GARCIA (SERGIO C.) ON ADMISSIONApplicant’s Opening Brief on the MeritsCal.June 18, 2012SUPREME COURT FILED $202512 JUN 18 2012 IN THE SUPREME COURT OF CALIFORNIA Frederick K. Ohirich Clerk Deputy In Re Sergio C. Garcia On Admission Bar Miscellaneous 4186 OPENING BRIEF OF APPLICANT SERGIO C. GARCIA PROOF OF SERVICE Jerome Fishkin, Esq., #47798 Lindsay K. Slatter, Esq. #72692 Samuel C. 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 $202512 IN THE SUPREME COURTOF CALIFORNIA In Re Sergio C. Garcia On Admission Bar Miscellaneous 4186 OPENING BRIEF OF APPLICANT SERGIO C. GARCIA PROOF OF SERVICE Jerome Fishkin, Esq., #47798 Lindsay K. Slatter, Esq. #72692 Samuel C. 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. INTRODUCTION10...ccscccscccssssccsssvcsscccssessnscssssssseenssssenseccsonssessenssees 1 II. ISSUES PRESENTED 00.0...esscncccecesccncrccsnesseecenscsssersncrsoescesesssesees 4 HII. STATEMENTOF THE FACTSuu...ccccccssssecterscccssssnssccescosoonsesees 5 IV. THE ISSUES PRESENTEDIN THE BRIEFING ORDER............. 6 1. DOES 8 U.S.C. SECTION 1621(C) APPLY AND PRECLUDETHIS COURT'S ADMISSION OF AN UNDOCUMENTED IMMIGRANT TO THE STATE BAR OF CALIFORNIA? DOES ANY OTHER STATUTE, REGULATION, ORAUTHORITY, PRECLUDE THE ADMISSION?....6 L-A, SUMIMATY. 00.2... cece cc cce cece eeeeecece ete ee ees eeneeceeanesseessneesieeeesenieeesersuseeeens 6 1-B. 8 U.S.C. section 1621(c) applies to executive branch state AGENCICS, NOt tO this COUPT. .....ccccccccccccccccececsseccceeecenseesnseesieeeeseaeeeesesaneeseaes 7 1-C. Attorney admission in California does not use “appropriatedfunds ofa State or local government”’ as prohibited by 8 U.S.C. 1621 (c)(1) (A). seeeneecuaceceaecesseeseneecsaecesaaeceaeeeecuaeesasenceseaasersesesauaenteesaeeesteasesseaeeesuaaeeeates 9 1-D. Congress did not intend to preempt attorney admissions and discipline by enacting Section 1621 (C)......ccccccscccceesceccseesseteeteeeeeesenseeees 10 1-E. Citizenship is an irrelevantcriterionfor refusing an applicant AAMISSION tO PYACCICE LAW. ...eecccccccscccccssceccceeteeesneeeeeeesesseeeseeesesaeeeseesaseeees 13 1-F. An applicant who has appliedforpermanent residency should be treated in the same way that applicants whointendedto applyfor citizenship were admitted through 1933. .....cccccsccsecessseteseseeeesneeetsaeeens 14 1-G. 8 U.S.C. section 1621(c) is an improper attempt to compelthe states to enact afederal regulatoryProgram..........c1ccccecccereteteeteseeetees 15 1-H. The Federal government cannot require the States to enforce civil TIMMIQVALION LAWS. 0... ...cccceccceceeseeenseeesseeeseaceeseeeceaeesecseaeeesteeaseesuseseesseesaes 16 1-I. Sergio Garciais notin the class ofimmigrants targeted by 8 U.S.C. SCCCOM LOQL ....cececccccccccecessecceeceecensaneeseeeaeaaaeessananeeeseeeeseeaeeesensneuenseseseenaas 17 2. IS THERE ANY STATE LEGISLATION THAT PROVIDES- AS SPECIFICALLY AUTHORIZEDBY8 U.S.C. SECTION 1621(D)- THAT UNDOCUMENTED IMMIGRANTSARE ELIGIBLE FOR PROFESSIONALLICENSESIN FIELDS SUCH AS LAW, MEDICINE, OR OTHERPROFESSIONS, AND,IF NOT, WHAT SIGNIFICANCE,IF ANY, SHOULD BE GIVEN TO THE ABSENCE OF SUCH LEGISLATION? 000... eeec eeee cesses eeseeeeeseeeeseeessesusessseeeseseeessneeeeeessessaeeeeee 18 D-A. SUINMATY. .occcccccccccccecceeenceeeeeenneeeeecenceeceesiceeeeeseseeesenenaeeeeeeesseeesaaaaes 18 2-B. Section 1621(d) on its face shows that Congress did not intend to preemptall State laws regarding benefits to undocumentedaliens....... 19 2-C. Cal. Bus & ProfC 6060.6 meets the requirements of8 U.S.C. SCCHON LOI] (A). ..cceccccccccccccccecsvscccccnsnececeessneceeceaneeseesesseeeeeessaananaeeeeeennaaas 20 3. DOES THE ISSUANCE OF A LICENSE TO PRACTICE LAW IMPLIEDLY REPRESENT THAT THE LICENSEE MAYBE LEGALLY EMPLOYEDASANATTORNEY?ccccccceesseeeceesseeseeeeeseeeesessesenenenseas 22 B-A. SUINMATY. .oc.cccccccccet ence eteeececenteeteceeenneeceesieteceseesasesessnseaaaaneseeseneanas 22 3-B. Undocumented immigrants may not be “employees” as that term is defined in the LAW. .....ccccccccccecccceeeseeseeecetseeeeeneevecaaeseeneeseseeeeseecnineesenaaeees 23 3-C. An undocumented immigrant can earn living in the USA without being AN CMpPlOyee.....cccccccccesceccecneesseeceesseetenseeseauacersneeesevseeeeesenieeeessaaaees 24 3-D. An attorney's residence can change. Bar admission should not be denied to an undocumented immigrant whois presentin this country. . 25 4. IF LICENSED, WHATARE THE LEGAL AND PUBLIC POLICY LIMITATIONS,IF ANY, ONAN UNDOCUMENTED IMMIGRANT'S ABILITY TO PRACTICE LAW? ooo ccccccccccsscccssssssseesereesecenersveeseenenes 26 4-A. Introduction. «2.0.00... ccccccececccseeseueccucecncesesesccccuseeccccccusceseseuuccssuueeseuses 26 4-B. Legal Lirmits. .....0..ccccccccccceccsescceeeeceeececesceesneeeesnensaeeesesecsesatessnaevenaes 26 4-C. Current immigration policy leaves persons such as Sergio Garcia ONE, 6. oe eee ceceecceeceencceeeeceeeeeneeeseecccaeeeeereesenseeceaseneaeseseesseeesseesesnaeeesnesesnnaes 27 4-D. Public Policy does not otherwise limit an undocumented immigrant such AS SerQio GArCIAL......6.cccceeccee ee cesee tect ete eee ee teneetenernaees 28 5. WHAT,IF ANY, OTHER CONCERNSARISE WITH A GRANTOF THIS APPLICATION? 0000... eeeeeecsecesseeceesenseeeesssaeeseeeeeessaneesesneeeseeteanees 31 V. CONCLUSION.........ccscscssccessccssrecesccceesenensessssssssnsseessssssonsssnssesenscesens 33 VI. PRAYER u........csscscssesecncsssscsssccensceessccsccesnsccssscenscenssecesennerssessasscssononens 33 TABLE OF AUTHORITIES CASES Agg Large v. State Bar ofCalifornia (1933) 218 Cal. 334 [23 P.2d 288, 288-89]...ceeeeeeeeseneeeseeneeneesenene 14 Application ofGriffiths (1973) 413 U.S. 717, 93 S.Ct. 2851 oo eeeceseeeeeeeeeseeeneeeeeeneenseeeneens 13, 30 Bates v. State Bar ofArizona (1977) 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 occseseeteenees 11 Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119.cccssecesccessenessersssesssesseseenseneeneesseeneeseensenes 25 Brydonjack v. State Bar ofCalifornia (1929) 208 Cal. 439... 14, 15 Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 ........ ce ceceeeeeee 11 Communityfor Creative Non—Violence v. Reid (1989) 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811...eee 7, 23 Farmers Bros. Coffee v. Workers' Comp. Appeals Bd. (2005) 133 Cal.App.4th 533 [35 Cal.Rptr.3d 23, 26].........ccccesseeeeeneenes 11 Gadda v. Ashcroft (9th Cir. 2004) 377 F.3d 934 00... cecccseseeseeeeeeees 1, 10, 12 General Dynamics Corp v Superior Court (1994) 7 Cal4th 11640...eeecece ceeceeeeseesseseneeseeesssseessensseesesseseeesseeeesenees 28 Greene v. Zank (1984) 158 Cal.App.3d 497 [204 Cal.Rptr. 770]......:.cccccssessesesseeseseeneeees 12 Hoover v. Ronwin (1984) 466 U.S. 558 [104 S.Ct. 1989, 80 L.Ed.2d 590)...ce eeeeeeseeeeee 11 Howdenv. State Bar ofCal. (1929) 208 Cal. 604 [283 P. 820, 821)... ceesesseeseceeneeeteeneeeeneeeees 14, 15 Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329 [178 Cal.Rptr. 801, 636 P.2d 1139]... 