GARCIA (SERGIO C.) ON ADMISSION

Committee of Bar Examiners of the State Bar of California’s Opening Brief on the Merits

Cal.June 18, 2012

Bar Misc. 4186 §202512 IN THE SUPREME COURT a OF THE STATE OF CALIFORNIA JUN I 8 2012 Frédarick ik Ohirich Clerk IN RE SERGIO C. GARCIA ON ADMISSION Epa OPENING BRIEF OF THE COMMITTEE OF BAR EXAMINERS OF THE STATE BAR OF CALIFORNIA RE: MOTION FOR ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIA STATE BAR OF CALIFORNIA STARR BABCOCK, SBN 63473 LAWRENCE C. YEE, SBN 84208 RICHARD J. ZANASSI, SBN 105044 U.C. DAVIS SCHOOL OF LAW RACHEL S. GRUNBERG, SBN 197080 400 MRAK HALL DRIVE 180 HOWARD STREET DAVIS, CA 95616 SAN FRANCISCO, CA 94105 TELEPHONE: (530) 752-0243 TELEPHONE: (415) 538-2070 *“ACTING IN AN INDIVIDUAL CAPACITY, AND NOT ON BEHALF OF THE LISTED UNIVERSITY OF COUNSEL TO MINAMI TAMAKI LLP KEVIN R. JOHNSON*, SBN 117535 DEAN AND PROFESSOR OF LAW GIBSON, DUNN & CRUTCHER LLP ROBERT E. PALMER, SBN 116892 JOSHUA A. JESSEN, SBN 222831 DREWA. HARBUR, SBN 279511 316] MICHELSON DRIVE IRVINE, CA. 92612-4412 TELEPHONE: (949) 451-3800 BILL ONG HING*, SBN 61513 PROFESSOR OF LAW UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW 2199 FULTON STREET SAN FRANCISCO, CA 94117 TELEPHONE: (415) 422-4475 *ACTING IN AN INDIVIDUAL CAPACITY, AND NOT MARK A. PERRY, SBN 212532 ON BEHALFOF THE LISTED UNIVERSITY 1050 CONNECTICUT AVENUE, N.W. WASHINGTON, D.C. 20036-5306 BRYAN SPRINGMEYER, SBN 272597 TELEPHONE: (202) 955-8500 275 BATTERYSTREET, SUITE 1170 SAN FRANCISCO, CA 94111 MINAMI TAMAKI LLP TELEPHONE: (415) 935-8936 DONALD K. TAMAKI, SBN 72884 MINETTE A. KWOK, SBN 152337 PHILLIP M. ZACKLER, SBN 266408 360 POST STREET, 8'" FLOOR SAN FRANCISCO, CA. 94108-4903 TELEPHONE: (415) 788-9000 ATTORNEYS FOR THE COMMITTEE OF BAR EXAMINERSOF THE STATE BAR OF CALIFORNIA I. IIL. TABLE OF CONTENTS Page INTRODUCTION ooo. cececteesesesesesececseeecsesscsescsessssusesstesesvevaeeens } A. B. Background.........ssesusssssssestssscsssssucssecsueceaseausessvesaesisessessseseseee 1 The Court’s May 16, 2012 Order .....cccccccessceecesseceseceeeseseees 2 ROLE OF THE COMMITTEE.0....ccccccccccsescssssescesssssescsssscssseseeateesees 3 RESPONSES TO THE COURT’S INQUIRIES......ccccccccceseseseeeeees 5 A. Does 8 U.S.C. Section 1621, Subdivision (c) Apply And Preclude This Court’s Admission OfAn Undocumented Immigrant To The State Bar Of California? Does Any Other Statute, Regulation, Or Authority Preclude The Admission? ........c0ccccccssseeeceeeseeeeeees 1. Preemption and Section 1621] ........ccccscesceeeseeseeees 6 2. A California Law License Is Not Provided by an Agency of a State or Local Government...........000... 9 3. The Issuanceof a California Law License Does Not Grant to an Applicant Any Public Resources Provided by Appropriated Fundsof a State or Local Governmentt............ccececececseessseeeeeseeees 1] 4. COnCIUSION oo... sees ecesesesseccccccececsesescessecseceseesserseccscess 16 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 Absence Of Such Legislation? .....0..cccccscccceceessssveceseseees 16 Does The Issuance OfA License To Practice Law Impliedly Represent That The Licensee May Be Legally Employed As An Attormey? ........cccccccessesesseeseeeees 19 If Licensed, What Are The Legal And Public Policy Limitations, If Any, On An Undocumented Immigrant’s Ability To Practice Law? .......ccccecsseseeeeees 24 TABLE OF CONTENTS (continued) Page 1, Federal Immigration Laws Impose Employment Restrictions on Undocumented Immigrants; However, this Does Not Preclude All Uses of a Law License ....eeeccscccessesscsecssscessescssecssessvssessseseeseess 25 2. The Five State Interests Raised and Rejected in Raffaelli Dealing with Non-Immigrant Aliens Are Equally Applicable to Undocumented TMMIGLANtS 0... eee eececeeseeeceseesesseesecscsscsscsecsccsecssareseeeees 29 a. “A lawyer must appreciate the spirit of American institutions”.........ccccceseeescecsseseees 30 b. ‘A lawyer must take an oath to support the Constitutions of the United States and Califormia”........ccccccscsessscssssseesessceseeseees 32 C. “A lawyer must remain accessibleto his clients and subject to the control of the Dar? oie ceecessesscesssesesecesecssecssesscssccseseessacaecesens 34 d. “The practice of law is a privilege, not a TIN?eeeeeeeeeseeseseeeesesesseeessessecsessesecsesscenens 36 e. “A lawyeris an ‘officer of the court’ and therefore ‘should be a citizen’” ....3......eeee36 E. What, If Any, Other Public Policy Concerns Arise With A Grant Of This Application? .....0....cceccccceeeeeeeee 38 1. Current Policy Supports Inclusion, Rather Than EXCLUSION 00... eeceececceseeseessseesesseesecstessseeessesesesenevaesees 40 2. No Policy Implications Outweigh the Committee’s Finding that Mr. Garcia,if Licensed, Can Competently Represent Clients Because He Has Met the Minimum Qualifications to Practice Law .......cccecceeeeeeseeeeeee 44 TV. CONCLUSIONwoeiceeceecceecssscesscesesseccscseesecescssusessesesvaseaessvseeaeeas 46 ~ji- TABLE OF AUTHORITIES Page(s) CASES Associated Indemnity Corp. v. Industrial Accident Commission (1943) 56 Cal.App.2d 804 oo. ccccccccescsssssecssescssssestecsevacsecsessersvsnseeas28 Bates v. State Bar ofArizona (1977) 433 U.S. 350 woe eceeesceseseeseseseecsescssescssscsecsessssssssvassessceveneseataees 18 Brotskyv. State Bar ofCal. (1962) 57 Cal.2d 287 ooo cecceccccceccsssseescsscsscsscessssssccsscssvevsevsuvaceeesaesatertarens4 California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264... cccccecscssescssescsscsesscessssscssscsesaveveeees 12 Campos v. Anderson (1997) 57 Cal.App.4th 784 oo. ccccccsscscessscessscsscsscscsssssessecsssaseetaeateees 13 Chamber ofCommerce of U.S. v. Edmondson (10th Cir. 2010) 594 F.3d 742occccccesccessscsescssesssscssesssecscsceseseseneessees27 Chamber ofCommerce v. Whiting (2011)OS,eeececeeeesceesscseeseeesacsetscsesssesssesssessecscsetaasecateens 14 Channel Lumber Co, Inc. v. Porter Simon (2000) 78 Cal.App.4th 1222.0... ccccccssccccsecessesecsscsessescscsstscssessesseateees 28 City Plan Dev. Inc. v. Office ofLabor Com’r (Nev. 2005) 117 P.3d 182 occccccceccessscecescssesscsessesseesstscenseeaceeesees 13 Cleveland v. U.S. (2000) 531 U.S. 12 ice eccceeccesecseccsseeeecsecsscsecsesscsscesesesesscstsceaeeaeees 14, 15 Crosby v. National Foreign Trade Council (2000) 530 U.S. 363 oo eceeeecescesssssescseesecscsessseesessssssscscsssscasessesssesseeeaes 7 Dingemans v. Board ofBar Examiners (Vt. 1989) 568 A.2d 354 oeccscsccscescescescescsceeessessssecstenseees23, 24, 37 Doe v. Wilson (1997) 57 Cal.App.4th 296... cccccccccecsesscscsscsesscssesssesssssescsssstsessceaveveees 15 English v. General Elec. Co. (1990) 496 U.S. 72 eececcescceessesssestecsecsssscsccssssesssessscseecsssacssesaeeenensaceaes 7 -iil- TABLE OF AUTHORITIES (continued) Page(s) Gade v. National Solid Wastes Management Assn. (1992) 505 U.S. 88 ooo ceceeeseeseeseeeescessesscecsessessessesssesscaseasvenecsstevenvares 7 Gilb v. Chiang (2010) 186 