GARCIA (SERGIO C.) ON ADMISSION

Amicus Curiae Brief of Dream Bar Association, et al.

Cal.July 27, 2012

SUPRENE COURT COPY sursene cour JUL 27 2012 Bar Misc. 4186 Frank A. McGuire Clerk §202512 Deputy IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE SERGIO C. GARCIA ON ADMISSION APPLICATION FOR LEAVETO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF OF THE DREAM BARASSOCIATION, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, ASIAN PACIFIC AMERICAN LEGAL CENTER, ASIAN LAW ALLIANCE, NATIONAL ASSOCIATION OF LATINO ELECTED AND APPOINTED OFFICIALS EDUCATIONAL FUND, AND NATIONAL COUNCIL OF LA RAZA IN SUPPORT OF SERGIO C. GARCIA Nicholas Espiritu SBN 237665 MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street, 11" Floor Los Angeles, California 90014 Telephone: (213) 629-2512 nespiritua@maldef.org Attorneysfor Amici Curiae Bar Misc. 4186 8202512 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE SERGIO C. GARCIA ON ADMISSION APPLICATION FOR LEAVETO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF OF THE DREAM BAR ASSOCIATION, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND,ASIAN PACIFIC AMERICAN LEGAL CENTER, ASIAN LAW ALLIANCE, NATIONAL ASSOCIATION OF LATINO ELECTED AND APPOINTED OFFICIALS EDUCATIONAL FUND, AND NATIONAL COUNCIL OF LA RAZA IN SUPPORT OF SERGIO C. GARCIA Nicholas Espiritu SBN 237665 MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street, 11" Floor Los Angeles, California 90014 Telephone: (213) 629-2512 nespiritu@maldef.org Attorneysfor Amici Curiae CERTIFICATE OF INTERESTED ENTITIES The undersigned counselcertifies, pursuant to Rule 8.208 of the California Rules of Court, that he represents the following entities, each of which is an organization joining in the attached application and amici curiae brief: e Dream Bar Association e Mexican American Legal Defense and Educational Fund e Asian Pacific American Legal Center e Asian Law Alliance e National Association of Latino Elected and Appointed Officials Educational Fund e National Council of La Raza Dated: July 18, 2012 Nicholas Espiritu MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND il TABLE OF CONTENTS Page No. CERTIFICATE OF INTERESTED ENTITIES...eeeeeeneeeeeee il TABLE OF CONTENTS00... cecccccesesceeeeneceneeceeeeeeeeseesseeeeneeeseneeees il TABLE OF AUTHORITIES 0.0...cececeececeeeceneeeeeseneeeeaeeceeeeteneeens vi IDENTITY AND INTEREST OF AMICUS CURIAE.....ee 1 INTRODUCTION000.cecccecceeeeceseeeseecesesseeeseseeseeeececeaneesieeeeaneenaes 6 ARGUMENT...0.. ec cccccceccceseceneeceseeseeecseeeeaeeceseeceeceeenseeseseeseeeeseeseeneenaes 8 I. Section 1621 Has Not Preempted the California Judicial Branch’s Traditional Power to Regulate Bar Membership... 8 A. Section 1621 Has Expressly Preempted SomeState Power to Extend Public Benefits to Undocumented Students ooo. eeeccceccssssececcececsenunssessececausavsceecesauseceenes 8 B. Section 1621 Does Not Preempt the California Supreme Court’s Authority to Decide Who Should Be Admitted to the Baroccceeesecenereesenecseseeceesseesseeseeeenes 10 1. Section 1621 Should Be Read Narrowly Because There Is a Presumption Against Preemption of Historic State Judicial Powers ..........ccccccceeecceesecceeees 10 2. Section 1621’s Limitations on Public Benefits Do Not Apply to Bar Membership .............ccceeeeeenees 12 3. California Courts Are Not Agencies of a State Within the Meaning of 8 U.S.C. § 1621 (C) nceeeeeees 13 4. Bar Membership Is Not Granted Using Appropriated FUMIS 000... eeeseeceseesceeeeeeneeeeeeeeaeeeeaesseeeeseeeseesnseeeeaeees 16 ill 5. The Purpose and Legislative Record of 8 U.S.C.§ 1621 Does Not Indicate Congress Intended to Limit California’s Regulation of Bar Membership........... 17 II. Construing 8 U.S.C. § 1621 to Allow Undocumented Students to Be Admitted to the Bar Would Avoid Constitutional Conflicts .0......0ceceececceceeecccseeeseseceeceeeeeeesees 19 A. B. Requiring California to Pass a New State Law Under§ 1621(d) Impairs California’s Ability to Structureits Governmental Functions .......0...ccccceeeeseeeteeeeteeeeeeees 19 There is a Student-College Contract Implicating Rights Afforded under the Contracts Clause............ceee 22 UI. California Has Affirmatively Provided For Undocumented Students to Be Admitted to the Bar for Purposesof 8 UIS.C. § 1621) eeeeccecccecseeseeeeeeeeeeseeeeeeeaeeeeeeeaeees 27 A. Section 1621 Only Requires That States Affirmatively B. Provide for Eligibility...eeeeeesceeeeeeeeeeenees 28 California Has Affirmatively Provided For Undocumented Students to Be Able to Be Admitted to the Bar ....ccccccccccccceceeeccccuccccccecsecccuvsceceveesecseeueecsenseceens 29 IV. Public Policy Supports Admitting Undocumented Immigrants To the Practice Of Law... ceieeseeeeeeeee 31 A. Undocumented Law Students and Graduates Have B. Overcome TremendousBarriers to Achieve Their Dreams of Becoming AttorneyS..........cccccecceeeeeeeees 32 1. “José Manuel” ou... ccccecscccccceesceeesseeeeeseeees 33 2. “ALICIA? oececccccccceeseeceecesssseeseesseeeesestseeeeeaees 34 Federal Policy Supports Admitting Undocumented Immigrants to the Practice of Law ..........ccc 35 1V C. Allowing Undocumented Immigrants to Practice Law Furthers the California State Bar’s Goals of Creating Accessto Legal Services for Marginalized Communities and Promoting Diversity Within the Legal Profession ..........cccccesccescesceceseeeeeeessessseeeenes 38 1. DBA Members Have Showna Dedication to Providing Legal Services For Underserved Populations..0.......ececececeesceeseeseeeneeeeeeseeeeteesseersees 38 2. Undocumented Immigrants Can Contribute to the Diversity of the Bar 0... ceccceceseseeeeteeeeseeeenes 4l CONCLUSION...iecccccececeeeeeeeceeeeseeeeeeeeceeeseesseeeeessseesseessseateesees 43 CERTIFICATE OF COMPLIANCE.0....eccccccccecesscceeseeeceeteeeseesseeeaes 44 PROOF OF SERVICE. ......cecccecccesceseeseessecesseesecesseseesessesecesseesseeseeeaee 45 TABLE OF AUTHORITIES Page No. Cases Arizona v. United States, (2012) 567 USS. » No. 11—182,slip Op...cece eeeeeeeseteeeees 9,10, 11 Bannum, Inc. v. Town ofAshland, (4th Cir. 1990) 922 F.2d 197)... 0...ecece cece cece eect nena tent nn eeeas26 Carmel Valley Fire Protection District v. State of California, (2001) 25 Cal.4th 287.0000... cece cece cee nent ene ee teeta eee een ee ene es 14 Chamber ofCommerce ofthe United States v. Whiting, (2011) 131 S.Ct. 1968.0...ccceee eee e cence nena ene e ees 10, 11 City ofFederal Way v. Koenig, (2009) 167 Wash. 2d 341 0.0...eeee e eee en eee ene een ens 14 Clark v. Martinez, (2005)543 US. 37Liceeee e nee e eee ee ene eee ene eaeea eee neeeaeenenes 19 DeCanasv. Bica, (1976) 424 U.S. 351cece cece ee eee aee eee e eee ne nett eee eaeae es 9 Ex parte Garland, (1866) 71 U.S. 333...enedeee eee eee t ne ene een enes 12 Foley v. Interactive Data Corp., (1988) 47 Cal.3d 654.00...eccc e ence eect ne eee e eee e tenses enaenenas22 General Motors Corp. v. Romein, (1992) 503 US. 18]... cece cece ence erent eden ene bene ee ee nate eaes26 Graham vy. Richardson, (1971) 403 U.S. 365.00.eenener een ene Ee Eta ees23 Greene v. Zank, (1980) Cal. App. 3d 497.00... ccc ccc cence eee eee e ene e eens ene en ens 13 Vi Hodel vy. Va. Surface Mining & Reclam. Ass'n, Inc., (1981) 452 US. 264... cence eee e eter t ea ea een enae atta 20 Hoffman v. State Bar of California, (2003) 113 Cal-App.4th 630..........cccccccc ccc cc ence eee e ee ee eee en ee ee tena tees 11 Hoover v. Ronwin, (1984) 466 US. 558.00.ccc ccc cece eee ence eee eee abet ee ene teat teas 11 Hubbard v. United States, (1995) 514 U.S. 695.0neeee eee ee ends 16 Hustedt v. Workers Compensation Appeals Bd., (1981) 30 Cal.3d 329.0... ccce cence cee een eee eet enter ee tenet ene ees 13 In re Attorney Discipline Sys., (1998) 19 Cal.4th 582.000cnee c eee e een eee eeeenene enapassim In re Cate, (1928) 273 P. 617... cece cc cece e cence eee ee teat eee enene cae 11,12,21,22 In re Jose C., (2009) 45 Cal4th 534.000...ecece eee e ee ene een een eee geen eens 9 In re McKinney, (1968) 70 Cal.2d 8.0...eeee e eee eens teens eae e eaten 21 In re Seltzer, (9th Cir. 1996) 104 F.3d 234.0...ccc cence cence cence nee eee een eeee eens 26 LN.S. v. St. Cyr, (2001) 533 US. 289...eteen ene n tere nett tees 18 Johnson v. Walden University, Inc., (D.Conn. 2011) 839 F.Supp.2d 518.0000... cece cece ence e sent ee neeee nae 23 Kashmiri v. Regents of Univ. of Cal., (2007) 156 Cal.App.4th 809.020... cece cece eens eens sense teen eens22,23 Keller v. State Bar of California, (1990) 496 U.S. occennnen n eee e een Eee e ene 14 Kimbrough v. United States, Vil (2007) 552 U.S. 85 .ccccccccececceeeecseceeestsstecevtsssestrsteseevstteeeeen 15, 28 Konigsberg v. State Bar of Cal., (1961) 366 ULS. 36.0... cece cece cee cere ened n eect cnet nent eae e beeen es 1] Laisne v. State Bd. ofOptometry, (1942) 19 Cal.2d 831... cece cece cece cece eens beeen een ene ee teens 21 Lauderbach vy. Zolin, (1995) 35 Cal.App.4th 578 ........ ccc cece cece cent ete ee eee eae eneeeea tenes cass 30 League of United Latin American Citizens v. Wilson, (C.D. Cal.1997) 997 F.Supp. 1244.00.00. cece cece cence reese eee eens 336 Mandelv. Myers, (1981) 29 Cal. 3d S31 cece ceccecscseeneceseeseeeeessessesecsecsecsecsecsseesessescaesaeenaees 22 Martinez v. The Regents ofthe Univ. ofCal., (2010) 50 Cal.4th 1277, 1287 (Martinez) ...ccccccccccsccscsescsseeteeteeeeespassim. McClung v. Emp. Dev. Dept., (2004) 34 Cal4th 467.00...ccece cence tence ette eee e ent ee ene en teenies21 Medtronic, Inc. v. Lohr, (1996) 518 U.S. 470...ccccence cceee eee eee saeee cee eset eeaaeeannnees 12 Merco Const. Engineers, Inc. v. Mun. Ct, (1978) 21 Cal.3d 724.2000cc ccc cece eee ee scene eee e eevee eee eeteentans 21 Mogensen vy. Bd. ofSupervisors, (2004) 268 Neb. 26.0.0... cece eee eee ene neers nent teeta eeeeeeeetaeias 14 Myers v. Philip Morris Cos., Inc., (2002) 28 Cal.4th 82800...cee cence cence ee eee etna tee e eee e bene enes 19 Nat’! Ass’n of Greeting Card Publishers v. U.S. Postal Service, (1983) 462 ULS. 810...cece cence eee eee e eee e nee ee ene en ee anes 18 Obrien v. Jones, (2000) 23 Cal.4th 40.0000... cece ccc cece cece cesses ee cess eeeteeugenas 11,21 Oklahoma v. New Mexico, (1991) 501 U.S. 221... ccc ccc ccc cece cee e testes sess teas seatenenaes 17 Viil People v. Garcia, (2002) 28 Cal. 4th 1166.2... 00. cceee cence eee ta been seat ene e nee ens 17 Plyler v. Doe, (1982) 457 U.S. 202.00... cce ccc cece cece e secant eeeneeeaes 1, 2, 23, 36 Rice v. Santa Fe Elevator Corp., (1947) 331 U.S. 218...ceceenereee tree renee bene e ens 11 Ruegsegger v. Bd. ofRegents of Western N.M. Univ., (N.M. 2006) 154 P.3d 681.0000... occ cece cence cena cence eee ee ceeniees 23 Sacharow v. Sacharow, (2003) 177 N.J. 62.00...eccc cece ee cece eee e ee ena ee eeseeneeeeeeeennas 14 Schreiber v. Bastemeyer, (lowa 2002) 644 N.W.2d 296..... 0... ccc ec cce cece nee eee ee eeetee ene e eee ene eees 14 Scott v. Pacific Gas & Electric Co., (1995) 46 Cal.Rptr.2d 427.000...cence eee eee eee teens cenit22 Service Employees Internat. Union v. Superior Court, (1982) 137 Cal.App.3d 320.0... . 0c cece eee ce ee ene ee eee nett nena enna ene ee 15 Silva v. Providence Hosp. ofOakland, (1939) 97 P.2d 798.2...e ccc ce eee cence eee ene nee eee eee eee betes22 Solberg v. Superior Court, (1977) 19 Cal.3d 182.0...ccceee tee nte eee nee eee ee21 State ex. rel. Stenberg v. Murphy, (1995) 247 Neb. 358... 