GARCIA (SERGIO C.) ON ADMISSION

Applicant’s Consolidated Response to Amicus Curiae Brief

Cal.September 14, 2012

SUPREMCOURT COPY. siren $202512 SEP 14 2012 IN THE SUPREME COURT OF CALIFORNIA Frank A. McGuire Clerk Deputy In Re Sergio C. Garcia On Admission Bar Miscellaneous 4186 CeorwSO--. st+O MUTT AICS ~REPLY-BRIEF-OF-APPLICANT.. SERGIO C. GARCIA PROOF OF SERVICE JeromeFishkin, Esq., #47798 Lindsay K. Slatter, Esq. #72692 SamuelC. Bellicini, Esq. #152191 Fishkin & Slatter LLP 1575 Treat Blvd., Suite 215 Walnut Creek CA 94598 Phone: 925.944.5600 Fax: 925.944.5432 e-mail: Jerome@FishkinLaw.com Attorneys for Sergio C. Garcia Applicant for Admission TABLE OF CONTENTS T. INTRODUCTION............csssscsssccssscsseesssssessessnscsenssccnsesssesscsessscesensesnees 1 Il. THE FEDERAL GOVERNMENT DOES NOT REGULATE THE ADMISSION OR DISCIPLINE OF ATTORNEYSBY THE STATES.1 TI-A. SUMMARY......cceeeeecceeeseeeesesceessceetsseneaeecsneeneeeessecesuecsseeessasansessesesenseess 1 II-B. IF CONGRESS INTENDED TO REGULATE STATE ADMISSION AND DISCIPLINE OF ATTORNEYS,IT HAD TO DO SO OVERTLY,NOT BY IMPLICATION bebeeeecceceeeeeesseseeececercesceesaeaeaeseeeeeeeesteeseasseenaeeeseeeeseeeusesesesceeeeesnanenaaeeesseaseeseenees 1 II-C. ATTORNEY REGULATION IS DIFFERENT FROM OTHER PROFESSIONAL LICENSES.0...cccccsccccssecnsecceccccccscscnsesccusessanccuscsecscasecececeuscscucecansscascsesseccasseceses 4 Il. CONGRESS CANNOT DEPRIVE STATE COURTS OF THEIR POWER TO RULE ON JUSTICIABLE ISSUEG....................sscccssscceceenes 6 TH-A. SUMMARYQu... ees eecscecessstcceeetseeeeeecestsnsseeesecssenseesecssnsecesseneesseeessnesesesses 6 II-B. THE COURTS CANNOTBE DEPRIVED OF JURISDICTION TO HEAR CASES 6 II-C. THE IMMIGRATION LAWS SHOWNOINTENT TO DEPRIVE STATE COURTS OF THE POWER TO ADMIT OR DISCIPLINE ATTORNEYS......sssseseeseeeeeees 7 IJi-D. THE STATE COURTS RENDER DECISIONS ON ALLEGED PREEMPTION OF IMMIGRATION LAWG.......ccceceoseccscsccesccnscscnscceccsncscaeccscececcsasccassecesstseseecesscenesss 9 IV. THE STATE SUPREME COURTIS NOT A STATE AGENCY..11 V. NO APPROPRIATED FUNDS ARE USED TO ADMIT GARCIA TO THE PRACTICE OF LAW..........ccccccsscscsssecsssssscssscssccssesessescnsesssessnees 12 VI. IF A STATE STATUTE IS NEEDED UNDER8 USC 1621(D), THEN BUS & PROFC 6060.6 QUALIFIES...etestcccseesseesenesees 14 VII. THERE IS NO "HARBORING"ISSUE..........ccssesssscesscsesssssseesnees 14 VIII. GARCIA HAS NO DUTY TO LEAVE THE COUNTRY............ 15 IX. IMMIGRATION REGULATION AND LAWYER REGULATION SHOULD REMAIN IN THEIR OWN SPHERES. ............cssssssssssssesesscees 17 TX-A. BACKGROUND 1.0... eececesesecessesseessssessescecsessceseecsscesessecssssussaesseesensneesaes 17 [X-B. IMMIGRATION STATUSIS TRANSITORY AND SHOULD NOT BE THEBASIS FOR DENYING GARCIA ADMISSION TO PRACTICE LAW .....ccsccsesssessevesesseeeeees 17 IX-C. IN RULING ON ADMISSION TO PRACTICE LAW, THIS COURT SHOULD NOT ATTEMPTTO DECIDE A CONTESTED ISSUE OF LAW THATIS NOTTIED TO EDUCATION OR GOOD MORAL CHARACTER ........scseeeecsssssssseceessessssssnecssseeses 18 TX-D. CONCLUSION -- THERE ARE BOUNDARIES BETWEEN ADMISSION AND EMPLOYMENT.........ceccssscucccuccescesececsescovsessssceaescuaeceesesstensevscasctsstsesssecaeenserces 20 X. THERE ARE NEITHER CITIZENSHIP NOR RESIDENCY REQUIREMENTS FOR ADMISSION TO PRACTICE LAW IN CALIFORNIA........ccssssscssscsssessscssssssscesssssscessarsncessssssacesscensessossssseseconsessees 22 XI. GARCIA CAN TAKE THE OATH OF AN ATTORNEY............. 25 XII. ADMISSION OF GARCIA ADVANCES CALIFORNIA'S PUBLIC POLICY TOWARDS UNDOCUMENTED IMMIGRANTS26 XIV. CONCLUSION.........cccssccssscssscsesscssecsessecsssessssssescsacsscsessssssescessssssees 28 TABLE OF AUTHORITIES CASES Altria Group, Inc. v. Good (2008) 555 U.S. 70, 77 [129 S.Ct. 538, 543, 172 L.Ed.2d 398] ------------------------22nnnnnnnnnnnnnnnnnncnnnnnncn 2,5 Andrus v. Sierra Club (1979) 442 U.S. 347, 361 [99 S.Ct. 2335, 2343, 60 L.Ed.2d 943 -------------------------------2-2nnnnnnnnnnnnnnnnnernnncnnnnen 13 Application ofGriffiths (1973) 413 U.S. 717 ------------ n--------------- 22 Arizona v. U.S. (2012) 132 S.Ct. 2492, 2501 [183 L.Ed.2d 351]----- 3, 16,17 Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 ------- wenn cena nn ennennn enn 5 Bhakta v INS (9th Cir 1981) 667 F.2d 771 ---- wana nnn nnn naan== 19 Brown v. Board ofBar Examiners ofState ofNev. (9th Cir. 1980) 623 F.2d 605 --------------------- cencecnnnnnnnnnnmnnnnn 8 Brydonjack v. State Bar ofCalifornia (1929) 208 Cal. 439 ---------- 23, 24, 25 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837, 844 [104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694] ----------------- 18 Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 ----- -- mann anna nnn nnnnnnnnnnnnnnnnn 8 DepartmentofSocial Services v. Superior Court (1997) 58 Cal.App.4th 721 woeeeeeeeeeeeeeeeeeenenenen 6 Figueroa v. Mukasey (9th Cir. 2008) 543 F.3d 487 ---------------------------- 16 Gadda v. Ashcroft (9th Cir. 2004) 377 F.3d 934 ----------------------------- 2,7 Gonzales v. Oregon (2006) 546 U.S. 243, 267 [126 S.Ct. 904, 921, 163 L.Ed.2d 748] --------------------------- nnnnnnnnnnnnnnnnnnernnncns 3,7 Hallinan v. Committee ofBar Examiners ofState Bar (1966) 65 Cal.2d 447, 459 wenennnnnn nena wen nnnnnnnnnnnnnenannnnenane 25 Hoover v. Ronwin (1984) 466 U.S. 558, 569 [104 S.Ct. 1989, 1996, 80 L.Ed.2d 590] -------------- ---- won nn nanannnn-nnn-- 2 Howdenv. State Bar ofCalifornia (1929) 208 Cal. 604----------------------- 23 In Re Attorney Discipline System, 19 Cal.4th at 603-604 ------------------- 7,8 Inre Farm Raised Salmon Cases (2008) 42 Cal.4th 1077 ------------------- 15 Inre Jose C. (2009) 45 Cal.4th 534 --------------------------------22-220-27-- 9,10 In re Kelley (1990) 52 Cal.3d 487 -------------------------------2-22-02202 2o2-0 25 In re Lavine (1935) 2 Cal.2d 324, 329 [41 P.2d 161, 163] reh'g denied and opinion modified, (1935) 2 Cal.2d 324 [42 P.2d 311] ------------------------ 4 Inre Ruffalo (1968) 390 U.S. 544,88 S. Ct. 122. 20 L.Ed.2d117 ------------ 9 LeClerc v Webb (Sth Cir 2005) 419 F.3d 405 ----------------------------- 7, 8, 10 Martinez v The Regents (2010) 50 Cal.4th 1277----------------------------- 9,17 Matter ofRespondent I (1993) 2 Cal State Bar Ct Rptr 260 ------------------ 26 Matter ofTong (BIA 1978) 16 I. & N. Dec. 593 -------------------------- 18, 19 People v. Castello (1998) 65 Cal.App.4th 1242 --------------------------------- 6 Plyler v. Doe (1982) 457 U.S. 202 ------------------------------------------ 10, 17 Prowdv Gore (1922) 57 Cal App 458 ---------------- 23 Raffaelli v Committee ofBar Examiners (1972) 7 Cal.3d 288 ---------- passim Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 won nnnnn nn nnnnnnnnnnnnnnnnnnnnnnnnnnnncnneens 2 Schware v. Board ofBar Examiners ofNew Mexico (1957) 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796------------------ ---------8, 24 Sei Fujii v. State (1952) 38 Cal. 2d 718 ---------------------------- --- 24 State v. Cannon (1932) 240 N.W.441, 450 -------------------------------------- 4 Supreme Court ofNew Hampshire v. Piper (1985) 470 U.S. 274 [105 S.Ct. 1272, 84 L.Ed.2d 205] -- wan nnn n--nn-==--- 22 Telegdi v. State Bar ofCalifornia (1929) 208 Cal. 793 ------------------------ 23 United States v. Acosta de Evans (9th Cir.1976) 531 F.2d 428--------------- 14 U.S. v. Costello (2012) 666 F.3d 1040 ------------------------------------------- 15 U.S. v. General Dynamics Corp. (1993) 3 OCAHO 517 ---------------------- 19 U.S. v. Hinojos-Mendez (2008) 270 Fed.Appx. 368 --------------------------- 15 U.S. v. Ramirez (2007) 250 Fed.Appx. 80 ------------------------- - 15 USA v Bean (2001) 537 US 71 -------------------------------------------- 6, 12, 13 Vidal v. Backs (1933) 218 Cal. 99, 21 P.2d 952 ---- 6 Whitman v. American Trucking Assns., Inc. (2001) 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 ------------------------------------------------------ 5,9 Wyeth v. Levine (2009) 555 U.S. 555, 565 [129 S.Ct.1187, 1194-95, 173 L.Ed.2d 51] wana nn nnnnnn ennennn 2 STATUTES 8 U.S.C. 1153------------------- won nnnnana nnn 15 8 U.S.C. 1154-----------------------------------------------2-22--nnnnnnnnnnnnns 15 8 U.S.C. 1229 ---------------------------------------------------2-2-2nnnnnnn nnnn 16 8 U.S.C. 1306--------------------------- wanna annennnnnnnnnnnnnnnnnnnn25 8 U.S.C. 1621 ------------------------------- wo annannn passim 18 U.S.C. 925(c) -------------------------------2-22nnnennnenannnnnnnnnnnnnnnnnene 12 Bus & Prof C 30---- wane nena nnne enner5 Bus & Prof C 6060.6 --- -- --- non ------------------- 14, 24 Education C 66021.7 ----- -------------- wannannn- annanonen88--an2-2-8--- 26 OTHER AUTHORITIES 144 A.L.R. 150 (updated through 2012) ------------------------------------------ 7 Treasury, Postal Service, and General Government Appropriations Act 1993, PL 102-393, October 6, 1992, 106 Stat 1729--------------------------------- 12 REGULATIONS 8 CLE.R. 274a, | ----n-nnnnnnn nnn cnnecements 18, 19 I. INTRODUCTION Sergio Garcia’s immigration statusis not a bar to his admission as a California attorney. He meets the educational and moral character requirements. Federal immigration laws do not show an expressintent to preemptthe states’ historical role in attorney regulation. Congress would not take awaythestate’s ability to admit and discipline attorneys by implication. There is no policy reason for this Court to create a new barrier to admission that would prevent Sergio Garcia from becoming a lawyer. Il. THE FEDERAL GOVERNMENT DOES NOT REGULATE THE ADMISSION OR DISCIPLINE OF ATTORNEYSBY THE STATES II-A. Summary The United States Congress has never claimed the right to regulate the admissionsanddiscipline of attorneys in the state courts. Admission and discipline of attorneys is a historical core function of the states. When Congress regulates such core functions, it does so overtly. Yet the import of the USA’s brief is that Congress acted by implication, andin field thatit never regulated before. II-B. If Congress intended to regulate state admission anddiscipline of attorneys,it had to do so overtly, not by implication “When addressing questions of express or implied pre-emption, we begin our analysis “with the assumption that the historic police powers ofthe States [are] not to be superseded by the Federal Act unless that wasthe clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447. That assumption applies with particular force when Congresshaslegislated in a field traditionally occupiedby the States. Altria Group, Inc. v. Good (2008) 555 U.S. 70, 77 [129 S.Ct. 538, 543, 172 L.Ed.2d 398]. As stated in the Garcia opening brief at page 11, admission anddiscipline of attorneysis a "core of the State's powerto protect the public..." Hoover v. Ronwin (1984) 466 U.S. 558, 569 [104 S.Ct. 1989, 1996, 80 L.Ed.2d 590] (internal quotes andcitations omitted). There is certainly no express preemption of attorney regulation in Section 1621. None of the opposition amicusbriefs claim there is an express preemption. Rather, each ofthem search in vain for some sort of implied preemption. Again, as the U. S. Supreme Court most recently stated in Wyeth v. Levine (2009) 555 U.S. 555, 565 [129 S.Ct. 1187, 1194-95, 173 L.Ed.2d 51], (internal punctuation and citations omitted), “in all pre- emptioncases, and particularly in those in which Congresshas‘legislated... in a field which the States have traditionally occupied,’ ... we ‘start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Noris there any preemption in any other provision of federal immigration law. Gadda v. Ashcroft (9th Cir. 2004) 377 F.3d 934, holds that federal immigration law does not preempt regulation of attorney discipline by the states, remains uncontradicted by any brief in this matter. Thus, there is no field, obstacle, or conflict preemption. Admission and discipline of attorneys are twosides ofthe coin of inherent state court powers. The DeShabrief argues at page 12 that Congress could have excluded law licenses in fewer than 10 words. The brief has the principle backwards. The U. S. Supreme Court recently reiterated that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress.” (citations omitted) Arizona v. U.S. (2012) 132 S.Ct. 2492, 2501 [183 L.Ed.2d 351]. If Section 1621 intended tostrip state courts of the ability to admit or discipline attorneys, it would have said so directly, not hidden the intent in a sentence designed to preclude executive branch government agencies from licensing other professions that do not require judicial branch action. The principle of Gonzales v. Oregon (2006) 546 U.S. 243, 267 [126 S.Ct. 904, 921, 163 L.Ed.2d 748] applies (internal quotes and punctuation omitted): “We are confident that Congress could not have intendedto delegate a decision of such economicandpolitical significance to an agency in so cryptic a fashion.” Congress has never regulated the practice of law in the states. Such regulation has always been considered uniquely the province ofthe states. In speakingto this issue many years ago, the Wisconsin Supreme Court reviewedthe history ofjudicial regulation of attorneys, and concludedin language that could apply to any state of this country: “For more than six centuries prior to the adoption of our Constitution, the courts of England, concededly subordinate to Parliament since the Revolution of 1688, had exercised the right of determining who should be admittedto the practice of the law, which, as was said in Matter of the Serjeants at Law, 6 Bingham's New Cases235, “constitutes the mostsolid ofall titles.” If the courts and the judicial power be regarded as an entity, the power to determine who should be admitted to practice law is a constituent elementofthat entity. It may be difficult to isolate that element and say with assurancethatit is either a part of the inherent powerofthe court, or an essential element of the judicial power exercised by the court, but that it is a powerbelonging to the judicial entity cannot be denied. Our people borrowed from Englandthis judicial entity and madeofit not only a sovereigninstitution, but made ofit a separate, independent, and co—ordinate branch ofthe government. They took this institution along with the power traditionally exercised to determine who should constitute its attorneys at law.” State v. Cannon (1932) 240 N.W.441, 450, distinguished on other grounds in State ex rel. Reynolds v. Dinger (1961) 14 Wis.2d 193 [109 N.W.2d 685] Cannon wascited with approval in In re Lavine (1935) 2 Cal.2d 324, 329 [41 P.2d 161, 163] reh'g denied and opinion modified, (1935) 2 Cal.2d 324 [42 P.2d 311]. It is as applicable today as it was then. II-C. Attorney Regulationis different from other professional licenses It is true as stated in the USAbrief at page 7, that neither Garcia nor The Committee ofBar Examiners (CBX) has identified any other license than a law license that is not covered by Section 1621. That is because other governmentlicenses emanate from the executive branch of the government. Applicants for such licenses are investigated by the executive branch agency, using appropriated funds for their activities. Decisions to grant or deny licenses are made by the same agency,without the need for court approval. By