Cal-App.4th 444ooocccccc ccscsscesecsesssvsvsaesaeeeteeeaees 12 Goldfarb v. Virginia State Bar (1975) 421 U.S. 773 voeeccecceccsceseesseesceseesecsecsesscesesecsesscstsscsscaesaeceseeeeaaeaces 18 Hallinan v. Committee ofBar Examiners ofState Bar (1966) 65 Cal.2d 447ooocceccseessesseseesseseesecsessccsesessessssesscesseeevavsevanes 33 Hason v. Medical Bd. ofCalifornia (9th Cir. 2002) 279 F.3d 1167... cccccccccsccsscscescsscssessescsecssvsesascessesveeeeees20 Hoffman Plastic Compounds, Inc. v. N.L.R.B. (2002) 535 U.S. 137 eee ececceesccsscessescescescescssssssscesscscsensenscseeerenenae 26, 27 Hoover v. Ronwin (1984) 466 U.S. 558 oecccccceeseseseessesscessessecscessccsenscsscsseesecseesrenees4,18 Hubbard v. United States (1995) 514 U.S. 695 ooo ecccccseeseseseesscseeccsecsecsecseceucsessecsscsecsausesevaseaens 10 Hustedt v. Workers’ Comp. Appeals Ba. (1981) 30 Cal.3d 329... eecceccecsscseessssscsecsscseessesseacsecsessseseesecsesees 17, 18 In re Attorney Discipline System (1998) 19 Cal4th 582.0... cecccccsssesssscessecsceesececareeseecaeensaaes passim In re Griffiths (1973) 413 US. TUT eee ccccccesccscccsecsscensscsessssssccsscesssessassesasstaeeeaens 18, 37 In re Jose C. (2009) 45 Cal4th 534oc cccccccccsscsscsscessecsecsscesccsscsscsessscesssusssseesseacsaevans 8 In re Martin (1962) 58 Cal.2d 133 eeececceceeseeseesseseceseeseeeesecssessesesscsecsesecsesssescvavaees 19 In re Rose (2000) 22 Cal 4th 430... ecccccccsessesseeseeseesesssssessscsssscsssscescascesessevesaavaceas4 -ivV- TABLE OF AUTHORITIES (continued) Page(s) Keller y. State Bar ofCalifornia (1990) 496 U.S. Loic ccecccsccsssseeesseeseesesesescsseesecsecsecssecsessevessssvaueenereeeens 9 LeClerc v. Webb (Sth Cir. 2005) 419 F.3d 405ccc ccccccscccccscssessccsescssscsscscssersesseseeeseseees 37 Martinez v. The Regents ofthe University ofCalifornia (2010) 50 Cal.4th 1277ee ececcccssessescssessenscseesscsssesasesssessecsessuse 8, 17, 42 Merritt v. Reserve Ins. Co. (1973) 34 Cal.App.3d 858 ....ceeccccssssssssesesecsessecsessessscsscscsscsscssssrsrensenens28 N.L.R.B. v. A.P.R.A. Fuel Oil Buyers Group, Inc. (2nd Cir. 1997) 134 F.3d 50... cece ccccssessecscssecesecnscsecesesseesssssessesessasenses26 Obrien v. Jones (2000) 23 Cal.4th 40.ccecesecssssseessscseessseecssesseeesscssescesenseseesseavreeas 4 Plyler v. Doe (1982) 457 U.S. 202 oeciceccccecccesseeseeseeesecsensesesessseecsscrecenessens38, 40, 41 Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288eee ccccssceceesssseesscesseecseecesssecssecsussssssecnesseees passim Rajeh v. Steel City Corp. (Ohio Ct. App. 2004) 813 N.E.2d 697 .o..ccccccccccescesccsctsessesseseesereeseses 14 Rosenthaly. Justices ofthe Supreme Court ofthe State ofCalifornia (9th Cir, 1990) 910 F.2d SO]ce eececccccesesseseeesecsessecscssesecsscscssssessevateees 4 Ryan v. Riley (1924) 65 Cal.App. 181).ecccccccssescssccsssesseecsecseeccsssscssesscsesssscseseaseas 12 Schware v. Board ofBar Examiners (1957) 353 US. 232ceecenesseeeeeeeeeseesesessesaeeesesecsecscsessesacscssereeeenses 36 Strong v. Mack (1943) 58 Cal.App.2d 805 ooo. cccccccccccccescesssecseseseesessessscsssesseesevevsseesenenes 19 Supreme Court of Virginia. v. Consumers Union of U.S., Inc. (1980) 446 U.S. 719occecececcececceeseesesesseeaceecsesaseesseseestscscstseseeveses 18 TABLE OF AUTHORITIES (continued) Page(s) Theard v. U.S. (1957) 354 U.S. 278 occ ccesccccsscsccssssccestscesscceeceseceesssscsssuecessteessesenacs 8, 19 United States vy. Arizona (9th Cir. 2011) 641 F.3d 339oooceeeccscessececeensseeetsesecssseceeessseses39 White v. Davis (2003) 30 Cal.4th 528... cccccceseesecccsseceecsssceeseseecssecersueeessescececteseees 12 Wilcox v. Jackson ex dem. McConnel (1839) 38 U.S. 498 occccccsscccsseccesscesecsseseseceeeeseecsrseesttesecesrsreess 11 Wilson v. Smith (1943) 60 CalApp.2d 211 occcccssscesscssscecasecssssecessneveesseeeeessseees 19 Woodby v. N.S. (1966) 385 U.S. 276 wo ceccccccccccsssssccssccccsssceececececeseceserseensanseeessseeeeesseees 35 Wyeth v. Levine (2009) 555 U.S. 555 occecccceeccccccsssccsscccccsseceecesceceesceecsuseceeecttessseseesstseeeens7 STATUTES 26 C.F.R. § 301.6109-1(G)(3) occ eccceccceescssccecesscecceseseesenecesseesteeeeetaueesas 28 5 U.S.C. § S511) ccccecccccceccccsssscccssssecccesscccessesesssscersceceesacessustacestsecesessnesens 10 8 C.FLR. § 274(a).2(D)(V)...ceeecceccccecccsssscesceccsscesacecesevsnseceaseereceeeaeecsauesesuseeas27 8 CLFLR. § 2744.1(C)..cccceccccssccssccsscccsssccscsecssesseseccesessateesseeeueecaeensneeees26, 28 8 CLELR. § 2740.1 (f) cc cecccccccccccssscccessscccscescesscccecersecessesececteceecesecesensasersas28 8 CLF.R. § 2748.1 (2) occccccccssscccssscsssccsssccsssvesseeesetsesaeecestssrecesauecaueseatssenseees28 8 CPLR. § 2740.1 (D) ooo cc ccecccccscsssscssscesssscssecsscaresseseserevavessenueeseeesnseeessess26 8 CLELR. § 2744.2(b) occ ccccccccccscsccsscceccsseccccsecessssssecssaseceueeeecstueensseeeeeessecers27 8 ULS.C. § 1182(a)(9)(BYG) oo. ccccccecccececccssceseccsestsscssssessesaesecseenseeeneensesens 35 8 ULS.C. § 1229D(D)1) ooocecccccescsesssessssessssesesesssssecsrevenauecsesectaceesasens 35 8 ULS.C. § 1255) cccceecccccccscseccsscesscccccssesesecsnacecstececsesesensesesseceeessaaesenes 1 -vi- TABLE OF AUTHORITIES (continued) Page(s) 8 US.C. § 13248ccceeceeneeeseeeteeeeseesesesasessseesseessssecetesecsesesseensenens25, 26 8 U.S.C. § 1324a(a)(1), (a)(1)(A) sececeeecessessessecseesesserssaeeseneeaseatenesnaeeeeeseessees26 8 ULS.C. § 1324a(b)(1)(A)-(D))(D)...ec cccccccseesecsseresteccesssessestscesseceneas27 8 U.S.C. § 1324a(€)(4)eeecccseeecsecseeseseesesscecsessscsesessesssscesesesecsesecaseeeas 26 8 ULS.C. § 1324a(f) eee eecccceeeeeceseesssesseeeeseesecsesseseeceesscssesecsecsessnsssvesateeaeas 26 8 U.S.C. § USSG) cececcceceseseeeessesesesesseessssesesecsesecsessesessesecesssssssevscerenesaees 35 8 U.S.C. § 1621 (a) occececceeceeesseeecsecesesseecsecsessessecssssececseceececseceseresseaseaaes 6 8 US.C. § LO2Q1(C)L)(A) voceeee ceceeeseeesceseesesssessesseseessesseesessseeseecssseserens6,9 8 U.S.C. § 1621(C)1)(A)8B)... ec eecceeecseteeseesecsesessecsseseescessesecsessesscsecsessens 14 8 ULS.C. § 16210) oocccceescescseesesceseesesesseseesesssseesesasseesescscsesscsceevseeeenses 6 8 ULS.C. §§ 1229, 1230.cece ceeceeesesseeseeseesceseeseseessecseesscesecsscsessscevsecsensens 35 Bus. & Prof. Code, § 6001 oo. eeecceesssesessesesscsestecseeseeseseecssesesessevecssvecensnes4 Bus. & Prof. Code, § 6046.0... ccccccccssecsscssscesscsssesssscscsssscsssesecetecsessererseeas4 Bus. & Prof. Code, § 6060.00... icccesscccsseccessecssssenecesecececteeeenueesaneseens2,5 Bus. & Prof. Code, § 6060.6........cccccccccccsscsscssesscsscesssssessssesssscssessevaeeeueasees21 Bus. & Prof. Code, § 6063.0... ccccccccsssessecsccessssesessecsscsssseasensesseserensuensees 13 Bus. & Prof. Code, § 6064.0...ccc ceccccccsscsssccessccssececsreceaceceeeseeeeereeseeesneress 5 Bus. & Prof. Code, § 6067 .......c.cccccccccssccsscsscssscsscececresssssseasseeeenacensessensees25 Bus. & Prof. Code, § 6068 ......c.cccccccccsscccsssesscesscsscesssccssssssscasssseseesrssenneeaees24 Bus. & Prof. Code, §§ 6180, 6190... ceccceccceccecssccecsecsacceasecsreceacecseeeaes 35 Ed. Code, § 66016.30cccesceesesessesecsssseeesesesseecsessesesececsesesssscseeesesssevaces 17 Ed. Code, § 6602 1.70... ceceseceseesssssssessesscecsenseeecsescsseesseecsessessssvscestavaees 17, 42 Ed. Code, § 68120.50ccecccecceeeessssssestesesesenecseecscsecseseesessetsceecsescseseasvasanes42 -Vil- TABLE OF AUTHORITIES (continued) Page(s) Ed. Code, § 68130.5....ccceccccsscscsessssscsssscsesvsnstsscaessesecsecasscaesatsatsesavsncasseees 17 Gov. Code, § 11000(a)cecesessssssssesssssssssssssusisesssssssssssssssititsesssssesesee i OTHER AUTHORITIES A.B. 130, Cal. Legis. 