0... ec ceee cece eee eeeenn een ener teen eee ee 14 State ofNev. Employees Ass'n, Inc. v. Keating, (9th Cir. 1990) 903 F.2d 1223.00... cece cence nent eet eeee ease eae ens26 Superior Court v. County ofMendocino, (1996) 13 Cal.4th 45.0.0cececece eee ents eee nett eae eea tenes 21 Takahashi v. Fish and Game Comm‘n, (1948) 334 US. 410...cece ccc ence ee cee ene e beeen eb tttnees 23 1X United States v. Bongiorno, (ist Cir.1997) 106 F.3d 1027.02... cece ccc cece cece eee eee neneee nena es 20 Vasquez v. State ofCalifornia, (2008) 45 Cal.4th 24300.ccc ence eee eee eee ene ate ee teat ene en es 28 Watkins v. Mississippi Bd. ofBar Admissions, (Miss. 1995) 659 So. 2d S61...occcece cnet een ee eee ee eee eee 14 Wyeth v. Levine, (2009) 555 U.S. 555...neeee ence nena eee eet cnet eee teeta ties 11, 12 Zumbrun v. Univ. ofSouthern Cal., (1972) 101 25 Cal.App.3d 1... ..ccc cece cence eee ee eee eeeeeaeeenees23 Constitutions Cal. Const., art. 1, § 9 occcccccccccsecsecesseeeecseecsecesseecsecsseccssecseeeecseensneecenseens 26 Cal. Comnst., art. VI, § Qo... ccccccccseccscccesseeeeeeseeessseeecsssesseecssesenssssecseeeeerenses 1] USS. Const., art. I, § 10, cho 1 occcccccseccccsessccsseeecssseeeeessesseecceneeeeas 11 U.S. Const., art. VI, cl. 2 coeeecccccccccescseceeecesssceseessreseseueeseseeneeeesneenas 9 Federal Statutes B U.S.C. § 1601 cccccseccscsseecsssseescsssesessssecssssvsssssesssssssessssssusssssneesenteceeennesaseees 18 B US.C § LOLD ccccccccscesscssessssssseecsseessssscscssuvssssssvesarssesessasavecssssessssiesesasessseees 18 BUS.C. § 1621 cecccccccccscccccesssssssssessssssssumesesssssssesessssssssssesssnsnssansesecessseesseesee passim 15 U.S.C. § 5001(Q) .cscscscssssceesesssesssessssecssssuvsssessesessessssssveseesssuesansseseesserseea 16 15 U.S.C. § 6763(b)sccccsescsssssseceseessssssecsssssessssvesserssesesssssueessstiesssneessssneesseeeen 16 28 U.S.C. § 1446 vocccccccssessssssssseccsssssvecsssssevecssereesessssecessesssevensssssesssnsnavecasevees 16 28 U.S.C. § 1738 cesccsssssssevssssssesvesssesusecesssveesssvecsesssesseseesssseesssasessssssieeeaseeees 16 28 U.S.C. § 2254 voecccssscsssssssssecssssssssssssesssssssesessessesesssssssessnesesusnisanssnsaseseerenssseeee 16 28 U.S.C. § 2283 ooo ccccecceseceneeseseeeseeeneecseeeseneceaeseeeeeaeceeeneeeseaesneeetaesnaeens 16 32 U.S.C. § 112(a)(3)(A)seccccssevesccsseesssssssevsesssessevssseeessesevsesseasuessesssecesseneses 28 PRWORA,42 U.S.C. § 601(a)(2) (2012) -esscccssssssseesscsssessssesseesessesesessseesee 17 42 U.S.C. § 1981 (a) vcccccseessccssseesccssssvessssssesssssseeesessvessssssteesesasieceessssesseneses 23 State Statutes Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Cal. Bus. & Prof. Code, § 30.0... .cccccccccccccccecsssecsssssesceececseesesessseeeeseessaeeees 29 Bus. & Prof. Code, § 6060.6 .........ccccccceeseeseteeseeeseeteeeteens 27,29,30,31 Bus. & Prof. Code, § 6063 oo... ccccccccccccesssseeeessssseeesseeseeeeessssseeeeeees 16 Bus. & Prof. Code, § 6064 o......cccccccceseeeeseeeseneeceeeseesssseesseeenaaes 11, 13 Bus. & Prof. Code § 6144 oo... cccccccecccesceeeeeeneeesaeeeneessseeeeseeesseeteneeees 17 Educ. Code § 68130.5 ......ccccccccccccsceccssecesseeeesesessaeeccseseesseesesseeesensaees 27 Educ. Code § 66021.6.........cccccccccescecesecseeeseeeeeeseeeecesesessseseaseseeeneeens 27 Educ. Code § 69508.5 .......ccccccccscccsscecssseccseeessssecesseecesseseesseeseseeeesenseese 27 Educ. Code § 76300.5 .......ccccccccecccsseseeeesceeeseeesecneceeeeseeseeseeenteneeeseenas 27 Fam. Code § 17520 ....cccccccecccccscseeneeeeseeseeeeeeesseessestecseeeceseseeenens 29,30 Govt. Code, § 7596(b) .......ccccccccceesecceetseeseeeeeeeeesteeesseeesesneeesseeeeseanes 15 Govt. Code, § 8547.2 oocccccccccccccccccseccccccsssecsseeeeeeesssesescesecseeesessseaeeeenaaas 15 Govt. Code, § 11000 oo... eccccccccccceseeeeecseeeeeeeeeseceseseseneeseaeesseseeseeeeaes 15 Govt. Code, § 11340.9(a)... ccccccececceeeseceecnseesseseneesseeeessieeneteesneneas 15 Govt. Code, § 11405.30 0... cceecccccccecsceseeseesseeneeeeeeesseeeseseeeseesaeeetesnaes 15 Govt. Code, §13323 oo.ccccccccccccccesscceecssececeeeecescsseseeecsseeeeeesessseeeeeenssaas 15 Govt. Code, § 19994.30 ...ocecccccceccccccssceeesesteeseesensesseeseseeeteeesseeesas 15 X1 Cal. Rules of Court, male 8.204.0.....cccccceccccecscccesceeseeesnsessessesersessneesesneees 44 Cal. Rules of the State Bar, rule 4.1.0.0...cecececceeeeseeesseeneeeens 11, 13.18 Cal. Rules of the State Bar, rule 4.9 o.oo. ccccecccsssccsseesevescesesenseeees 13 Cal. Veh. Code § 12801.5 wo... eccccccccccssccescesseeeseeseesesecseseesareseeessaesenenees 30 Other Authorities Black’s Law Dictionary (9th ed. 2009) .......cccccccccccccesccsecsseeessesseeenseeseeees 28 California Assembly Bill 130.0... ccccccccccccessecsecseccecesecseeeessessesessecseeaaes 27 California Assembly Bill 131 0... ccc ccccccccecesssesseseceseessecseeeesesseecseesseeaes 27 California Assembly Bill 540.000... ccccccccccecscccssccsesscessecsesseeceseeseecseseseeess 27 DREAMAct, H.R. 1842, 112th Cong. (2011-12), S. 952, 112th Cong. (2011-12)........... 1 FLR. Rep. No. 104-725 oo. ceeececcccecccceseeseeeceeeeeeeeseeessesseeesecsaeeessseecsseeeeesnensaes 18 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) Pub.L. No. 104-193 (Aug. 22, 1996) 110 Stat. 2105...eeeeeeeees 8,17 Pub. L. No. 96-330, § 406, 94 Stat. 1030.2... cccececcceeseseeseeteesseeseesenees 28 Sen. Bill No. 1 (3d ex. sess.), 2003-04 Ex. Sess Stat. Ch. 1 oo...eee30 Sen. Bill No. 60 (2003-2004 Reg. Sess.).....cccccccsccssccsseessseesesseecseessseeens 30 1 Witkin, Summary 10th (2011 supp.) Contract, § 102 occeeeeeeeees 22 Xi IDENTITY AND INTEREST OF AMICUS CURIAE Amici cuiae Dream Bar Association (DBA), Mexican American Legal Defense and Educational Fund (MALDEF), Asian Pacific American Legal Center of Southern California (APALC), Asian Law Alliance (ALA), National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund, and National Council of La Razarespectfully request leave under Rule 8.520(f) of the California Rules of Court to file their brief in support of Applicant Sergio C. Garcia.! Dream BarAssociation The Dream Bar Association (DBA) is an unincorporated organization that welcomes undocumented andallied legal professionals, law students, and aspiring law students. Most DBA membersrefer to themselves as “DREAMers,”” as most would likely be beneficiaries of the Development, Relief, and Education Minors Act (DREAM Act) should it become federal law.’ Manyofthe membersare alsoeligible ' Pursuantto 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 submissionofthebrief. * These DBA membersare individuals who immigrated with their families to the United States as minors. Ultimately, the families who brought them to the United States found no opportunity to apply for a formal immigrationstatus. Despite spending their childhood completing a K-12 education as permitted by Plyler v. Doe (1982) 457 U.S. 202, coming of age, and completing undergraduate college and/or law school in the United States, these young people remain currently undocumented. * The Development, Relief and Education for Alien Minors (DREAM) Act would create for individuals like Respondent an opportunity to adjust their status and becomelegal permanent residents. H.R. 1842, 112th Cong. (2011-12), S. 952, 112th Cong. (2011-12). Even thoughthis legislation enjoys sustained bipartisan support, no version of the bill has advanced successfully through both chambers of the United States Congress. for the deferred action and work authorization announced by President Obama on June 15, 2012. The DBAcollects neither dues nor other monies. Its members include individuals that are similarly situated to Respondent who will seek or have applied for California Bar admission and/or bar admission in other states. Despite their undocumented status, these individuals, like Mr. Garcia, will be able to meet the current requirements for admission under the Rules of the Supreme Court Relating to Admissions to the Bar. The DBA’s purpose 1s to provide a forum for DREAMersto identify opportunities to develop skills relevant to the legal profession through volunteer and pro bono activities. This support network seeks to provide its members with information related to financial aid, the Law School Admission Test, the law school application process, the bar exam, admission into the legal profession, and passage of the DREAM Act and other immigrant-friendly policies. Mexican American Legal Defense and Educational Fund The Mexican American Legal Defense and Educational Fund (MALDEF)is the nation’s leading Latino legal civil rights organization. Since MALDEF’s founding in 1968, MALDEF has been dedicated to ensuring that Latino and immigrant students have equitable access to educational opportunities. Over the years, MALDEFhasbeen heavily involvedin litigation to protect the educational rights of Latino and minority students, including as counsel in Plyler v. Doe (1982) 457 U.S. 202, and represented undocumentedstudents as proposed intervnors and amici in Martinez v. The Regents ofthe University of California (2011) 50 Cal.4th 1277. MALDEFhascontinued to advocate for the rights of undocumented students in advocating for the passage of the DREAM Act for the past decade, and remains a strong supporter of the current version of the DREAM Act. MALDEFhasalso advocated for California policies that increase immigrant access to higher education. MALDEFbelieves that the admission of undocumented students to the State Bar of California will benefit not only the students, but also California and the Nation’s well-being by improvingaccessto legal services and increasing diversity in the legal profession. MALDEFbelieves that it immigration status is not a rational basis for denying immigrants, especially individuals such as the members of the Dream Bar Association, membership in the Bar. Asian Pacific American Legal Center The Asian Pacific American Legal Center of Southern California (APALC)is a nonprofit organization dedicated to advocating for civil rights, providing legal services and education, and building coalitions to positively influence and impact Asian Americans, Native Hawaiians and Pacific Islanders (AA/NHPIs) and to create a more equitable and harmonioussociety. Since its founding in 1983, APALC has worked on numerouscasesandpolicy initiatives to promote immigrants’ rights and to safeguard AA/NHPIstudents’ access to higher education. In 2009, APALC and the Asian Law Caucus,along with a coalition of nearly 80 AA/NHPI civil rights, legal, social service, and community organizations,filed an amicus brief with the California Supreme Court in the case Martinez v. The Regents ofthe University of California, supporting undocumentedcollege students’ ability to pay in-state tuition under A.B. 540. APALC is a member of the Asian American Center for Advancing Justice along with the Asian American Justice Center in Washington D.C., the Asian American Institute in Chicago, and the Asian Law Caucus in San Francisco. Asian Law Alliance The Asian Law Alliance (ALA), founded in 1977, is a non-profit public interest legal organization with the mission of providing equal access to the justice system to the Asian/Pacific Islander and low-income communities in Santa Clara County. ALA has provided legal advice and community education to undocumented youth for over 25 years. National Association of Latino Elected and Appointed Officials Educational Fund The National Association of Latino Elected and Appointed Officials (NALEO)Educational Fundis the leading organization that facilitates full Latino participation in the American political process, from citizenship to public service. Our constituency includes the more than 6,000 Latino elected and appointed officials nationwide, more than 2,000 ofwhom are school board membersor oversee public education at the state or local level. The NALEO Educational Fund’s constituents actively promote the expansion of educational and professional opportunities for Latino youth, in the interest of enhancing our nation’s future leadership and well-being. Our constituents also work to increase educational opportunities for undocumented youth living in their jurisdictions so that they can continue to contribute their talents to the building and strengtheningoftheir communities. National Council of La Raza The National Council of La Raza (NCLR)—thelargest national Hispanic civil rights and advocacy organization in the United States— works to improve opportunities for Hispanic Americans. Throughits networkof nearly 300 affiliated community-based organizations, NCLR reaches millions of Hispanics each year in 41 states, Puerto Rico, and the District of Columbia. To achieve its mission, NCLR conducts applied research, policy analysis, and advocacy, providing a Latino perspective in five key areas—assets/investments, civil rights/immigration, education, employmentand economicstatus, and health. In addition, it provides capacity-building assistance to its Affiliates who workat the state and local level to advance opportunities for individuals and families. Founded in 1968, NCLRis a private, nonprofit, nonpartisan, tax- exempt organization headquartered in Washington, DC,servingall Hispanic subgroupsin all regions of the country. It has regional offices in Chicago, Los Angeles, New York, Phoenix, and San Antonio andstate operations throughoutthe nation. For the foregoing reasons, amici respectfully request that the Court accept the accompanyingbrief for filing in the case. Dated: July 18, 2012 Respectfully submitted, Nicholas Espiritu MALDEF INTRODUCTION On May 16, 2012, this Court issued an Order to Show Cause to the Committee of Bar Examiners of the State Bar of California as to why its pending motion for the admission of Sergio C. Garcia to the State Bar of California (the “Bar’”) should be granted. The Court’s Order to Show Cause invited and welcomed amicuscuriae participation. The Court further ordered that the following issues, and possibly others, should be briefed in any such submission: 1. Does 8 U.S.C. § 1621, subdivision (c) apply and preclude this Court’s admission of an undocumented immigrantto the State Bar of California? Does any otherstatute, regulation, or authority preclude the admission? 