wayof contrast, lawyer applicants are investigated by the State Bar, funded by lawyer dues, not appropriated funds. The State Baris not authorized to issue the law license. Unlike any other professionallicense, the license to practice law actually requires approval by the state supreme court. The USAbriefhas the principle backwards. Thus, we agree with the statement in the California Attorney General’s brief in footnote 16, page 24, that the admission of Garcia would havelittle effect on other professionals listed in Bus & Prof C 30. The structure ofthat section shows why. Bus & Prof C 30(a) divides its coverageto “any board, as defined in Section 22, and the State Bar and the DepartmentofReal Estate.” Section 22 distinguishes the State Bar from other boards. That State Bar Act stands alone andis the only Act that requires the judicial branch to grant the license. Furthermore, Section 22 applies to agencies, as contrasted to section 21, which applies to the governmentofthestate. “Congress ... does not. . . hide elephants in mouseholes.” Whitmanv. American Trucking Assns., Inc. (2001) 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1. Never before in this Country’s history has Congress expressed an intent to regulate the states’ admission of attorneys. Nowhere in the federal immigration law does Congressstate that it is preempting licensing of lawyers, a powerthat states have always exercised and one that Congress has never exercised. Courts ordinarily accept the reading of a statute that disfavors pre-emption. Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687; Altria Group,Inc.v. Good(2008) 555 U.S. 70, 77, 129 S. Ct. 538, 543, 172 L. Ed. 2d 398. II. CONGRESS CANNOT DEPRIVE STATE COURTS OF THEIR POWERTO RULEON JUSTICIABLE ISSUES IlI-A. Summary According to the USA Briefat page 11, this Court cannot grant a law license to Sergio Garcia due to USA v Bean (2001) 537 US71, 74-75. But Bean did not purport to deny the powerof a court to act. Bean simply held that the agency below had no powerto act. The Supreme Court did not deprive the powerofthe state courts to rule on the propriety of the agency action. III-B. The Courts cannot be deprived of jurisdiction to hear cases Constitutional courts cannot be limited in discharge of functions by the legislative branch. Vidal v. Backs (1933) 218 Cal. 99, 21 P.2d 952. Judicial poweris in courts, whose function is to declare law and determine rights of parties to controversy before court. Neither the constitutional executive nor administrative agencies can interfere with judicial powers. Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, rehearing denied, review denied. Inherent powersofthe courts are derived from State Constitution; they do not dependent on statutory permission. People v. Castello (1998) 65 Cal.App.4th 1242, rehearing denied, review denied. If Section 1621 attempted to strip state courts of the ability to admit or discipline attorneys, it would havesaid so directly, not hidden the intent in a sentence designed to preclude executive branch agencies from investigating and licensing other professions. As the U. S. Supreme Court stated in Gonzales v. Oregon (2006) 546 U.S. 243, 267 [126 S.Ct. 904, 921, 163 L.Ed.2d 748] (internal quotes an punctuation omitted): “We are confident that Congress could not have intended to delegate a decision of such economic andpolitical significance to an agencyin so cryptic a fashion.” IlI-C. The Immigration Laws show nointent to deprive state courts of the powerto admit or discipline attorneys Aswestated in the Garcia opening brief, Gadda v. Ashcroft (9th Cir. 2004) 377 F.3d 934 recognizes that federal immigration statutes do not preempt the regulation of attorneys by the states. The USAbrief does not even discuss Gadda,\et alone refute it. The same omission applies to the DeShabrief and the Kierniesky brief. U.S. Supreme Court cases such as Hoover and Bates recognize that historically, admission and discipline are exercised bystates at the state level. The discussion of that issue in Jn Re Attorney Discipline System, 19 Cal.4th at 603-604,cited five other state supreme court cases that reach the same conclusions — regulation of attorneysis a core state function, and thelegislature is not permitted to invade the court’s inherent powerto perform that regulatory function. Almost every State Supreme Court has come to the same conclusion. See 144 A.L.R. 150 (updated through 2012). The CBX openingbrief at page 37 cites LeClerc v Webb (Sth Cir 2005) 419 F.3d 405, a case with a different outcome but consistent with Gadda. LeClerc upheld a Louisiana Supreme Court interpretation of a Louisianarule of court, to deny the right of foreign law students to apply for a state law license. LeClerc recognizesa basic truth in the federal system -- not every state reaches the same conclusionin the exercise ofits police power. "Contrary to the plaintiffs’ contentions, the status of bar admission rules in other states is neither controlling nor persuasive." LeClerc at fn. 54, pg. 423. Thus, at the same time LeClerc was decided, the Ninth Circuit reiterated the Gaddaprinciple that federal law in general does not preempt California’s discipline system. Canatella v. California (9th Cir. 2005) 404 F.3d 1106, 1110-11. Canatella also explains how the federal courts in California rely upon California’s admission of attorneys to determine their own admission. Yet, the interpretation advanced by the USA would deprive this Court ofits inherent jurisdiction to review applications for admission,in violation of well-established laws governing separation of powers. This Court expressed the principle in In re Attorney Discipline System (1998) 19 Cal.4th 582, 603- 604,stating, “Therefore, our traditional respect for legislative regulation of the practice of law, based upon principles of comity and pragmatism,is not to be viewed as an abdication of our inherent responsibility and authority over the core functions of admission and discipline of attorneys.” “The only constraints on the states' exclusive jurisdiction are constitutional in nature: a person may not be excluded from the practice of law in a manner or for reasons which contravene the Fourteenth Amendment, nor can the state court impose qualifications which lack “a rational connection with the applicant's fitness or capacity to practice law.” Schware v. Board ofBar Examiners ofNew Mexico (1957) 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796; Brown v. Board ofBar Examiners ofState ofNev. (9th Cir. 1980) 623 F.2d 605, 609. Such historic police powers of the States are not preempted unless Congress showsa clear purpose, Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407. The USAbrief at page 15 draws the wrong conclusion from the disciplinary cases involving Mr. Kanwal. Hestipulated in the Immigration Court that he should be disciplined for practicing law while being an undocumented immigrant. It does not appearthat any ofthe cited disciplinary actions considered any of the arguments that have appeared in this case. Nor doesit appearthat the state courts considered the long-standing lesson ofJn re Ruffalo (1968) 390 U.S. 544, 88 S. Ct. 122.20 L.Ed.2d117. There, the Supreme Court reiterated long standing policy that discipline in a state court does not automatically lead to discipline in the federal court, because each court rules on its own admission anddiscipline. “Congress... does not, one mightsay, hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc. (2001) 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1. If Congress intended to invade the historic