2011 and A.B. 131, Cal. Legis. 2011 voce42 Black’s Law Dict. (9th ed. 2009)... ccccccccecesececcesscsesssseesesstsecsessesesese 11 Cal. Dept. of Finance Glossary of Budget Terms.........c.cccccccecseceseseseseeseees 12 Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar (Case No. SC 11-2568)... ccicceccscecceeccseseseessescseesseseeaees 17 Form 540ES ou.29 Jeffrey Passel & D’Vera Cohn, U.S. Unauthorized Immigration Flows Are DownSharply Since Mid-Decade (Sept. 2010), Pew Hispanic Center oo... ceccesessesescssssesesecscsesssescscsscsesscssssscsesecseecsaesaseaeaes 38 Kevin R. Johnson & Bernard J. Trujillo, Immigration Law and the US Mexico Border (2011)... ccccccccccccscsscsesscssscsecsscescscsesevseseceeverenseaees 38 Lee, President Obama on Fixing Our Broken Immigration System: “E Pluribus, Unum”?........c.cccccccsccsssceccccsscsecesscceeecessecacsecesascaessseeseceseees 39 Maria Pabon Lopez & Gerardo R. Lopez, Persistent Inequality: Contemporary Realities and the Education of Undocumented Latina/o Students (2010) ......cciccccccsccsscessscssesscsecssececeecseesessststsueaeeateaes40 Merriam Webster Online Dict. ......cccccccccscsessescesesessccecsssessesevecsceveesatsees 11 Michael A. Olivas, No Undocumented Child Left Behind (2012)........0.0....40 Michael A. Olivas, The Political Economy of the DREAM Act and the Legislative Process: A Case Study of Comprehensive Immigration Reform (2009) 55 Wayne L. Rev. 1757 ....ccecscceeeseeees42 National Conference of State Legislatures, 2010 Immigration Related Bills and Resolutions in the States.......0.0.ceccccceeseecsseeceseseesees39 -Vili- TABLE OF AUTHORITIES (continued) President George W. Bush, President Bush Proposes a New Temporary Worker Program (Jan. 7, 2004) oo...eeeeeeeeees Secretary of the Department of Homeland Security, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (June 15, 2012) .............. Sen. Rules Comm., Off. of Sen. Floor Analyses, Third Reading Analysis of Assem. Bill No. 664.000... cccccccccsessccsessessseesseseseessenes United States Department of Homeland Security, Immigration and Customs Enforcement, Letter sent to Jim Hackenberg, (May 9, 2008)... eeeesceseeseesseeseescenseeesecssesseseseeseessessecsessessesseserssesescssscnaveueess Vargas, “Not Legal Not Leaving” (June 25, 2012) TIME Magazine US. .0... ee eeseescssessesecessssesscsscsssssscsssssescssssseesceasenvas Webster’s Third New International Dictionary (2002) ........0.0... RULES Rule of Prof. Conduct 4-1L00(A) .....cccccccccsccsscescsssssessesscsessseiecsseesens TREATISES Johnsonet al., Understanding Immigration Law (LexisNexis 2009).. CONSTITUTIONAL PROVISIONS Cal. Const., art. VI, § 1 oo.cecsccccssccsnccesecssseecesseeseeesteessesensees Cal. Const., art. VI. § 9 occccsscsscsccssessesssccsescsecescsessscesevsesaseaeas ULS. Const., art. 1, § 8 cccccccccccscccssccsescesssecesesssssesasecssssseesersersteeeeres U.S. Const., art. VI, Ch. 2...ccccecccceccsccececececsreceeseessseeettseeesestaneees ~1X- Page(s) bene39 beseeees 43 eseneee 22 beceeaee41 beveeene43 beseeess 14 besten25 beceeees 35 seseeeee 1] sesesatees 4 estentees 6 evetease6 I. INTRODUCTION A. Background Sergio C. Garcia was born in Villa Jimenez, Mexico in 1977. When he was 17 months old, he was broughtinto the United States by his parents without inspection by immigrationofficials. His parents reportedly took him back to Mexico around the ageofeight or nine, but they returned to the United States again without inspection in 1994, when Mr. Garcia was 17 years of age. His father, who was a lawful permanentresidentat the time, and whohassince gainedfull citizenshipstatus, filed a petition for an immigrant visa (“Form I-130”) for his son on November 18, 1994. That petition was approved in January of 1995, and Mr. Garcia has been waiting, in an undocumentedstatus, for the past 17 years for the visa to become available.! During this time, he went to college, attended law school, and passed the California Bar Examination. Under Business and Professions Code section 6046, the Committee of Bar Examiners (the “Committee”) has the limited chargeof: (1) examiningall applicants for admission to practice law; (2) administering the requirements for admission to practice law; and (3) certifying to the California Supreme Court for admission those applicants whofulfill the ' When visa becomes available, Mr. Garcia will be eligible to adjust his status to a permanentlegal resident, and can do so without having to leave the country. (See 8 U.S.C. § 1255(i).) requirements for admission. In the case of Mr. Garcia, the Committee found that he metall the necessary requirements for admission.’ Based onthat conclusion, the Committee believed it had a duty to certify Mr. Garcia for admission to the California Supreme Court. On November9, 2011, the Committee submitted his name, on motion, as an applicantcertified for attorney licensure. The Committee informed the Court of Mr. Garcia’s immigration status, given that the admission of an undocumented immigrant was a matteroffirst impression. B. The Court’s May 16, 2012 Order On May 16, 2012, the California Supreme Court issued an Orderto Show Causeto the Committee of Bar Examinersofthe State Bar of California as to why its pending motion for the admission of Sergio C. . Garcia to the State Bar of California (the “State Bar”) should be granted. The Court ordered that any such submission should be filed on or before June 18, 2012. It also invited and welcomed amicus curiae participation. The Court further ordered that the following issues, and possibly others, should be briefed in any such submission: 1. Does 8 U.S.C. section 1621, subdivision (c) apply and precludethis court’s admission of an undocumented immigrantto the State * See Bus. & Prof. Code, § 6060 (Qualifications; Examination and Fee). 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 absence of such legislation? 3. Doesthe issuanceofa license to practice law impliedly represent that the licensee may be 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 public policy concerns arise with a grant of this application? In response to the Court’s Order, the Committee hereby respectfully submits the following response.” Tl. ROLE OF THE COMMITTEE The State Baris not an ordinary administrative body, but ratherit is sui generis. (Brotskyv. State Bar ofCal. (1962) 57 Cal.2d 287. 