GARCIA (SERGIO C.) ON ADMISSION

Amicus Curiae Brief of California Attorney General Kamala D. Harris

Cal.July 18, 2012

SUPREME COURT COPY Jn the Supreme Court of the State of Caltfornia In re SERGIO C. GARCIA Case No. 8202512 on Admission. Bar Misc. 4186 COPY BRIEF OF AMICUS CURIAE SUPREME CCURT CALIFORNIA ATTORNEY GENERAL EF \ LE 2 KAMALAD. HARRIS ' IN SUPPORT OF PETITIONER JUL 18 2012 Frank A. McGuire Clark — Deputy KAMALA D. HARRIS DANIEL J. POWELL © Attorney General of California Deputy Attorney General ROCHELLE C. EAST State Bar No. 230304 Chief Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 MANUELM.MEDEIROS San Francisco, CA 94102-7004 State Solicitor General Telephone: (415) 703-5830 JONATHAN WOLFF Fax: (415) 703-1234 Acting Chief Assistant Attorney General Email: Daniel.Powell@doj.ca.g ov _ Douc.as J. Woops Attorneysfor Amicus Curiae Senior Assistant Attorney General Kamala D. Harris TAMAR PACHTER Attorney General ofCalifornia Supervising Deputy Attorney General TABLE OF CONTENTS Page TntrOduction .........eccececcssscesseeesceseceesectseesaeeesaecsaeeeaetsaeeseaesaseeeseeesaecsssessteesees 1 Interest of the Attorney General.....c.scecsccsssessessesseessesessesseessessessessesesseseenees 4 ALBUMEN0...cccecsecesscessecsscecsceeseeccueesseeceseessaceseeecesceascasessaeenseecseeesstessnes 5 I, Federal law does not prohibit this Court from admitting undocumented immigrants to the State Bar .......... 5 A. Section 1621 by its terms does not apply to admission to the practice Of law .0.... ee eeeeeeeseeeeeeeee 6 1. The Supreme Court issues the license to practice law, and it is not an “agency of the state” oe.cece eeeeeseeeseecscesseeseeesseeesesenssenees 6 2. Appropriated funds ofthe state do not furnd a bar License... eeeeeeeeeeeeeseessesseeesees 10 B. Section 1621 should not be construed to apply to bar admissions because Congress did not clearly state its intention to intrude on the states’ exclusive authority to regulate attorney admission and discipline... ceeeeseesesseeeseeseeeseees 1] 1. State Bar admissionsare a core state FUNCTION 00... ee eeeeseeeeeeeeeesteeseseeeceeeeseeesesseeneees 12 2. Congress knows howto conveyits intention to regulate attormeys...........cccseees 13 3. Even when Congressis exercising authority as broadasits authority to regulate immigration, courts will not assumethatit intends to intrude into a core area of state sovereignty without a clear statement of such intent...eee 18 Il. Immigration status has no bearing on Garcia’s qualifications for the bar .........e ce eesecscccessceessseesseeeessseesseeeeees 21 A. There are no legal limitations on Garcia’s ability to practice LAW... ccesessseesecsseceseeeeteeesscsees 2] TABLE OF CONTENTS (continued) Page B. Issuanceofa license to practice law does not imply lawful employability, nor should the existence or absence of work authorization influence LiCENSUTE.............eeeceeceeesteeteeeceeeesseenteenseees 22 Il. Admitting Garcia to practice law would be consistent with the public policy of California and the stated policy of the federal government...eeeeeeeeeeseeeeeeeeees 27 A. California encourages law-abiding undocumented immigrants to become educated and improve their economic Status .........eeeeeseeeeee 27 B. Admitting Garcia would be consistent with stated federal policy goals as well .......cc eeeeeeeees 28 CONCLUSION 2.0... eeeeseeeeeessesseteseceecceeneeneeseeesnseaesaeeaeeseesseeeecseseesaeeseeesseenseeeees 31 ii TABLE OF AUTHORITIES Page CASES American Bar Assn. v. FTC (D.C. Cir. 2005) 430 F.3d 457 ooo eeceeecseeceeesneesceeeeseeeneees 12, 18, 20 Arizona v. United States (June 25, 2012) — $.Ct. — No. 11-182, 2012 WL 2368661...cece eeeeeeeereceneneeeners 20, 21, 22, 25 Batesv. State BarofArizona (1977) 433 U.S. 350 wececeeecteeeseceseenesnesneeneneeeeseeasenseasenteneeeeeeasseenenees 12 Brydonjack v. State Bar © (1929) 208 Cal. 439icccccesseesrecenecaeceeseeeceeseessesseseaesseeeeecaeeeneeeaees 7 Conservatorship ofBecerra v. Becerra (2009) 175 Cal.App.4th 1474.0.eee esesseeeeeesceeseeaceneessesseeseteeensensees 9 Ellen S. v. Florida Bd. ofBar Examiners (S.D. Fla. 1994) 859 F.Supp. 1489...ce ccesseessesseteeseesesessessseesseens 15 Ex parte Garland (1866) 71 U.S. (4 Wall.) 333 oo.ceeeceeseeseeeeeeeaeneeeeecneeeseeseeeseneeneens 9 Goldfarb v. Virginia State Bar . (1975) 421 U.S. 773 voeceecceescsscesseeseceneceeeesecsseeesecseeeseeaeeesesesssensseseatenes 13 Green v. State of California (2007) 42 Cal4th 254occccecscesseceseeeeeseeenecsseeecnecsseseeseesseesenenseees 8 Gregory v. Ashcroft (1991) 501 U.S. 452 ooo eeeecccseeteeecereeeeeceseesareneeeseeseseeeeeates 18, 19, 20 Hubbard v. United States (1995) 514 U.S. 695 vec ccccccsscscsesssecsesesesseesesesessesesescseseeecstecsenecseeneass9 Hustedt v. Workers’ Comp. Appeals Bd. | (1981) 30 Cal.3d 329 oo... cccccsecseceseceeeteeceeeceeseneeaeeeeeeeeecseessatenss 7,12. lil TABLE OF AUTHORITIES (continued) Page In the Matter ofDavid A. Secombe (1856) 60 U.S. 9 voice ccceccccseesseceseeseeececseesenesseeseseecseeesaeessesaeessseaeeeses 12 In re Attorney Discipline System (1998) 19 Cal.4th 582occcecscseccsseseecneerseeseeseseseeeseessetsresseesesesenes 7 In re Lavine (1935) 2 Cal.2d 324 oo.ceceeesessccesseeseeessceeessaecsseneeesaeessneaeesseesees 9, 10 Keller v. State Bar ofCalifornia (1990) 496 U.S. 1 ccc ccecceesessesseeecneeeeeesaeeneeeaeeseceeeseseessesessseeseensees 1] Keller v, State Bar ofCalifornia (1989) 47 Cal.3d 1152cee eeceeeesecseeseecesesecessecseeeeesnsesseseeesaeeseseasenes 7 Kilroy v. Superior Court (1997) 54 Cal.App.4th 793 oo. eeeececessecesscescesessetseseseeeerseseseseesseeees © Leis v. Flynt (1979) 439 ULS. 438 oe ceeeseseetccteetennenesseseneeneenenteneeteeneeseateeeteneeneess 12 Los Angeles Cty. Dependency Attorneys, Inc. v. Dept. of General Servs. (2008) 161 CalApp.4th 230 oo.eee cseseeceseesseeeteeseeecsesseeeeesnseseeenaes 9 Marcosv. Dir., Office of Workers’ Compensation Progs., U.S. Dept. ofLabor . (D.C. Cir. 1976) 548 F.2d 1044oecece cseeseeseeeteeeeeeseenees 8, 10 Martinez v. Regents ofthe University ofCalifornia (2010) 50 Cal.4th 1277 oo... cecccccscseeeseeseesnesecessessesseesseecsntsseessecseesseees 28 Matter of Gonzalez Recinas (2002) 23 1. & N. Dec. 467... eeeeeseeseesseceeeeeetseeacesaceceaeeaeeenesseseeees 25 Middlesex County Ethics Comm. v. Garden State Bar Ass’n (1982) 457 U.S. 423 ooo ccccceessscceeeeeseeseecesessesseeseseaeeseneceeseneeaeeaeeeas 13 Milavetz, Gallop & Milavetz v. United States (2010) 130 S.Ct. 1324 oeeeeceeceseenecseeceserseeseseeeseneeeseeaseeaeereeeeeaes 15 iv TABLE OF AUTHORITIES (continued) Page New York State Bar Assn. v. Federal Trade Com’n | (D.D.C. 2003) 276 F.Supp.2d 110 oeeeeeeeeteesceereeseeeeeeneenseens 12, 13 Plyler v. Doe (1982) 457 U.S. 202 oo.eeeececceeseceeececeneeseesscesceeseeneesaeesseesseeseeseeeseeeeaes 28 Saleeby v. State Bar (1985) 39 Cal.3d 547 oo. eeseeccssccescceseseeessesseeesesaeesaeeseeerenaeseaeseseeesaens 7 St. John’s Well Child & Family Center v. Schwarzenegger (2010) 50 Cal.4th 960.00... ecececeseenreneeseceeseeereeeeeaessasessesessseeeseeeaee 10 Whitman v Am. Trucking Assns. (2001) 531 U.S. 457 occ eececeeesesecscceseeseeeeeereeseesseeeeseesseneeseeneseeesesees 17 STATUTES 8 US.C. § L1LOL (a) cece ccccsccesseeecssceeseesseesseseseesessesenereaseseeseesssessnsseseesseeeeaesenes 8 § 1229b, subd. (b)(1) ....eeeeececeeseeceececeeneeeeesesensenesseseseeeeteessterseeeeaeens 27 § 1324a(a)(1)(A)...eceeeeecsceeeetsceessecssesecseceaeseseesenseessaecaeenerseeseneeeeaees 24 8 LBS oe eccccccetessscsnceessesececeeeeenecenecseeseceaeeateeseeeeseseeaeesesseeeseeesseeaees 21 § LOOD eeeeecesseeecsseesneessesseesseeceessersesseeseecsaessceseenseenerseseeeesseesaeees 29 Q LOL eeececessesceessesseeseseeeeseecseecseesecseseseesaeeseeseseaesereenesseeesneesaes 5,8 § 162] oeeccescscccecssecsecessesserseeesceesreeesaecsasesecsceneeseeeesesaesnsenses passim § 3282 oo eececcesceseeeceeceeecsecseesceseeeseesseaseasescsansasesessesaesaeeaeserseseaeeneesees 21 12 U.S.C. § 2601 Ct SOQ... ceeeecccsseesseeseeereeneesseseeceeeeaeceeseueteeeenecaeecsesseeeseesseseseeens 16 § 2602(3) ..eeecescescesccesreesceeessessseeessseesecesessaecceeaeesesusesseeeeeeesenees 16, 17 IS U.S.C. | BL cececess eeeseeseeesessessescseresseseceessecesessssesecaseeesssssessesessssssssecseseseeseeas 14 § 78) .eecescceccesecssecsceeeecesceseeeseesaessneceeesesseeaeseseseessesecectsensesseeseseaeenseeeaes 15 § L681eccccccceccseeteceseesecsecessesseesecesecseseaecassesessessssessessecsseeseeess 14 § O92 oeeeeessescesreeseeeeeeesseesseceeseecnaceseceaeseeeseneeeerseeaseness seseeseens 14 TABLE OF AUTHORITIES (continued) Page 18 U.S.C. § DOOD ooocceseccscessecesneeessceesseeseeceeeessenenecssessuecessseneteceneesseeeeeseeenes 9 § 1962 cioceeeccceccecesscceecesseessseceecessesseersaeeesssaeeeesssseecessessueeessecsatecessees 14 29 U.S.C. §§ 621-634oe cecccccccssscsecescesseesseceeseeesseseeeesesesseseecesseeesesseesasecseeseeees 18 42 U.S.C. § 1983ccc cccesscssccsecscecsecscecssseeeesseseeesseeecsseceaeesecseeeeaseseessusesseseeeseess 14 § 2000e, Tithe