power of the state courts to rule on attorney admission and discipline, it would not have doneso is such a vague way. It is thus within the province ofthis Court to admit Sergio Garcia in accord with the principles ofRaffaelli v Committee ofBar Examiners (1972) 7 Cal.3d 288, (hereinafter “Raffaelli.”) IlI-D. The State Courts render decisions on alleged preemption of immigration laws The Garcia and CBX openingbriefs, along with many amicus, discuss Martinez v The Regents (2010) 50 Cal.4th 1277. Further discussion would be repetitive. However, wealsocall to the court's attention, In re Jose C. (2009) 45 Cal.4th 534, cited in footnote 5 of the CBX openingbriefat pg. 8. Jose C. involved a juvenile’s violation of immigration law,soit is particularly relevant to this case. “As an independent sovereign, California generally may exercise its police power to regulate such juvenile misconduct, even when that misconductis simultaneously the subject of federal prohibitions. "Nor is the present proceeding, which involves the alleged violation of federal immigration law, preempted by exclusive federal authority over matters pertaining to immigration.” Jn re Jose C., at p. 540. As an independentsovereign, the State of California can exercise its police powerto regulate attorney admissions. In LeClerc, supra, the rationale was that each of the applicants had applied for a visa that expressly indicated the immigrant had nointention of abandoningtheir native citizenship, and no intention to remain in the U.S.A. They are thusin a different class of immigrant than Sergio Garcia. LeClerc does not discuss Raffaelli. Louisiana simply reached a different conclusion whenpresented with foreign citizens who intend to remain foreign citizens, and neither LeClerc nor Louisiana have considered what approachto take to foreign citizens who intend to become Americancitizens. LeClerc also disclaimed anyrelationship to Plyler v. Doe (1982) 457 U.S. 202. Sergio Garcia is moreclosely related to the immigrants in Plyler than he is to the non-immigrants in LeClerc. Like the Plyler immigrants, Sergio Garcia wasbrought here as a minor and educated here in public schools. The Plyler children were notlikely to return to the country oftheir parents' birth. They werelikely to remain in the U.S.A. Thus, Plyler discusses the rationale for educating even undocumentedchildren — it teaches them core values, helps maintain our democratic institutions. “In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.” Plyler, at page 221. 10 Asnotedin the brief of Attorney Generalat page 3, the ability to utilize those educational opportunities means that many undocumented immigrants can beself-reliant and not be a burden on public resources. Public policy has insured that Sergio Garcia could attend school. He is now onthe cusp of returning to the community, the fruits of that education. As the Attorney General's brief states at page 28, "Denial of admission ... would undermine state policy by shutting the door at the very moment when undocumented immigrants seeks(sic) to use that education to better themselves,their families, and others." As stated by CBX in its openingbrief, "The State of California, which has expressed a desire to invest in the education of | undocumented students, should be able to benefit from the contribution of these individuals as professionals, both economically and otherwise.” IV. THE STATE SUPREME COURTIS NOT A STATE AGENCY The USAbrieftacitly concedesthat this Court is not an agency ofthe State at page 2 ofits brief. It concedes at page 7 that the term ‘agencyofthe State’ does not customarily include the judicial branch of the government. That conclusion is consistent with the citations to state and federal law at page 7 of the Garcia brief. Garcia agrees with the statement by CBX in its opening brief at page 10, that federal courts are ordinarily not described as agencies. As noted in the DeShaopposition brief at page 11, Congress has defined an agency asa department within the Executive Branch under 5 U.S.C. 101. That brief cites two other codesections that are exceptionsto this principle, but those sections do not support his argument that somehow this Court is an 11 “agency.” Those two other code sections are exceptions to the general rule. Thus, the California Attorney General brief at page 11 correctly concludes that the term agency customarily refers to executive branch agencies, a discussion that is consistent with the Garcia opening brief at pages 7- 8, and with all of the other amicusbriefs. V. NO APPROPRIATED FUNDS ARE USED TO ADMIT GARCIA TO THE PRACTICE OF LAW There is no argumentin any brief that appropriated funds are used by the State Bar. The party briefs and the amicus briefs demonstrate that there are none. The USAbrief argues only that this Court uses appropriated funds and therefore cannot admit Garcia to practice law. Neither logic nor the authorities cited support the argument. The USAbrief at page 11 erroneously claims: “Prohibition on the use of appropriated fundsfor a particular purpose prohibits the use of any appropriated fundsfor that purpose. See, e.g., United States vy Bean 537 U.S. 71, 74-75..” Actually, Bean only applied the appropriated funds law to the underlying agency, not to the Courts. Bean interpreted a particular section of an appropriation act that reads, "... none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c).” That sentence appears in the Treasury, Postal Service, and General Government Appropriations Act 1993, PL 102-393, October 6, 1992, 106 Stat 1729. 12 Bean thus applied the appropriated fundsprinciple to a specific executive branch agency, the Bureau of Alcohol, Tobacco & Firearms. Bean did not expandthe application of that appropriation act to prevent the Court from reviewing the inaction ofATF. Yet, under the USA’s argument, the federal courts would have no jurisdiction to use appropriated funds to review the administrative ruling. The United States Government Accountability Office (GAO) publishes Principles ofFederal Appropriations Law,the relevant portions ofwhich are at Exhibit H. (Please see new Exhibit attached hereto.) At Vol. 1, pages 2- 3, it is stated, “The term “appropriation” may be defined as: “Authority given to federal agencies to incur obligations and to make payments from Treasury for specified purposes.” A footnote cites, inter alia, Andrusv. Sierra Club (1979) 442 U.S. 347, 359, where at footnote 14, the Court states, “Appropriation, on the other hand, is defined as: “An authorization by an act of the Congress that permits Federal agencies to incur obligations and to make payments out of the Treasury for specified purposes.” Andrusv. Sierra Club (1979) 442 U.S. 347, 361 [99 S.Ct. 2335, 2343, 60 L.Ed.2d 943]. At pages 2-16, the Principles states, “An appropriation is a form of budget authority that makes funds available to an agency to incur obligations and make expenditures.” 