300 [19 * There are numerous termsusedin this brief quoted from sources referring to aliens that are present in the United States with no lawful basis. The Committee has adopted the term “undocumented immigrant,” because Questions 1, 2, and 4 in the Court’s Order to Show Cause ask for briefing pertaining to “undocumented immigrants.” Cal.Rptr. 153, 368 P.2d 697].) It is a constitutional entity. established under article VI, section 9, of the California Constitution as a public corporation. and expressly acknowledged asan integral part ofthe judicial function. (Cal. Const., art. VI. § 9; Bus. & Prof. Code, § 6001: In re Rose (2000) 22 Cal.4th 430, 438 [93 Cal.Rptr.2d 298, 993 P.2d 956]: Obrien v. Jones (2000) 23 Cal.4th 40, 48 [96 Cal.Rptr.2d 205, 999 P.2d 95].) The State Bar was created as an administrative arm and adjunct ofthe California Supreme Court for the purpose ofassisting in matters of attorney admission and discipline. The State Bar makes recommendations regarding admission matters to this Court, but its assistance is advisory. It is this Court that makes the ultimate decisions underits plenary power overthe practice of lawin California. Un re Attorney Discipline System (1998) 19 Cal.4th 582, 598-99 [79 Cal. Rptr.2d 836, 967 P.2d 49] (hereinafter Attorney Discipline). Rosenthal v. Justices ofthe Supreme Court ofthe State of California (9th Cir. 1990) 910 F.2d 561, 566; see also Hoover v. Ronwin (1984) 466 USS. 558 [104 S.Ct. 1989, 80 L.Ed.2d 590] [the State Supreme Court itself makes the final decision to grant or deny admission to practice. not the State Bar].) The State Bar performs its admissions functions throughthe creation and operation of the Committee, which is charged with carrying out the duties set forth in the State Bar Act. (See Bus. & Prof. Code, § 6046.) The Committee essentially ensures that all applicants have met certain educational, moral character, and examination elements. (See Bus. & Prof. Code, § 6060.) Uponcertification by the Committee that an applicant has fulfilled these requirements, the Committee recommendsto this Court that the applicant be licensed. (See Bus. & Prof. Code, § 6064.) However,it is this Court alone that has the powerto accept, or reject, the recommendation. If the Court elects to admit the applicant as an attorneyat law, it will direct an order to be entered uponits recordsto that effect and issue a certificate of admission. (See Bus. & Prof. Code, § 6064.) Accordingly, the role of the Committee is limited: it is one of ensuring that certain criteria are met by each applicant before submitting the applicant for consideration for admission to the California Supreme Court. The Committee itself lacks the power to grant admission, and policy decisions in this area are, in general. vested with the Court, not the Committee. IH. RESPONSES TO THE COURT’S INQUIRIES A. Does 8 U.S.C. Section 1621, Subdivision (c) Apply And Preclude This Court’s Admission Of An Undocumented Immigrant To The State Bar Of California? Does Any Other Statute, Regulation, Or Authority Preclude The Admission? No. 8 U.S.C. section 1621 does not preclude this Court’s admission of Mr. Garciato the practice of law in California.* * Noris the Committee aware of the existence of any otherstatute, regulation, or authority that would preclude his admission. 1. Preemption and Section 1621 Enacted in 1996, section 1621 provides that “[n]Jotwithstanding any other provision of law,” certaincategories of “unqualified aliens”listed by statute are “not eligible for any State or local public benefit.” (8 U.S.C. § 1621(a).) The statute goes on to define “State or local public benefit”in relevant part as “any grant, contract, loan, professional license, or commercial license provided by an agencyofa State or local governmentor by appropriated funds of a State or local government.” (8 U.S.C. § 1621(c)(1)(A).) A state may, however, “provide that an alien whois not lawfully present in the United Statesis eligible for any State or local public benefit for which such alien would otherwise beineligible under subsection (a) ... only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.” (8 U.S.C. § 1621(d).) Congresshas the explicit authority to regulate immigration under article I, section 8 of the U.S. Constitution, and that authority has long been presumedto be exclusive or near-exclusive. (See U.S. Const. art. I, § 8.) In addition, when Congress acts in an area in which it has express authority,its laws preemptall state or local statutes, orders, or decisions to the contrary. (See U.S. Const., art. VI, ch. 2.) Courts have identified three different ways in which Congress may preempt contrary state law: (1) Congress may explicitly provide that a federal statute preempts state law (“express” preemption) (see English v. General Elec. Co. (1990) 496 U.S. 72, 78-79 [110 S.Ct. 2270, 110 L.Ed.2d 65]); (2) Congress may decide to occupy the entire field in a substantive area in which the Constitution provides the federal government with exclusive or explicit power (“field” preemption) (see Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 372-73 [120 S.Ct. 2288, 147 L.Ed.2d 352]); or (3) a federal statute may conflict with state law, it may be impossible for a party to comply with both state and federal requirements, or state law may “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (“obstacle” or “conflict” preemption). (/bid; see also Gadev. National Solid Wastes Management Assn. (1992) 505 U.S. 88, 98 [112 S.Ct. 2374, 120 L.Ed.2d 73].) Although section 1621 contains an express preemption provision for “professional licenses ... provided by an agency of a State ... or by appropriated funds of a State,” the issue remains whether section 1621 is applicable here and precludesthis Court’s admission of Mr. Garcia. As a starting point, it should be noted that the United States Supreme Court has held that when Congresshaslegislated in a field that the states havetraditionally occupied, the general assumptionis that “the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifestpurpose ofCongress.” (Wyeth v. Levine (2009) 555 U.S. 555, 565 [129 S.Ct. 1187, 173 L.Ed.2d 73] [Emphasis added].) Traditionally, the courts, alone, have controlled admission, discipline, and disbarmentof personsentitled to practice before them. (Attorney Discipline, supra, 19 Cal.4th at p. 600.) This is true in both the state and federal judicial systems. (Theard v. U.S. (1957) 354 U.S.278, 281 [77 S.Ct. 1274, 1 L-Ed.2d 1342].) California laws regulating bar admission do not attempt to regulate who mayenter or remain in the United States. Only whenstates attemptto ““regulat[e] immigration,’ i.e., ‘... determin[e]...who should or should not be admitted into the country, and the conditions under which a legal entrant may remain’ ... is preemption structural and automatic. Otherwise, the usual rules of statutory preemption analysis apply; state law will be displaced only when affirmative congressional action compels the conclusion it must be.” (Martinez v. The Regents ofthe University of California (2010) 50 Cal.4th 1277, 1287 [117 Cal.Rptr.3d 359, 241 P.3d 855].) As will be discussed below,there is no clear and manifest purpose by Congressto regulate attorney admissions undersection 1621° (an area traditionally left to the jurisdiction of the courts and not state agencies) and > “The absence of an express exclusion of state court jurisdiction ‘is strong, and arguably sufficient, evidence that Congress had no such intent.’” (/n re Jose C. (2009) 45 Cal.4th 534, 548 [87 Cal.Rptr.3d 674, 198 P.3d 1087].) since a law licenseis not “provided by an agencyofa State orlocal government or by appropriated funds of a State or local government,” section 1621 does not preclude this Court’s admission of Mr. Garcia. 