8, 12 In re Attorney Discipline System (1998) 19 Cal.4th 582 [79 Cal.Rptr.2d 836, 967 P.2d 49] ........cscs 9,12 Lauderbach v. Zolin (1995) 35 Cal.App.4th 578 [41 Cal.Rptr.2d 434] oo.ceesses esseeeseeeeeeseeeerees 20 Mandelv. Myers (1981) 29 Cal.3d 531 [174 Cal.Rptr. 841, 629 P.2d 935] oo... eee eeeseeeeees 9 Martinez v. The Regents ofthe University ofCalifornia (2010) 50 Cal.4th 1277 [117 Cal.Rptr.3d 359, 241 P.3d 855], cert. denied, (U.S. 2011) 131 S.Ct. 2961 [180 L.Ed.2d 245]............. passim Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724 [147 Cal.Rptr. 631, 581 P.2d 636] «00.0...eee 12 Metropolitan Water Dist. ofSouthern California v. Superior Court (2004) 32 Cal.4th 491 [9 Cal.Rptr.3d 857, 84 P.3d 966]........eee 7,23 Plyler v Texas (1982) 457 U.S. 202, 102 S.Ct. 2382 oo. ceeceeseeeseeretseteeteeteeseees 2, 16,31 Printz v. United States (1997) 117 S. Ct. 2365, 521 U.S. 898 occccseeseesesteeteeeeeeeteteeeteees 15, 16 Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288 [101 Cal.Rptr. 896].......... ce ceeeseeeeeteees 11, 13, 14, 28 Schware v. Bd. ofBar Exam. ofState ofN.M. (1957) 353 U.S. 232, 77 S. Ct. 752, 1 L.Ed. 2d 796 .....ceecsseseseeeereneeteres 13 Shepard v. N.L.R.B. (1983) 459 U.S. 344 [103 S.Ct. 665, 74 L.Ed.2d 523)... .cssseeceseteeteeeees 7 Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407 [95 Cal.Rptr.3d 718]...eee2, 15, 16 Telegdi v. State Bar ofCal. (1929) 208 Cal. 793 [283 P. 821, 821]... ccceeeseereeteeeeseeeeteeteeeenees 14, 15 Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, rehearing denied, review denied, certiorari denied, 118 S.Ct. 347, 522 U.S. 937, 139 L.Ed.2d 270).......ceceeseee 22, 26 STATUTES 5 ULS.C. section 551 o....cccccesscesssssecsnceeeseeeseesseeseseesneuersseneussneaeecssseseesesseeeeeeeags 9 BULS.C. section 1101 oo... ecccseesneeessesesseecseeeeeesseacessaseesseaeeesseseeeesenseeeeeeats 8 8 U.S.C. section 1153(a)(2)(A) .... eee eeesseeseeseesceeeceereeseeeeseeeeseeeeenaeeees 3, 6, 40 8 ULS.C. section 1253(D) oo... .ceeeceeeeesnreeeesseceseessesseesesreeeeesseeensasensaaeessaeeenags 21 8 ULS.C. section 1601 oo...cece ceceseeeeeesseseeesceeusesnerensessseeeeseeessneeeaseneesnsees 22 8 ULS.C. section 1621 oo... cccccccesseseeseeseesesersseeeseseceeeeessesesessaeeessaaeseeeres passim 8 ULS.C. section 1621(C)......eececseecesseeseserseesrsssceesenseeeeneeenaeessseeenseuneeses passim 8 U.S.C. section 1621(C)(1)(A) .... eee eer cessetseseeeeesseeeseeeenseeeseeenaeeeeeseeeeeenees 8 8 ULS.C. section 1621(d) oo... eee eeceeeereeserseeceeeneesesecsasesssesenseesanees 2, 23, 24, 25 26 U.S.C. section 61 (€)(2)(39) ...cceeceesesseteeesescnseseeseesssseeeseresneseesessneeeaneey 33 26 U.S.C. section 61(a)(1) oo... ee eeesseeseessssnsssessseeesseeeeeeesseeesseeseseeeeeesarersageeey 32 26 U.S.C. section 61(a)(6) .....:.cccsessseesseseeseseeseeesseresssesseeneeenseensaseesareseeeses 33 26 U.S.C. section 61(€)(7) .....esccescesecessseesessssessnesecsnesessesesseeessenssseeeesseeeseoes 32 26 U.S.C. section 7701(D) .....cceeceeeeeeseeseecsseesneseseeeenseesseeeesteseneeeseesseesesaeesy 39 26 U.S.C. section 861(a)(2)(A) ....ceeceesesceeseneenseseeeeeeessneeeesseseeeeeeesseeneseeens 32 26 U.S.C. section 861(a)(S)(A)(4)....:ceeeeceseeeseesssesesesssessesseensesseeeeeeeessasenes 33 Cal. Bus. & Prof. C section 6060 ..........ccccccecccececceeeeeeeeeeeeeeeneeseseaeens 2, 3,27 Cal. Bus. & Prof. C section 6060.6 ...0...... ee csssssessseneeeeeeeenseeeeseeeneees passim Cal. Bus. & Prof. C section 6144 .........cceescecscsseceesssseeceensesenseeeceesseeenseeesenaes 11 Cal. Corp C section 16101(14) .... cece cccecssseessesecseenseeeseeeseeeteeraetensneesaeenees 33 Cal. Gov. C section 11405.30..........ccccecccessceeceseceeessceneseneecssseeecesenseeesenessseaeess 9 Cal. Lab. C, section 3351 o.....ccecccccesccecessreeresneecessceceeseeesseuseeeessaesseeeenenas 30 RULES Cal. Rules of Professional Conduct, Rule 1-100(B)(5)...........ccceeecceeeeeeeee 33 Cal. State Bar Rule 4.16(B)......... cece eeeeeceseeeeeeeeeessseesenensneesseaeessseeeneeeeeens 26 REGULATIONS 20 CFR 422.103 ......ccccccccssscessssecsessceecescececsetessaeeessereeesseeseessesessneeseneanseesnaneees 22 vi IN THE SUPREME COURT OF CALIFORNIA In Re Sergio C. Garcia on Admission Bar Misc. 4186 $202512 OPENING BRIEF OF APPLICANT SERGIO C. GARCIA I. INTRODUCTION The Committee ofBar Examiners has recommendedSergio Garcia for admission to practice because Garcia meetsall the requirements for admission to practice law in California. 8 U.S.C. section 1621(c) does not preclude his admission. As recognized by this Court in Martinez v. The Regents ofthe University ofCalifornia (2010) 50 Cal.4th 1277, 1288 [117 Cal.Rptr.3d 359, 367, 241 P.3d 855, 862], cert. denied, (U.S. 2011) 131 S.Ct. 2961 [180 L.Ed.2d 245], section 1621(c) does not totally preemptstate regulation of undocumented immigrants. As recognized by Gadda v. Ashcroft (9th Cir. 2004) 377 F.3d 934, the United States immigration statutes do not preempt the regulation of attorneys by the states. Therefore, there is no legal impedimentto this Court’s admitting Garcia as an active memberofthe State Bar. An undocumented immigrant can legally earn a living in the U.S., although not as a conventional employeein a traditional employer-employee relationship. Sergio Garcia has spent over two decadeslearning how to legally earn a living in this country. There is no reason to speculatethat, if admitted to practice law, he will do otherwise. If 8 U.S.C. section 1621(c) did apply to this court’s admission of attorneys, the Supreme Court is not a “state agency”andis thus not regulated by 8 U.S.C. section 1621(d). Thus, no additional state legislation is needed to exempt admission of attorneys by the states. On the other hand,if legislation is necessary, Cal. Bus. & Prof. C section 6060.6 meets the requirements of 8 U.S.C. section 1621(d). Under present federal public policy, Garcia is in a class of undocumented immigrants whoare left alone unless they cometo the attention of criminal authorities. His entry into this county, as a minor broughtby his parents, was not acrime. Plyler v Texas (1982) 457 U.S. 202, 220; 102 S.Ct. 2382. Garcia’s continued presence in this country is a civil infraction, not criminal behavior. Furthermore, “Congressis prohibited by the Tenth Amendment from passing lawsrequiring states to administer civil immigration law. (City of New York v. United States (2d Cir.1999) 179 F.3d 29, 33-35.).” Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1412 [95 Cal.Rptr.3d 718, 723]. California public policy supports immigrants such as Sergio Garcia. In accord with 8 U.S.C. section 1153(a)(2)(A), he is waiting patiently for a visa to becomeavailable under the quota system. From his stated intention and 1994 application to become a permanentresidentin the U.S.A., to his proven record of self-sufficiency, he exemplifies the sort of immigrant who has helped make this country great. TheState Bar has found that Garcia has metall of the requirements in Cal. Bus. & Prof. C section 6060, including demonstration of his good moral character. Sergio Garcia has done everything that the State Bar required of him in accord with this Court’s policies. He should be admitted to practice law in California. (continued next page) II. ISSUES PRESENTED The briefing order in this case asks the following questions: 1. Does 8 U.S.C. section 1621, subdivision (c) apply and precludethis court’s admission of an undocumented immigrantto the State Bar of California? Does any other statute, regulation, or authority preclude the admission? 