2. Is there any state legislation that provides — as specifically authorized by 8 U.S.C. § 1621, subdivision (d) — that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions, and, if not, what significance, if any, should be given to the absence of such legislation? 3. Does the issuance ofa license to practice law impliedly represent that the licensee may belegally employed as an attorney? 4. If licensed, what are the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law? 5. What, if any, other public policy concernsarise with a grant of this application? Here, Amici will address questions 1, 2, and 5. While Congress has expressly preempted someofthe states’ traditional power to administer public benefits, this limitation does not extend to the California Supreme Court’s historic power to regulate the practice of law through admissions to the Bar. The plain language of8 U.S.C. § 1621 limits the prohibition on professional licenses to those provided by state agencies or by appropriated funds of a State or local government. Since neither the Bar nor the California Supreme Court is a state agency, and since Bar admission is not given through appropriated funds, Bar membershipis not a professional license limited by 8 U.S.C. § 1621. Additionally, if there is any doubt as to the meaningofthe statutory language, the legislative history further demonstrates that Congress did not intend to alter California’s ability to determinethe eligibility to practice law. Notonly is this reading the correct one, but it also avoids the serious constitutional questions that would arise should this Court hold that 8 U.S.C. § 1621 prohibits undocumented immigrants from becoming members of the Bar. First, should this Court hold that 8 U.S.C. § 1621 has placed a prohibition on the California Supreme Court’s ability to regulate the Bar,it effectively transfers this governmental decision-making function from the judicial branch to the California legislature in violation of the Tenth Amendment. Second, the changein eligibility for the Bar would violate the Contracts Clause by substantially altering the contracts entered into between undocumentedlaw students and California public law schools, because one of the implied conditions of law school enrollmentis the understanding that successful completion of a Juris Doctorate degree at these institutions makes students eligible to sit for the California Bar Examination and become membersof the Bar. Moreover, even if membership in the Bar werea professional license for purposes of 8 U.S.C. § 1621, California has affirmatively provided that undocumented immigrants can become membersof the Bar as required by 8 U.S.C. § 1621(d)’s savings clause. Finally, allowing undocumented immigrants to become members of the Bar is good public policy, both becauseit is in line with federal and state policy efforts already undertaken to invest in the advancementof these individuals, and becausetheir inclusion to in the Bar supports the Bar’s mission andideals of improving access to legal services and increasing diversity in the legal profession. ARGUMENT I. Section 1621 Has Not Preempted the California Judicial Branch’s Traditional Power to Regulate Bar Membership. A. Section 1621 Has Expressly Preempted Some State Power to Extend Public Benefits to Undocumented Immigrants. Congress, through 8 U.S.C. § 1621," has placed limitations on the states’ ability to award certain “public benefits” to undocumented immigrants. It defines these “State or local public benefits”as: (A) any grant, contract, loan, professional license or commercial license provided by an agencyof a State or local government or by appropriated funds of a State or local government; and (B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemploymentbenefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agencyof a State or * Section 1621 was passed aspart of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) Pub.L. No. 104- 193 (Aug. 22, 1996) 110 Stat. 2105. local government or by appropriated funds of a State or local government. 8 U.S.C. § 1621(c)(1). However, Congress included a savings clause that allowsthe states to provide these public benefits to undocumented immigrants so long as they “enact[] a State law after August 22, 1996, which affirmatively provides for such eligibility.” 8 U.S.C. § 1621(d). Under the Supremacy Clause, federal law preempts state law wheneverthey conflict. U.S. Const., art. VI, cl. 2. Congress has the power to enact laws over the subject of immigration. See e.g., Arizona v. United States (2012) 567 U.S.__, No. 11—182,slip op. at p. 2 (‘The Government of the United States has broad, undoubted powerover the subject of immigration andthe status of aliens.”). While states are “per se pre-empted” from regulating immigration, not “every state enactment which in any way deals with [immigrants] is a regulation of immigration.” DeCanas v. Bica (1976) 424 U.S. 351, 355. Indeed, because the regulation of bar membershipis not a “determination ofwho should or should not be admitted into the country, [or] the conditions under which a legal entrant may remain”(id.) “the usual rules of statutory preemption analysis apply.” Martinez v. The Regents ofthe Univ. of Cal. (2010) 50 Cal.4th 1277, 1287 (Martinez) (quoting In re Jose C. (2009) 45 Cal.4th 534, 550). Therefore, California’s determination ofwho may be admitted to the Bar, regardless of alienage “will be displaced only whenaffirmative congressional action compels the conclusion it must be.” Jd. Federal law can preemptstate powerinat least three instances. First, state power may belimited by express preemption ofstate action. See Arizona v. United States, supra, 567 U.S., slip op. at p. 8 (‘Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision.”). Here, Section 1621, by specifically limiting states’ ability to provide public benefits and defining what those public benefits are, has expressly preemptedthe states’ powerto some extent. See Martinez, supra, 50 Cal. 4th at p. 1297 (“Congress [with Section 1621] did not merely imply that matters beyond the preemptive reach ofthe statutes are not preempted; it said so expressly”). Second, “the States are precluded from regulating conductin a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Arizona v. United States, supra, 567 U.S., slip op. at p. 7. Third, state laws may be preempted even where there is no exclusive federal field, due to the “physical impossibility” of complying with both the federal and state regulation, or where state law presents an “obstacle” to the full objectives of Congress. Jd. at p. 8. Here, because Congress has expressly specified the way in which it has chosen to limit the powerof the states and included a savingsclausethat allowsstates to extend these benefits if they so choose, Congress cannotbe said to have occupied the field of granting public benefits or professional licenses to undocumented immigrants. See Martinez, supra, 50 Cal. 4th at p. 1297 (holding 8 U.S.C. § 1621(d) demonstrates “Congress did not intend to occupythe field fully”); see also Chamber ofCommerce ofthe United States v. Whiting (2011) 131 S.Ct. 1968, 1981 (declining to hold exclusive federal authority where “Congress specifically preserved ... authority for the States”). Nor can the preservation of state discretion present a physical impossibility or present an obstacle to Congress’ objectives. See Martinez, supra, 50 Cal. 4th at 1296-98. B. Section 1621 Does Not Preempt the California Supreme Court’s Authority to Decide Who Should Be Admitted to the Bar. 1. Section 1621 Should Be Read Narrowly Because There Is a Presumption Against Preemption of Historic State Judicial Powers. 10 “In preemption analysis, courts should assumethat ‘the historic powersof the States’ are not superseded ‘unless that was the clear and manifest purpose of Congress.’ ” Arizona v. United States, supra, 567 U.S. slip op. at p. 8 (quoting Rice v. Santa Fe Elevator Corp. (1947) 331 USS. 218, 230); see also Wyeth v. Levine (2009) 555 U.S. 555, 565; Chamber of Commerce, supra, 131 S.Ct. at p. 1980. In other words, when Congress legislates in a way that circumscribestraditional state power, there should be a presumption against preemption. “[I]n the absence of a showing of arbitrary or discriminatory application in a particular case,” rules of bar admission are not “a matter of federal concern.” Konigsberg v. State Bar of Cal. (1961) 366 U.S. 36, 45. Rather, the admission and discipline of attorneys is a “core of the State’s powerto protect the public.” Hooverv. Ronwin (1984) 466 U.S. 558, 569. Thus, there should be a presumption against the preemption of the State’s ability to regulate Bar licensure. This presumption is strengthened in light of the fundamental link between Barlicensure and the functioning of the Judicial Branch. The California Constitution expressly vests this power with the Supreme Court and places the administration of the California State Bar within the judiciary. Cal. Const. art. VI, § 9; see also Cal. Bus. & Prof. Code, § 6064 (California Supreme Court holds “inherent jurisdiction” over the practice of law andthe rules and regulations that govern it); Cal. Rules of the State Bar, rule 4.1 (only the California Supreme Court may admit applicants as attorneys in the state). California courts have long recognized that power over Bar admission “can possibly have no other origin” than the judiciary. In re Cate (1928) 273 P. 617, 620; see also In re Attorney Discipline Sys. (1998) 19 Cal.4th 582, 607 (admission and discipline of attorneys in California lies expressly within the courts own reserved, primary, and inherent authority); Obrien v. Jones (2000) 23 Cal.4th 40, 48 (court retains authority over attorney admission and discipline “at every step”); Hoffman 11 v. State Bar ofCalifornia (2003) 113 Cal.App.4th 630, 635 (courts are the “primary regulatory power over the admission .. . of attorneys’’). While “[a]n attorney does not hold an office or public trust, in the constitutional sense of that term, [he or she] is an officer of the court, exercising a privilege or franchise.” In re Cate, supra, 273 P. at p. 618. Thus, admission to the Bar is an assessment of whether the applicant “possess[es] the requisite qualifications” for this state-wide service within the Judicial Branch, and “[t]heir admissionis not the exercise of a mere ministerial power. It is the exercise ofjudicial power.” Jd. (quoting Ex parte Garland (1866) 71 U.S. 333, 378-79). Thus, Bar licensure is not only a fundamental state power, but is one deeply tied to California’s sovereignty as exercised through the Judicial Branch. 2. Section 1621’s Limitations on Public Benefits Do Not Apply to Bar Membership. In determining whether Congress has preempted historicalstate powers, “the purpose of Congressis the ultimate touchstone.” Wyeth, supra, 555 U.S. at p. 565 (quoting Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485) (citation omitted). ““Congress’ intent, of course, primarily is discerned from the language of the pre-emption statute and the ‘statutory framework’ surroundingit.” Medtronic, supra, 518 U.S.at p. 486. In determining the legislative intent, courts are to “first examine the statutory language, giving it a plain and commonsense meaning.” Martinez, supra, 50 Cal.4th at p. 1290. Here, the statutory language of8 U.S.C. § 1621 excludes professional licenses from prohibitions of 8 U.S.C. § 1621, when they are not provided (1) “by an agency of a State or local government” nor (2) “by appropriatedfunds of a State or local government.” 