13 VI. IF A STATE STATUTE IS NEEDED UNDER8 USC 1621(d), THEN BUS & PROF C 6060.6 QUALIFIES The USAbrief ignores Bus & Prof C 6060.6, the statute which provides the exemption under8 U.S.C. 1621(d). Garcia reiterates the argument in the openingbrief at page 18, that no superseding statute is required, a view concurred in by CBX at page 18 of its openingbrief, and reiterated by CBX in its reply brief at page 2. But if a statute were required, it is Bus & Prof Code 6060.6 , for the reasons discussed at pages 18 et seq. of the Garcia opening brief. The Deshabrief at page 16 agrees. So does the Los Angeles County Barat page 23. The USAbrief ignoresthe issue. VII. THERE IS NO "HARBORING"ISSUE The supporting ACLU briefat pp. 25 et. seq., and the opposing Kierniesky brief at p. 4 et seq, addressthe issue of “harboring” an alien who remainsin the United States “in violation of law.” Harboring is generally understood to relate to providing shelter and is therefore not applicable here. See, United States v. Acosta de Evans (9th Cir.1976) 531 F.2d 428, 430 (construing “harbor” to mean “afford shelter to”). No brief cites any case involving the prosecution of consumers whopay for goods and services. Nor has counsel located any suchcases. The Kierniesky brief cites isolated phrases in 3 unpublishedcases, ignores the plethora of published cases on the subject, and ignoresall the authorities in the ACLUbrief. Unpublished federal cases are citable in California, but 14 they are deemed useful only if their reasoning is persuasive. In re Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096. The Kierniesky brief cites U.S. v. Hinojos-Mendez (2008) 270 Fed.Appx. 368, and U.S. v. Ramirez (2007) 250 Fed.Appx. 80, cases in which smugglers were moving immigrants around the country and defendant helped the smugglers. It cites U.S. v. Batjargal (2008) 302 Fed.Appx. 188, where the defendant helped the immigrant move from Virginia to Washingtonto get a drivers license, a place to live, a car, car insurance, a cell phone, and gym membership. The Kierniesky brief does not demonstrate how that behavioris related to a client who hires an attorney. Comparethose three unpublished cases, each with an absence of reasoning, to the published case of U.S. v. Costello (2012) 666 F.3d 1040,cited at page 26 of the ACLUbrief. In Costello, the immigrant was deported and came back to the USA;his girlfriend picked him upat the bus station and brought him home. The Court discussed the entire history of the “harboring” provision in the immigration code, the relevant case law, and the often- erroneoususe of dictionary definitions. Costello is a published case and has solid reasoning. It concluded that harboring meant some form of concealmentrather than merely living with the man. VIII. GARCIA HAS NO DUTY TO LEAVE THE COUNTRY Sergio Garcia is a “family sponsored immigrant” under 8 U.S.C. 1153(a)()), having been converted to that status automatically when his father became a USS. citizen. 8 U.S.C. 1154(k)(1). In our opening brief, we stated that such 15 status did not confer any additional rights upon him. That statementis true as far as it went. However, Garcia does have additional rights after living here over 10 years. If the United States government seeks to remove him from this Country, he can apply for a hardship cancellation under 8 U.S.C. 1229(b)(1). That right accrues because he has been in the U.S.A. for over 10 years. 8 U.S.C. 1229(b)(1)(A), and he can ask for a cancellation if there is hardship to his parents, ibid (1)(C). The hardship determination musttake into account both the present condition of the parent as well as the future hardship. See Figueroa v. Mukasey (9th Cir. 2008) 543 F.3d 487, 497. Thus, he has an additional right, not from his status, but from his longevity. That right cannot be invoked unless the government seeks to remove him from the country. “Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. ... Federal officials, as an initial matter, must decide whether it makes sense to pursue removalat all.” Arizona v. U.S. (2012) 132 S.Ct. 2492, 2499 [183 L.Ed.2d 351]. There is thus no duty to “self deport.” To the contrary, the statutory scheme requires first a discretionary notice of removal by the immigration authorities, then a scheduled hearing, and thus a right by the immigrant to present his case for cancellation of removal. 16 IX. IMMIGRATION REGULATION AND LAWYER REGULATION SHOULD REMAININ THEIR OWN SPHERES IX-A. Background At page 16 of the USAbrief, the amicus says, “The enforcementofthe federal provisions governing employmentbyaliens is a responsibility of the federal government, andis not the proper subject of state court proceedings, particularly in the contextof state licensing.” That statement is consistent with the statement at page 22 of the Attorney General’s brief: “Issues of licensure are separate and independent from issues of employment.” Those statements echo the discussion beginning at page 19 of the CBX brief. Garcia agrees with those conclusions. IX-B. Immigration status is transitory and should not be the basis for denying Garcia admission to practice law Underthe trend ofthe law, “the illegal alien of today may well be the legal alien oftomorrow,” pg. 16 of the Brooks’ brief,’ in turn quoting from Plyler. The law changesquickly in this field. The Martinez case was decided while Garcia's moral character application was pending with the Bar Examiners. In between Garcia's two personalinterviews at CBX, thefirst of the two DHSenforcement policies were promulgated; see our exhibits D and E. The second one was decided one working day before opening briefs werefiled. The Arizona case was decided a few weeksafter opening briefs werefiled. ' We refer to amicusbriefs of multiple parties by the first name listed on the brief. The Brooks Brief was lodged on behalf of the deans of 7 California Jaw schools, The law and public policy are changing on a daily basis. Denial of admission to practice law should not depend ontransitory changesin governmentpolicy. The Raffaelli case was decided as the immigration facts changed. Mr. Raffaelli was an undocumented immigrant when CBX deniedhis application.” He was a permanentresident when this Court ruled that CBX should not have denied his application due to his lack of citizenship. The rationale applies to Sergio Garcia. IX-C.In ruling on admission to practice law, this court should not attemptto decide a contested issue of law thatis not tied to education or good moral character Having stated that this Court cannot rule on employment, the USA then goes on to argue that Garcia is unlawfully employed under a 1978 immigration court case, whereit is stated, “The word “employment”is also defined as meaning the act of being employed for one's self (30 C.J.S. 682)” Matter of Tong (BIA 1978) 161. & N. Dec. 593. Tong has been superseded by 8 C.F.R. 274a.1 (f), and (g) and (h), defining “employee,” “employer, “ and “employment;” and distinguishing those terms from independent contractor in 8 C.F.R. § 274a.1(j), defining independent contractor. Those regulations are entitled to “considerable weight.” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837, 844 [104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694]. * At the time of the Raffaelli case, CBX issued the Bar results and moral charactercertification simultaneously. Thus, he was “undocumented” from late 1969 until he obtained permanent residence in 1971. 