VID oo... ccc ecceeeccecssseceeesseecsecseeeessesseeesseesseecesseesseeceeseeas 14 § 12132 ieee iccececccsseceseecsseeeseesscecsesesseeseeseeeesseeseeeecsecseeereaecesteceeaeens 15 Age Discrimination in Employment Act .......cceesesseeseeeseeeeceeeesesneeeeneens 18 Business and Professions Code § BO icecccccceccccscsccecessccssccsssesssecessecseesensessseseecsssessesetseseneseeseeeeerens 23, 24 § 6046, subds. (a) & (C).cceecccscsscscescessesssseeseeteeseeseceeeeeeseecseeseeseeenseseas 7 § 6060.6 oo... ccccccccccsceceseecessecessaecesseececssesssessnstecseeesenseeesseeeseaeenss 23, 24 § BOGeececeeceessceseeeceseeceseeerees Leveesssesecssesscscceseesssecesececeneeenstenes 22 § 6063 oooeeeceeccccssccsssccssccssesesseeeecessensscssaecseeeseesssesseeneaeecseeeeseeesseeesaecsats ll § 6068 oo eee cccecessessceeseecesseeessaeeesseessosesesecssseeesssenssateeeeesveseeeeeeaneaeees 21 §§ 6180, 6190 occcccesceesceeeseeesseeeeseesaeeeeesevecscceveevecesesenaeneesees 27 Civil Rights Act of 1964 oo... cccccccesseseseeseeseeseeeseeeeseseceetseeeceesseeeseeenes 14 Education Code § 68130.5 woeecccccccsssccssessseessecessessseseseeseseeseseneesseesssesssessseseesseeereseas 22, 28 Government Code § L100 woecece cceessscesscesscesecssceesesseesssseseeessssessesasseecseeccaeesseessesensees 8 SSLccccccccecsesseeeeseeseeecseeseesesseeeeaecaseeeseecseeseceeecsecaeseeseaeeates 4 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 oooeeeeceeccececceesecsccscccececesssnsesssecessssseecscusssssceccesserassssucsusestsaaecesswd, 8 State Bar Act Of 1927 .oociicceececcesssscccscccscccsessecsssssceesssesescsssusescseeescreeseesessenea 7 Stats. 2011, Chapter 604 (Assem. Bill 131)...eeeeeseeeecnecseesseeeeees 27 Stats. 2011, Chapter 814, § 2 oo. eeceesceesseeceeeeseceeseeeeeecseeeseeseseeseeessees 28 v1 TABLE OF AUTHORITIES (continued) Page Stats. 2011, Chapter 93 (Assem. Bill 130)...eeeeeeeeneeeeeeees 27, 28 Welfare Reform Act Of 1996 .o.....ccccscccsssccssecesessecssesssesseecesseesseessseeesaees 10 CONSTITUTIONAL PROVISIONS Cal. Const. Article TIL, § 3 .ccccecccccsccessesssecececececeaseceeeessceesseesscecsesseseseressesseeesssesens 6 Article V, § 13 ueeeeeeeeereeeeesesendacecsceeceseceenscaesceasesaaeesseesaeseesseeeenes 4 Article Vo... ccccecccccscssccesseesnecesssseesseeeceeescseecsseeseaesssessasesstsressneeseeneas 7 Article VI, § Qu... cccsccsccssceseesecseesseeeseeeeeessesseceaseseeseensesssescsseensesseee 7 United States Constitution Article [, § 8, Ch. 4... cccccccccsccseeseeeceeeseeeeesseeseeesesessessessessessessseeneees 20 Tenth Amendment.0...... ccc ccccecccccesseccsseeseeseeeseecccseeenseeensseeseeesaesenes 19 Eleventh Amendment.............ccccccesseeecessnnneceeeeececeessreeseaseeeeseeeeneneees 19 COURT RULES | California Rules of Court TUle 8.520 oooveeccecccccssscessccesseecesccesseesnsseecnseesessaesnseeeeceseesaeessneessseseesseeeaas 1 OTHER AUTHORITIES 8 C.F.R. § 2740.2 (2012) ...ccccsccsccccssceceesceneeseceeeseeecesesereseserseeseseeseeneenees 24 8 CLF.R. § 2744.5 (2012)... ccccccccsesscsecseecseeeceseesecseceneeseeeeseeeneseesensteaseass 25 Mastman, Undocumented Entrepreneurs: Are Business Owners “Employees” Under the Immigration Laws (2009) 12... eeeeesesee 25 National Lawyers’ Guild, 1 Immigration Law and Defense (2012)....... 25 Vii INTRODUCTION In responseto this Court’s order of May 16, 2012, and pursuant to California Rules of Court, rule 8.520, Attorney General Kamala D. Harris submits this brief as amicus curiae in support of Sergio C. Garcia’s admission to practice law. Garcia has earned this Court’s full consideration of his application for admission to the practice of law, irrespective of his immigration status. Although his State Bar file is not open to us, the available information indicates that Garcia is qualified for admission. Like many undocumented immigrants, Garcia was brought to this country by his parents. His father, whohas since becomea citizen but wasat the time a lawful permanent resident, filed a petition so that Garcia could receive an immigrant visa and also become a lawful permanentresident. The federal government approved Garcia’s petition and he has been patiently waiting in line for a visa for seventeen years. In that time he has put himself through college and law school, earned a living, paid taxes, and remained a law-abiding resident of California. He has passed the California Bar Examination, thereby meeting the rigorous standards required to practice law in California, and the Committee of Bar Examiners has recommendedhis admission. Nolaw or policy prevents this Court from admitting Garcia to the State Bar of California (the Bar); in fact, admitting Garcia to the Bar would be consistent with state and federal policy that encourages immigrants, both documented and undocumented,to contribute to society. First, federal law does not prohibit this Court from admitting Garcia. Byits terms 8 U.S.C. section 1621(c) does not apply to the practice of law. Further, this Court’s authority to regulate attorney admission to the Bar has long been held to bea core attribute of state sovereignty. Congress understands this, and so whenit has intended to legislate in ways that intrude on the states’ authority to regulate the practice of law, it has done so unequivocally. Because Congress did not unambiguouslystate its intention to do so, this Court should not construe section 1621 to impinge onits prerogative to regulate admission to the Bar. Second,if licensed, there are no other legal limitations of which we are aware on Garcia’s ability to practice law. The fact that, as a minor, Garcia entered the country without inspection should not be disqualifying. It is not a crime either to be present or to work in the United States without immigration status, and Garcia has never been charged with the crime of unlawful entry. In fact, Garcia has been forthright about his immigration status with federal officials, and has been approvedfor a visa when one becomesavailable. He has been waiting for seventeen years. Nothing about his immigration status renders Garcia unable either to uphold the oath required of attorneys or to comply withall ethical and professional standards, Although the nation has so far been unable to enact comprehensive immigration reform, Garcia appears to have determinedly and lawfully navigated his way. Discomfort with the many contradictions in federal immigration policy should not burden Garcia’s application for admission to the Bar. Although federal law does not currently permit an employerto hire Garcia, there are several reasons that this fact should not byitself prevent his admission. The issuanceofa license to practice law does not in any wayrepresent that the licensee may be legally employed. This is borne out by the fact that this Court does not in other contexts consider residency, citizenship, or permission to work in the United States in making admission decisions. For sometimethis Court has admitted to the Bar foreign nationals who may have immigration status in the form of student visas but, like Garcia, lack work authorization. In any event, the admission of foreign nationals lacking work authorization in the United States also suggests that there are ways in which Garcia could lawfully earn incomeas a licensed California attorney. For example, as the British and Irish governments successfully argued, he could obtain work outside the country advising clients about state and federal law; or he could practice in California ona ~ pro bono basis. Another reason that employability should not factor into the admission determinationis that federal restrictions on the employment of undocumented workers have changed over time and may change yet again. In fact, new regulations being drafted by the United States Department of Homeland Security will makeit possible for qualifying undocumented immigrants to obtain exemption from removal and permission to work. The answerto the question of whether and under what circumstances Garcia may be employed should notinfluence this Court’s determination of whether Garcia should be admitted to the Bar. Third, admitting an otherwise qualified undocumented immigrant to the practice of law would be consistent with the existing policy ofthe state, as well as with federal law. Although we are unawareof any state law that makes undocumented immigrants eligible for professional licenses, we do _ not draw from that absence of legislation any conclusions aboutstate policy. The California Legislature has expanded the ability of qualified undocumented immigrants to attend colleges and universities in California ‘by exempting them from non-resident tuition and by allowing them to receive public and private scholarships. Admitting qualified undocumented immigrants to practice law would be consistent with the Legislature’s view that California is served by encouraging them to pursue an education. It also would track state policies that acknowledge and encouragethe positive contributions that undocumented immigrants make to society as a whole. In addition, Congress’s