2. A California Law License Is Not Provided by an Agency of a State or Local Government For section 1621 to be applicable, the professional license must be “provided by an agency ofa State or local government.” (8 U.S.C. § 1621(c)(1)(A).) It is therefore necessary in the first instance to determine whoprovides the law license and whetherthat entity is an “agency”ofthe state. Here, the relevant licensing entity is the California Supreme Court. The “inherent and primary regulatory power”overthe legal profession in California, including the authority to admit personsto practice law, is vested in the California Supreme Court. (See Keller v. State Bar ofCalifornia (1990) 496 U.S. 1, 11 [110 S.Ct. 2228, 110 L.Ed.2d 1] [The State Bar does not admit anyoneto the practice of law,it does notfinally disbar or suspend anyone, and it does not ultimately establish ethical codes of conduct. All of those functions are reserved by California law to the State Supreme Court”); cf. Attorney Discipline, supra, 19 Cal.4th at p. 592.) The California Supreme Court, however, is not an “agency” — rather, it is the third and co-equal branch of state government. Section 1621 does not provide otherwise as neither the text northe legislative history of section 1621 defines “agency” or enumerates particular state agencies. Similarly, 8 U.S.C. section 1611, the comparable statute prohibiting an “agency of the United States” from providing “federal public benefits” to undocumented immigrants, also lacks a definition of “agency.” However, “agency”is defined elsewhere in federal law to expressly exclude the courts. (5 U.S.C. § 551(1) [Under the Administrative Procedure Act, agency is expressly defined as “each authority of the Governmentofthe United States, whetheror not it is within or subject to review by another agency, but does notinclude . . . the courts ofthe United States.” [Emphasis added]; see also Hubbard v. United States (1995) 514 U.S. 695, 699-700 [115 $.Ct. 1754, 131 L.Ed.2d 779], quoting 18 U.S.C. § 6, which defines “agency” as “any department, independentestablishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context showsthat such term wasintendedto be used in a more limited sense” (“In ordinary parlance, federal courts are not described as ‘departments’ or ‘agencies’ of the Government.... [I]t would be strange indeed to refer to a court as an ‘agency’...” and; “[t]his commonsense reading”is bolstered by the definition of “agency”in the federal false statements statute itself, which makesit “incontrovertible that ‘agency’ does not refer to a court.”].) -10- Absent any context that might suggest otherwise, the term “agency” in section 1621 must be interpreted consistently with how it is used in other statutes—andhere, the most closely analogous federal laws support the conclusion that the term “agency” does not include the courts.° 3. The Issuance of a California Law License Does Not Grant to an Applicant Any Public Resources Provided by Appropriated Fundsof a State or Local Government In addition to precluding a “public benefit” (e.g., a professional license) “provided by an agencyofthe State,” section 1621 also prohibits a “public benefit” whenit is “provided by appropriated funds ofa State or local government.” Butthis is not the case here. The term “appropriated” means “to set apart for or assign to a particular purpose or use.” (Merriam Webster Online Dict. [as of June 1, 2012]; see also Black’s Law Dict. (9th ed. 2009) pp. 117-18 [defining “appropriation”as “[a] legislative body’s act of setting aside a sum of money for a public purpose”’].) This ordinary meaning of the term has been adopted by both federal and California state courts. (See Wilcox v. Jackson 6 Similarly, there is no express provision under California law that includesthe judiciary in the definition of “state agency.” (See Gov. Code, § 11000(a) [“every state office, officer, department, division, bureau, board and commission”].) To the contrary, the Supreme Court, courts of appeal, and superior court are the courts of record in the judicial branch of governmentthat exercise the judicial powers of the state. (Cal. Const., art. VI, § 1.) -l1- ex dem. McConnel (1839) 38 U.S. 498 [10 L.Ed. 264] [“appropriation . . is nothing moreorless than setting it apart for some particular use”); White v. Davis (2003) 30 Cal.4th 528, 533 [133 Cal.Rptr.2d 648, 68 P.3d 74]; Gilb v. Chiang (2010) 186 Cal.App.4th 444, 452 [111 Cal.Rptr.3d 822] [defining “appropriation”as a “legislative act setting aside a certain sum of moneyfor a specified object in such mannerthat the executive officers are authorized to use that money and no more for such specified purpose”); California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1282 [36 Cal.Rpir.2d 404]; Ryan v. Riley (1924) 65 Cal.App. 181, 187 [223 P. 1027].)’ The question here is whether the California Legislature has “set apart” funds for the California Supreme Court for a “particular use” prohibited by section 1621. The answer is no. The functions of administering the California Bar Examination and certifying applicants for licensure are performedbythe State Bar, through the Committee. These functions are not funded by any appropriated funds ofthe state. In Attorney Discipline, the California Supreme Court described the precise source of ’ The California Departmentof Finance likewise defines appropriation as “[aJ]n authorization from a specific fund for a specific purpose .... Legislation or the California Constitution can provide continuous appropriations ....” (Cal. Dept. of Finance Glossary of Budget Terms, at [as of June 4, 2011].) -12- funding for attorney discipline in California and madeit clear that such funding was outside ofthe state coffers: License 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 .... Therefore, the imposition of such fees would not invade the Legislature’s exclusive power over taxation and appropriation. (Attorney Discipline, supra, 19 Cal. 4th at p. 597.) Therationale is equally applicable here. Applicant license fees are the sole source of funding for attorney licensing in California.’ While the final act of issuing the order of admission is done bythis Court, such involvement does not change the fact that the license is not “provided by appropriated funds.” (See Campos v. Anderson (1997) 57 Cal.App.4th 784, 788 [67 Cal.Rptr.2d 350] [finding that state and local governments’ active assistance in collecting child support payments does not changethe fact that the source of the payments are private]; City Plan DevelopmentInc.v. Office ofLabor Com’r (Nev. 2005) 117 P.3d 182, 190 [finding that the paymentofprevailing wage rates by a contractor to workers under a public “Applicants for admission to practice shall pay such reasonablefees, fixed by the [Board of Trustees of the State Bar of California], as may be necessary to defray the expense of administering the provisions of[the State Bar Act], relating to admission to practice. These fees shall be collected by the examining committee and paid into the treasury of the State Bar.” (Bus. & Prof. Code, § 6063.) -13- contractis not a “local public benefit” for purposes of section 1621]; Rajeh v. Steel City Corp. (Ohio Ct. App. 2004) 813 N.E.2d 697 [reasoningthat workers’ compensation is distinguishable from many ofthe benefits listed in section 1621 because it was intendedto serve as a tort remedy and becauseit is funded by employers rather than the governmentl].) Moreover, a law license is distinguishable from the other “public benefits” listed in section 1621, which include: “any grant, contract, loan” and “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemploymentbenefit, or any other similar benefit” that may involve “paymentsor assistance”that are “provided ... by appropriated funds of a State or local government.” (8 U.S.C. § 1621(c)(1)(A)&(B).) A Jaw license does not provide any paymentorassistance to a bar applicant. It is a grant of permission to engagein the practice of law. (See Chamber ofCommerce v. Whiting (2011)_ SUS. [131 S.Ct. 1968, 1978, 179 L.Ed.2d 1031], quoting Webster’s Third New International Dictionary (2002) p. 1304 [“A licenseis ‘a right or permission granted in accordance with law . . . to engage in some business or occupation, to do someact, or to engage in sometransaction whichbut for such license would be unlawful’”].) Provision of a law license is distinguishable from the licensing activity, which is a regulatory program of the state. (See Cleveland v. U.S. (2000) 531 U.S. 12, 21 [121 S.Ct. 365, 148 L.Ed.2d 221] [noting that licensing is a “regulatory program” -14- established through the exercise of state police powers].) A state may fund the licensing activity and pay for the regulatory program; however, a licensed applicant receives no payment of appropriated funds in obtaining a license. (/d. at p. 15 [in overturning a mail fraud case, court held that in issuing a license, a state does not part with any moneyor property].) The legislative purpose of section 1621 was to reduce the incentives for illegal immigration by denying “aliens” not residing legally in the United States benefits financed by “appropriated funds.” (Doe v. Wilson (1997) 57 Cal.App.4th 296, 301 [67 Cal.Rptr.2d 187] [stating that in enacting section 1621, Congress wanted to ensure that “the availability of public benefits [would] not constitute an incentive for immigration to the United States ...”].) Congress has also stated that undocumented immigrants within the United States should “not depend on public resources to meet their needs, but rather rely on their own capabilities” to achieve “self- sufficiency.” (8 U.S.C. § 1601.) Mr. Garcia is not dependent on, nor does he seek, any “public resources.” There are no “appropriated” funds required to grant Mr. Garcia a law license. Instead, as discussed above,the relevant funds come from applicant fees. Additionally, many of the benefits listed in section 1621, such as welfare and retirement payments,are either direct income support payments or services intended to meet the daily needs of disadvantaged individuals. But Mr. Garcia and other similarly situated individuals—who -15- have graduated from law school and passed oneof the most difficult bar examinations in the United States—are not seeking “public resources.” Indeed, there may be no better example of individuals whoare relying on their “own capabilities” as opposedto “public resources.” Thus, the legislative history further supports the proposition that a California law license is not provided by “appropriated funds ofa State or local government.” 4, Conclusion California law licenses are not “provided by an agencyofa State or local governmentor by appropriated funds ofa State or local government,” and section 1621 therefore does not preclude this Court from admitting Mr. Garcia to the practice of law. B. 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 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? Undersection 1621(d), 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 otherwisebeineligible ... only through the enactmentof a State law after August 22, 1996, which affirmatively provides for such eligibility.” The California Legislature, however, has not -16- affirmatively enacted legislation giving undocumented immigrants the ability to obtain professionallicensure in the legal field or any otherfields.’ This is a case offirst impression in California as it relates to law licensure.'° As this Court is well aware, other professional licenses are provided by state executive branch agencies. Admissionto practice law is different, and falls exclusively within the purview of the California Supreme Court in its sovereign judicial capacity. (Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 336 [178 Cal.Rptr. 801, 636 P.2d 1136] [“In California, the powerto regulate the practice of law, including the powerto admit and to discipline attorneys, has long been recognized to be among the inherent powersofthe article VI courts.”]; Attorney Discipline, supra, 19 Cal.4th at p. 600.) ” It is worth noting that the California Legislature recently passed legislation giving undocumented immigrants other public benefits, such as: (i) in-state college tuition (see Ed. Code, § 68130.5, upheld by the California Supreme Court in Martinez, supra, 50 Cal.4th 1277); (ii) the ability to serve in any capacity in student government and “receive any grant, scholarship, fee waiver, or reimbursement for expensesthatis connected with that service ...” (see Ed. Code, § 66016.3); and(iii) private-funded scholarships and state-funded financial aid for public colleges and universities, including institutional grants, community college fee waivers, Cal Grants, and Chafee Grants. (See Ed. Code, § 66021.7 [knownas the California Dream Act of 2011].) A similar matter is now pending before the Florida