visa/bulletin/bulletin_5733.html [explaining visa allocation rules].) 17 Il. The INA Does Not Prohibit an Attorney Who Lacks Work Authorization From Practicing Law. The Court’s Order to Show Causeasks whetherthe grant of a law license impliedly represents that the licensee legally may be employedas an attorney in the United States. As the Committee of Bar Examiners of the State Bar has shown, the answerto this question is, unequivocally, no. While a license to practice law is a necessary prerequisite to employment as an attorney in California, a license alone doesnotestablish or imply that an attorney possesses workauthorization in the United States. The exclusive terms under which an individual mayestablish authorization to be employedin the United States are provided within § 274A of the INA,8 U.S.C. § 1324a, and its implementing regulations, and a state-issued license is wholly separate from and has no bearing on the question of federal permission to work. (See State Bar Br. at 20.) Amici write separately to elaborate that the relevant INA provisions do not prohibit or prevent an attorney wholacks work authorization from practicing law. Although such an attorney may not be employed as an employee, he may nonethelessutilize his law license in a number of respects that are not prohibited by federal immigration law, including by performing pro bono workor establishing a solo law practice. 18 A. A Brief Summaryof the INA’s EmploymentProvisions. In 1986,for the first time in the nation’s history, Congress madeit unlawful to hire an alien for employment, or to continue to employanalien, “knowingthe alien is an unauthorized alien.” (8 U.S.C. §1324a(a)(1)-(2).) At the same time, Congress established an “employmentverification system” (commonly knownasthe “I-9 process”) that requires potential employees to provide documents establishing identity and employment authorization, and requires employers to execute an I-9 form. (8 U.S.C. §1324a(b)(1); 8 C.F.R. §274a.2(a)(2).) Pursuant to these amendments madeto the INA as part of the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359, employers must review employee documentsat the beginning of employmentto ascertain whether an individualis a United States citizen or a work-authorized alien. (8 U.S.C. § 1324a(b).) These requirements apply whenever an individualis “hire[d] for employment”in the United States. (8 U.S.C. § 1324a(a)(1)(B); see also § 1324a(a)(1)(A).) Civil and criminal penalties may be levied against employers who violate the employmentauthorization requirements. (8 U.S.C. § 1324a(e), (f).) In addition, IRCA added anti-discrimination provisions to protect employees from unfair immigration-related employmentpractices by unscrupulous employers. (8 U.S.C. § 1324b.) 19 B. Employment Authorization is Necessary Only When an Individual Seeks to be Employed by an Employerin the United States. The federal prohibition on hiring unauthorizedaliens and related verification requirements applies to the employment by employersof employees in the United States. These requirements do not generally apply to the work of persons who owntheir own businesses, such as bonafide independentcontractors, or to non-remunerative work. Federal law would therefore not preclude a noncitizen attorney wholacks work authorization from practicing law in any capacity that does not involve serving as an employee, such as engaging in pro bono legal work, writing and publishing on legal subjects in law reviewsoronline,or, critically, establishing a solo legal practice. Nor does the law require verification of an employee’s right to be employedif the person rendering services does so outside of the United States. Thus, an attorney admitted in California who worksin Mexicoor the United Kingdom doesnot need to show proofof the ability to be employedin the United States. Specifically, the definitions of “employee” and “employer”in the pertinent Department of Homeland Security regulations are only triggered when remunerationis involved, and, moreover, expressly exclude independentcontractors: (f) The term employee meansan individual who provides services or labor for an employer for wagesor other remuneration but does not mean independent contractors as 20 defined in paragraph (j) of this section or those engaged in casual domestic employmentas stated in paragraph (h) of this section; (g) The term employer means a personorentity, including an agent or anyone acting directly or indirectly in the interest thereof, who engagesthe services or labor of