stated goal in adopting section 1621—to encourage immigrants to be self-reliant and to avoid burdening public resources—is not in any way at odds with admitting Garcia to the Bar. He is a model of the self-reliant and self-sufficient immigrant envisioned by federalpolicy. After years of hard work, Sergio Garcia has earned this Court’s full consideration of his application for admission to the legal profession. It is a profession that, by definition, is one of service. Garcia has demonstrated that he has the necessary intellectual and moralfiber to serve as an attorney. This Court should permit him to do so. INTEREST OF THE ATTORNEY GENERAL Asthe chieflaw officer of the State of California (Cal. Const., art. V, § 13), the Attorney Generalis responsible for all legal matters in which the State is interested (Gov. Code, § 12511), and thushas aninterest in ensuring both that the attorneys who represent Californians, and those who maylitigate cases in which the Attorney Generalis also involved in courts throughout the state, meet the high ethical and legal standards necessary for the effective operation of California’s legal system. ARGUMENT L FEDERAL LAW DOES NOT PROHIBIT THIS COURT FROM ADMITTING UNDOCUMENTED IMMIGRANTSTO THE STATE BAR. Section 1621 of title 8 of the United States Code provides that undocumented immigrants generally are not eligible for “any State or local public benefit (as defined in subsection (c) of this section).” Subsection (c) in turn defines a public benefit as “any grant, contract, loan, professional license, or commercial license provided by an agencyof a State or local governmentor by appropriated funds of a State or local government.” Notably, section 1621 does not simply forbid the state from granting any professional license to an undocumented immigrant; instead, the proscription is qualified. Section 1621 only restricts the state from granting “any ... professional license. . . provided by an agency ofa State . . . or by appropriatedfunds ofa State....” (8 U.S.C. § 1621(c).) These qualifications limit the federal restriction on professional licensing of undocumented immigrants, and the nature of those qualifications indicate that section 1621 is not properly construedto restrict eligibility for admission to the Bar.’ Section 1621 does not apply because, although admissionto the Baris surely a professionallicense, neither of the two statutory qualifications are met. Thelicense to practice law is not provided by “an agency ofa state,” but by this Court. Noris the license provided by “appropriated funds of the ' Congress enacted section 1621 as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. These two qualifications are also found in a parallel section of the Act, which defines restrictedfederal public benefits. (8 U.S.C. § 1611(c)(1)(A) [“any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States”].) state;” instead it is funded by fees paid by its members directly to the State Bar, which are never appropriated by the Legislature. Moreover, the lack of a simple, universal restriction on state licensing of undocumented immigrants both signifies that Congress did not intend section 1621 to apply to all professional licenses and implies that Congress did not intend section 1621 to impinge on the state’s historical sovereign authority to regulate the practice of law in California. When Congress intends to regulate the practice of law, it has been explicit: either by specifically stating that it intends to regulate lawyers, or by enacting a law of such broad application that it must necessarily include lawyers. Because section 1621 does neither of these things, it should not be construed to forbid Garcia’s eligibility for admission to the State Bar. A. Section 1621 By its Terms Does Not Apply to Admission to the Practice of Law. Byits terms, section 1621 does not limit this Court’s authority to grant Garcia admission to the practice of law becausethe statutory qualifications for restrictingeligibility for a professional license are not met. First, the entity that admits attorneys to the practice of law, this Court, is not an “agency ofa state.” Second, appropriated fundsare not used to provide the license; they are paid for by each attorney in the form of dues. 1. The Supreme Courtissues the license to practice law, andit is not an “agencyof the state.” Section 1621 does not prevent Garcia’s admission to the Bar because a license to practice law is given not by “an agency of a State,” as the statute requires, but by this Court, which is a branch of government, not a state agency. (Cal. Const.,art. II, § 3 [“The powers of state government are legislative, executive, and judicial”]; id., art. VI, § 1 [“The judicial powerofthis State is vested in the Supreme Court, courts of appeal, and superior courts”].) The judicial branch is no more a “state agency” than is the Legislature. (See Bryvdonjack v. State Bar (1929) 208 Cal. 439, 442 [observing that the courts, like the Legislature and the Executive branches, are “a separate department in the schemeof our state government”’].) This Court exclusively decides who is admitted to and whois separated from membership in the State Bar, and how membersshall be disciplined. For over 150 years the law has recognized this Court’s inherent authority underarticle VI of the California Constitution to admit, discipline, and disbar attorneys. “In California, the powerto regulate the practice of law, including the power to admit and to discipline attorneys, has long been recognized to be among the inherent powersof the article VI . courts.” (Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 335, fn. 5, 336.) The State Bar assists the Court in determining the candidates who are qualified for admission. It was created by the State Bar Act of 1927 and movedto article VI, section 9 of the California Constitution in 1966. (In re Attorney Discipline System (1998) 19 Cal.4th 582, 590.) The State Bar has established an examination committee to “examineall applicants for | admission to practice law” and thereafterto “certify to the Supreme Court for admission those applicants who fulfill the requirements” to practice law. (Bus. & Prof. Code, § 6046, subds. (a) & (c).) The State Bar’s role “has consistently been articulated as that of an administrative assistant to or adjunct of the Supreme Court,” but it does not make decisions to admit, disbar, suspendor discipline attorneys. (Keller v. State Bar ofCalifornia (1989) 47 Cal.3d 1152, 1160, reversed on other grounds (1990) 496 U.S. 1) (quoting Saleeby v. State Bar (1985) 39 Cal.3d 547, 557).) “In the area of admission to practice, an applicant is admitted only by orderof the Supreme Court we... (Ubid.) Section 1621 doesnot define the term “agency ofa state,”” so we look to the rules of statutory construction adopted by the United States Supreme Court. (Kilroy v. Superior Court (1997) 54 Cal.App.4th 793, 801 [noting that when applying a federal statute, California courts follow federal rules of statutory construction].) Federal law refers us backto state law. Where, as here, a federal statute fails to define an operative term andlegislative history does not inform the understanding of that term, the court assumes that local law supplies the meaning. (Marcos v. Dir., Office of Workers’ Compensation Progs., U.S. Dept. ofLabor (D.C. Cir. 1976) 548 F.2d 1044, 1047,fn. 4 [holding thatstate law supplied the meaning of “husband’’].) Under California law, there appears to be no universal common-law or statutory definition of a “state agency” or “agency ofa state.” Absent a contrary statutory definition, California courts give statutory languageits “usual and ordinary meaning.” (Green v. State of California (2007) 42 Cal.4th 254, 260.) Ordinarily, the term “agency”refers to an entity within the Executive Branch of governmentthat acts as an “agent” ofthe Executive to enforce and administer laws enacted through thelegislative process. The part of the Government Code concerningstate agencies, beginning with section 11000, is located in Division 3 of Title 2, which is titled “Executive Department.” Black’s Law Dictionary defines agency as “Ta] governmental body with the authority to implement and administer | particular legislation.” (Black’s Law Dict. (8th ed. 2004) p. 67, col. 2.) Similarly, it defines state agency as “an executive or regulatory body of a state.” (Ud. at.p. 68, col. 1.) * The term “agencyofa state” is not defined in section 1621, norisit defined either in 8 U.S.C. §1611, which contains the definitions for this part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, or in 8 U.S.C. § 1101(a), which is incorporated in section 1611 by reference. _ This Court, however, does not implement or administerlegislation, noris it an executive or regulatory body. To be sure, there are judicial branch agencies, such as the Judicial Council and its arm, the Administrative Office of the Courts (Los Angeles Cty. Dependency Attorneys, Inc. v. Dept. ofGeneral Servs. (2008) 161 Cal.