Supreme Court, and that Court has been asked to issue an advisory opinion on the subject. (See Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar (Case No. SC 11-2568).) -|7- Indeed, every state in the union recognizesthat the power to admit and to discipline attorneys rests solely with the state’s highest court. (Hustedt, supra, 30 Cal.3d at pp. 336-37; see also Hoover, supra, 466 US. at pp. 568-69; Bates v. State Bar ofArizona (1977) 433 U.S. 350, 361 [97 S.Ct. 2691, 53 L.Ed.2d 810]; Goldfarb v. Virginia State Bar (1975) 421 U.S. 773, 792 [94 S.Ct. 2004, 44 L.Ed.2d 572]; In re Griffiths (1973) 413 US. 717, 722-23 [93 S.Ct. 2851, 37 L.Ed.2d 910].) Because the admission and discipline of attorneys is uniquely a judicial function, a state supreme court acts in a “legislative capacity” and “occupies the sameposition as that of a state legislature” when regulating in this area. (See Hoover, supra, 466 U.S.at p. 568; Supreme Court of Virginia. v. Consumers Union of U.S., Inc. (1980) 446 U.S. 719, 734 [100 S.Ct. 1967, 64 L.Ed.2d 641] [state supreme court and its membersare, for all intents and purposes, the state’s legislators when enacting the bar code].)!! Accordingly, “it is this [C]ourt and not the Legislature whichis [the] final policy maker” in matters concerning the practice of law in California (see Attorney Discipline, supra, 19 Cal.4th at p. 602), and legislative action '! Assuming arguendothat 8 U.S.C section 1621 is found to be applicable to this case, this Court could elect to invoke the savings clause under section 1621(d) and, in its quasi-legislative authority, in effect enact a law (i.e., a rule of court) expressly providing that undocumented immigrants are eligible for law licensure. -18- is not a pre-requisite to this Court’s ability to determine whom to admit to the practice of law in California. C. Does The Issuance Of A License To Practice Law Impliedly Represent That The Licensee May Be Legally Employed As An Attorney? The issuanceof a license to practice law does not impliedly represent that the licensee may be legally employedas an attorney because licensure and employmentare independentanddistinct concepts. California courts have recognized an “implied representation of competency madebythe licensing of [an] attorney.” (/n re Martin (1962) 58 Cal.2d 133, 139 [23 Cal.Rptr. 167]; Wilson v. Smith (1943) 60 Cal.App.2d 211, 212 [140 P.2d 144]; Strong v. Mack (1943) 58 Cal.App.2d 805, 809 [137 P.2d 748].) The United States Supreme Court has recognized an “implied representation”that a licensee whois allowed to hold himself out to practice law is in “good standing” to do so. (Theard, supra, 354 U.S. at p. 281.) These implied representations, however, do not equate to an attorney’s ability to be legally employed,since the issue of licensure is separate from the issue of employment. The licensing function is ultimately within the exclusive purview of the California Supreme Court; whereas, the question of whether, and to what extent, the licensee may be employed is governed by otherauthorities, and in the case of undocumented immigrants, by the federal immigration laws. -19- While a license to practice lawis necessary to obtain employmentas an attorney. having a lawlicense does not meanthat the holder may be employed. (See Hason v. Medical Bd ofCalifornia (9th Cir. 2002) 279 F.3d 1167, 1172, cert. dism. (2003) 538 U.S. 958 [Although medical licensing does occur within the employmentcontext, medical licensing is not equivalent to employment. The Medical Board does not make employment decisions, and the Board’s grant of a license is not tantamount to a promise or guarantee of employmentas a physician.”].) Congressitself recognizes the independentnature of these concepts. The general issue of professional licensure for undocumented immigrantsis governed by 8 U.S.C.section 1621 (although as previously discussed, section 1621 does not apply to law licensure). Under 1621(d), states are allowedto affirmatively grant undocumented immigrants professional licenses if they so choose. The issue of employment for undocumented immigrants, however, is contained in a completely different statutory scheme undersection 8 U.S.C. section 1324a, which expressly preempts states in the area of employment. Therefore, Congress must have intended states to be able to license undocumented immigrants, irrespective of employability. This Court has similarly embracedthe distinction between employmentandlicensure, as it currently admits non-immigrant aliens to the practice of law in California without regard to their ability to be legally -20- employed as attorneys. Specifically, these individuals come to the United States on student or visitor visas (which contain explicit work restrictions), attend law school in California, pass the California Bar Examination, and gain admission to practice law in this state. After receiving their law licenses, they may return hometo their countries of origin, they may remain here and attemptto adjust their status, or they may seek lawful permanent residence. However, the grant of a law license provides no guarantee of a pathway to lawful employmentin the United States for these individuals. In addition, the California Legislature has subscribed to this position. In 2005, it enacted legislation specifically allowing individuals whoare not eligible for a social security numberto provide alternative forms of identification when applying for a law license. Business & Professions Code section 6060.6 states: Notwithstanding Section 30 of this 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 judgment or order for support pursuant to Section 17520 of the Family Code. (Bus. & Prof. Code, § 6060.6 (Stats. 2005, ch. 610, § 1 [Assem.Bill No. 664 (2005-2006 Reg.Sess.].) The Senate Floor Analysis for AssemblyBill 664 explains that the purpose ofthe statute is to allow foreign law students to take the California -2]- Bar Examination. (Sen. Rules Comm., Off. of Sen. Floor Analyses, Third Reading Analysis of Assem. Bill No. 664 (2005-2006 Reg.Sess.) pp. 2-3.) The Analysis explains that Family Code section 17520 requires a social security numberas a condition ofstate licensing to track child support evaders. (Ibid.) This requirement madeit impossible for foreign law students to take the Bar Exam, so the statute was enacted to correct the problem. (Ibid.)' Section 6060.6 is an express acknowledgmentby the California Legislature that non-immigrant aliens who: (i) are here as students;(ii) are not eligible for a social security number; and(iii) are generally not permitted to work in the United States, may nonethelesssit for the California Bar Examination and be admitted to practice law in California. Finally, importing an implied representation of legal employability from licensure would impose upon the Committee, and this Court, a qualification standard that does not currently exist and would require a case- by-case assessmentof federal immigration law and what the licensee intends to do with the license after it is granted — line of inquiry that would be difficult, if not impossible, to effectuate. Whether, and to what extent, the 12 According to State Bar records, since 2005, 1,373 applicants have applied for the social security number exemption. 