2. Is there any state legislation that provides — as specifically authorized by 8 U.S.C. section 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 absenceof such legislation? 3. Does the issuanceofa license to practice law impliedly represent that the licensee maybe legally 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 concernsarise with a grant of this application? I. STATEMENT OF THE FACTS Webelieve that the following facts are uncontested. Sergio Garcia was born in Mexico on March 1, 1977. He was a baby --17 monthsold -- when his family first brought him to California. His parents took him back to Mexico in 1986 and brought him back to California in 1994, at age 17. Garcia’s father filed an immigration visa petition (Form I- 130) for him on November18, 1994. The petition was approved on January 31, 1995, in accord with 8 U.S.C. section 1153(a)(2)(A). According to the United States Immigration and Citizen Services division of the U.S. Department of Homeland Security (“USCIS”) website, the “USCIS processes Form I-130, Petition for Alien Relative, as a visa number becomes available. Eligible family members must wait until there is a visa number available before they can apply for an immigrant visa or adjustmentofstatus to a lawful permanentresident." See Exhibit A. Garcia has been waiting in line for a visa numberto becomeavailable for almost 18 years. Garcia haslived in the U.S.A. for over 20 years. He has no criminalrecord. Hehas goneto school, paid his taxes, served his community. He has made every effort to comply with the law. He paid his own waythroughcollege and law school. He has remained self-employed since 2004 so as not to implicate any employerin any legal violation. His is the story we wantto tell others as the example ofwhat hard-working,self sufficient immigrants contribute to this great country. IV. THE ISSUES PRESENTED IN THE BRIEFING ORDER 1. DOES 8 U.S.C. SECTION 1621(C) APPLY AND PRECLUDETHIS COURT'S ADMISSION OF AN UNDOCUMENTED IMMIGRANT TO THE STATE BAR OF CALIFORNIA? DOES ANY OTHER STATUTE, REGULATION, OR AUTHORITY, PRECLUDE THE ADMISSION? 1-A. Summary. The answerto both questions is no. There are several reasons. We discuss each in detail below. In summary: ** Section 1621(c) applies to executive branchstate agencies, not to this Court. **Admission of attorneys to the California State Bar doesnotutilize appropriated State funds. ** Section 1621(c) does not preempt the State Supreme Courts’ regulation of attorney admission and discipline. **Under the Tenth Amendmentto the United States Constitution, the states cannot be called upon to enforce civil federal immigration statutes. 1-B. 8 U.S.C. section 1621(c) applies to executive branchstate agencies, not to this court. The relevant language in 8 U.S.C.section 1621(c)(1)(A)is as follows (emphasis added) (c) “State or local public benefit” defined (1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term “State or local public benefit” means-- (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. ... The phrase "an agencyof a State" is not defined in the statute; see 8 U.S.C. section 1101. Thus, the courts look to the commonlaw definitions. Communityfor Creative Non—Violence v. Reid (1989) 490 U.S. 730, 739- 740, 109 S.Ct. 2166, 104 L.Ed.2d 811, cited with approval and followed in, Metropolitan Water Dist. ofSouthern California v. Superior Court (2004) 32 Cal.4th 491, 500 [9 Cal.Rptr.3d 857, 863, 84 P.3d 966, 971]. Commonlaw defines an agency ofthe state as one in the executive branch of the government. The U.S. Supreme Court recognizesthat “ ... it is well settled that there are wide differences between administrative agencies and courts. Shepard v. N.L.R.B. (1983) 459 U.S. 344, 351 [103 S.Ct. 665, 670, 74 L.Ed.2d 523], citing, Federal Communications Commissionv. Pottsville Broadcasting Co., 309 U.S. 134, 141-144, 60 S.Ct. 437, 440-442, 84 L.Ed. 656. UnderCal. Gov. C section 11405.30, a California state "Agency"is part of the Executive Branch of the government. Underfederal law,“agency” excludes,inter alia, the courts. Thus, 5 U.S.C. section 551 begins: For purposes of this subchapter (1) “agency” means each authority of the Governmentofthe United States, whetheror notit is within or subject to review by another agency, but does not include-- (A) the Congress; (B) the courts of the United States; (C) the governments ofthe territories or possessions ofthe United States ***” Attorney discipline is not subject to action by executive branch agencies. In Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338-339, 178 Cal.Rptr. 801, 636 P.2d 1139, this Court rebuffed an effort by an executive branch agencyto discipline an attorney, reiterating that admissions and discipline belong exclusively with this Court: In California, the powerto regulate the practice of law, including the powerto admit andto discipline attorneys, has long been recognized to be amongthe inherent powersofthe article VI courts. Indeed, every state in the United States recognizes that the power to admit and to discipline attorneys rests in the judiciary. (citations and footnotes omitted). Husted, at 336-337. Congresschoseto apply the prohibition in section 1621(a) to agencies of a state and not to the State governments themselves. This Court has cautioned, in its recent decision construing section 1621, “against reading into a statute language it does not contain or elements that do not appear on its face,” especially when Congress has “shown it knows howto add the element in express terms whenit wishes to do so.” Martinez, at 1295-1296. 1-C. Attorney admission in California does not use “appropriated funds of a State or local government”as prohibited by 8 U.S.C. 1621(c)(1)(A). Fees collected from applicants and membersare not “appropriated funds” within the meaning of 8 U.S.C. section 1621(c)(1)(A). The term “appropriated funds”refers to tax revenue. See, e.g. Mandel v. Myers (1981) 29 Cal.3d 531, 539 [174 CalRptr. 