-App.4th 230, 233 & fn. 2), and the State Bar Court (Conservatorship ofBecerra v. Becerra (2009) 175 Cal.App.4th 1474, 1484 [describing State Bar Court as an administrative agency affiliated with the State Bar].) But when this Court admits attorneys to the Bar, it is exercising its inherent, constitutional authority as the head ofthe judicial branch of governmentandis not, in any sense, an “agencyofthestate;”° it is exercising a judicial function that is tantamountto a judicial order.’ (In re Lavine (1935) 2 Cal.2d 324, 327-328 [describing Court’s admission anddisciplinary functionsas the exercise of > The United States Supreme Court cameto a similar conclusion about the federal judiciary in Hubbard v. United States (1995) 514 USS. 695. In that case the Court concluded that a federal court was not an agency for purposes of 18 U.S.C. section 1001, which criminalized false statements occurring in any matter within the jurisdiction of any department or agency of the United States. The Supreme Court notedthat: In ordinary parlance, federal courts are not described as ‘departments’ or ‘agencies’ of the Government. As noted by the Sixth Circuit, it would be strange indeedto refer to a court as an agency. See [(6th Cir. 1994] 16 F.3d [694,] at 698 n. 4 (‘[T]he U.S. Court of Appeals [is not] the Appellate Adjudication Agency’). (Hubbard v. United States, supra, 514 US.at p. 699.) * The United States Supreme Court has reached the same conclusion about the powerof the federal courts to admit and exclude attorneys from the federal bar. (Ex parte Garland (1866) 71 U.S. (4 Wall.) 333, 378-379 (holding that the attorney “admission or . . . exclusion is not the exercise of a mere ministerial power. It is the exercise ofjudicial power, and has been so held in numerouscases”’].) a judicial function]; id. at p. 329 [holding that legislative encroachment upon the Court’s inherent powerto admit attorneysis “tantamountto the vacating of a judicial order by legislative mandate’’].) 2. Appropriated fundsof the state do not fund a barlicense. A bar license is also not a public benefit proscribed by section 1621 because it is not “provided ... by appropriated fundsofa state,” as the statute requires.° Because this language qualifies the class of professional licenses for which undocumented immigrants are ineligible, it must mean something less than all professional licenses. Giving the statute a literal interpretation, it appears that professional licenses “provided... . by appropriated funds of a state” refers to a professional license that is paid for or subsidized by appropriated fundsofstate, instead of by the licensee. “Appropriated” funds generally refers to state revenues allocated by statute.° The state will not pay for or subsidize Garcia’s law license, and it does not do so as a general matter (save for lawyers whoare state employees). Rather, each attorney is responsible for paying for the license him orherself in the form of dues. “Applicants for admission to practice shall pay such reasonablefees, fixed by the board, as may be necessary to defray the expense of administering the provisions of this chapter, relating > As with “agency ofa state,” see ante at footnote 2, because the Welfare Reform Act of 1996 does not define “appropriated funds of a state,” we look to state law to determine its meaning. (See Marcosv. Dir., Office of Workers’ Compensation Progs., supra, 548 F.2d at p. 1047, fn. 4.) ° See Black's Law Dict. (8th ed. 2004) p. 110 [defining “appropriation” as “1. The exercise of control over property; a taking of possession.... 2. A legislative body's act of setting aside a sum of moneyfor a public purpose’’}, cited with approval in St. John’s Well Child & Family Center v. Schwarzenegger (2010) 50 Cal.4th 960, 980, fn. 14. 10 to admission to practice.” (Bus. & Prof. Code, § 6063.) Providing a professionallicense to Garcia would thus notbe a public benefit.’ B. Section 1621 Should Not Be Construed to Apply to Bar Admissions Because Congress Did Not Clearly State Its Intention to Intrude on the States’ Exclusive Authority to Regulate Attorney Admission and Discipline. The regulation of admission to the bar of a state court, as well as the discipline of attorneys, has long been recognized as within the exclusive authority of the states, and specifically the state supreme courts. This rule should inform the application of section 1621 in the context of bar admissions. Congress is well aware ofthetraditional primacyofthe state courts in regulating attorneys, so when it meansto use its powers to regulate attorneys, it has done so in ways that leave no room for doubt aboutits intentions. Its failure to do so in crafting section 1621 leads to the conclusion that Congress did not intend that statute to restrict state bar admissions. Further, because regulation of state bar admission is a core "In its brief, the Committee of Bar Examinersinterprets this provision to mean that a state may not use appropriated funds whenit determines whetheror notto license an undocumented immigrantor to cover the cost of licensure that would be bornebythe entity that issues a license. While the Attorney General believes the better interpretation is that Congress intended to prohibit states from paying the licensing fees out of appropriated funds, the Attorney General agrees with the Committee that since the licensing function is paid from bar dues, this provision is also inapplicable under the Committee’s interpretation. The bar dues that fund the licensure of attorneys is deposited directly into the State Bar’s treasury (not the State Treasury), and thus are not appropriated by the Legislature. (See Kellerv. State Bar ofCalifornia (1990) 496 U.S. 1, 11 [noting that the State Bar’s “principal funding comes, not from appropriations madeto it by the legislature, but from dues levied on its membersby the board of governors”].) Any appropriated funds used by the California Supreme Court in making the final licensure determination are de minimis and insufficient to convert a bar license into a “public benefit” for purposes of section 1621. 1] sovereign function of the state, in the absence of a clear statementthatit intends to do so, Congress’s intention to intrude on that state prerogative will not be assumed. 1. State bar admissions are a core state function. “T]he regulation of lawyers and the practice of law havehistorically been recognized as the responsibility of the states, and not the federal government.” (New York State Bar Assn. v. Federal Trade Com’n (D.D.C. 2003) 276 F.Supp.2d 110, 128 [holding that Congress did not delegate regulation of lawyers’ ethical conduct to the Federal Trade Commission whenit enacted the Federal Financial Modernization Act], affirmed sub nom American Bar Assn. v. FTC (D.C. Cir. 2005) 430 F.3d 457.) Since the founding of the Republic, the licensing and regulation of lawyers has beenleft exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers. (Leis v. Flynt (1979) 439 U.S. 438, 442.) “[I]t has been well settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine whois qualified to become oneofits officers, as an attorney and counselor, and for what cause he ought to be removed.” (dn the Matter ofDavid A. Secombe (1856) 60 U.S. 9, 13.) Thatis still the case today: “every state in the United States recognizes that the power to admit and to discipline attorneys rests in the judiciary.” (Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 336-337.) Notonly is admissionto practice law historically a statefunction,it is a core part of the sovereignty reserved to the states by the United States Constitution. “(T]he regulation of the activities of the bar is at the core of the State’s powerto protect the public.” (Batesv. State Bar ofArizona (1977) 433 U.S. 350, 361 [holding that state bar rulesrestricting lawyer 12 advertising were protected by the state action doctrine and so did not violate the Sherman Act].) “The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.”” (Goldfarb v. Virginia State Bar (1975) 421 U.S. 773, 792 [holding that state bar enforcementof county bar minimum fee schedules wasnotstate action and therefore was price fixing in violation of the Sherman Act].) Attorneys are so integral to the administration ofjustice that states have a singular interest in regulating who mayappear before their courts. (Middlesex County Ethics Comm. v. Garden State Bar Ass’n (1982) 457 U.S. 423, 434 [“The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thushasa significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice”’].) 