an employee to be performed in the United States for wages or other remuneration. In the case of an independent contractor or contract labor or services, the term employershall mean the independent contractor or contractor and not the person or entity using the contract labor; (8 C.F.R. § 274a.1(f)-(g), emphasis added.) Significantly, the regulations make clear that when an independent contractoris retained, “the person or entity using the contract labor” is “not” an “employer.” (/d. at § 274a.1(g).) Thus, under the federal regulations, when a client retains a lawyer, the client is not an employer and therefore has no obligation to refrain from retaining an unauthorized alien or to verify the work authorization status of the attorney. Further, the regulations define “employment”as “any service or labor performed by an employee for an employer within the United States.” (8 C_F.R § 274a.1(h).) The definition of employment reinforces that independent contractor-type work is not covered, providing that “employment does not include casual employment by individuals who provide domestic service in a private homethatis sporadic, irregular or intermittent.” (8 C.F.R. § 274a.1(h); see also H.R. Rep. 99-682, pt. I, at 56-57 (1986) reprinted in 1986 21 U.S.C.C.A.N 5649, at 5660-61 [stating that “[iJt is not the intent of this Committee that sanctions would applyin the case of casual hires (i.e., those that do not involve the existence of an employer/employee relationship)” and noting an exception for unions and similar entities].) In addition, although the regulations provide that the determination of whether an individual is an independent contractor is made on a case-by-case basis, they nevertheless make clear that an “independentcontractor” is an individual or entity “who carr[ies] on independentbusiness, contract[s] to do a piece of work according to their own means and methods,and [is] subject to control only as to results.” (8 C.F.R. § 274a.1Q).) The factors to be considered in determining whethera person is an independentcontractor also make clear that a solo legal practitioner easily qualifies. (See ibid. [“Factors to be consideredin that determination include, but are not limited to, whether the individualor entity: supplies the tools or materials; makes services available to the general public; works for a numberof clients at the same time; has an opportunity for profit or loss as a result of labor or services provided; invests in the facilities for work; directs the order or sequence in which the workis to be done and determines the hours during which the workis to be done.”]; see also Worthington v. Unemployment Insurance Appeals 22 Board, (1976) 64 Cal.App.3d 384, 387 [holding that an attorney was independent contractor because “he made agreements with clients for compensation . . . for outright or for contingent remuneration” and was “not subject to his client’s direction as to the mannerof performing histasks, but . . . was expected to use his skills to produce results whether these were recoveries of money,the supplying of advice, the drafting of instruments or whatever productof the lawyer’s expertise each client may have contracted for.”’]; Otten v. San Francisco Hotel Owners Ass’n (1946) 74 Cal.App.2d 341, 343 [holding that an attorney who “maintained his separate office in San Francisco where he engaged in the general practice of the law.... was nota servantof the defendants but an independentcontractor retained to perform professional services”]; McCarthy v. Recordex Services, Inc., 80 F.3d 842, 853 (3d Cir. 1996) [noting that “attorneys are ... independentcontractors’’].) These definitions make explicit that only employers and employees in the United States are subject to the hiring prohibition and verification requirements in 8 U.S.C. § 1324a. Because a client whoretains an attorney is not an employer, and an attorney whois retained by a client is not an employee of the client, the immigration laws do not preclude attorneys who are solo practitioners from engaging in remunerative work on behalf of a client. Similarly, the immigration laws would not preclude an attorney who 23 lacks federal employmentauthorization from engaging in nonremunerative work, such as publishing legal articles or representing clients pro bono, or from providing legal services abroad. Finally, 8 U.S.C. § 1324a(a)(4) provides that a person may not circumvent the prohibition on hiring unauthorized aliens for employment by “us[ing] a contract[] [or] subcontract . . . to obtain