18 The Attorney General's brief at page 25 discusses the conflicting authorities on this issue in footnote 17. Neither the Attorney General's brief nor the USA's brief discuss Bhakta v INS (9th Cir 1981) 667 F.2d 771, which, contrary to Tong, holds that the term “unauthorized employment” does not include a self employed person whohires other people to work for him. Bhakta holds that the law wasintended to apply to immigrants who cometo this country and take away jobs from citizens, not those whocreate jobs. Thus, Garcia can be self employed, comply with the regulations that supersede Tong, and not be penalized due to Bhatka. These authorities are further proof that immigration status is transitory and should thus notbe the basis to deny an applicant for admission to practice law. The USAbrief on self-employmentalso refers to 8 C.F.R. 274 (a) (5), that there are penalties for hiring independent contractors. But that section was designed to prevent employers from circumventing the employee requirements, not to punish the self employed. See the ACLU Briefat pp. 24 et seq.; the terms “employee” and “independentcontractor” are mutually oeexclusive. Thus, “... a person or business that uses contract labor to circumvent the law against knowingly hiring unauthorized aliens, will be considered to have “hired”the alien “for employment,”in violation of 1324a(a)(1)(A). [citations and punctuation omitted) U.S. v. General Dynamics Corp. (1993) 3 OCAHO 517 [OCAHOisthe Office of the Chief Administrative Hearing Officer of United States Department of Justice Executive Office for Immigration Review.] The law was not intended to govern individual consumers who patronize local businesses, but rather to prevent covered employers from evading the law by employinglabor 19 contractors to recruit employeesand then calling those employees “independent contractors.” Finally, the immigration policies of 2011 (Exhibit D) and 2012 (Exhibit E) have now movedthese sorts of employmentissues out of the picture. The immigration authorities are no longer interested in people like Mr. Tong or Mr. Bhakta or Mr. Garcia. Insofar as a lawyer applicant is concerned, the issue has no moral character implications. 1IX-D. Conclusion -- there are boundaries between admission and employment The foregoing discussion of immigrant employability demonstrates why the Committee ofBar Examiners and the Los Angeles County Baret al. were wise in suggesting that this court should maintain a boundary between attorney licensing and immigration. This Court’s ruling on employment issues would be hypothetical. If there is a federal employmentissue, it will be resolved by the immigration agency of the United States Government. Similarly, any action or continued inaction by the federal governmentwill have no effect on Garcia’s qualifications to practice law. As CBX points out at pp. 20 et seq.of its opening brief, this Court has nothistorically asked applicants how they plan to be employedifthey are admitted. There is no reason to start doing so now. There are several differences of opinion in the various briefs on what sort of work an undocumented immigrant may lawfully do. Each opinionis supported by citations to relevant authority. This Court can only speculate 20 how Garcia might makea living, and whether his choice will be acceptable to the immigration authorities. His past behavior indicates that his choice will be based on a good faith attempt to obey the law, and will be made above board. The Committee ofBar Examiners currently investigates applicants for moral character implicationsofall issues, only one of which is employment. CBX does not currently delve into the minutiae of employment Jaw or immigration law and try to predict how another agency might ultimately rule on arcaneissues of changing law. The State Baris ill equipped to do so, as detailed at pp. 35-41 of the Los Angeles County Bar etal. brief. Nor does CBX make moral character decisions based on contested interpretationsof legal principles. CBX evaluates whether the applicant approachessuch issues in an open and honest fashion. For moral character purposes, Garcia is an openly self-employed person who attempts to comply with complex immigration laws while supporting himself. He is not part of the underground economy,nor doeshe try to conceal what he does. This Court’s ruling will not resolve Sergio Garcia’s immigration status. Any action taken by the federal government, or its continued inaction, will have no effect on Garcia’s qualifications to practice law. 2] X. THERE ARE NEITHER CITIZENSHIP NOR RESIDENCY REQUIREMENTSFOR ADMISSION TO PRACTICE LAW IN CALIFORNIA Theinstructions for First Year Student Bar Exam Applicants (Garcia Exhibit C) informed persons such as Sergio Garcia that residenceis not a requirement for admission. Asstated in the Los Angeles Baret al. brief at page 15,the former statutory requirement for residence has been taken out of the State Bar Act. That requirement was deleted in 1970, Raffaelli, at fn. 1, pg. 292. As cited by the La Razabrief, the U.S. Supreme Court has held the residency requirementto be unconstitutional. Supreme Court ofNew Hampshire v. Piper (1985) 470 U.S. 274 [105 S.Ct. 1272, 84 L.Ed.2d 205]. The rationale ofPiper applies here. That opinion rejected argumentsthat nonresident members wouldbelesslikely (i) to become, and remain, familiar with local rules and procedures;(ii) to behaveethically;(iii) to be available for court proceedings; and (iv) to do pro bono and other volunteer work in the State. Piper, at p. 285 [105 S.Ct. 1272, 1279, 84 L.Ed.2d 205]. Piper’s rationale for rejecting those reasons apply equally to Sergio Garcia. Hehas obtained a law degree and passed the Bar. Heis as available for court proceedings as anyoneelse wholives in Butte County. He has a history ofpro bono and charitable work. Raffaelli and Application ofGriffiths (1973) 413 U.S. 717 also discuss why citizenship is a constitutionally impropercriterion for admission to practice law. Thosereasonsare discussed in the opening briefs and many ofthe amicusbriefs. There is no reason to carve out an exception to those cases at this time. 22 Aswenoted in our opening brief, Mr. Raffaelli was not yet a permanent resident nor a Citizen at the time that the State Bar recommended againsthis admission on the basis that he lacked citizenship. Raffaelli, at page 291. Bythe time the Supreme Court ruled on his case, he had married an American woman, and had becomepermanentresident, but wasnoteligible for naturalization until September 1974. But this Court’s ruling was based on the facts available to CBX at the time it turned him down,that is, when he was an undocumented immigrant. Raffaelli was thus consistent with Brydonjackv. State Bar ofCalifornia (1929) 208 Cal. 439, Telegdi v. State BarofCalifornia (1929) 208 Cal. 793, and, Howdenv. State Bar of California (1929) 208 Cal. 604. Each ofthose cases used mere intention to apply for citizenship as the criteria for admission to practice law, when citizenship wasa legal prerequisite. All three of the non-citizen attorneys Brydonjack, Telegdi and Howdenwerefar less invested in California and the U.S.A. than Sergio Garcia, who actually applied for permanent residency and was approvedpendinga visa, eighteen years ago. Garcia has devoted his adult life to becoming a lawyerin California while living in California; Brydonjack, Telegdi and Howdenwere attorneysin other countries, who wanted to practice in California, but had not even applied for U.S. citizenship at the time they applied and were admitted in California. Brydonjack, Telegdi, and Howden werealso consistent with then extant Civil Code 51, which providedthat “all citizens within the jurisdiction of this state are entitled to the full and equal * * * privileges of * * * subject only to the conditions and limitations established by law, and applicable alike to all citizens." In Prowd v Gore (1922) 57 Cal App 458, the court ruled that "citizens" included "unnaturalized residents of foreign birth," 23 where were deemedcitizens of California because they live here, even if they were notcitizens of the United States. Jd. at pp. 460-461. All of the reasons to overturn citizenship as a valid criteria for admission in Raffaelli debunkedthe general,irrational fears of aliens, the "others" who have come here morerecently than our own families. But now, Mr. Garcia and the "Dreamers" identify as Americans. They