841, 845, 629 P.2d 935, 939]. The State Bar does not use tax revenue. This Court has previously held that interim “[I]icense fees imposed by this court to fund an attorney disciplinary system would be imposed solely 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.” In re Attorney Discipline System, 19 Cal.4th at 597. Application fees are not imposed for general revenue purposes, but rather to fund the Bar’s review of an applicant’s fitness to practice law. Theyare notpart of the state’s General Fund andare not appropriated by the Legislature. Accord, Cal. Bus. & Prof. C section 6144 (“All fees shall be paid into the treasury of the State Bar, and, when sopaid, shall becomepart of its funds.”). Cal. Bus. & Prof. C section 6144 (“All fees shall be paid into the treasury of the State Bar, and, whenso paid, shall becomepart of its funds.”). No state-appropriated funds are used to fund the State Bar. 1-D. Congress did not intend to preempt attorney admissions and discipline by enacting Section 1621(c). In Martinez, this Court reasoned that preemption would be automatic only if the state statute involves a determination of who should or should not be admitted into the country, and the conditions under whicha legal entrant may remain. Martinez, at 1288. The decision of this Court to admit Sergio Garcia to practice law does not determine whetherhe shall be admitted into the United States. Nor does this Court's decision determine whetherheshall remain in the United States. Therefore, there is no "structural and automatic" preemption of admission to practice by 8 U.S.C. section 1621(c). There is no statutory or case law changesince that date to indicate any different result today. Martinez is consistent with Gadda v. Ashcroft (9th Cir. 2004) 377 F.3d 934, involving discipline by that Court of an attorney whopracticed law in the immigration court system. In Gadda, at page 944, the Ninth Circuit Court of Appeals stated “[w]e apply a presumption against federal preemption unless the state attempts to regulate an area in whichthereis a history of significant federal regulation. See Ting v. AT&T, 319 F.3d 1126, 1136 (9th Cir.2003).” The Gadda court explains, “The Supreme Court of the United States has long recognized that the several states have an important interest in regulating the conduct of the attorneys whom they license. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 434, 102 10 S.Ct. 2515, 73 L.Ed.2d 116 (1982); see also Theard, 354 U.S. 278, 281, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957) (“The twojudicial systems of courts, the state judicatures and the federal judiciary, have autonomouscontrol over their officers.”) ... .” Further, the historic police powers of the States are not preempted unless there is a clear purpose shown by Congress, Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407, cited with approval in, Farmers Bros. Coffee v. Workers' Comp. Appeals Bd. (2005) 133 Cal.App.4th 533, 538 [35 Cal.Rptr.3d 23, 26]. Admission and discipline of attorneys is a "core of the State's power to protect the public," and "essential to the primary governmental function of administering justice.” Hoover v. Ronwin (1984) 466 U.S. 558, 569 [104 S.Ct. 1989, 1996, 80 L.Ed.2d 590] (internal quotes and citations omitted). Accord, Bates v. State Bar ofArizona (1977) 433 U.S. 350, 361, 97 S.Ct. 2691, 2697, 53 L.Ed.2d 810. In Farmers Bros., supra, the Court declined to apply Section 1621 to California workers compensation benefits, because “California law has expressly declared immigration status irrelevantto the issue ofliability to pay compensation to an injured employee.” Farmer Bros, at page 540. This Court has expressly declared that citizenshipis irrelevant to the admission of attorneys. Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288 [101 Cal.Rptr. 896]. Therefore, immigration status is irrelevant to admission as an attorney. 1] Application of 8 U.S.C. section 1621(c) to an admissions case would also violate long-standing state and federal law that the courts decide who practices law,not the legislature. Historically, the courts, alone, have controlled admission, discipline and disbarmentof personsentitled to practice before them. In re Attorney Discipline System (1998) 19 Cal.4th 582, 600 [79 Cal.Rptr.2d 836, 846, 967 P.2d 49, 59]. “[T]he legislature may put reasonablerestrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions.” (citations omitted.) Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338 [178 Cal.Rptr. 801, 636 P.2d 1139]. Moreover, “... legislative enactments relating to admission to practice law are valid only to the extent they do not conflict with rules for admission adopted or approved by the judiciary. Whenconflict exists, the legislative enactment must give way.” Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 728-729, 147 Cal.Rptr. 631, 581 P.2d 636. Admission and discipline are controlled by this court. In re Attorney Discipline System, supra. This Court has plenary power over admissions. Greene v. Zank (1984) 158 Cal.App.3d 497, 505 [204 Cal.Rptr. 770, 776]. If Section 1621 applies to attorneys, it would effectively defeat the exercise of this Court’s ability to control admission anddiscipline. Those are core areas in whichthe State has primary interest. Under immigration law, those functions are permitted to the State under Martinez and Gadda. 8 U.S.C. section 1621(c) does not purport to regulate the practice of law, and it cannot attempt to do so without a clear and express statementin thestatuteitself. 12 1-E. Citizenship is an irrelevant criterion for refusing an applicant admission to practice law. Any qualification for the practice of law must havea rational connection with the applicant’s fitness or capacity to practice law. Schwarev. Bd. of Bar Exam. ofState ofN.M. (1957) 353 U.S. 232, 239, 77 S. Ct. 752, 756, 1 L.Ed. 2d 796. Citizenship is an irrelevant criterion. Application ofGriffiths (1973) 413 U.S. 717, 724, 93 S.Ct. 2851. Alienage is irrelevantto high professional standards, id., at 727. The holdings in Raffaelli and Griffiths indicate that neither permanentresidencynorcitizenship is a relevant criterion for admission to practice law. Garcia’s application for permanent residency has been pendingfor years. Manyofthe same arguments that can be made against an undocumented immigrant are the sameas those rejected in Raffaelli at pp. 295 et seq., such as, an alien might be deported; an alien might moveto another country; a lawyer must remain accessible to his clients; a lawyer must be subject to the control ofthe bar; the practice of law is a privilege, not a right; a lawyeris an officer ofthe court. As Raffaelli discusses at length, many problems may befall many people, and there is no reason to assumethat a noncitizen whois an attorney will be any less prepared to protect his or her clients, than any citizen whois not an attorney. (continued next page) 13 1-F. An applicant who has applied for permanentresidency should be treated in the same waythatapplicants who intended to apply for citizenship were admitted through 1933. There is ample legal precedent for this Court to treat a bona fide applicant for permanentresidence in the same wayit treated bona fide applicants for citizenship prior to 1933, when California law was amendedto require U.S. citizenship. That is, in that era, intent to becomea citizen wasthe criterion, notcitizenship itself. Similarly, the intent to become a permanentresident should bethe criterion today. In Brydonjack v. State Bar ofCalifornia (1929) 208 Cal. 439, this Court held that a bonafide intention to seek citizenship wassufficient to qualify for admission to the State Bar. Theprinciple