the labor of an alien in the United States knowingthat the alien is an unauthorized alien... with respect to performing such labor.” Section 1324a(a)(4) prohibits a person or business from “‘us[ing] a contract ... to obtain the labor of an alien” when he knowshecould not directly employ that person to perform the same labor. Thus, the Executive Office for Immigration Review (the federal agency charged with interpreting the INA) has explained that § 1324a(a)(4) means“that a person or business that uses contract labor to circumvent the law against knowingly hiring unauthorizedaliens[] will be considered to have ‘hire[d]’ the alien ‘for employment,’ in violation of § 1324a(a)(1)(A).” (United States v. General Dynamics Corp. (O.C.A.H.O. 1993) 3 OCAHO 517 [1993 WL 403774, at *15]}). “Congress enacted § 1324a(a)(4) to avoid the creation of a loophole which would have enabled a person or business to use subcontractors or create ‘independent contractor’ relationships with workers to avoid liability for employer sanctions.” (/d. at *15 fn. 22; see also H.R. Rep No.99-682,pt. 1, at 62 (1986), reprinted in 1986 U.S.C.C.A.N 5649, 5666. [““Some sanctions laws of foreign countries 24 have provedto be ineffective because of loopholes which enable the use of subcontractors to avoid liability. The Committee intends to prevent any such loophole in the instant legislation.”’].) In sum, § 1324a(a)(4) prohibits using a contractual relationship to avoid IRCA liability for employing someoneit would be unlawful to employdirectly. Because a client is never in a position to directly employ a sole practitioner, this provision plainly does not prohibit a potential client from retaining an attorney such as Mr. Garcia for his legal services as a solo practitioner. II. Retention of an Undocumented Attorney Is Insufficient As a Matter of Law to Constitute Harboring Finally, amici write to dispel any potential concernsthat a client who retains an undocumented attorney could possibly be held liable pursuantto the federal criminal harboring statute, 8 U.S.C. § 1324(a)(1)(A)(iii). The conduct and intent involved in retaining an undocumentedattorney for the purposeof securing legal assistance are clearly legally insufficient to incur liability for harboring an undocumented immigrant. Section 1324(a)(1)(A)(iii) punishes any person who while “knowing or in reckless disregard of the fact that an alien has cometo, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including in any building or any means of transportation.” An attorney-client relationship, entered into by the 25 client for the purpose of securing legal assistance to the benefit of the client, and not to avoid an immigrant’s detection by the immigration authorities, plainly could not come within the statutory language even wherethe attorney is knownto be present in the United States without a valid immigration status. To violate 8 U.S.C. § 1324(a)(1)(A)(iii), an individual must take active steps to conceal, harbor or shield undocumented immigrants from detection. The Ninth Circuit has repeatedly held that a defendant cannot be convicted of any of the offenses under § 1324(a)(1)(A), including § 1324(a)(1)(A)Gii), unless “the government . . . show[s] that the defendant acted with criminalintent, i.e., the intent to violate United States immigration laws.” (United States v. Yoshida (9th Cir. 2002) 303 F.3d 1145, 1149,alterations omitted and italics added [quoting United Statesv. Barajas-Montiel (9th Cir. 1999) 185 F.3d 947, 951]; see also United States v. You (9th Cir. 2004) 382 F.3d 958, 966, originalitalics and alternation [holding that a conviction under § 1324(a)(1)(A)(iii) requires a showing that the defendant acted with “the purpose of avoiding [the aliens’ ] detection by immigration authorities”]; United States v. Nguyen (9th Cir. 1995) 73 F.3d 887, 893 [holding that “to convict a person for violating Section 1324(a)(1)(A), the government must showthat the defendant acted with criminal intent”]; Ninth Circuit Model Criminal Jury Instructions (2003), 9.3 Alien—Concealment(8 U.S.C. § 1324(a)(1)(A)(aii)), original 26 brackets [providing that in order to establish guilt, the government must prove beyond a reasonable doubtthat, inter alia, “Fourth, the defendant concealed [alien] for the purpose of avoiding [alien]’s detection by immigration authorities.”], available at http://archive.ca9.uscourts.gov/web/ sdocuments.nsf/dcf4f9 1445589 1d4882564b40001f6dc/al4ddcb8 1 170fbc68 82564bb0004fa44?OpenDocument; cf. United States