were brought here as children. They have no other homeland. As pointed out by the California Latino Legislative Caucus' Amicusbrief at page 14,"... they have lived in California for the majority oftheir lives, attended California public schools, and are invested in the progress and well-being of the State.” That brief goeson to cite Sei Fujii v. State (1952) 38 Cal. 2d 718, 733, which invalidated the California Alien Land Law,a case wherethis court reasoned, "having made his homehere,(he) has a natural interest, identical with that of an eligible alien, in the strength and security of the country in which he makesa living for his family and educates his children.” From the time that Garcia applied for law schoolto this very day, the law has informed him that neither residency norcitizenship are requirements to practice law. Bus & Prof C 6060.6 permits him to apply for the Bar Exam and admission without a social security numberthat, under current law, he could not obtain. Brydonjack, etc. hold that his intent to becomea citizen wassufficient, were citizenship still requisite. Schware holds that education and moral character are about the only relevant considerations. 24 XI. GARCIA CAN TAKE THE OATH OF AN ATTORNEY The DeShabrief at page 13 et seq. argues that Garcia’s presence automatically violates his duty to uphold the law. The DeShabrief at page 13, and the Kierniesky brief at pp. 8-9, erroneously claim that Garciais in violation of 8 U.S.C. 1302 and thus cannottake the oath of an attorney. They are wrong onthe law. 8 U.S.C. 1306(a) recites punishmentfor failure to register, inapplicable here. 8 U.S.C. 1306(b) does not apply, as Garcia has kept the DHS updated on his address. Garcia wasregistered by his parents nearly 18 years ago, thus complying with 8 U.S.C. 1302. The ACLU Briefat pp. 10 et seq. demonstrates that removal of an immigrant is a complex subject that does not depend on the immigrant's status at the beginning ofthe process. Asheld in Raffaelli and Brydonjack, the intent of the immigrant to seek citizenship and legalstatus is sufficient to permit him to take the oath of an attorney. The samerationale applies to Garcia, who has waitedin line for a period of time longer than Mr. Raffaelli lived in the USA, has expressed the same intent, and has demonstrated a concerted effort to uphold the law. Evenifthere were a violation of an immigration statute, this Court has held that, “ ... it would be unreasonable to hold attorneys to such a high standard of conduct that every violation of law, however minor, would constitute a ground for professional discipline.” In re Kelley (1990) 52 Cal.3d 487. Furthermore, as stated in our opening brief, “ ... we note that every intentional violation of the law is not, ipso facto, grounds for excluding an individual from membership in the legal profession.” Hallinan v. Committee ofBar Examiners ofState Bar (1966) 65 Cal.2d 447, 459. The test applied 25 to a violation of a particular law is whether the conduct itself showsa “lack of respect for the legal system.” Matter ofRespondentI (1993) 2 Cal State Bar Ct Rptr 260, 272. As the CBX openingbriefstates at page 32, the oath is not given to aliens as a class but to individual attorneys. Garcia has made every effort to comply with the law while living here. All his actions have been above board, and he has made noeffort to conceal himself or his status. XII. ADMISSION OF GARCIA ADVANCES CALIFORNIA'S PUBLIC POLICY TOWARDS UNDOCUMENTED IMMIGRANTS Plyler prohibited states from excluding undocumented minorchildren from primary schools. Martinez upheld California’s law permitting undocumented immigrants to attend college. California’s recent DREAM Act permits the state to provide scholarships to undocumented children. Education C 66021.7. The recent DHSpolicy changes (Exhibits C and D) give a path for many children to obtain legal status in the country where they wereraised, simply not born here. The amicusbrief of Community Legal Services in East Palo Alto has presented five young California immigrants who endorse Mr. Garcia's application for admission. Each of them tells a compelling life story of achievementagainstall obstacles, guided by mentors in the immigrant community who encouraged them to take advantage of the educational opportunities our state provides. Each ofthem has remarkabletalent and perseverance; each ofthem hasa passionfor justice and the desire to give 26 back to their own communities, by becoming attorneys. Each of them took the time from long days ofwork and school to join with their communities in support ofMr. Garcia's admission. They signed personal declarations prior to President Obama's announcement of two-year work permits and a stay of deportment proceedings. The amicusbrief ofDream Team Los Angeles points out that there will be law school graduates amongst the young immigrants whoare noweligible for two-year work permits under the new DHSpolicy. Yet, "theyarestill undocumented immigrants in the same waythat Mr. Garcia is an undocumented immigrant. By not admitting Mr. Garcia to the State Bar, the Court would be impliedly prohibiting those undocumented immigrants with work permits..." Dream Team L.A.Brief at page 5. The supportive amici have detailed the history of legislation designed to benefit society through the education and productivity ofall its residents, and especially the huge younger generation, many ofwhom would be excludedbybirthplace alone,but for affirmative legislation at the state level. Immigrants who were brought here as children and havelived here for most oftheir lives will not be deterred from “illegal immigration.” They are already here. To educate them is to make them more productive and independent. This is especially true of an immigrant like Sergio Garcia, who has achieved higher education through his own work, without public benefits. He has been waiting to become a permanentresident anda citizen for almost twenty years. Now heis ready to give back, although he did not partake of public benefits other than the opportunity to work hard and pursue a law degree. He wasnotthe beneficiary of public or private funding; he 27 paid his own way. Yetheis appreciative of the very opportunity to pay for a higher education. Heis ready to give back, both as an employer and a taxpayer. As the Attorney General's brief recites at page 30, he will not be taking a benefit; he will be paying a fee. The Brooks amicusbrief notes at page 7 that a little over 100 law school graduates in 2011 becamesole practitioners. Given that an undocumented immigrant cannot work for an employer,it is likely that they will gravitate towards self-employment. Some,like Garcia, will remain in small towns, wherethe need is high and the availability of lawyers is not as plentiful as the big cities. It would be foolish to deny him the license he has earned, and thereby deprive the state ofjobs and tax dollars he will generate, and the example he sets for others. XIV. CONCLUSION This Court should note the breadth, depth, and diversity of the amici who have urged Garcia's admission. They represent established county bar associations and local community groups, law professors and deans as well as aspiring immigrants. By way ofcontrast, the USAbriefurges a reading of federal law that is inconsistent with the entire history of State Supreme Courts’ plenary control of attorney admission and discipline. California public policy is consistent with the Congressional objectives of the PRWORA,that is, minimizing the numberof immigrants who require tax 28 dollars to support them, and encouraging everyone to