of intent wasreiterated in Howden v. State Bar ofCal. (1929) 208 Cal. 604, 605 [283 P. 820, 821], and in Telegdi v. State Bar ofCal. (1929) 208 Cal. 793, 793 [283 P. 821, 821]. That policy held until this Court upheld the citizenship statute, Agg Largev. State Bar ofCalifornia (1933) 218 Cal. 334, 335-36 [23 P.2d 288, 288-89]. Agg Large overruled Howden, but then Agg Large was overruled in Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288 [101 Cal.Rptr. 896]. Theintent principle is no longer relevant to citizenship but should be relevant to permanentresidency. Raffaelli indicates that the applicant took the Bar exam in 1969 and became a legal permanent resident in September 15, 1971, supra, at page 291. The basis for the court’s ruling was, that the State Bar should havecertified him 14 for admission when heapplied (in 1969), since he hadalready applied to becomea legal permanentresident. Contrast the applicants in Brydonjack, Howden,and Telegedi, who had not even applied for citizenship, who had simply expressed an intention to do in the future. 1-G. 8 U.S.C. section 1621(c) is an improper attempt to compel the states to enact a federal regulatory program. “The Federal Government may not compelthe States to enact or administer a federal regulatory program.” Printz v. United States, 117 S. Ct. 2365, 2383, 521 U.S. 898 (1997). If 8 U.S.C. section 1621 is applied to Bar Applicants and attorneys, then the Supreme Court and the State Bar will be required to becomean arm of the USCIS. Sturgeon, supra, at page 1412, describes the processofa state's role in administering civil immigration laws. There must be a written agreement with the state or one of the state's political subdivisions. The state agents must act under the supervision of the U. S. Attorney General. There is no such agreement in place. Furthermore, any such supervision by the Attorney General would violate long-standing case law that the federal government does not regulate the practice of law in a givenstate. Sturgeon goes on to describe the proper role of California authorities in immigration matters. First, they can only act on criminalactivity, not civil offenses. Furthermore, "...they are powerless to take direct action against an individual they believe to be in this country illegally." /d., at 1412. Lest there be any doubt, “The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President,it says, “shall take Care that the Lawsbefaithfully executed,” Art. II, § 3, personally and through officers whom he appoints ... .” Printz atpage 922. As discussed in Printz at page 916,the validity of an older law that permitted states to administer certain immigration laws wasbasedonthestate first agreeing to do so. Congress cannot compel this Court to become an arm of the USCIS and administer immigration laws to attorneys. 1-H. The Federal government cannot require the States to enforce civil immigration laws. “The federal governmenthasthe exclusive authority to enforce the civil provisions of federal immigration law relating to issues such as admission, exclusion and deportation ofaliens. (citation omitted) As such, Congressis prohibited by the Tenth Amendmentfrom passing laws requiring states to administer civil immigration law. (City ofNew York v. United States (2d Cir.1999) 179 F.3d 29, 33-35.)” Sturgeon v. Bratton (2009) 174 Cal.App.4th 1407, 1412. (emphasis added.) Garcia did not commit any criminal offense when his parents brought him into the country as a child. Plyler v Texas (1982) 457 U.S. 202, 220; 102 S.Ct. 2382. [Minors bear no responsibility for their parents’ entry into the country in violation of the law.] His presence in the Untied States is not a criminal act. If Immigration orders him to leave, he could be subject to a civil penalty, if he does not obey the order, 8 U.S.C. section 1253(b). This Court cannot take any adverse action based onhis civil immigration status. 16 1-I. Sergio Garcia is not in the class of immigrants targeted by 8 U.S.C.section 1621. 8 U.S.C. section 1621 was enacted by Public Law 104-193 (August 22, 1996). It is entitled “PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996.” Asit pertains to immigrants, the legislative intent is set forth at 8 U.S.C. section 1601. Asrelevantto this case, it reads: “The Congress makesthe following statements concerning national policy with respect to welfare and immigration: (1) Self-sufficiency has been basic principle of United States immigration law since this country's earliest immigration statutes. (2) It continues to be the immigration policy of the United States that- (A)aliens within the Nation's borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations, and ...." Sergio Garcia has been self-sufficient. He has never applied for or received any public benefits. He paid his own way through college and law school. He has alwaysrelied on his own capabilities and resources. Current federal enforcement of laws pertaining to undocumented immigrants places people like Sergio Garcia as the least likely to be targeted for deportation. Last June, ICE (U.S. Immigration and Customs Enforcement, division of the U.S. Department of HomelandSecurity), issued a memo 17 pertaining to the factors to be considered in apprehending and removal of aliens. A copyis at Exhibit D. Garcia is classified as one ofthe undocumented immigrants least likely to be deported under ICE’s ownpolicies. Mr. Garcia’s positive factors, thatis, factors that place him low onthelist of low priority people to deport, include:his length of time in the USA;the fact that he was brought here as a child; the fact that he has a high school, undergraduate, and law degree; his contribution to the community; the fact that heis likely to be granted permanentresidentstatus. 2. IS THERE ANY STATE LEGISLATION THAT PROVIDES- AS SPECIFICALLY AUTHORIZEDBY8 U.S.C. SECTION 1621(D)- THAT UNDOCUMENTED IMMIGRANTSARE ELIGIBLE FOR PROFESSIONAL LICENSESIN FIELDS SUCH AS LAW, MEDICINE, OR OTHER PROFESSIONS, AND, IF NOT, WHAT SIGNIFICANCE,IF ANY, SHOULD BE GIVEN TO THE ABSENCE OF SUCH LEGISLATION? 2-A. Summary. Cal. Bus & Prof C section 6060.6 meets the requirement of 8 U.S.C.section 1621(d). However, given the distinction between executive branchlicensing and the judicial branch regulation of the practice of law, 8 U.S.C. section 1621(d) would not apply to the practice of law unlessit expressly said so. 18 2-B. Section 1621(d) on its face shows that Congressdid not intend to preemptall State laws regarding benefits to undocumentedaliens. Section 1621(d) reads: A State may provide that an alien whois not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility. At page 1297 ofMartinez, this Court has held that Section 1621(d) demonstrates that Congress did not intend a field preemption of state law by enacting 8 U.S.C. section 1621(c). There has been nostatutory or case law changesincethat date to indicate any different result today. ceThere are ... four ways in which Congress may preemptstate law: express, conflict, obstacle, and field preemption.” (internal cite omitted) Martinez v. The Regents ofthe University ofCalifornia (2010) 50 Cal.4th 1277, 1288 [117 Cal.Rptr.3d 359, 367, 241 P.3d 855, 862] cert. denied, (U.S. 2011) 131 S.Ct. 2961 [180 L.Ed.2d 245]. In enacting Section 1621(d), Congress did not expressly state the intention to preempt state law on undocumentedaliens. Instead, it expressly permitted the States to enact legislation modifying its provisions after August 22, 1996,id., at 1297. Noris there implicit or implied intent to preempt state law, by occupation of the field or comprehensive regulation of the subject matter; section 1621(d) 19 expressly permits the state to legislate in the field, id, at 1297. The same rationale is true of the obstacle to congressional intent and purpose doctrine. 