v. Barajas-Montiel, supra, 185 F.3d at p. 953 fn. 7 [conviction for “br[inging] in” alien without prior official authorization under § 1324(a)(2) requires finding that defendant “intendedto violate immigration laws”’].) The retaining of an undocumentedattorney for the purpose of obtaining legal assistance is a type of innocent conductthat does not involve any specific intent on the part of the client to avoid the attorney’s detection by immigration authorities, and would therefore fall far short of the applicable standard. Evenapart from the lack of specific criminalintent, the act of retaining an undocumentedattorney could not possibly amountto the required conduct of concealing, affording shelter to, or shielding from detection. (See 8 U.S.C. § 1324(a)(1)(A)(ii); United States v. Acosta de Evans (9th Cir. 1976) 531 F.2d 428, 430 [defining “harboring”as “‘afford[ing] shelter to” an alien whois present in the United States without permission].) Indeed, rather than affording secrecy or concealmentto the attorney, retaining an attorney’s services frequently requires the attorney to appear publicly and notoriously, arguing in court, negotiating with 27 opposing counsel, appearing before administrative bodies, and potentially advocating or negotiating with governmental parties. Retaining an attorney to provide legal services is wholly inconsistent with avoiding the attorney’s detection by governmental authorities. In sum, under controlling Ninth Circuit precedent, a client who retains an undocumentedattorney in California would notbe held liable pursuantto § 1324(a)(1)(A)(iii). Amici are unaware of any federal case finding harboring liability premised on an arms-length business transaction with a known undocumented immigrant such as retaining an undocumented lawyer for a legal matter. To the contrary, the federal courts have held that ordinary > Although the law in othercircuits would not be applicable because a client in California would be subject to Ninth Circuit law, amici note that other courts of appeals have held that liability under § 1324(a)(1)(A)(iii) requires conductthat tends to concealthe alien or prevent his detection by governmentauthorities and which substantially facilitates an unlawfully present alien’s remaining in the United States. (See United States v. Kim (2d Cir. 1999) 193 F.3d 567, 574) [holding that harboring is conduct “tending substantially to facilitate” an undocumented person remaining in United States illegally and “to prevent governmentauthorities from detecting his unlawful presence”]; United States v. Ozcelik (3d Cir. 2008) 527 F.3d 88, 100 [same]; United States v. Varkonyi (5th Cir. Unit A 1981) 645 F.2d 453, 456, 459 [holding that predecessor provision “proscribes any conduct which tendsto substantially facilitate an alien’s remainingin the United States illegally,” and emphasizing that “implicit in the wording ‘harbor, shield, or conceal’, is the connotation that something is being hidden from detection’’]; see also Susnjar v. United States (6th Cir. 1928) 27 F.2d 223, 224 [holding that “the natural meaning of the word ‘harbor’ [is] to clandestinely shelter, succor, and protect improperly admitted aliens”]; United States v. Tipton (8th Cir. 2008) 518 F.3d 591, 595, internal quotations and alternations omitted [harboring conviction requires “conduct that substantially facilitates an alien’s remaining in the United States illegally”’].) 28 transactions or interactions such as renting to or residing with known undocumented noncitizensare legally insufficient to incur liability under § 1324(a)(1)(A)Gii). For example, in United States v. Costello, Judge Posner of the Seventh Circuit recently held that providing an undocumented immigrant with a place to stay was inadequate to support liability under § 1324(a)(1)(A)Gii), and reversed the conviction of a defendant who allowed her undocumented immigrant boyfriend to reside with her. (See United States v. Costello (7th Cir. 2012) 666 F.3d 1040, 1050; see also, e.g., DelRio-Mocci v. Connolly Properties, Inc. (3d Cir. 2012) 672 F.3d 241, 248) [holding that, although defendant landlords were “likely aware that someoftheir residents lacked lawful immigration status and did nothing to alert federal authorities to this fact,” this was insufficient to constitute harboring]; United States v. Silveus (3d Cir. 2008) 542 F.3d 993, 1003-04 [cohabitation with an undocumented immigrantlegally insufficient to support harboring conviction]; United States v. Alabama (N.D. Ala. 2011) 813 F. Supp. 2d 1282, 