becomea self- sufficient, productive memberofsociety -- just like Sergio Garcia. For decades, this Court has consistently held that the only requirements for admission to practice law are a proper education and good moral character. From Brydonjack to Raffaelli, immigration status has been rejected as a relevantcriterion; there is no reason to changethat principle now. California should give a resounding welcometo the hardworking, high achieving immigrant who embodies every quality we needin the future. FISHKIN & SLATTER LLP ). “vaBy: Ce NS EROMEFISHKIN Word CountCertification Pursuant to Cal. Rules of Court, Rule 8.520(c)(1), I certify that this Reply Brief on ApplicanySergio C. Garcia contains fewer than 8,400 words. ne EROMEFISHKIN 29 $202512 Garcia: Bar Misc. 4186 DECLARATION OF SERVICE BY MAIL | am employed in Contra Costa County, California. | am over the age of 18 years, and | am nota party to the within action. My business addressis 1575 Treat Blvd., Suite 215, Walnut Creek, CA 94598. Onthis date, | served the REPLY BRIEF OF APPLICANT SERGIO C. GARICA by placing a true copy in a sealed envelope with postagefully prepaid, through the United States Postal Service at Walnut Creek, California, addressed to SEE ATTACHMENT A | declare underthe penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on the date below at Walnut Creek, California. 9/13/2012 DATE PATRICIA HOEKWATER _ATTIACHMENT A PARTY REPRESENTED “ATTORNEY(S)SERVED| Committee of Bar Examiners ofthe State Bar of California Joseph Starr Babcock State Bar of California 180 Howard Street San Francisco, CA 94105 Rachel Simone Grunberg Office of the General Counsel, State Bar of California 180 Howard Street San Francisco, CA 94105 Robert E, Palmer Gibson Dunn and Crutcher LLP 3161 Michelson Drive Irvine, CA 92612-4412 Donald K. Tamaki Minami Tamaki LLP 360 Post Street, 8 Floor San Francisco, CA 94108-4903 Mark A. Perry Gibson Dunn and Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 Kevin R. Johnson U.C. Davis School of Law 400 Mark Hall Drive Davis, CA 95616 Bill Ong Hing University of San Francisco School of Law 2199 Fulton Street San Francisco, CA 94117 Bryan Springmeyer 275 Battery Street Suite 1170 San Francisco, CA 94111 AMICUS REPRESENTED “ATTORNEY(S)SERVED American Civil Liberties Union American Civil Liberties Union of Northern California American Civil Liberties Union of San Diego and Imperial Counties American Civil Liberties Union of Southern California American Immigration Lawyers Association Asian Law Caucus Legal Aid Society - Employment Law Center National Asian Pacific American Bar Association National Immigration Law Center Jennifer C. Newell Michael Tan AmericanCivil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 Bernard Pavel Wolfsdorf American Immigration Lawyers Association 1416 2nd Street Santa Monica, CA 90401 Lee Gelernt AmericanCivil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Asian Pacific American Legal Center Asian Law Alliance Dream Bar Association Mexican American Legal Defense and Educational Fund National Association of Latino Elected and Appointed Officials Educational Fund National Council of La Raza Nicholas David Espiritu Mexican American Legal Defense and Educational Fund 634 S. Spring Street, 11th Floor Los Angeles, CA 90014 Brooks, Sandra L. Chemerinsky, Erwin Edley, Christopher Gold, Victor Moran, Rachel Ramey, Drucilla $ Wu, Frank H. Jerome B. Falk Arnold and Porter LLP Tnree Embarcadero Center, 7th Floor San Francisco, CA 94111 William A. Norris Akin GumpStrauss et al., LLP 2029 Century Park East, Suite 2400 Los Angeles, CA 90067 California Latino Legislative Caucus Arturo J. Gonzalez Morrison and Foerster LLP 425 MarketStreet San Francisco, CA 94105 Community Legal Servicesin East Palo Alto Bickel and BrewerLatino Institute for Human Rights at New York University School of Law Dolores Street Community Services Educators for Fair Consideration llyce Sue ShugallAttorney at Law938 Valencia StreetSan Francisco, CA 94110Francisco UgarteJackie Shull-GonzalezAttorneys at Law938 Valencia StreetSan Francisco, CA 94110 AMICUS REPRESENTED “ATTORNEY(S) SERVED DeSha,Larry Larry DeSha 5077 Via Cupertino Camarillo, CA 93012-5267 Dream Team Los Angeles California Dream Network Orange County Dream Team San Fernando Valley Dream Team United We Dream Network Tia Koonse UCLA Downtown Labor Center 675 South Park View Street Los Angeles, CA 90057 Harris, Kamala D. Attorney General of California Daniel Joe Powell Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Joseph A. Vail Center for Immigrant Rights Brigit G. Alvarez Vanessa P. Manzi Joseph A. Vail Center For Immigrant Rights 448 S. Hill Street, Suite 615 Los Angeles, CA 90013 Kierniesky, Nicholas Nicholas Kierniesky, 2 West Harrison Avenue Millville, NJ 08332 La Raza Lawyers Association of Sacramento Asian/Pacific Bar Association of Sacramento Anthony Philio Marquez Lorenzo Patino School of Law 1115 Street Sacramento, CA 95814 Joshua Kaizuka Law Office of Denis White 901 H Street, Suite 101 Sacramento, CA 95814 Los Angeles County Bar Association Alameda County Bar Association Asian American Bar Association of the Greater Bay Area Asian Pacific American Bar Association of Silicon Valley Bar Association of San Francisco Beverly Hills Bar Association Kern County Bar Association Marin County Bar Association Mexican AmericanBar Association Multicultural Bar Alliance of Southern California Riverside County Bar Association Sacramento County Bar Association San Bernardino County Bar Association San Diego County Bar Association Santa Clara County Bar Association South Asian Bar Association of Northern California Carlos Roberto Moreno Irell and Manella LLP 1800 Avenueofthe Stars, Suite 960 Los Angeles, CA 90067 AMICUSREPRESENTED | _ATTORNEY(S)SERVED Mexican American Bar Association of Los Angeles County Juan Arturo Ramos Mexican American Bar Association of Los Angeles County 714 W. Olympic Boulevard, Suite 450 Los Angeles, CA 90015 National Center for Lesbian Rights Lambda Legal Defense and Educational Fund,Inc. Angela Katherine Perone National Centerfor Lesbian Rights 870 MarketStreet, Suite 370 San Francisco, CA 94102 Olivas, Michael A. Adelson, Wendi Anker, Deborah Ardalan, Sabrinen Campbell, Kristina M Chapin, Violeta R. Churgin, MichaelJ. Cooper, Holly $ Das, Alina Demleitner, Nora V. Gilbert, Lauren Gonzales, Roberto Gulasekaram, Pratheepan Gupta, Anjum Hernandez, Laura A. Hew, Maurice Hines, Barbara Hoffman, Geoffrey Koelsch, David Koh, Jennifer Lee Lim, Julian Lyon, Beth Marouf, Fatma Medina,M. Isabel Moraweiz, Nancy Motomura, Hiroshi Musalo, Karen Noferi, Mark Nordanhl, Blake Olivares, Mariela Perez, Amagda Reynoso, Cruz Roman, Ediberto Romero, Victor C. Rumbaut, Ruben G. Saucedo,Leticia Silverman, Andrew Smith, Deborah S$. Theriot-Orr, Devin T. Uchimiya, Diane K. Vastine, MichaelS. Volpp,Leti Weinberg, Jonathan Wishnie, MichaelJ. Yale-Loehr, Stephen Raymond A. Cardozo Reed Smith LLP 101 SecondStreet, Suite 1800 San Francisco, CA 94105-3659 AMICUSREPRESENTED. -ATTORNEY(S)SERVED) United States of America Beth S. Brinkmann Daniel Tenny Department of Justice Civil Division, Room 7226 950 Pennsylvania Avenue, N.W. Washington, DC 20530—0001 Vargas, Cesar Alexis Yee-Garcia Orrick Herrington and Sutcliffe LLP 405 Howard Street San Francisco, CA 94105-2669 Cynthia J. Larsen Orrick Herrington and Sutcliffe LLP 400 Capitol Mall, Suite 3000 Sacramento, CA 95814-4497 Judy Kwan Orrick Herrington and Sutcliffe LLP 777 S. Figueroa Street, Suite 3200 Los Angeles, CA 90017-5855 Jose Perez Latinojustice Pridef 99 HudsonStreet, 14th Floor New York, NY 10013