8 U.S.C. § 1621(c)(1)(A) (italics added). First, the California Supreme Court, which provides for Bar admission, is not a governmental agency. Second, Bar admission is not provided with funds appropriated by 12 the State. Accordingly, 8 U.S.C. §1621’s restriction on state-provided or state-funded benefits is inapplicable to Bar licensure. 3. California Courts Are Not Agencies of a State Within the Meaning of 8 U.S.C. § 1621(c). The prohibition in 8 U.S.C. § 1621 does not apply to this Court because the Court is not an “agency . . . of a State.” 8 U.S.C. § 1621(c)(1)(A). While PRWORA doesnot define the term “state agency,” other authorities make plain that this Court is not an “agency... ofa State.” As a preliminary matter, State law makesclear that this Court, and not the Bar, “provide[s]” law licenses within the meaning of 8 U.S.C. § 1621(c). It is the Supreme Court, and not the State Bar, which admit[s] [an] applicant as an attorney at law” in California. Cal. Bus. & Prof. Code § 6064; see also Cal. Rules of the State Bar, rule 4.1 (acknowledges the Supreme Court has “inherent jurisdiction over the practice of law in California” and is ultimately the final arbiter of an applicant’s fitness to hold a law license); see also Jn re Attorney Discipline Sys., supra, 19 Cal.4th 582 at p. 592. The role of the State Bar, acting throughits examining committee, is to “certify to the Supreme Court for admission” the application of any individual who meets the requirements to practice law in California. Greene v. Zank (1980) Cal. App. 3d 497, 505; see also Cal. Bus. & Prof. Code § 6064 (“[T]he Supreme Court may admit such applicant as an attorney at law”after certification by the examining committee.”). The State Bar has no independent authority to deny an applicant admission to the Bar. Hustedt v. Workers Compensation Appeals Bd. (1981) 30 Cal.3d 329, 339; see also Cal. Rules of the State Bar, rule 4.9. Thus, although the Baris clearly involved in the processing of 13 applicationsto practice law, it in no way “provide[s]” the license within the meaning of 8 U.S.C. § 1621(c).° Courts are virtually never considered to be agencies. “[A]n administrative agency is ‘a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking.’” Mogensen v. Bd. of Supervisors (2004) 268 Neb. 26, 30 (quoting State ex. rel. Stenberg v. Murphy (1995) 247 Neb. 358, 366) (emphasis added). State courts have generally recognized that the judiciary is a coordinate branch of government to which the label “agency” cannot apply. See, e.g., Schreiber v. Bastemeyer (Iowa 2002) 644 N.W.2d 296, 299 (holding a componentof the judicial branch is not an agency); Watkins v. Mississippi Bd. ofBar Admissions (Miss. 1995) 659 So. 2d 561, 572 (holding Mississippi courts are not agencies governed by state Administrative Procedures Act); Sacharow v. Sacharow (2003) 177 N.J. 62, 75 (same in New Jersey); City ofFederal Way v. Koenig (2009) 167 Wash. 2d 341, 346 (reaffirming that state courts are not state agencies). Moreover, this Court has inherent authority to regulate the members of the Bar. Jn re Attorney Discipline Sys. supra, 19 Cal.4th at 592-93. This contrasts with California’s agencies, which are permitted by the legislature and Governorto exercise limited delegated authority. Carmel Valley Fire Protection District v. State of California (2001) 25 Cal.4th 287, 297-300. > Even if the Bar were considered to be the entity that ‘“‘provide[s]” the license under § 1621(a)(1)(C), the Bar likely would not be considered a state agency for purposesofthat statute. In many contexts there is a presumption against according agencystatus to the Bar. See Keller v. State Bar ofCalifornia (1990) 496 U.S. 1, 11 (holding State Baris not a government agency for certain First Amendment analyses); see also Jn re Attorney Discipline System, supra, 19 Cal.4th at p. 599 (“The Legislature also madeclear that the State Bar is not in the same class as those state agencies that have been placed within the executive branch’). 14 The California Government Codereinforces the conclusion that this Court is not a state agency. The general definition of “state agency” at California Government Code § 11000 includes “every state office, officer, department, division, bureau, board, and commission.” See also Cal. Govt. Code § 11405.30 (similar definition). When the Legislature meansto apply a statute’s requirements to both agencies andthe courts,it lists agencies and courts separately in the statute. See Cal. Govt. Code § 7596(b) (applying smoking ban to public buildings); Cal. Govt. Code § 8547.2 (specially listing the courts as a state agency for purposes of the Whistleblower Protection Act); Cal. Govt. Code §13323 (making budgetrule applicable to any “State agency or court’) (italics added); Cal. Govt. Code § 19994.30 (defining scope of state’s tobacco control program); cf. Cal. Govt. Code § 11340.9(a) (exempting the judicial and legislative branches from California’s standard rulemaking procedures); Service Employees Internat. Union v. Superior Court (1982) 137 Cal.App.3d 320, 323-326 (noting that superior courts are not public agencies within the meaning of the Meyers- Milias Brown Act). This language makesclear that courts, no less than the Legislature, another coordinate branch of government, are excluded from the normal meaning of “state agencies” under California law. Moreover, Congress chose to apply the prohibition in 8 U.S.C. § 1621(a) to “agenc[ies] of a state” and not to the States themselves. While a general federal prohibition against state activity may foreclose state courts from operating in a certain way, 8 U.S.C. §1621 runs a prohibition only against state agencies. This Court has cautioned inits recent decision construing 8 U.S.C. § 1621, “against reading into a statute language it does not contain or elements that do not appearonits face,” especially when Congress has “shown it knows how to add the element in express terms whenit wishes to do so.” Martinez, supra, 50 Cal.4th at p. 1295-96 (citing, inter alia, Kimbrough v. United States (2007) 552 U.S. 85, 103). Congress 15 knowshow to run a prohibition directly against a State as opposedto a State agency. See, e.g., 15 U.S.C. § 5001(g) (“no State shall prohibit the sale or manufacture” of certain imitation firearms); 15 U.S.C. § 6763(b) (prohibiting states from interfering with certain federal insurance regulations).° Thelatter of these two statutes would impliedly operate on state courts. 15 U.S.C. § 6763(b)(4) (No State shall “implement the procedures of such State's system of licensing or renewing the licenses of insurance producers in a manner different from” the federal regulatory scheme). This Court must give effect to this drafting choice by recognizing that courts, not traditionally considered to be agencies, are outside the limited scope of § 1621(c). See Hubbard v. United States (1995) 514 U.S. 695, 699-700 (noting that federal courts are generally not considered agencies for purpose of applicability of federal law). 4. Bar Membership Is Not Granted Using Appropriated Funds. Nor is Bar membership provided by “appropriated funds” from the California legislature for purposes of 8 U.S.C. § 1621(c)(1)(A). The admission process for the State Bar is funded entirely by levying various fees upon applicants and current members. ’ See Bus. & Prof. Code, § 6063 (mandating that “Applicants for admission to practice shall pay such ° Congress has also shownits ability to use the term “state court” in legislation. See, e.g., 28 U.S.C. §§ 1446, 1738, 2254, and 2283. These statutes illustrate Congress’s competence in applyingthe forceofits legislation to state courts. ’ For example, the total cost of admissions for 2011 was $18,516,019, with $277,752 deriving from membership fees and donations; $17,527,293 from examination application fees; $260,010 from continuing legal education fees, and $599,236 from “‘other income” undefinedin the Bar report. The Bar experienced revenues of $148,272 in admissionsfor that year. State Bar of Cal, Fin. Statement & Indep. Auditor’s Rep. 39 (2011) available at http://www.calbar.ca.gov/AboutUS/Publications/Reports.aspx. 16 reasonable fees . . . as may be necessary to defray the expense of administering . . . admission to practice’’). These fees collected from applicants and membersnever becomepart of the state’s General Fund and are thus not appropriated by the Legislature. See Cal. Bus. & Prof. Code § 6144 (“All fees shall be paid into the treasury of the State Bar, and, when so paid, shall becomepartof its funds.’’); c.f. Jn re Attorney Discipline Sys., supra, 19 Cal.4th at p. 597 (interim “[l]icense fees imposed by this court to fund an attorney disciplinary system would be imposedsolely upon licensed attorneys, would not be imposed for general revenue purposes, would not becomepart of the state's General Fund, and would not be appropriated by the Legislature’’). 5. The Purpose and Legislative Record of 8 U.S.C. § 1621 Does Not Indicate Congress Intended to Limit California’s Regulation of Bar Membership. If this Court concludesthat there is ambiguity in whether Bar admission is covered under 8 U.S.C. § 1621(c), the Court should “look[] to legislative history and other extrinsic material.” Oklahoma v. New Mexico (1991) 501 U.S. 221, 236 n.5; see also People v. Garcia (2002) 28 Cal. 4th 1166, 1172 (“if the statutory language may reasonably be given more than one interpretation, courts may consider extrinsic aids, including the purpose of the statute, the evils to be remedied,the legislative history, public policy, and the scheme encompassingthe statute”). In 8 U.S.C. § 1621, which was passed as part of PRWORA, Congress explicitly focused on “end[ing] the dependence ... on governmentbenefits.” PRWORA,42 U.S.C. § 601(a)(2) (2012) (emphasis added). Referring specifically to immigrants, Congress declared: Current eligibility rules for public assistance and unenforceable financial support agreements have proved wholly incapable of assuring that individual aliens not burden the public benefits system. It is a compelling government interest to enact new rules for eligibility and 17 sponsorship agreements in order to assure that aliens be se/f- reliant in accordancewith national immigration policy. 8 U.S.C § 1611 (emphasis added). The repeated association between such “benefits” and individuals’ dependence on “public resources to meet their needs” undergirds Congress’ express intent to motivate individuals to rely upon “their own capabilities and the resources of their families, their sponsors, and private organizations.” 8 U.S.C. § 1601(2)(A). Further, conference reports—evenonespartially at odds with “[t]he statute’s plain language andpriorlegislative history’—are nonetheless “due great weight.” Nat’! Ass’n ofGreeting Card Publishers v. U.S. Postal Service (1983) 462 U.S. 810, 833 & n. 28; see also N.S. v. St. Cyr (2001) 533 U.S. 289, 318 (relying on the conference report of an act that was part of an omnibusappropriations bill together with PRWORA). In its only conference report on the statute, Congress explicitly defined “state benefits” as “means-tested public benefits of a State or political subdivision of a State under whichthe State or political subdivision specifies the standards for eligibility, and does not include any Federal public benefit.” H.R. Rep. No. 104-725, at H8874 (Conf. Rep.) (emphasis added).* It further defined “means-tested” as “a program of public benefits of the Federal, State, or local government in which eligibility for or the amount of benefits or both are determined on the basis ofincome, resources, or financial need.” Id. at H8928 (emphasis added). Eligibility for Bar licensure is not means-tested, but is rather determined only by educational achievement, bar exam passage, and paymentof requisite fees. See Cal. Rules of the State Bar, rule 4.1. Thus, nothing in Congress’ interpretation * Indeed, the “means-tested”definition of state public benefits appears in the portion of the conference report specifically referring to Section 1621. H.R. Rep. No. 104-725, at H8927-28 (Conf. Rep.) (section headed “State Authority to Limit Eligibility of Qualified Aliens for State Public Benefits’’). 