1335,italics omitted [stating “no Fifth Circuit or Eleventh Circuit case has held that the mere provision of rental housing to someonehe kneworhad reason to know was an unlawfully-present alien” violates 8 U.S.C. § 1324 and collecting cases].) The federal case law reflects an understanding bythe courtsthat, particularly in light of the fact that “[t]he numberofillegal aliens in the United States was estimated at 10.8 million in 2010,” Costello, supra, 666 29 F.3d at p. 1047, Congress could not have intendedto criminalize wholly innocentinteractions with noncitizens present without valid immigration status. Thus, in Nguyen, the Ninth Circuit explained that proof of criminal intent for harboring convictions ensuresthat “persons who perform innocentacts” are not “expose[d] . . . to lengthy prison sentences.” (Nguyen, supra, 73 F.3d at p. 893; see also ibid. (“We cannot believe thatit was Congress’s intent... to criminalize wholly innocent conduct.”J.) Similarly, in Costello, the Seventh Circuit reasoned that harboring liability was inappropriate in that case because “[t]he defendant . . . was not trying to encourageorprotect or secrete illegal aliens.” (Costello, supra, 666 F.3d at p. 1045.) Costello held that the term “‘harboring’ .. . has a connotation . .. Of deliberately safeguarding membersof a specified group from the authorities, whether through concealment, movementto a safe location, or physical protection.” (/d. at 1044.) Federal law recognizes the reality that the millions of undocumented immigrants in the United States attend school,° open bank accounts,’ pay ° See Plyler v. Doe (1982) 457 U.S.202; cf. Martinez v. The Regents of the University of California (2010) 50 Cal.4th 1277. ’ Federal law establishes standards that permit banks to accept undocumented immigrants as customers. Thus, the U.S. Treasury Departmentregulations implementing the USA PATRIOT Act permit banksto accept, for identification purposes, documents issued by foreign governments such a foreign drivers’ license or consular identification card. (See 31 C.F.R. § 1020.220(a)(2)(4)(A)(4)Gi).) Federal law contains no requirement that bank customers provide evidence of immigration status. 30 8 . . oe . 10 taxes,” get married,’ and secure basic necessities such as medical care and housing.'! (See Villas at Parkside Partners v. City ofFarmers Branch (Sth Cir. 2012) 675 F.3d 802, 816 [observing that “the great majority” of (See, e.g., 31 C.F.R. § 1020.100(a)(3) [defining “customer”for banking purposes].) ® Underfederal law, a noncitizen wholacks a valid immigration status is nonetheless required to file a tax return with the Internal Revenue Service if he or she earns an income. See Zamora-Quezada v. Commissioner ofInternal Revenue (U.S. Tax Ct. Oct. 27, 1997 No. 5194— 95), 1997 WL 663164,at *1. ” See, e.g., Buck v. Stankovic (M.D. Pa. 2007) 485 F. Supp. 2d 576, 582 [holding that noncitizen groom,like his U.S. citizen bride, had a fundamental right to marry even though he wassubjectto a final deportation order]. 0 See, e. g.,8 U.S.C. § 1611(b) [providing that aliens whoare not “qualified aliens,” including noncitizens present without authorization, are nonetheless eligible to receive federal public benefits relating to, interalia, emergency medical care, immunizations, and emergencydisasterrelief]; Costello, supra, 666 F.3d at p. 1044-45 [explaining that “the emergency staff at the hospital may not be ‘harboring’ an alien when it renders emergency treatment evenif he stays in the emergency room overnight.”’]. " For example, federal regulations permit persons lacking valid immigration status to reside together with family memberseligible for federal housing subsidies. (See 24 C.F.R. § 5.508(e) [providing that “[i]f one or more membersof a family elect not to contend that they have eligible immigration status, and other membersof the family establish their citizenship or eligible immigration status, the family may be eligible for assistance . . . despite the fact that no declaration or documentation of eligible status is submitted for one or more membersof the family.’’]; see also 24 C.F.R. § 5.520 [providing for prorated subsidies based on the numberof personsin the household eligible for benefits].) Further, the INA contemplates that individuals DHS seeks to place in removal proceedings will have addresses where they can be located or contacted. (See 8 U.S.C. § 1229(a)(1) [providing for personal service of notice to appearor notice by mail where personal service is not practicable]; see also id. §§ 1301-1306 [providing for noncitizens to register with the federal government, providetheir addresses, and notify the governmentof changes in address]; see also, e.g., Villas at Parkside Partners, supra, 675 F.3d at p. 811 [holding that a municipality was precluded under the Supremacy Clause from denying rental housing to undocumentedaliens].) 