2. Congress knows howto conveyits intention to regulate attorneys. The long-standing and exclusive authority of state courts to regulate state bar admissions is well known to Congress, which understands how to clearly indicate when it intends to impinge on that authority.. In New York State Bar Association v. Federal Trade Commission, supra, the District Court of the District of Columbia rejected the Federal Trade Commission’s (FTC) contention that the Federal Financial Modernization Act, also known as the Gramm-Leach-Bliley Act (GLBA), authorizedit to regulate the ethical conduct of attorneys engaged in financial transactions governed by the Act. In considering the arguments of the FTC, the court made two observations about the contested provision of the GLBAthat are equally true of section 1621: on the one hand,it was not sufficiently broad or, on the other, sufficiently specific, to demonstrate that Congress intendedto regulate attorneys. (276 F.Supp.2d at pp. 133-134, 135.) The court first 13 looked at federal statutes that do apply to the activities of attorneys because their scope is very broad. These included: 15 U.S.C. § 1692a , the Fair Debt Collection Practices Act (“The term ‘debt collector’ means any person who uses any instrumentality of interstate commerceor the mails in any businessthe principal purpose of which is the collection of debts ....””) (emphasis added); 15 U.S.C. § 1681n, the Fair Credit Reporting Act (“Any person who willfully fails to comply with any requirement imposed underthis subchapter....”’) (emphasis added); . 15 U.S.C. § 1, the Sherman Antitrust Act (“Every person who shall make any contract or engage in any combination or conspiracy hereby declaredto beillegal ....) (emphasis added); 42 U.S.C. § 1983, the Civil Rights Act of 1964 (“Every person who, undercolor of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable....”) (emphasis added); 42 U.S.C. § 2000e, Title VII (“The term ‘person’ includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, _ partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations,trustees, trustees in cases under Title 11, or receivers”) (emphasis added); 18 U.S.C. § 1962, the Racketeer Influenced and Corrupt Organizations Act (RICO) (“It shall be unlawful for any person whohasreceived any incomederived, directly or indirectly, from a patternof racketeering activity....”) (emphasis added); and 14 e 15U.S.C. § 78), federal securities law (“It shall be unlawful for anyperson, directly or indirectly, by the use of any meansor instrumentality of interstate commerce or of the mails ....”) (emphasis added).* (New York State Bar Association v. Federal Trade Commission, supra, 276 F.Supp.2d at pp. 133-134.) Whenthe district court compared thesestatutes to the GLBA,it concluded that Congress did not intend to regulate the conduct of lawyers through the GLBA. Clearly, Congress intended the scope of each of these statutes to be extremely broad, describing each of them to be applicable to “any person”or “every person.” In fact, in a case on which the FTC relies heavily for the proposition that Congress can regulate the conduct of attorneys, the Supreme Court commented that the scope of the federal statute before it, the Sherman Antitrust Act, is so broadthat “language more comprehensiveis difficult to conceive.” Goldfarb v. Virginia State Bar, 421 U.S. 773, 787, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) (quoting United States v. S-E Underwriters Ass’n, 322 U.S. 533, 553, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944)) (noting that “Congress intendedto strike as broadly as it could in § 1 of the Sherman Act’). The GLBA,on the other hand, is limited in its scope to “financial institutions.” This is significant because the scopeofall but one ofthe statutes cited by the FTC contains languagethatis so broadthatit is inconceivable that Congress did not intend for the statutes to apply to attorneys. This is clearly not the case with the GLBA. (New York State Bar Association v. Federal Trade Commission, supra, 276 F.Supp.2d at p. 134.)” As earlier noted, section 1621 is also insufficiently ® See also Milavetz, Gallop & Milavetz v. United States (2010) 130 S.Ct. 1324 [upholding federal regulation of attorneys who come within the definition of “debt collection agencies” as defined in the Bankruptcy Abuse Prevention and ConsumerProtection Act]. ” See also Ellen S. v. Florida Bd. ofBar Examiners (S.D. Fla. 1994) 859 F.Supp. 1489 [holding that the American with Disabilities Act, which expressly appliesto all “public entities” (42 U.S.C. § 12132) applied to the licensing and regulation of attorneys]. 15 broad to makeit absolutely clear that Congress intendedit to restrict attorney bar admissions. Congress could have simply made undocumented immigrantsineligible for any state-issued professional license,butit did not. Instead, it made them ineligible for particular kindsof state licenses: those either “provided by an agency ofa State,” or “provided . . . by appropriated funds of a State.” (8 U.S.C. § 1621(c).) Because admission to the Bar does notfall into either of these categories, section 1621 is insufficiently broadto restrict eligibility for admission to the Bar. The district court then looked at a federal statute that expressly regulates attorneys, the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2601 et seq., which specifically provides: the term ‘settlement services’ includes any service in connection with a real estate settlement including, but not limited to, the following: title searches, title examinations, the provisionoftitle certificates, title insurance, services rendered by an attorney, the preparation of documents... and the handling ofthe processing, and closing or settlement.] (12 U.S.C. § 2602(3) [emphasis added].) The court noted that this statute “demonstrated that Congress knows how to include the profession of law in legislation whenit desires a statute to cover attorneys.” (New York Bar. Assn. v. FTC, supra, 276 F.Supp.2d at pp. 134-135.) The court also observedthat: | in defining the scope ofwhatconstitutes “settlement services” under the RESPA, Congresslisted numerousactivities, including those that are performed primarily by attorneys(Z.e., title searches andtitle examinations,etc.). Knowing that such activities are routinely performed by attorneys, and in some states can only be performedby attorneys, Congress still explicitly included attorneys within the statute ’s scope. What Congress did whenit drafted the RESPA is insightful because Congress could have simply listed the types ofactivities the RESPAwasintended to cover, including thoseactivities primarily performed by attorneys, without explicitly referencing attorneys. This is what it did whenit enacted the GLBA. 16 However, Congress did not do that in the RESPA,but rather was careful to explicitly include within the statute's coverage “services rendered by attorneys.” This seemsto be clear proof that Congress did not intend for the GLBA to extend to attorneys. (Id. at pp. 135-136 [footnotes omitted, emphasis added].) Similarly in section 1621, Congress identified professional licenses generally, knowing that Bar admission is a professionallicense to practice law in state, but did not explicitly include attorneys within its coverage and also qualified the restriction in a way that seems to exclude bar admissions. This signals that section 1621 should not be construed to disallow eligibility for adimission to the practice of law. In addition, adverting to Justice Scalia’s memorable admonition that »10 the district courtCongress “does not .. . hide elephants in mouseholes, remarked that “in the face of approximately two hundred years of exclusive state regulation”it was “doubtful that Congress would alter a regulatory schemethat has always been under the authority of the states without even a hint that newly enacted legislation was venturing into that area.” (New York Bar Assn. v. FTC, supra, 276 F.Supp.2d at p. 136.) Forall of these reasons, section 1621 should not be construed to limit this Court’s authority to admit Garcia to the State Bar. '° Whitman v Am. Trucking Assns. (2001) 531 U.S. 457, 468. 17 3. Even when Congressis exercising authority as broad asits authority to regulate immigration, © courts will not assumethatit intends to intrude into a core area of state sovereignty without a clear statement of such intent. Whenthe District of Columbia Circuit affirmed the decision of the district court, that the GLBA did not authorize the FTC to regulate attorneys, it did so not just on ordinary statutory construction grounds, but also for reasons of federalism: | [I]f Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must makeits intention to do so unmistakably clear in the language of the statute.... By now it should be abundantly plain that Congress has not madean intentionto regulate the practice of law “unmistakably clear” in the language of the GLBA. (American Bar Assn. v. FTC, supra, 430 F.3d at pp. 471-472 [quotations and citations omitted].) _ The D.C.Circuit relied on Gregory v. Ashcroft (1991) 501 U.S. 452, in finding a failure of the “clear statement”rule.'’ (American Bar Assn.v. FTC, supra, 430 F.3d at p. 472.) In that case, Missouri state judges challenged the state constitution’s mandatory age 70 retirement age, contending it violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA) and the Fourteenth Amendment’s equal protection clause. In consideration of maintaining the proper balance of '! Followingthe decision of the D.C Circuit, the District for the District of Columbia subsequently applied the Gregory v. Ashcroft plain statement rule to invalidate another instance in which the FTC claimed the right to regulate lawyers pursuant to federal legislation. (See American Bar Assn. v. FTC (D.D.C. December 1, 2009) No. 09-1636, 2010 WL 985122 [invalidating application of identity theft red flags regulation to attorneys underthe Fair Accurate Credit Transactions Act of 2003], vacated as moot and dismissed (D.C. Cir. 2011) 2011 WL 981116 [vacated as mootafter legislative amendmentexcluded attorneys from regulation].) 18 state and federal authority, the Supreme Court noted that although Congress had the powerto “legislate in areas traditionally regulated by the States,” “Tt}his is an extraordinary powerin a federalist system. It is a powerthat we must assume Congress doesnotexercise lightly.” (Gregory v. Ashcroft, supra, 501 U.S. at p. 460.) Noting that in that case the federal law would nullify “a state constitutional provision through whichthe people of Missouri establish a qualifications for those whosit as their judges”(ibid.), and that determiningthe qualifications of such officials “is a power reserved to the States under the Tenth Amendment”as well as the Guarantee Clause (id. at p. 463), the Court noted that the applicable provision of the ADEA “goes beyondan areatraditionally regulated by the States; it is a decision of the most fundamentalsort for a sovereign entity.” (Ibid.) This “Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers.” (/bid.) Accordingly, relying on cases taken from the Eleventh Amendmentcontext, the Court required a “plain statement” that Congress intended to pre-emptthe historic powers of the states and include appointed state judges within the ADEA. (Id. at p. 461.) After considering the various arguments for construing a statutory exception to the ADEAeither to include or to exclude judges, the Court - determinedthat“[iJt is at least ambiguous.” (Gregory v. Ashcroft, supra, 501 U.S. at p. 467.) “[A] plain statement that judges are not ‘employees’ would seem the mostefficient phrasing.” (Ubid.) Lacking a clear statement, the Court held, “We will not read the ADEAto coverstate judges unless Congress has madeit clear that judges are included. ... [I]t must be plain to anyone reading the Act that it covers judges.” (/bid.) In context, the relevant provision was“sufficiently broad that we cannot concludethat the 19 statute plainly covers appointed state judges. Therefore, it does not.” (Ibid.) In holding that the plain statement tule applied to purported Congressional regulation of attorneys under the GLBA, the D.C. Circuit rejected the argument that Gregory v. Ashcroft did not apply because the GLBAdid not regulate the states: Wesee no reasons whythe reasoning should not apply in the present context. The states have regulated the practice of law throughout the history of our country; the federal government has not. This is not to conclude that the federal government could not do so. We simply concludethatit isnot reasonable for an agency to decide that Congress has chosen such a course of action in language that is, even charitably viewed, at most ambiguous. | (American Bar Assn. v. FTC, supra, 430 F.3d at p. 472.) The federal government “has broad, undoubted power overthe subject of immigration andthe status of aliens” that derives from its powerto “establish an uniform Rule of Naturalization” (U.S. Const., art. I, § 8, cl. 4), and its inherent powerto control and conductforeign relations. (Arizonav. United States (June 25, 2012) — S.Ct. —, No. 11-182, 2012 WL 2368661 at p. *5.) But even in the context of the exerciseof this comprehensive federal power, the Supreme Court notedthat “{i]n preemption analysis, courts should assumethat the historic police powers of the States are not superseded unless that was the clear and manifest purpose of Congress.” (id. at p. *8 [internal quotations and citations omitted].) Thus, even if there is little doubt that Congress could restrict state courts from granting bar admission to undocumented immigrants, the Supreme Court requires an unambiguous statement that Congress so intends. That unambiguous statement is missing from section 1621, at least with respect to the practice — of law. Section 1621 should not be construedto limit this Court’s authority to admit Garcia to the Bar because it is unsupported by a plain statement 20 that Congress intended to intrude on state authority to regulate Bar admission. I. IMMIGRATION STATUS HAS NO BEARING ON GARCIA’S QUALIFICATIONS FOR THE BAR. Asset forth above, admitting Garcia to the Bar is not forbidden by federal law. Further, an immigrant’s entry into the country without proper documentation doesnot byitself indicate a lack of moral character necessary to practice law.’? Thereis noindication that Garcia cannot comply with the attorneys’ oathor his ethical responsibilities under the California Rules of Professional Conduct or Business and Professions Code section 6068. There are no legal limitations on his ability to practice law and anyrestrictions on Garcia’s employmentare unrelated to licensure. A. There Are No Legal Limitations on Garcia’s Ability to Practice Law. . It is important to bear in mind that Garcia has never been charged with any crime. He entered the country with his parents eighteen years ago, when he was 17. Illegal entry can be charged as a misdemeanor(see 8 U.S.C. § 1325), but Garcia is an unlikely defendant as he entered as a minor underhis parents’ care.’’ Although it does subject him to the civil penalty of deportation, Garcia’s continued presence in the United States is not a crime of any kind. (Arizona v. United States, supra, 2012 WL 2368661at p. *13.) Indeed, 17 years ago Garcia’s parents applied for him to obtain a visa so that he could be lawfully present in this country. It is also not a crime for an undocumented immigrant to work, although there are penalties ? Certainly, the Committee of Bar Examiners did not conclude otherwise, or it would not have moved for Garcia’s admission. 3 Tn any event, the five year statute of limitations has long run on Garcia’s improper entry. (See 8 U.S.C. § 3282.) 21 for employers who hire or continue to employ undocumented workers. (/d. at p. *11.) . There is no evidence here of moral turpitude that would prohibit’ Garcia from being licensedto practice law. (Bus. & Prof. Code, § 6061.) Garcia did not mislead federal officials when he entered the country; indeed he has been open abouthis status with federal officials since his entry,- including in connection with his application for a visa, which has been approved pending availability. There is no conflict inherent in being in this country without proper documentation and the ethical practice of law." B. Issuance of a License to Practice Law Does Not Imply Lawful Employability, Nor Should the Existence or Absence of Work Authorization Influence Licensure. Federalrestrictions on the employment of undocumented immigrants do not bear on whetherthis Court should license Garcia to practice law in California. Issues of licensure are separate and independent from issues of employment. Licensure is an acknowledgmentby this Court that a candidate has met the requirements for entry into the profession regardless '* Of course undocumentedattorneys,like all attorneys, should be held to the high moral and ethical standards set by this Court and the State Bar. In contrast to Garcia, however, an undocumented immigrant who enters the country as an adult, using falsified documents, or who perjures himself to gain entry may demonstrate a moral turpitude that should disqualify him from admission to the Bar. There are other practical concerns associated with admitting to the Bar undocumented immigrants whoare less than frank about their status. For example, they might seek to avoid contact with law enforcement, courts, or other officials, which would interfere with the duties they owe to their clients. For this reason, the State Bar may wish to consider imposing a requirement similar to that imposed on undocumented immigrants seeking exemption from paying out of state college tuition: an affirmation that the candidate hasfiled or will when eligible file an application to legalize his or her immigration status. (Ed. Code, § 68130.5, subd. (a)(4).) 22 of whether the licensee ever practices law. Employment of an undocumentedperson, on the other hand, concerns whether, as a matter of federal law, a person may be employedin this country regardless ofhis profession. These are two independent inquiries.’ Indeed, many prospective membersofthe Bar (regardless of immigration status) may never practice law, because they wish to enter a different field in which a legal credentialis not strictly necessary but may be helpful, or simply want prove to themselves and others that they can pass the mostdifficult bar exam in the country. The State Bar and this Court do not generally inquire about whether an individual intends to be employed as an attorney before grantinga licenseto practice law, and should not in this case. | California has historically differentiated between licensure and employment, as evidencedbythefact that this Court is authorized to admit foreign nationals to the practice of law. Prior to 2005, Business and Professions Code section 30 required that anyone applying for admission to the Bar provide a social security numberor federal employeridentification number. This requirement effectively prevented anyone whowasineligible to work from applying. In 2005, however, the Legislature enacted Business and Professions Code section 6060.6, which expressly allows an applicant whois not eligible for a social security numberto apply for admission to 'S Although licensure and employmentare independent inquiries,it is true that sometimes both mustbe satisfied. That is, to employ a lawyer in California, an employer must determine both that the candidate has lawful immigration status and that heis licensed to practice law. As discussed below, however,it is not the case that to work as a lawyer, both of these conditions mustbesatisfied. 23 the Bar.'® In doing so, the Legislature expressly contemplated that individuals who werenot U.S. citizens or residents—and thusnoteligible to work in the United States—would be admitted to the Bar. The Legislature respondedtoletters from the Irish and British governments, among others, highlighting that many of their businesses had a presence in California, and that allowing their citizens to study law in California would help those businesses. Section 6060.6 establishes that foreign nationals may be admitted to practice law, even though they maynot be able to be employed in the United States. The fact that an employer could nothire Garcia to work in the United States thus should notbe a barrier to his admission to the practice of law. The enactmentof section 6060.6 reflects the fact that individuals who cannot be “employed” in the United States may nonetheless use their Bar license in myriad ways. Nothing prevents foreign nationals from returning to their country of origin (or any other country) to practice or teach law. Giventhe ease with which individuals can communicate over the internet and the global nature of the economy, it is possible to practice law from outside of the country, as do many other foreign nationals who receive a Barlicense pursuant to section 6060.6. Even within the United States, Garcia may be able to use his Bar license. The Immigration Reform and Control Act IRCA) makesit unlawful for a person or entity to knowingly hire an unauthorized alien. (8 USS.C. § 1324a(a)(1)(A).) Under IRCA, employers are required to verify that their employees are authorized to work by examining the employee’s documentation and completing an I-9 Form. (8 C.F.R. § 274a.2 (2012).) '® Section 6060.6 only applies to an application to practice law; other professional licenses remain subject to Business and Professions Code, section 30. Thus, even if the Supreme Court were to grant Garcia a law license, it would havelittle, if any, direct effect on other professions. 24 An undocumented immigrant, however, could legally provide services ona pro bono basis. And while the law is unsettled in this area, there may be ~ other ways, consistent with IRCA, for an undocumented attorney to earn a living by practicing law in California.'’ It is also important to keep in mind that federal law governing the employability ofundocumented immigrants has changed over time. The first federal restrictions on the employment ofundocumented immigrants were passed by Congress whenit enacted IRCA in 1986;prior to that time states had the authority to regulate their employment. (See Arizonav. United States, supra, 2012 WL 2368661at p. *10.) More changeis afoot. It may soon become lawful for some undocumented immigrants to be hired. The Department of HomelandSecurity recently announced a new deferred- action process, whereby certain undocumented immigrants will be "’ The Committee of Bar Examiners argues that undocumented immigrants may legally work as independent contractors for clients, for instance in a solo practice. While the Attorney General agrees that in a relationship between an attorney in private practice andhis client, the attorney should be characterized as an independent contractor rather than an employee,it is uncertain whether a client may legally enter into a contract with an undocumented immigrant. (Compare 8 C.F.R. § 274a.5 (2012) [prohibiting the contracting of services from an individual the contracting party knows to be an undocumented immigrant] with National Lawyers’ Guild, 1 Immigration Law and Defense § 12:7 (2012) [“Congress evidently did not intend to make employersliable for the hiring practices of bonafide subcontractors or independent consultants; it only intended this languageto coversituations wherethe parties use independent contractor status or engagein the barter of goods for services as a pretext to avoid penalties”].) Some commentators believe that undocumented immigrants can legally own their own businesses, a factor that some Immigration Judges have used as a justification that an undocumented immigrant should be permitted to stay in the country. (Mastman, Undocumented Entrepreneurs: Are Business Owners “Employees” Under the Immigration Laws (2009) 12 N.Y.U.J. of Legis. and Pub.Policy p. 225; Matter ofGonzalez Recinas (2002) 23 I. & N. Dec. 467, 468.) 25 permitted to legally remain in the United States and, in certain cases, obtain _ authorization to work. Individuals who meetcertain criteria will be eligible to receive “deferred action,” meaning that the federal government will defer removal of the individual as an act of prosecutorial discretion. This policy will apply to individuals who: | e Came to the United States under the age ofsixteen; e Continuously resided in the United States for at least five years preceding the date of the policy change andare presentin the United States on the date of the policy change; e Are in school, have graduated from high school, have obtained a general education developmentcertificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; e Havenot been convicted of a felony offense, a significant _ misdemeanor offense, multiple misdemeanoroffenses, or otherwise posea threat to national security or public safety; and ° Are not abovethe age ofthirty.’ Individuals who obtain deferred action may receive employment authorization provided that they can demonstrate an economic necessity for employment.'? While Garciawouldlikely not receiverelief under this new policy, it is undoubtedly the case that many undocumented immigrantswill. There are thus a substantial numberof individuals for whom federal employmentrestrictions would no longer pose a barrier to employment. Thefluidity of federal immigration law illustrates that IRCA’s _ restrictions on employment of undocumented immigrants should not '8 http://www.dhs.gov/files/enforcement/deferred-action-process--for- young-people-who-are-low-enforcement-priorities.shtm ? http://wwwuscis.gov/files/form/i-765instr.pdf 26 influence this Court’s determination of whetherto license Garcia and other undocumented immigrants who meet California’s rigorous requirements to be licensed to practice law. Certainly, the risk that Garcia might be deportedis insufficient grounds to deny him admission to the Bar. As the Committee of Bar Examiners explains in its brief, the possibility that Garcia would be _ deported is extremely low. (Committee’s Br. at pp. 34-35.) For over a decade Garcia has been knownto federal officials, who havenotinitiated deportation proceedings. Even if the federal government initiated deportation proceedings against Garcia, he could apply for cancellation of removal. (8 U.S.C. § 1229b, subd. (b)(1).) While there is always a risk that an undocumented immigrant might be unableto fulfill his or her | obligations to a client because of deportation, similar risks exist for all attorneys, any of whom could experience a life event—an illness, accident, disability, or other emergency—that interferes with their obligations to clients. All attorneys are ethically obligated to plan for such eventualities - by securing adequate representation for their clients, and courts may also interveneto protect a client. (Bus. & Prof. Code, §§ 6180, 6190.) Ti. ADMITTING GARCIA TO PRACTICE LAWWOULD BE CONSISTENT WITH THE PUBLIC POLICY OF CALIFORNIA AND THE STATED POLICY OF THE FEDERAL GOVERNMENT. A. California Encourages Law-Abiding Undocumented Immigrants to Become Educated and Improvetheir EconomicStatus. Thepolicy of this state as expressedin its lawsis to expand the opportunities of undocumented immigrants so that they can lift themselves into a better life and be of service to their communities. Recently, the Legislature passed the California DREAM Act, which allows | undocumented immigrants to obtain public andprivate scholarshipsto state colleges and universities in California. (See Stats. 2011, ch. 93 (Assem. 27 Bill 130) and Stats. 