18 of “state benefits” while drafting PRWORA servesas a basis for expanding the notion of bar licenses to 8 U.S.C. § 1621. I. Construing 8 U.S.C. § 1621 to Allow Undocumented Students to Be Admitted to the Bar Would Avoid Constitutional Conflicts. If there is any ambiguity as to whether 8 U.S.C. § 1621(c) denial of public benefits applies to Bar memberships, this Court should interpret 8 U.S.C. § 1621 in such a way so as to avoid the serious constitutional questions that would arise with such a denial. See Myers v. Philip Morris Cos., Inc. (2002) 28 Cal.4th 828, 846-847 (“Anestablished rule of statutory construction requires [courts] to construe statutes to avoid constitutional infirmities”) (citations and internal quotation marks omitted); see also Clark v. Martinez (2005) 543 U.S. 371, 380-81 (“when deciding which of the two plausible statutory constructions to adopt, a court must consider the necessary consequencesofits choice. If one of them would raise a multitude of constitutional problems, the other should prevail... .”). Should this Court hold that 8 U.S.C. § 1621(c) applies to Bar membership, and that California has not affirmatively provided for undocumented immigrants to be eligible for Bar membership,it raises two serious constitutional questions. First, if 8 U.S.C. § 1621 applies to Bar memberships,this effectively shifts power over Bar memberships from the judiciary to the legislature, which would violate the Tenth Amendment. Second, should undocumented immigrants be deemednoteligible to become members ofthe Bar, it would constitute a change in law that materially and substantially alters the contracts that undocumented immigrant law students have with law schools, particularly public law schools, in violation of the Contracts Clause. A. Requiring California to Pass a New State Law Under 8 U.S.C. § 1621(d) Impairs California’s Ability to Structure its Governmental Functions. 19 Asdiscussed above, the California Supreme Court is the exclusive and final arbiter of admission to the Bar. If this Court were to hold that Bar membership wasa public benefit for purposes of 8 U.S.C. § 1621(c), then only the state legislature could decide whether undocumented immigrants are eligible to become members of the Bar because they would be the entity responsible for passing the legislation required by 8 U.S.C. § 1621(d)’s savings clause. This would intrude on California’s state sovereignty, and likely violate the Tenth Amendment. Federal legislation can violate the Tenth Amendmentif: (1) it regulates the States as States; (2) it concerns attributes of state sovereignty; and (3) it is “of such a nature that compliance with it would impaira state's ability to structure integral operationsin areas of traditional governmental functions.” United Statesv. Bongiorno (Ast Cir.1997) 106 F.3d 1027, 1033 (citations and internal quotation marks omitted) (quoting Hodel v. Va. Surface Mining & Reclam. Ass'n, Inc. (1981) 452 U.S. 264, 287-88). As to the first two prongs,8 U.S.C. § 1621 undoubtedly regulates states as states, as it was intended to prohibit state agencies from providing certain public benefits to undocumented immigrants, and the allocation of governmental power between branches of governmentis a quintessential function of sovereignty. There is also no question that compliance with 8 U.S.C. § 1621 would impair California’s ability to structure the operation of its governmental functions, because it would effectively remove powerthat currently lies exclusively with the judiciary, and place it in the handsofthe state legislature. In California, authority over bar admissionsis explicitly within the realm of the judicial department’s power, rather than with the legislative department. See Jn re Attorney Discipline Sys., supra, 19 Cal.4th at p. 592 (“the power to regulate the practice of law, including the powerto admit... attorneys, has long been recognized to be among the inherent powers of 20 article VI courts.”). To allow both the courts and the legislature to “frame rules governing admissionsto the bar” would be “utterly inconsistent.” Jn re Cate, supra, 273 P. at p. 620. Currently Bar licensure cannot be exercised bythe state legislature or altered bystate legislative statute except as a result of constitutional amendment. Laisne v. State Bd. ofOptometry (1942) 19 Cal.2d 831, 834-835 (Tf, therefore, some agency with state-wide jurisdiction, other than one of the enumerated courts, without sanction by constitutional amendment, exercises or attempts to exercise judicial power, such actionis in direct violation of the articles of the state Constitution”); see also McClung v. Emp. Dev. Dept. (2004) 34 Cal.4th 467, 472 (“[I]n the absence ofa constitutional provision,” judicial power “cannot be exercised by any other body.”). Thus, the “power to confer the privilege of practicing law upon lay persons”is part of the “inherent power of the Supreme Court” that cannot be usurped bya state legislature. Merco Const. Engineers, Inc. v. Mun. Ct. (1978) 21 Cal.3d 724, 729. While recognizing that a state legislature may recommend reasonable rules and regulations for admissionto the Bar, legislative attempts to direct the court on admissions policies is “tantamount to the »? Merco Const.vacating ofjudicial order by legislative mandate. Engineers, Inc, supra, 2) Cal.3d at p. 728. When conflict exists between a legislative enactment and rules imposed by the judiciary, the Court remains the final authority and “the legislative enactment must give way.” Jd. at p. ” The Legislature retains the ability to enact statutes regarding some inherent powersof the court that do not relate to Bar admission. See, e.g., Obrien v. Jones, supra, 23 Cal.4th 40 (statute changing the Supreme Court's authority to appoint State Bar Court judges); Superior Court v. County ofMendocino (1996) 13 Cal.4th 45 (statute designating unpaid furlough days on whichtrial courts shall not be in session); So/berg v. Superior Court (1977) 19 Cal.3d 182 (statute allowingtrial judges to be peremptorily disqualified by litigants); In re McKinney (1968) 70 Cal.2d 8 (statute fixing the punishment for witnesses found in contempt of court). 21 638. See also In re Cate, supra, 273 P. at p. 624 (“If the courts exercise a constitutional function in making provision for a bar,” a legislature may not “divest the power through the exercise of an assumedpolice power” and thereby “[scrap] the salient tenets of governmental science”); Mandelv. Myers (1981) 29 Cal. 3d 531, 549 (“while the Legislature enjoys very broad governmental power under our constitutional framework,it does not possess the authority to review [bar applicants] ... on a case-by-case basis”). A requirement that California pass a new law to allow undocumented immigrants to practice law would strip the California Supreme Court of its authority to ultimately decide whetheror not these individuals can be admitted to the Bar. Accordingly, a holding that Section 1621(c)’s prohibition on public benefits extends to Bar membershipraises serious Tenth Amendmentquestions. B. There is a Student-College Contract Implicating Rights Afforded under the Contracts Clause. State case law, including California's, has long defined the student- college relationship as a contract. See, e.g., Kashmiri v. Regents of Univ. of Cal. (2007) 156 Cal.App.4th 809, 823-824 (relationship between student and University, whether public or private is contractual). Since contractual terms between student and university are rarely express, contracts can be implied in fact. /d. at p. 828; see also 1 Witkin, Summary 10th (2011 supp.) Contract, § 102, p. 19. The terms of an implied contract “ordinarily stand on equal footing with express terms,” Scott v. Pacific Gas & Electric Co. (1995) 46 Cal.Rptr.2d 427, 463 (quoting Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677-678), and the distinction between implied and express contracts rests “in the mere modeofproof by whichthey are to be respectively established,” Si/va v. Providence Hosp. ofOakland (1939) 97 P.2d 798, 804. An undocumentedperson's lack of immigration status does 22 not impair his or her ability to enter or enforce contracts. 42 U.S.C. § 1981(a) (“All persons within the jurisdiction of the United States shall have the sameright in every State .. . to make and enforce contracts, to sue, be parties, give evidence, andto the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens”); Takahashi v. Fish and Game Comm'n (1948) 334 U.S. 410, 419 (“The protection of this section [1981] has been held to extendto aliens as well as citizens.”); Graham v. Richardson (1971) 403 U.S. 365, 377 (same); see also Plyler v. Doe, supra 457 U.S.at p. 210 (“Whateverhis status under the immigration laws, an [undocumented] alien is surely a ‘person’ in any ordinary senseofthat term.”). By extension, an undocumented immigrant law student enrolled in a law school in California would be covered by this student-college contractual relationship. Someof the terms from a student-college relationship can include a promise that the successful completion of a degree program can lead to the student being qualified to practice in that field. See Johnson v. Walden University, Inc. (D.Conn. 2011) 839 F.Supp.2d 518, 534. Such a promise can be implied from “catalogues, bulletins, circulars, and regulations of the institution,” Kashmiri, supra, 156 Cal.App.4th at p. 829, as long as the obligations derived from those materials “center around whatis reasonable,” /d. (quoting Ruegsegger v. Bd. ofRegents of Western N.M. Univ. (N.M. 2006) 154 P.3d 681, 689); see also, e.g., Zumbrun v. Univ. of Southern Cal. (1972) 101 25 Cal.App.3d 1, 10 (“The catalogues, bulletins, circulars, and regulations ofthe institution made available to the matriculant becomea part of the contract.”). California’s public law schools make statements implying that their schools are providing not just an education, but a pathwayto a legal career. For example, the law schoolat the University of California at Los Angeles (UCLA) promotesa “legal education that uniquely prepares students for the 23 challenges and excitementof a career in law,” Admissions Information and Howto Apply, UCLA School of Law,http://www.law.ucla.edu/prospective- students/admission-information/Pages/default.aspx (last visited July 17, 2012). On its admission page, UCLAincludes“the training of attorneys”as “one of its central purposes,” Admissions Policy, UCLA Schoolof Law, http://www.law.ucla.edu/prospective-students/admission- information/Pages/admissions-policy.aspx (last visited July 17, 2012). The University of California Board of Regents (Board), moreover, has stated that the University of California is responsible for “preparing professional degree students to enter a wide variety of careers [ ] such as law,” Univ.of Cal. Office of the President, Annual Accountability Report 2011, 59 (2011). And in its Annual Accountability Report 2011, the Board includedthe rate of bar passage as an indicator for the successofits professional degree programs. /d. at 74. Further, several committees of the University of California’s Academic Senate have described “high earning potential,” Letter to Henry Powell, Chair of Academic Council, University of California Assembly of the Academic Senate, from Farid Chehab, Chair of Coordinating Committee on Graduate Affairs, (May 21, 2010), available at http://www.universityofcalifornia.edu/senate/reports/hp_lpreproposedpdfs. pdf), and an orientation toward an “ultimate certification or licensing process,” Letter to Henry Powell, Chair of Academic Council, University of California Assembly of the Academic Senate, from Peter Krapp, Chair of University Committee on Planning and Budget, University of California (May 21, 2010), available at http://www.universityofcalifornia.edu/senate/reports/hp_lpreproposedpdfs. pdf, as defining characteristics of professional degree programs. Similarly, the website of the University of Pacific McGeorge School of Law (Pacific McGeorge), which the Respondent graduated from, includes several statements implying that the school will help students to 24 becomepracticing lawyers. On the Pacific McGeorge website, the school advertises itself as “a great place to learn the law and becomethe lawyer you want to be,” Video: Tour ofSacramento, McGeorge School of Law, http://www.mcgeorge.edu/About_McGeorge.htm (last visited July 17, 2012), and prospective students are addressed“as [ ] future lawyer[s] considering Pacific McGeorge.” Visit Pacific McGeorge, McGeorge SchoolofLaw, http://www.mcgeorge.edu/About_McGeorge/Visit_Pacific_McGeorge.htm (last visited July 17, 2012). Pacific Law, an official publication of Pacific McGeorge,describes the academic program as “designedto enableits graduates to hit the ground running whentheyenter practice” and the schoolis “proud”of its efforts to attract “bright young minority students into the legal profession.” Pacific McGeorge: A Growing Reputation in an Evolving Profession, Pacific Law, Fall 2010,at 6, 5. Indeed, all California law schools accredited by the American Bar Association (ABA) are to confer Juris Doctorate degrees only upon students who complete a program of legal education that qualifies a student to take the California Bar Examination. See Com. of Bar Examiners, The State Bar of Cal., Guidelines for Accredited Law School Rules (2011) p. 2, available at http://admissions.calbar.ca.gov/Portals/4/documents/Education/Accredited__ Law_ School_Guidelines-R.pdf. Further, the Bar requires accredited law schools to include a statementthat “[s]tudy at, or graduation from, this law school may not qualify a student to take the bar examination or be admitted to practice law in jurisdictions other than California... .” in its course catalog and website. /d. at p. 4 (emphasis added). Thus, by implication, California law schools are creating an implied contract that students will be eligible to practice law in California. 