31 noncitizens present in the United States without a valid immigration status ‘live quietly, raise families, obey the law daily, and do work for our country.”’].) And, as discussed in Part I, supra, the federal government exercises discretion to allow, whether explicitly or implicitly, many undocumented immigrants to remain in the United States, notwithstanding their lack of a valid immigration status. Every day,all of these undocumented immigrants enter into a myriad of commercial and personal transactions, and federal law simply does not criminalize U.S. citizens, lawful immigrants, or other undocumented immigrants for merely interacting with them in their daily lives. CONCLUSION In sum, federal immigration law does not preclude a person who currently lacks a valid immigration status from practicing law. Because both immigration status and employmentauthorization are not permanently fixed but may change overtime, these factors ought not to limit the Court’s determination of an individual’s fitness to be an attorney. // // 32 Accordingly, the Court should hold that noncitizens currently lacking federal permission to remain in the United States are not precluded by reason oftheir immigration status from eligibility for bar admission in the state of California. Respectfully submitted, Dated: July 18, 2012 Qfait Jennifer Chang Newell, Bernard P. Wolfsdorf, SBN 233033 SBN 107657 Michael Tan (Admitted In NY)* American Immigration Lawyers American Civil Liberties Union Association Foundation 1416 2™Street Immigrants’ Rights Project Santa Monica, CA 90401 39 DrummStreet Telephone: 310-570-4088 San Francisco, CA 94111 Fax: 310-570-4080 Telephone: 415-343-0774 Fax: 415-395-0950 Lee Gelernt (Admitted In NY)* American Civil Liberties Union Foundation 125 Broad St., 18" Floor New York, NY 10004 Telephone: 212-549-2616 Fax: 212-549-2654 Attorneysfor Amici Curiae** *Pro Hac Vice Application Pending **Counsel gratefully acknowledge the invaluableassistance of legal intern Travis S. Silva in the research and preparation ofthis brief. 33 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volumelimitation of California Rule of Court 8.204(c)(1). This brief is printed in 13 point Times New Romanfont and, exclusive of the portions exempted by Rule QfLfMN pphoiter hang Newell/ 8.204(c)(3), contains 7,596 words. 34 PROOF OF SERVICE I, Tess Ranahan,declare that I am employedin the City and County of San Francisco, California; I am over the age of 18 and not a party to the within action or cause; my business address is 39 Drumm Street, San Francisco, California 94111. On July 18, 2012, I served a copy ofthe attached APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES, AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, ASIAN LAW CAUCUS, LEGAL AID SOCIETY — EMPLOYMENT LAW CENTER, NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION, AND NATIONAL IMMIGRATION LAW CENTER IN SUPPORT OF APPLICANT SERGIO C. GARCIA oneachofthe following by placing a true copyin a sealed envelope and mailing, via UPS, to the addressed as follows: 35 Jerome Fishkin Fishkin and Slatter LLP 1575 Treat Boulevard, Suite 215 Walnut Creek, CA Telephone: (925) 944-5600 Attorneyfor Sergio C. Garcia Joseph Starr Babcock State Bar of California 180 Howard Street San Francisco, CA 94105 Telephone: 415-538-2070 Robert E. Palmer Gibson, Dunn & Crutcher LLP 3161 Michelson Drive Irvine, CA 92612 Telephone: 949-451-3800 Mark A. Perry Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036 Telephone: 202-955-8500 Donald K. Tamaki Minami Tamaki LLP 360 Post Street, 8th Floor San Francisco, CA 94108 Telephone: 415-788-9000 Attorneysfor State Bar ofCalifornia Kevin R. Johnson Dean and Professor ofLaw U.C. Davis School ofLaw 400 Mrak Hall Drive Davis, CA 95616 Telephone: 530-752-0243 Bill Ong Hing Professor ofLaw University of San Francisco School ofLaw 2199 Fulton Street San Francisco, CA 94117 Telephone: 415-422-4475 Bryan Springmeyer 275 Battery Street, Suite 1170 San Francisco, CA 94111 Telephone: 415-935-8936 I declare underpenalty ofperjury underthe laws ofthe State of California that the July 18, 2012, at San Francisco, California Arad) wwA-—< Tess Randhan