2-C. Cal. Bus & Prof C 6060.6 meets the requirements of 8 U.S.C. section 1621(d). In 2005, California enacted a new section ofthe State Bar Act, Cal. Bus & Prof C section 6060.6. It provides: Notwithstanding Section 30 ofthis code and Section 17520 of the Family Code, the Committee of Bar Examiners may accept for registration, and the State Bar may processfor an original or renewedlicense to practice law, an application from an individual containing a federal tax identification number,or other appropriate identification number as determined by the State Bar, in lieu of a social security number, if the individualis not eligible for a social security account numberat the time of application andis not in noncompliance with a judgmentor order for support pursuant to Section 17520 of the Family Code. (emphasis added) 20 CFR 422.103 requires an applicant for a social security numbertofill out form SS-5, whichis the federal “Application for a Social Security Card.” A copy is attached at Exhibit B. According to that application, in order to secure a social security number, one must be a U.S. Citizen, or an immigrant authorized to work in the United States, or an immigrant with a studentvisa. Asanother court explained, “ ... it appears that the majority of those whose immigration status prevents them from obtaining SSNsare notauthorized by federal law to be present in the United States.” Lauderbach v. Zolin (1995) 35 Cal.App.4th 578, 582 [41 Cal.Rptr.2d 434]. Thus, Bus & Prof 6060.6 permits undocumented immigrantsthe ability to use an alternative 20 identification to register with the State Bar, take the first year bar exam,take the final bar exam, be admitted to practice law, and renew their law licenses. If indeed a statute is required to exempt bar admissions from Section 1621, this is it. The State Bar has enacted Rule 4.16(B) to carry out Bus & Prof 6060.6. Asrelevant here, the applicant is required by law either to provide the Committee with a Social Security Numberor to request an exemption becauseofineligibility for a Social Security Number in accord with Cal. Bus. & Prof. C section 6060.6. Furthermore, the State Bar has posted on its website, forms and information to certain applicants, that call attention to this exemption. See, Exhibit C, the instructions for the First Year Student Bar Exam, which Garcia would have hadto read and comply with back when he took the exam. The instructions state that there is no requirementofresidencyor citizenship, and makeno reference to immigration status. Sergio Garcia committed himself to years of costly education and hard work to pay his own way,in reliance on the State Bar’s rules on admission. He did everything that was required of him to meetall the criteria. (continued next page) 2) 3. DOES THE ISSUANCEOF A LICENSE TO PRACTICE LAW IMPLIEDLY REPRESENT THAT THE LICENSEE MAY BE LEGALLY EMPLOYEDAS AN ATTORNEY? 3-A. Summary. The answeris no. But since there are legitimate ways for to makea living as an attorney without being an employee, there is no reason to speculate that an undocumented immigrant, admitted to practice law in California would break the law in order to doso. Thereis a distinction between State Bar membership and an immigrant’s eligibility for a work permit to work as an employee in a conventional employer-employeerelationship. An attorney who is an undocumented immigrant cannot work as an “employee” until he obtains a work permit or his visa and permanentresidency. But there are many other ways of practicing law recognized under the State Bar Act, Rules of Professional Conduct, and federal law regarding paymentoftaxes by residentaliens. There is no reason to speculate that an undocumented immigrant, admitted to practice law in California, would break the law in orderto doso. Lawyers are presumed to follow the law. Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, rehearing denied, review denied, certiorari denied, 118 S.Ct. 347, 522 U.S. 937, 139 L.Ed.2d 270). 22 3-B. Undocumented immigrants may not be “employees” as that term is defined in the law. ‘Employee’ means every personin the service of an employer under any appointmentor contract of hire or apprenticeship, express or implied,oral or written, whether lawfully or unlawfully employed ... .” Cal. Lab. C, section 3351. This is the sametest used in federal law. “In the past, when Congress has used the term “employee” without defining it, we have concludedthat Congress intended to describe the conventional master-servantrelationship as understood by common-law agency doctrine.” Communityfor Creative Non-Violence v. Reid (1989) 490 U.S. 730, 739-40 [109 S.Ct. 2166, 2172, 104 L.Ed.2d 811]. Accord, Metropolitan Water Dist. ofSouthern California v. Superior Court (2004) 32 Cal.4th 491, 500-01 [9 Cal.Rptr.3d 857, 862-63, 84 P.3d 966, 971] Thus, if the Court’s question is purposely limited only to a formal employer- employeerelationship, we assume that an undocumented immigrant would be prevented from lawfully working as an employeeattorney. However, if the question used employmentin the broadersense, then yes, there are ways for an undocumented immigrant attorney to earn a living without violating state or federal law. 23 3-C. An undocumented immigrant can earn living in the USA without being an employee Underthe Internal Revenue Code, employee incomeis taxed under 26 U.S.C. section 61(a)(1), “Compensation forservices, including fees, commissions, fringe benefits, and similar items.” That code section goes on to list 14 other categories of income that would not apply to an employee.’ Among them are categories under which a duly admitted attorney could reasonably use to earn a living: “ (2) Gross income derived from business; ... (6) Royalties; (7) Dividends; ... (13) Distributive share of partnership gross income; Thus, Sergio Garcia could establish a law corporation and receive dividends, 26 U.S.C. section 61(a)(7) and 26 U.S.C. section 861(a)(2)(A). Law " (a) General definition. -- Except as otherwise provided in this subtitle, gross income meansall income from whatever source derived, including (butnot limited to) the following items: (1) Compensation for services, including fees, commissions,fringe benefits, and similar items; (2) Gross income derived from business; (3) Gains derived from dealings in property; (4) Interest; (5) Rents; (6) Royalties; (7) Dividends; (8) Alimony and separate maintenance payments; (9) Annuities; (10) Income from life insurance and endowment contracts; (11) Pensions; (12) Income from discharge of indebtedness; (13) Distributive share of partnership gross income; (14) Incomein respect of a decedent; and (15) Income from aninterest in an estate ortrust. 