25 Actions by the state with regard to the student-college contractual relationship are circumscribed by the Contracts Clause of the United States Constitution. U.S. Const., art. I, § 10, cl. 1 (‘No State shall... pass any... Law impairing the Obligation of Contracts”).'° Contracts Clause violations occur when: (1) there is a contractual relationship (i.e., whether through contract in fact or contract in law); (2) there is a changein the law that impairs the contractual relationship; and (3) that the impairmentis substantial. See General Motors Corp. v. Romein (1992) 503 U.S. 181, 186. Whena state impairs a public contract, it bears the burden of demonstrating that “the impairment is reasonable and necessary to serve an important public purpose.” State ofNev. Employees Ass'n, Inc. v. Keating (9th Cir. 1990) 903 F.2d 1223, 1228; cf. In re Seltzer (9th Cir. 1996) 104 F.3d 234, 236 (holding in the case of private contracts, “the objecting party .. . carr[ies] the burden). Here, because many undocumented law students attend public law schools, in these instances the State will carry the burden of demonstrating that any impairment to these students’ implied contracts with their schools are reasonable and necessary. Here, should this Court determine that undocumented students are ineligible to be admitted to the Bar, it would impair the student-law school contractual relationship by denying the student the ability to join the Bar. Further, there could hardly be a more obvious-- and substantial -- impairmentof a contract than its premature termination (on the eve of admission to the profession no less). See Bannum, Inc. v. Town ofAshland (4th Cir. 1990) 922 F.2d 197, 202. Nor could the state meet the burden of demonstrating that such a denial was reasonable and necessary to achieve an important public purpose, given that California’s public policy, as ' See also Cal. Const., art. I, § 9 (“A .. . law impairing the obligation of contracts may not be passed.”’). 26 demonstrated by the passage of Assembly Bill 540 (AB 540), has been to invest in the education and productivity of undocumented students like Mr. Garcia and the members of the DBA. See Cal. Educ. Code § 68130.5 (allowing qualifying undocumentedstudents to waive non-residenttuition in public institutions of higher education). Further, just last year, California took yet another decisive step towards investing in the productivity of this group by mitigating the financial challenges that many of these individuals face when pursuing a college education. See Assembly Bill 130 and Assembly Bill 131 codified at Cal. Educ. Code §§ 66021.6; 69508.5; & 76300.5 (allowing certain qualifying students, including undocumented immigrants, to apply for and receive state financial assistance). When California Governor Brownsignedinto thesebills into law, he stated that “Ithese laws] benefit us all by giving top students a chance to improvetheir lives andthe lives of all of us.” Office of the Governor “Governor Brown Signs California Dream Act” (Oct. 8, 2011), available at http://gov.ca.gov/news.php?id=17268. Therefore, California will not be able to meet its burden of demonstrating that the impairment of the public contracts it has entered into with undocumentedstudents attending public law schools are reasonable and necessary to serve an important public purpose becausethey directly contravene the State’s policy of allowing undocumented students to obtain and use their education for California’s social and economic advancement. Ill. California Has Affirmatively Provided For Undocumented Students to Be Admitted to the Bar for Purposes of 8 U.S.C.§ 1621(d). Evenifthe prohibition on issuance of professional licenses in 8 U.S.C. § 1621(a) were applicable to Bar admission, the Legislature, by the passage of Cal. Bus. & Prof. Code § 6060.6 hasaffirmatively provided that 27 undocumented immigrants are eligible for law licenses, satisfying the requirements of 8 U.S.C. § 1621(d). A. Section 1621 Only Requires That States Affirmatively Provide for Eligibility. Under 8 U.S.C. § 1621(d), states are required to enact a law after 1996 that “affirmatively provides”for eligibility for the public benefits as defined by 8 U.S.C. § 1621(c). See Black’s Law Dictionary (9th ed. 2009) (defining “affirmative” as “supporting the existence of certain facts” or “Involving or requiring effort.’”’). By its terms 8 U.S.C. § 1621(d) does not require a state legislature to “expressly” provide for eligibility and where Congress intends to require express, explicit, or specific statementsit utilizes other statutory language. See, e.g., Pub. L. No 96-330, § 406, 94 Stat. 1030, 1052 (1980) (providing that no legislation restricting travel funds shall apply to eligible veterans “unless such provision is made expressly applicable to the travel of such veterans’’) (emphasis added)); 32 U.S.C. § 112(a)(3)(A) (requiring that state drug enforcementplans “specifically recognize[]” organizationseligible to receive assistance from the National Guard) (emphasis added). Thus, to require an “express” statement of eligibility would run contrary to Congress’ drafting choices in § 1621(d). See Kimbrough v. United States (2007) 552 U.S. 85, 103; Vasquez v. State of California (2008) 45 Cal.4th 243, 252; see also Martinez, supra, 50 Cal.4th at p. 1295-96. This Court’s decision in Martinez is not to the contrary. In Martinez, this Court held that California Education Code § 68130.5 satisfied 8 U.S.C. § 1621(d) becauseit included an “express[] state[ment]’—in the legislative findings——that the statute’s in-state tuition rules “applied to undocumentedaliens, rather than conferring a benefit generally without specifying that its beneficiaries may include undocumented aliens.” Martinez, supra, 50 Cal.4th at p. 1296. Martinez 28 thus confirmed the uncontroversial proposition that legislation expressly stating an intent to benefit unauthorized immigrants complies with 8 U.S.C. § 1621(d). However, this Court had no occasion to consider whether an enactment, like Cal. Bus. & Prof. Code § 6060.6, that unambiguously extends a benefit to unauthorized immigrants, satisfies 8 U.S.C. § 1621(d) in the absence of such an express statement. Because requiring such a statement would be contrary to the plain language of 8 U.S.C. § 1621(d), California need only affirmatively provide foreligibility to satisfy this savings clause. B. California Has Affirmatively Provided For Undocumented Students to Be Able to Be Admitted to the Bar. California has affirmatively provided for undocumented immigrants and other noncitizens to become membersofthe Bar for purposesof 8 U.S.C. § 1621(d) by removing the requirement that Bar applicants provide a Social Security Number (SSN) and instead allowing the applicant to provide a federal individual taxpayer identification number(ITIN). Prior to 2005, all applicants for Bar membership were required to submit a SSN with their application to ensure that they were complying with state tax and child and family support obligations. See Cal. Bus. & Prof. Code § 30({a), (j), (); Cal. Fam. Code § 17520. Because undocumented immigrants are not eligible for SSNs, the previous rule posed a barrier to their membership in the Bar. However, California Business and Professional Code § 6060.6, enacted in 2005, removedthis barrier for undocumented immigrants by waiving the requirement that Bar applicants provide a SSN by allowing applicants to provide an ITIN in instances wherethe applicant ‘‘[are] not eligiblefor a social security account numberat the time of application and [are] not in noncompliance with a judgmentor order for support pursuant to 29 section 17520 of the Family Code.” Cal. Bus. & Prof. Code § 6060.6 (emphasis added)."! The majority of the seven million ITINsissued by the Internal Revenue Service by 2005 are held by undocumented immigrants,* anditis well-understood that they constitute a large proportion of the persons possessing ITINs. Cf. Lauderbach v. Zolin (1995) 35 Cal.App.4th 578, 582 (expressing doubtthat noncitizens ineligible to receive SSNs were lawfully present in the U.S.); see also Dominic Berbeo, Program Will Let Undocumented File Income Tax Returns, L.A. Daily News(Feb. 18, 2000), 2000 WLNR 1562156 (explaining that the ITIN is “available for workers regardless of their residency status”). Legislature has elsewhere specifically used acceptance of ITINsin lieu of SSNs as a mechanism to potentially make undocumented immigrants eligible for driver licenses. See Sen. Bill No. 60 (2003-2004 Reg. Sess.) (proposed repeal and modification of Vehicle Code provisions to permit the DMV to accept ITINs for any individual ineligible for an SSN); see also Cal. Veh. Code § 12801.5(a) (2003).'* This indicates that both the Legislature and the public’* understandlegislation waiving the requirement of a SSN, and "' Asis discussedinfra, the Supreme Court, and not the Legislature, has ultimate control over the admissionto practice law. '? See Individual Taxpayer Identification Numbers Can Be Improperly Obtained and Used, Hearings before Subcom. on Oversight and Social Security, Com. on Ways and Means, House of Representatives, GAO-04-529T,at p. 14, (Mar. 10, 2004), statement of Michael Brostek, Director, Tax Issues, General Accounting Office, available at http://www.gao.gov/new.items/d04529t.pdf. 'S The Legislature ultimately did not changethe law.After the voters recalled Governor Gray Davis, the Legislature reversed course and repealed Sen. Bill No. 60 in an extraordinary session. See Sen. Bill No. 1 (3d ex. sess.), 2003-04 Ex. Sess Stat. Ch. 1. '* Sen. Bill No. 60 was the subject of national media attention, and the issue of drivers’ licenses for undocumented immigrants wasat the forefront of the 2003 election that saw the recall of Governor Gray Davis 30 permitting the submission of an ITIN, as a mechanism to make undocumented immigrants eligible to apply for the public benefit at issue. Thus, by enacting this exception, the Legislature clearly and affirmatively afforded eligibility for membership in the Bar to undocumented immigrants, satisfying the requirementin 8 U.S.C. § 1621(d).’