2011, ch. 604 (Assem.Bill 13 1).) Undocumented immigrants will now be afforded substantially the same opportunities to attendinstitutions of higher learning, including public law schools, as California residents. In this way, the California Legislature encourages undocumented immigrants to attend college in California.*” (See Martinez v. Regents ofthe University of California (2010) 50 Cal.4th 1277.) Admitting Garcia to practice law would be consistent with the Legislature’s policies. Admission to the practice of law would complement the state’s effort to encourage undocumented immigrants to attend high school, college, and indeed law school. Denial of admission, by contrast, would undermine state policy by shutting the door at the very moment when undocumented immigrants seeks to use that education to better themselves, their families, and others. B. Admitting Garcia Would Be Consistent With Stated Federal Policy Goals As Well. The stated primary purposeof section 1621 is to encourage immigrants to be self sufficient and to ensure that undocumented immigrants do not financially burden the states. Admitting otherwise qualified undocumented immigrants to practice law in California doesnot offend these concerns. Specifically, Congressstated: *° California has made a concerted effort to educate undocumented immigrants. The Legislature has concluded that educating undocumented immigrants “increases the state’s collective productivity and economic growth.” (Stats. 2011, ch. 93 (Assem. Bill 130).) California has provided a K-12 public education to undocumented immigrants for decades, in compliance with federal law. (See Plyler v. Doe (1982) 457 U.S. 202, 230.) In 2001, the Legislature enacted Education Code section 68130.5, which exemptsall high school graduates who attended a California high school for three or more years, including undocumented immigrant students, from paying non-resident tuition at California state colleges and universities. (Stats. 2011, ch. 814, § 2.) 28 (1) Self-sufficiency has been a basic principle of United States immigration law since this country's earliest immigration statutes. (2) It continues to be the immigration policy of the United States that-- (A) aliens within the Nation's borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations, and (B) the availability of public benefits not constitute an incentive for immigration to the United States. (3) Despite the principle of self-sufficiency, aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates. (4) Current eligibility rules for public assistance and unenforceable financial support agreements have proved wholly incapable of assuring that individualaliens not burden the public benefits system. (5) It is a compelling governmentinterest to enact new rules for eligibility and sponsorship agreements in order to assure that aliensbe self-reliant in accordance with national immigration policy. (6) It isa compelling government interest to remove the incentive for illegal immigration provided bythe availability of public benefits. (7) With respect to the State authority to make determinations concerning the eligibility of qualified aliens for public benefits in this chapter, a State that chooses to follow the Federal classification in determining the eligibility of such aliens for public assistance shall be considered to have chosenthe least restrictive means available for achieving the compelling governmentalinterest of assuring that aliens beself-reliant in accordance with national immigration policy. (8 U.S.C. § 1601.) 29 It is of course difficult to reconcile this stated congressional policy with section 1621’s restriction on professional licensing. Licensing, especially that based on fees paid by the licensed, generally increases one’s ability to be self-sufficient and avoid becoming a burden onthestate. It is therefore unclear what purposethe restriction was meant to serve. And there are reasons to doubt that allowing an undocumented immigrantto obtain a Bar license has any impacton illegal immigration. Admission to practice law is unlike any of the other “public benefits” listed in section 1621: the applicant must pay a yearly fee for this “benefit,” which requires a college degree, three years of law school, success at a rigorous bar examination, and a moral character determination. A license to practice law is a long-term commitmentthat, unlike employment, food stamps, medical care, housing, or cash benefits, seems unlikely to encourage either illegal immigration or continuedresidence. Admission of undocumented immigrants certainly would not undermine Congress’s stated goal of ensuring self-reliance and avoiding a burden on public resources. Garcia is an example of the kindofself- sufficiency that Congress has stated should be a “basic principle” of immigration law: he put himself through college and law school, all the while earning a living and paying taxes. Admitting Garcia to the Bar would not “burden the public benefits system.” This is not public welfare, it is fee for service: if admitted, Garcia would be charged the annual duesthat all attorneys pay and so would subsidize the State Bar’s activities, not drain its resources. By admitting Garcia to the practice of law, this Court would not violate eitherthe letter or the spirit of section 1621. 30 CONCLUSION Thereis no law or policy preventing Sergio Garcia from becoming a memberofthe State Bar. Garcia has come from a humble background and has worked hard to put himself through college and law school. He now wishes to devote himselfto a life of service in one of the most important professions in our society. He has no criminal record, he has been open about his immigrationstatus, is following the rules to gain legal status, and has contributed to his community. As a matter of policy, state and many local governments have acted to incorporate the millions of undocumented immigrants into the social order and to improve their economic status. While the federal governmenthas yet to enact comprehensive immigration reform,it has also begun to implementpolicies that recognize that millions of law abiding persons reside in this country without proper documentation, and that they can, and should, be productive membersof society. Admitting Sergio Garcia to the practice of law is consistent with state and federal policy. This Court ' should give Garcia’s application to become a memberofthe State Bar of California its full consideration. 31 Dated: July 18, 2012 Respectfully submitted, KAMALAD. HARRIS Attorney General of California ROCHELLE C. EAST Chief Deputy Attorney General MANUELM. MEDEIROS State Solicitor General JONATHAN WOLFF Acting Chief Assistant Attorney General ~ DOUGLASJ. WOODS . Senior Assistant Attorney General TAMAR PACHTER SupervisingPOYGeneral Dink) Deputy Attorney General Attorneysfor Amicus Curiae Kamala D. Harris Attorney GeneralofCalifornia 32 CERTIFICATE OF COMPLIANCE I certify that the attached Brief of Amicus Curiae California Attorney General Kamala D. Harris in Support of Petitioner uses a 13 point Times New Romanfont and contains 9,523 words. Dated: July 18, 2012 KAMALA D. HARRIS Attomey General of California DANIEL J. POWELL Deputy Attorney General Attorneysfor Amicus Curiae Kamala D. Harris Attorney GeneralofCalifornia DECLARATION OF SERVICE BY U.S. MAIL Case Name: Jn re Sergio Garcia on Admission No.: $202512 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On July 18, 2012, I served the attached BRIEF OF AMICUS CURIAE CALIFORNIA ATTORNEY GENERAL KAMALAD. HARRIS IN SUPPORT OF PETITIONERby placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Jerome Fishkin, Esq, Fishkin and Slatter LLP 1575 Treat Boulevard, Suite 215 Walnut Creek, CA 94598-1048 Attorneyfor Petitioner Rachel S. Grunberg,Esq. Joseph Starr Babcock, Esq. State Bar of California Office of General Counsel 180 Howard Street San Francisco, CA 94105 Attorneys Respondent Larry DeSha 5077 Via Cupertino Camarillo, CA 93012 Amicus Curiae Donald K. Tamaki, Esq. Minami, Lew & Tamaki, LLP 360 Post Street, 8th Floor San Francisco, CA 94108 Attorneyfor Respondent MarkA. Perry, Esq. Gibson Dunn and Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5308 Attorneyfor Respondent Robert E. Palmer, Esq. Gibson, Dunn & Crutcher LLP 3161 Michelson Drive Irvine, CA 92612-4412 Attorneyfor Respondent Beth S. Brinkmann DepartmentofJustice 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0009 Attorneyfor Amicus Curiae Carlos Roberto Moreno Irell and Manella LLP 1800 Avenueof the Stars, Suite 960 Los Angeles, CA 90067-4201 Attorneyfor Amicus Curiae Anthony Philip Marquez Lorenzo Patino School of Law 1115 H Street Sacramento, CA 95814-2811 Attorneyfor Amicus Curiae Joshua Kaizuka Law Office of Denis White 901 H Street, Suite 101 Sacramento, CA 95814-1817 Attorneyfor Amicus Curiae Nyce Sue Shugall Attorney at Law 938 Valencia Street San Francisco, CA 94110-2321 Attorneyfor Amicus Curiae I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct and that this declaration was executed on July 18, 2012, at San Francisco, California. Susan Chiang 6 Declarant Signature $A2012106391 20626539.doc