24 Corporations are a recognized feature of California law practice. Rule 1- 100(B)(5) of the State Bar Rules of Professional Conduct. Mr. Garcia can be a sole proprietor under 26 U.S.C.section 61 (a)(2)(39). Mr. Garcia could write articles or books and receive royalties — 26 U.S.C. section 61(a)(6) and 26 U.S.C. section 861(a)(s)(A)(4). Cal. Corp C section 16101(14) recognizes limitedliability partnerships for the practice of law, and 16101(6) recognizes that a California lawyer may be part of an LLP that is registered in a another state or country. Each ofthe foregoing creates opportunities to earn a living without being an employee. Andofcourse, an attorney mayrepresentclients pro bono, without charging a fee. Attorneys may engagein other, non-law related occupations to earn a living, while doingpro bonolawpractice. 3-D. An attorney's residence can change. Bar admission should not be denied to an undocumented immigrant whois presentin this country. Once admitted to practice, a person may practice California law from anywhere in the world, from Dunsmuir to Denmark, from California to Connecticut. Birbrower, Montalbano, Condon & Frank v. Superior Court 17 Cal.4th 119 (1998). Thus, his immigration status today should not bar Garcia admission, any morethat it would bar the admission of an immigrant with a student or tourist visa who metall other requirements for admission. 25 Thereis no reason to speculate that, if an attorney cannotbe legally employedas an attorney, he would violate the law. See Wolfgram, supra. This principle applies especially to Sergio Garcia, who has madea concerted effort to avoid illegal employment since his early adult days. 4. IF LICENSED, WHAT ARE THE LEGAL AND PUBLIC POLICY LIMITATIONS, IF ANY, ON AN UNDOCUMENTED IMMIGRANT'S ABILITY TO PRACTICE LAW? 4-A. Introduction. The legal limitation is that an undocumented immigrant cannot be an “employee” in a conventional employer — employee relationship. There are no public policy limitations on an undocumented immigrant such as Sergio Garcia. 4-B. Legal Limits. As discussedin section 3 above, an undocumented immigrant cannot work as an employee. 26 4-C. Current immigration policy leaves persons such as Sergio Garcia alone. As discussed above, Garcia is classified as the type ofundocumented immigrantleast likely to be deported under ICE’s ownpolicies, as shown in Exhibit D. The United States government continues its public policy of accepting undocumented immigrants into our midst. Thus, on June 15, 2012, the Department ofHomelandSecurity issued another memo,specifically aimed at undocumented immigrants who cameto this country as children. Exhibit E. Under the newly announcedpolicies, minors who meetthecriteria are not to be prosecuted absent someother reason. As the memorecites, “Our nation’s immigration laws must be enforced in a strong and sensible manner, they are not designed to be blindly enforced without consideration given to the individual circumstance of each case.” The ICEpolicyis not thefirst time that the federal government has knowingly allowed undocumented immigrants to stay in the U.S.A. In the 1930’s, Secretary ofLabor Frances Perkins admitted over 230,000 foreign visitors on tourist visas, “ ... knowing full well that many would quietly stay on in safety, and indeed, some people managedto disappear within the United States once they arrived.” Downey, The Woman Behind the New Deal (Anchor Books 2009). Excerptat F. 27 4-D. Public Policy does not otherwise limit an undocumented immigrant such as Sergio Garcia. Public policy limitations must be fundamental, grounded in the positive law of the state. General Dynamics Corp v Superior Court (1994) 7 Cal.4th 1164, 1180. As discussed above,citizenship is not a proper qualification for the practice of law. Raffaelli, supra, and Griffiths, supra. There is no fundamental reason to changethat principle. There is no positive law that would require a changein that principle. Griffiths, at page 722 recites the positive public policies for ignoring citizenship, such as paying taxes and supporting the economy,attributes that Sergio Garcia has demonstrated. Public policy supports a person obtaining an education and an advanced college degree, other attributes that Sergio Garcia has demonstrated. Garcia exemplifies another public policy — family values. Helives in the community where his parents raised him, and where they continueto live. By creating a category of “family sponsored immigrant,” Congress has shown anintent to support that policy. California has recognized the value of intent to become naturalized with respect to prospective admittees, as discussed above. There is no public policy that would permit concern about deportation. The “ |,. [S]tate cannotrealistically determine that any particular undocumented 28 (child) will in fact be deported until after deportation proceedings have been completed. Plyler, 457 U.S. at 226, 102 2382.” In re B. Del C.S.B. (9th Cir. 2009) 559 F.3d 999,at 1013. Raffaelli, supra, at 295, also rejects as irrelevant, the fact that a noncitizen may be deported. There is no adverse moral character implication when a personstays in this country after being brought here as a minor. The civil infraction is far less than the behavior deemed acceptable in Hallinan v. Committee ofBar Examiners ofState Bar (1966) 65 Cal.2d 447, 459. California has enacted statutes that favor certain undocumented immigrants, thereby indicating a public policy in their favor. Cal. Educ. C section 68130.5, upheld by this Court in Martinez, supra, exemplifies California public policy in regard to undocumented immigrants who have applied or intend to apply for permanentresidency and/orcitizenship, by allowing them to paytuition at the samerate as California residents. The California Dream Act — Part 1, Cal. Educ. C section 66021.7, which becameeffective this year, permits undocumented college students who werebroughtto this country as children to apply for private scholarships at State colleges and universities. The Dream Act — Part 2, Cal. Educ. C section 66021.6, which becomesoperative in January, 2013, permits such students to apply for State-funded grant programs. The Court stated in Griffiths, supra, the federal case that abolished citizenship as a test for state lawyer admissions, "Residentaliens, like citizens, pay taxes, support the economy,serve in the Armed Forces, and contribute in myriad other ways to our society. It is appropriate that a State 29 bear a heavy burden whenit deprives them of employmentopportunities." Application ofGriffiths (1973) 413 U.S. 717, 722 [93 S.Ct. 2851, 2855, 37 L.Ed.2d 910]. Garciais a resident alien as defined in 26 U.S.C.section 7701(b)’: He meets the “substantial presence test under 26 U.S.C. section 7701(b) (1)(A)(ii) and (3). Thus, Sergio Garcia is a nonresidentalien, part of the very group referred to in Griffiths. The rationale as to citizenship applies to him too. Andfinally, we note as part of California’s public policy, the award for the "Public Lawyerofthe Year," made by the Public Law Section of the State Bar. The 1998 award went to Peter Belton. His acceptance speech, * (b) Definition of resident alien and nonresidentalien.