° IV. Public Policy Supports Admitting Undocumented Immigrants To the Practice Of Law. The DBA,asthe only national organization composed of undocumented law school students and law school graduates like Mr. Garcia, is uniquely situated in its ability to assist the Court in understanding how federal and state public policy is furthered by allowing undocumented immigrants to practice law in California. As the personal stories ofDBA members demonstrate, applicants like Mr. Garcia and other DBA members overcame a myriad of challenges to pursue admissionto the legal profession. These are precisely the kinds of individuals that California and the Federal Government have decided should be given opportunities to and the election of Governor Arnold Schwarzenegger. See, e.g., Emily Bazar, Living Without a License:It's an Art, Sacramento Bee (Sep.5, 2003), 2003 WLNR 15901747; Scott S. Greenberger, Driver’s License Bill Advances: UnusualAlliance Buildsfor Immigrants’ Rights, Boston Globe (Oct. 26, 2003), 2003 WLNR 3433693; V. Dion Haynes, Jmmigration, Safety Issues Clash: California Debate on Driver Licenses Echoes Nationwide, Chi. Tribune (Nov. 28, 2003), 2003 WLNR 15373057; Carl Ingram, Driver License Measure Clears First Hurdle, L.A. Times (Apr.2, 2003), 2003 WLNR15144024. '° Thethere are other categories of individuals eligble for an ITIN, namely personsliving abroad with U.S.tax obligations and noncitizens lawfully present in the United States who are ineligible fora SSN. The fact that Cal. Bus. & Prof. Code § 6060.6’s benefits persons in addition to undocumented immigrants does not preventit from meeting 8 U.S.C. § 1621(d)’s requirementof “affirmatively” providing for the eligibility of undocumented immigrants. C.f. Martinez, supra, 50 Cal.4th at p. 1290 (noting that “[e]very nonresident who meets section 68130.5's requirements—whether a United States citizen, a lawful alien, or an unlawful alien—isentitled to the nonresidenttuition exemption”). 31 contribute to our society and our economy. In light of the federal and state policies aimed at benefiting undocumented immigrants like Mr. Garcia,this Court should allow these individuals to continue with their careers and commitmentto public service by allowing them to become membersof the Bar. Moreover, allowing undocumented immigrants to practice law furthers several objectives identified by the Bar and the ABA. A. Undocumented Law Students and Graduates Have Overcome TremendousBarriers to Achieve Their Dreams of Becoming Attorneys. Undocumented immigrants, in pursuing law school and a career as attorneys, face a host of barriers that compoundthe challengesthat already reduce college attendance among immigrants and low-income groups. For example, many undocumented immigrants raised in the United States often attend low-performing schools, have parents who did not attend high school or college, lack information about post-secondary education, and until recently were ineligible in California to receive any form of state or federal financial assistance to pay for their college education.'® See Roberto G. Gonzales, Young Lives on Hold: The College Dreams of Undocumented Students 10 (April 2009), The College Board (as of July 18, 2012). Evenif an undocumented immigrant with limited resources overcomesthe challenge of funding his or her undergraduate studies, those aspiring to a career as an attorney will have to undertake significant burdens. For instance, a pre-law undocumented immigrant must apply for and then take the LSAT,often without the benefit of a for-profit preparation course, complete and pay for the application process without the benefit of fee waivers, and pay for enrollment. Increasing tuition rates at '® These studentsarestill ineligible for federal financial assistance. 32 state and private law schools have exacerbated the challenge, often foreclosing the opportunity for students to attend law school. Last, undocumented immigrants must prepare for and pass the bar exam. As demonstrated by the individual student profiles below, the circumstances by which DBA membersfind themselvesliving as undocumented immigrants vary: some entered the United States with valid documentation andlost their status when they overstayed their visas, while others entered the United States without inspection. However, whatis true for all DBA membersis that they entered the United States as children and grew up facing a myriad of obstacles, as undocumented immigrants, to attend and graduate from college, and later law school. Whatis also true is that they have demonstrated tremendous dedication, and drive to fulfill the requirements expected of applicants seeking admissionto the legal profession. 1. “José Manuel” On December 7, 1995, José Manuel entered the United States from Mexico,at the age of nine, with a tourist visa. That wasthe last time José Manuelwasout of the United States. Six months later, his visa expired. José Manuel excelled in his academic and extra-curricular activities. By the age of ten, José had mastered the English language. In 2004, José graduated as valedictorian from Armwood High Schoolin Seffner, Florida. Because of his undocumentedstatus, José Manuel wasineligible for federal and state financialaid, private loans, and someprivate scholarships requiring proof of Florida residency. José Manuel candidly disclosed his undocumentedstatus to every institution of higher learning he attended. Relying on private scholarships and family support, José Manuel entered New College of Florida. Although New College of Florida does not offer grades, former Florida Governor Bob Graham recognized José Manuel for public service upon graduation in 2008. Without the benefit of a for-profit 33 course, José Manuel took the LSAT,and gained entrance into Florida State University College of Law. José Manuel has never been charged with any crime or any civil infraction. No institution of higher learning has ever disciplined José Manuel for misconduct, attesting to José Manuel’s good moral character. Relying on family, friends, and private scholarship, José Manuel graduated cum laude from Florida State University College of Law in 2011. Onhisfirst try, José Manuel passed the Florida Bar Exam in July of 2011. In November of 2011, the Florida Board of Bar Examiners asked the Florida Supreme Court whether undocumented immigrants can become attorneys. Three former ABA presidents supported José Manuel’s admission to the Florida Bar, including Martha W. Barnett, William Reece Smith, Jr., and Stephen N. Zack. Mr. Smith has taught professional responsibility for years. Mr. Zack and Ms. Barnett have chaired the Florida Commission on Ethics. The Florida Supreme Court has not answered whether undocumented immigrants are eligible to practice law in Florida. José Manuelaspires to be an immigration and international humanrights lawyer. 2. “Alicia” On November4, 1986, Alicia emigrated with her family from Mexicoto the United States on a tourist visa. She wasonly a yearofage. Beginning in elementary school, Alicia showed her academic aptitudes and dedication to her studies, and was admitted to the Gifted and Talented Education (GATE) program.In junior high and high school Alicia continued to excel academically graduating in the top 5% of her senior class with a 4.2 GPA. Raised in a low-income household where her mother worked as a housekeeperandher father held two jobs as a maintenance workerand bus boy, Alicia applied for and received several private scholarships to pay for her undergraduate studies at a University of 34 California campus. Despite working as a private tutor to fund her college education, Alicia volunteered as a mentor for low-incomestudents of color, served as a bible study leader and established a scholarship for undocumented immigrant students at her university. Alicia graduated in 2007 with a Bachelor’s of Art in History and Political Science, and received the Chancellor’s Award of Merit. After graduating from college, Alicia postponed attending law schoolfor one year to raise money for her tuition and living expenses. In 2008, Alicia was admitted to several top law schools in the state of California. One law school awarded Alicia an annual scholarship of $30,000, but withdrew the scholarship because Alicia could not provide proof of lawful immigration status. Alicia enrolled in law school at a University of California campus, and received ten private scholarships to fund herfirst year of law school. Alicia continued to work as a private tutor and started an online pastry business to subsidize her tuition expenses. By the end of her law school career, Alicia had received over twenty scholarships, two state fellowships and onenational fellowship. Despite taking a full load of courses and working to pay for her studies, Alicia started a scholarship for undocumented immigrant law school students, and served on the board of three law school organizations. With the support of her family, Alicia wasable to sit for and pass the California Bar exam onherfirst attempt. Alicia aspires to give back to her community by working as an immigration attorney. B. Federal Policy Supports Admitting Undocumented Immigrants to the Practice of Law. Just as state public policy reinforces the reasons why this Court should admit Mr. Garcia and other qualified undocumented immigrants into the practice of law, federal public policy has recognized the need to educate undocumented youth, and to permit them to step out of the shadows and contribute to this society. 35 Federal policy has specified that policies limiting public benefits are not to be construed as limiting undocumented childrens’ right to elementary and secondary education. See League of United Latin American Citizensv. Wilson (C.D. Cal.1997) 997 F.Supp. 1244, 1255-1256 (noting that PRWORA providesthat “[n]othing in this chapter may be construed as addressing alien eligibility for a basic public education as determined by the Supreme Court of the United States under Plyler v. Doe... ).” Further, federal policy has recognized that now that manyofthese Plyler children have grown up,there is the need to give them the opportunity to become contributing members of this society. On June 15, 2012, the Secretary of the Department of Homeland Security (DHS) issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Cameto the United States as Children” (June 15th memorandum), to announcea policy of “Deferred Action for Childhood Arrivals” (DACA) that prevents the removal of certain undocumented immigrants.'’ DACA recognizes the unique position of certain undocumented immigrants who, having arrived in the United States as children, lacked intent to violate the law.'® See Plyler v. Doe, supra, 457 U.S. at p. 219-20 (holding that to punish undocumented immigrant children “does not comport with fundamental conceptionsofjustice.”). DACA establishescriteria,'’ which if '7 Janet Napolitano, Sect. of Homeland Security, mem. On Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children to David V. Aguilar, Acting Comsr., U.S. Customsand Border Protection, Alejandro Mayorkas, Director, U.S. Citizenship and Immig. Services, and John Morton, Director, U.S. Immig. and Customs Enforcement, June 15, 2012, at [as of July 18, 2012]. '8 Td. at p.1. '? Although the exact procedure for obtaining deferred action hasyet to be released, the June 15th memorandumsets out that an individualis eligible for deferred action if he or she: (1) came to the United States under 36 satisfied, would allow qualifying individuals to remain in the United States without the fear of being removed,and significantly, would allow these individuals to apply for and obtain employment authorization.”” Indeed many members of the DBA maybeeligible to regularize their immigration status through the DREAM Act and become permanent membersofthis nation.”