-- (1) In general.--For purposesofthis title (other than subtitle B)-- (A) Resident alien.--An alien individual shall be treated as a resident of the United States with respect to any calendar year if (and only if) such individual meets the requirements of clause(i), (41), or (ili): (i) Lawfully admitted for permanentresidence.--Such individual is a lawful permanentresident of the United States at any time during such calendar year. (ii) Substantial presence test.--Such individual meets the substantial presence test of paragraph(3). (iii) First year election.--Such individual makesthe election provided in paragraph (4). (B) Nonresidentalien.--An individual is a nonresident alien if such individualis neither a citizen of the United States nor a resident of the United States (within the meaning of subparagraph (A)). ok ok (3) Substantial presencetest.-- (A) In general.--Except as otherwise provided in this paragraph, an individual meets the substantial presence test of this paragraph with respect to any calendar year (hereinafter in this subsection referred to as the “current year’’) if-- (i) such individual waspresent in the United States on at least 31 days during the calendar year, and (ii) the sum of the numberof days on which such individual waspresent in the United States during the current year and the 2 preceding calendar years (when multiplied by the applicable multiplier determined underthe following table) equals or exceeds 183 days *** 30 downloaded from the State Bar's website at Exhibit G, recites his work as Justice Mosk's law clerk, working on Raffaelli, supra. It emphasizes the positive reasonsfor abolition of citizenship as a requirement for admission to the Bar. Ironically, Sergio Garcia entered college a short time after Belton received the award. 5. WHAT,IF ANY, OTHER CONCERNSARISE WITH A GRANT OF THIS APPLICATION? Some cases express concern about “the deleterious effects’ of a massive influx of illegal immigrants.” See e.g., Plyler, supra, at 249 [102 S.Ct. 2382, 2412, 72 L.Ed.2d 786]. This is a false concern with applicants such as Sergio Garcia. Not all undocumented immigrants are the same. As this Court recognized in Martinez, supra, “The term “undocumented immigrant” is vague andis not used in the relevant statutes.” Martinez at page 1288. The proper nomenclature for Sergio Garcia is a “family sponsored immigrant” under8 U.S.C. section 1153(a)(2)(A). The use ofthat nomenclature does not advance Garcia’s placein line, nor give him any immunity. However,it does signify that there are distinctions among undocumented immigrants, and there cannot be one public policy that encompassesall of them. The child brought to this country as a minoris not the sameas the adult who commits a crime by crossing the border without inspection. The worker who pays taxes is not the sameas the person in the underground economy. The 31 person who documents his presence by registering in the INSis not the same as the person whoavoidsall contacts with governmentofficials. Current federal public policy gives a “family sponsored immigrant”a direct path to citizenship by statute, and by ICEpolicy, treats him with benign neglect as long as he does not get involved with the criminal authorities. Modern California public policy is favorable toward the undocumented immigrant who gets an education and contributes to the public good — people like Sergio Garcia. This court should nottry to divine one public policy for all undocumented immigrants in this case. Rather, it should describe the public policy for immigrants whoshare the basic characteristics of Sergio Garcia — he entered the county without committing a crime; he does not commit a crime by remaining in the country; he has lived openly and madeevery effort to comply with the laws of this country; he has obtained an education;heis self sufficient and has paid his own way.In spite of the hurdles of his position, he has secured a college degree and a law degree. He haspassed the California State Bar Exam. He has beengiven a positive moral character determination by the Committee of Bar Examiners, after a most rigorous investigation. (continued next page) 32 V. CONCLUSION Sergio Garcia is the sort of immigrant who has helped makethis country great. In an era ofentitlement, a self sufficient, industrious person seeks admission to practice law. He has been the subject of a most rigorous moral character investigation and passed with flying colors. He has learned how to earn a legal living over years of effort and will continue to do if admitted to practice law. VI. PRAYER Sergio Garcia requests that this Court admit him to practice law in California. 33 Vv. CONCLUSION Sergio Garciais the sort of immigrant who has helped make this country great. In an era ofentitlement, a self sufficient, industrious person seeks admission to practice law. He has been the subject of a most rigorous moral character investigation and passed with flying colors. He has learned how to earn a legal living over years of effort and will continue to do if admitted to practice law. VI. PRAYER WHEREFORE Applicant Sergio Garcia requests that this Court admit him to practice law in California. Word CountCertification: Pursuant to Cal. Rules of Court, Rule 8.204(c), I certify that this Opening Brief of Applicant Sergio C. Garcia contains fewer than 8,250 words. JEROMEFIS Atto¥ney for Applicant Sergio C. Garcia 33 DECLARATION OF SERVICE BY OVERNIGHT DELIVERY | am employed in Contra Costa County, California. | am over the age of 18 years, and | am not a party to the within action. My business address is 1575 Treat Blvd., Suite 215, Walnut Creek, CA 94598. Onthis date, | served the OPENING BRIEF OF APPLICANT SERGIO C. GARCIA EXHIBITS TO OPENING BRIEF OF APPLICANT SERGIO C. GARCIA REQUEST FOR JUDICIAL NOTICE PROPOSED ORDERTAKING JUDICIAL NOTICE by placing a true copy in a sealed envelope designated by Federal Express for overnight delivery, with delivery fees fully paid, addressedto: Rachel Simone Grunberg Committee of Bar Examiners of the Office of the General Counsel, State State Bar of California Barof California 1149 S. Hill Street 180 Howard Street Los Angeles, CA 90015 San Francisco, CA 94105-1639 and then depositing the envelope in a box regularly maintained by Federal Express. | declare under the penalty of perjury underthe laws of the State of California that the foregoing is true and correct. June __, 20112 SAMUELC. BELLICINI