! Thus, both P/yler and DACA demonstrate the federal expectation that many undocumented immigrants, particularly those that have attained the age of sixteen; (2) has continuously resided in the United States for at least five years preceding June 15, 2012, and were present in the United States on June 15, 2012; (3) Is currently in school, has graduated from high school, has obtained a general education developmentcertificate, or is an honorably discharged veteran of the Coast Guard or Armed Forcesof the United States; (4) has not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and (5) is not above the age of thirty. Jd. Currently, almost all members of the DBA meetthesecriteria. Mr. Garcia is an exception in that he is over thirty years of age. However, Mr. Garciais a likely candidate for prosecutorial discretion underthe policy announced on June 17, 2011 by the Director of Immigration Customs Enforcement, John Morton, released in a memorandum on “Exercising Prosecutorial Discretion Consistent with Civil Immigration Enforcement Priorities for the Apprehension, Detention, and Removal of Aliens,” commonly referred to as the “Morton Memo.” John Morton, Director, U.S. Immig. and Customs Enforcement, mem. on Exercising Prosecutorial Discretion Consistent with the Civil Immigration EnforcementPriorities of the Agency for the Apprehension, Detention, and Removalof Aliensto All Field Office Directors, All Special Agents in Charge, and All Chief Counsel of the U.S. Immig. and Customs Enforcement, June 17, 2011, at [as of July 18, 2012]. °° Id. at 3. Nearly all members of the DBA meetthecriteria for deferred action set out in the June 15th memorandum,thereby creating the possibility for them to apply for and receive employment authorization. For these individuals, the limitations on employability of undocumented immigrants that this Court was concerned about with respect to its Question 3 become moot. *! Thecriteria for DACA mirrorthosein the latest version of the DREAM Act. 37 an education and who entered long ago as minors, will be regularized and expected to contribute to society. ABAPresident Stephen N. Zack echoed this sentiment in letter urging Congress to support the passage of the DREAM Actstating: The DREAMActis a wise economic investment. Most of the students who will benefit from the DREAM Act have beenraised and educatedin this country. U.S. taxpayers have already invested in the education of these children in elementary and secondary school, andit is in our national interest to ensure that they have an opportunity to realize their full potential.” Thus, qualifying undocumented immigrants should be allowed to practice law so that they can contribute to society as is envisioned by federal policy. C. Allowing Undocumented Immigrants to Practice Law Furthers the California State Bar’s Goals of Creating Access to Legal Services for Marginalized Communities and Promoting Diversity Within the Legal Profession. 1. DBA Members Have Showna Dedication to Providing Legal Services For Underserved Populations. Asone ofthe states with the largest low-income populations, access to basic necessities are now beyondthe reach of many Californians.”? The Bar’s Commission on Accessto Justice recognizes that in addition to economic barriers, other less obvious factors hinderaccessto the courts, *° ABAPresident Stephen N. Zack, ABA Urges Congress to Pass the DREAMAct (Dec.8, 2010), American Bar Association (as of July 18, 2012). *? See The State Bar of California, Office of Legal Services, Action Plan for Justice: A Report of the California Commission on Accessto Justice (April 2007) p. 10, at [as of July 18, 2012]. 38 including cultural and linguistic impediments.’ Theresult is that many Californians do not have the resources to obtain legal representation for the numerouslegal problemsaffecting them. Recognizing the importance of increasing accessto legal services, the Bar has identified its mission as one to “preserve and improve[the] justice system in order to assure a free and just society underthe law.””> Applicants like Mr. Garcia and other DBA membersare highly- qualified individuals who have already demonstrated their commitment to the legal profession, and the ideals expressed in the State Bar’s mission. As a paralegal and later law school student, Mr. Garcia devoted a large part of his workin the area of Housing Law,providing pro bonorepresentation to low-income families and landlords alike. During his time with CLIC (Community Legal Information Center), Mr. Garcia provided free legal services to clients numbering in the thousands. Oncehis directorship was over, Mr. Garcia founded the Community Outreach Program within CLIC to further expand on the workhe had earlier done. Asthe sole director of the Community Outreach department, Mr. Garcia provided services to the underrepresented. He made contact and secured interviews with both local radio andtelevision stations in order to secure airtime to increase awareness of the pro bono legal services CLIC offers. One of his accomplishments was securing a weekly spot for year and a half with the local Spanish radio station, through which he provided free information to countless numbers of listeners. Currently, Mr. Garcia is spearheading the campaign to increase awareness regarding Obama's deferred action policy. His efforts are aided by countless other dreamers whobelieve in his work and one day * Id. at p.2. ** State Bar of California, The State Bar of California: What Does It Do? How Does It Work? (Revised June 2009) p. 10,at [as of July 18, 2012]. 39 hope to becomeattorneys themselves. Additionally, Mr. Garcia has the endorsementand support of several immigration experts who advise him so that he can better inform the community as to their rights and obligations. Other membersof the DBA like Jose Manuel and Alicia have dedicated hundreds of hours to volunteering with non-profit organizations, traveling to remote communities to bring legal services to farm workers, victims of domestic violence, and the indigent. In 2010, the Florida Bar Foundation awarded José Manuel a public service fellowship. The fellowship allowed José Manuelto continue his work with immigrant survivors of domestic violence. José Manuel began working with immigrant survivors of domestic violence during the summer of 2009 at Gulfcoast Legal Services, Inc., a Florida nonprofit offering legal assistance to working-class immigrants. José Manuel helped attorneysfile U-Visas and Violence Against Women Actself-petitions for immigrant victims of crime. José Manuel continued this work during the summerof 2010 after graduating in 2011. During law school, José Manuel supported the Center for the Advancement of Human Rights’ work with refugees and other immigrants escaping persecution by providing research for asylum claims and prosecutorial discretion requests. Upon graduation, José Manuel received the Distinguished Pro-Bono Service award for his time serving as a volunteer at nonprofit legal-aid organizations serving disenfranchised groups. Like José Manuel, Alicia has shown a deep commitmentto public interest work. While in law school, Alicia volunteered in five rural counties in northern California, assisting farm workers with their naturalization applications. Alicia also assisted students across the country seeking favorable grants of prosecutorial discretion. In 2008, Alicia drafted one of the earliest memorandums to DHSondeferred action for DREAM Act eligible youth. Alicia has also assisted low-incomevictims of domestic 40 violence seeking asylum in the United States. Prior to graduating, Alicia wasthe recipient of a public interest fellowship, and recognized for having dedicated over 1,000 hours of pro bono work to low-income and immigrant communities. A law license would allow José Manuel and Alicia to expand their pro bono work. Applicants like Mr. Garcia, José Manuel and Alicia are morelikely, as immigrants, to speak several languages and understand more than one culture. As a result, they can contribute valuable skills to the legal profession, which will further the Bar’s mission of improvingthejustice system and ensuringthat “all people have access to high-quality legal services regardless of financial, [linguistic], [cultural] or other circumstances”.”° 2. Undocumented Immigrants Can Contribute to the Diversity of the Bar. The Barhasalso identified the importance of increasing diversity in the legal profession. Its Council on Access & Fairness is charged with: “identify[ing] and encourage[ing] individuals from diverse backgrounds to enter the legal profession”.’’ Like the Bar, the ABA recognizesthe lack of diversity in the profession as a serious problem,calling this “a disappointment”.”® The ABA’s 2010 Presidential Diversity Initiative °° Td. *7 The State Bar of California, Council on Access and Fairness, Council on Access and Fairness’ Charge, p. | at <(http://cc.calbar.ca.gov/Portals/1 1/documents/COAF/COAFCharge.pdf> [as of July 18, 2012]. The Council on Access and Faimessserves as the State Bar's "diversity think tank” and advises the Board of Governors on advancing State Bar diversity strategies and goals. The diversity pipeline includes the early education pipeline K to 12; college, law school and bar exam prep; recruitment, hiring, retention and promotionin the profession; and judicial diversity. *8 American Bar Association: Presidential Initiative Commission on Diversity, The Next Steps: Report and Recommendations—Race and 41 Report and Recommendations on Race and Ethnicity Gender, Sexual Orientation and Disabilities, bighlighted that: As America races toward a future where minorities will be the majority and more marginalized groups maketheir voices heard, the legal profession’s next steps towards advancing diversity must produce more viable, sustained outcomes. Despite our efforts thus far, racial and ethnic groups, sexual and gender minorities, and lawyers with disabilities continue to be vastly underrepresented in the legal profession.” Undocumented immigrants from diverse racial and ethnic backgroundscould potentially benefit from a policy allowing undocumented immigrants to be admitted to the practice of law. Indeed, up to 85 percent of undocumented youth are of Latino descent,*’ and approximately one outoften of the 2.1 million undocumented youth’! who would be eligible for the DREAM Act are Asian American and Pacific Islander.** Amongpotentially undocumented undergraduates who are AB 540 recipients in the UC system, “‘Asian and Latino students are about equal, at 45 percent and 48 percent respectively.”*> Because manyofthese undocumented students who graduate from college could pursue graduate and professional degrees, including going to law school, they will Ethnicity, Gender, Sexual Orientation, Disabilities (April 2010) p. 5, at [as of July 18, 2012). Td. °° Jeffery Passel, Demography ofImmigrant Youth: Past, Present, and Future (2011) 21 Immigrant Child. 19, 25. *! Jeanne Batalova and Margie McHugh, DREAMvs. Reality: An Analysis ofPotential DREAMAct Beneficiaries (July 2010) Migration Policy Institute, p. 6, at [as of July 18, 2012]. * Asian Pacific Am. Legal Ctr. & Asian Am. Justice Ctr., Members of Asian Am.Ctr. for Advancing Justice, A Community ofContrasts: Asian Americansin the United States 2011 (2011) p. 22. * Univ. of Calif. Office of the President, Annual Report on AB 540 Tuition Exemptionsfor the 2010-2011 Academic Year (May 2012) p. 6. 42 potentially make valuable contributions to the diversity of California’s law schools. CONCLUSION Forall the foregoing reasons, Amici respectfully request that the pending motion for the admission of Sergio C. Garcia to the practice of law in California be granted. Dated: July 18, 2012 Respectfully submitted, Nicholas Espiritu SBN 237665 MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street, 11 Floor Los Angeles, California 90014 Telephone: (213) 629-2512 nespiritu@maldef.org Attorneys for Amici Cuiae 43 CERTIFICATE OF COMPLIANCE WITH CALIFORNIA RULE OF COURT8.204(c)(1) I certify that this brief complies with the type-volume limitation 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 8.204(c)(3) contains less than 14,000 words. Dated: July 18, 2012 _ - Nicholas Espiritu MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 44 CERTIFICATE OF SERVICE I, Nicholas Espiritu, declare that am employed in the City and County of Los Angeles, California; I am over the age of eighteen years and am not a party to this action; my business address is 634 S. Spring Street, Los Angeles, CA 90014. On July 18, 2012, I served the following document(s): APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF AND AMICUS CURIAE BRIEF OF THE DREAM BAR ASSOCIATION, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, ASIAN PACIFIC AMERICAN LEGAL CENTER, ASIAN LAW ALLIANCE, NATIONAL ASSOCIATION OF LATINO ELECTED AND APPOINTED OFFICIALS EDUCATIONAL FUND, AND NATIONAL COUNCIL OF LA RAZA IN SUPPORT OF SERGIO C. GARCIAontheparties listed below, by placing a true copy thereof in an envelope addressed as shown below and mailing it to the addressesas follows: Jerome Fishkin Bryan Springmeyer Fishkin & Slatter Llp 275 Battery Street, Suite 1170 1575 Treat Blvd., Suite 215 Walnut San Francisco, Ca 94111 Creek, Ca 94598 Starr Babcock, MarkA.Perry 180 HowardStreet 1050 Connecticut Avenue, N.W. San Francisco, Ca 94105 Washington, D.C. 20036-5306 Donald K. Tamaki Robert E. Palmer 360 Post Street, 8th Floor 3161 Michelson Drive San Francisco, Ca 94108-4903 Irvine, Ca 92612-4412 Kevin R. Johnson Bill Ong Hing 45 U.C. Davis School Of Law 2199 Fulton Street 400 Mrak Hall Drive San Francisco, Ca 94117 Davis, Ca 95616 MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 46