22. licensee wants to use the license in future employment endeavorsis for the individual to determine in compliance with all laws. Concernsofa similar nature were raised, but ultimately dismissed, by the Vermont Supreme Court in Dingemans v. Board ofBar Examiners (Vt. 1989) 568 A.2d 354. There, applying a preemption analysis, the Court invalidated a bar admission rule that limited admission to citizens and permanentresident aliens. The applicant was a non-immigrant alien who had entered the United States on a student visa and then adjusted status to an H-1 visa (a work visa issued to aliens of “distinguished merit and ability”). (Id. at p. 355.) The H-1 visa allowed the applicant to engage in “legal consultant”services for a law firm.’ (bid.) In declining to recommend admission, the Vermont Bar noted its concern that issuing the license to practice law would somehowgivethe applicant authority that exceeded the scope of the work limitations in her H-1 visa (allowing herthe right to represent a client in her own name, appear in court on behalf of a client, sign documents as an attorney, and engage in the full scope of services normally performed by an attorney). (bid.) The Vermont Supreme Court disagreed and struck downthe barrule, stating that to do otherwise would contravene the federal H-1 visa scheme. Asa legal consultant, the applicant was limited to performing legal research and writing and providing legal advice and resources to other attorneys within the law firm. (/d. at p. 355.) -23- In so ruling, the Court dispelled the notion that licensure was a “hollow right” simply because the applicant could not fully engage in the practice of law due to the express workrestrictions in her visa. (Dingemans, supra, 568 A.2d at 356-57.) The Court held that: [Applicant’s] mere admission to the bar of Vermont would not be a violation of her visa; [applicant] would be in violation only if she exceededthe restriction set forth in her visa, that of being a legal consultant. Upon admissionto the bar, the scope of her visa would be a matter to be resolvedstrictly between herself and the federal government. (Ud. at p. 356.) By comparison, Mr. Garcia is in line to receive a visa, which will allow him to adjust his status. Mr. Garcia’s current “employability” should not be tied to his licensure. What Mr. Garcia, or any other foreign applicant, does with his license after licensure must comport with federal regulations and that is a matter strictly between him and the federal government. D. If Licensed, What Are The Legal And Public Policy Limitations, If Any, On An Undocumented Immigrant’s Ability To Practice Law? Every person admitted to practice law in California is obligated to “faithfully ... discharge the duties of an attorney at law to the best of[their] -24- knowledge and ability.” (Bus. & Prof. Code, § 6067; see Bus. & Prof. Code, § 6068 for the list of duties.)"* Undeniably there are certain limitations on an undocumented immigrant’s ability to practice law (see discussion below); however they should not serve as a bar to licensure. Mr. Garcia, like every other attorney, would be bound byhis legal and ethical obligations which, from a regulatory perspective, are sufficient to ensure the protection of the public. 1. Federal Immigration Laws Impose Employment Restrictions on Undocumented Immigrants; However,this Does Not Preclude All Uses of a Law License Undocumented immigrants cannot be hired for employment by a law firm, corporation, agency, or any other employer. (8 U.S.C. § 1324a.) Section 1324a was enacted in 1986 as part of the Immigration Reform and Control Act (“IRCA”) “to reduce the incentives for employersto hireillegal ! For example it is the duty of all attorneys under Business and Professions Codesection 6068 to, among other things: maintain respect due to the courts; maintain only legal or just actions; maintain inviolate the confidenceofhis or her client; and never reject the cause of the defenseless or the oppressed. In addition, Business and Professions Code section 6211 requires an attorney receiving or disbursing client trust funds to establish and maintain an IOLTA account. (See also, Rule of Prof. Conduct 4-100(A) [“All funds received or held for the benefit of clients by a memberor law firm, including advancesfor costs and expenses, shall be deposited in one or more identifiable bank accounts labeled 'Trust Account,' 'Client's Funds Account,' or words of similar import....”].) An attorney can open this type of account by using a social security number(if eligible for one), an individual taxpayer identification number (“ITIN”), or a federal Employer Identification Number (“EIN”). Undocumented immigrants, as discussed infra, can apply for an ITIN. -25- aliens.” (N.L.R.B. v. A.P.R.A. Fuel Oil Buyers Group, Inc. (2nd Cir. 1997) 134 F.3d 50, 55, abrogated on other grounds in Hoffman Plastic Compounds, Inc. v. N.L.R.B. (2002) 535 U.S. 137 [122 S.Ct. 1275, 152 L.Ed.2d 271].) The House Judiciary Committee Report accompanying IRCAdiscussed “how the willingness of many illegal immigrants to accept low wages and substandard conditions makes them attractive to some employers whoare ready to ‘exploit [them as a] source of labor’ often to the detriment of United States workers whose wages are depressed or whose jobs are lost.” (N.L.R.B. v. A.P.R.A., supra, 134 F.3d at pp. 55-56 [citations omitted].) Employersanctions are the central enforcement feature of IRCA. It is “unlawful for a person or other entity... to hire . .. for employmentin the United States an alien knowingthe alien is an unauthorized alien.” (8 U.S.C. § 1324a(a)(1), (a)(1)(A).) Under IRCA,the term “hire” means“the actual commencement of employment of an employee for wages or other remuneration.” (8 C.F.R. § 274a.1(c).) “Employment”is defined as “any service or labor performed by an employee for an employer.” (8 C.F.R. § 274a.1(h).) An unauthorized alien may not be “employed” by an “employer.” (See 8 U.S.C. § 1324a.) An employerthat violates this provision is subject to civil penalties (see 8 U.S.C. § 1324a(e)(4)), or criminal penalties if they engage in a pattern of hiring unauthorized aliens. (8 U.S.C. § 1324a(f).) -26- IRCAalso establishes an “extensive ‘employmentverification system,’ designed to deny employmentto aliens who(a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States.” (Hoffman, supra, 535 U.S.at p. 137 [citations omitted].) Knownasthe I-9 system, employers are required to verify the identity of their employees and ensure they are eligible to work in the United States by examining certain specified documents. (8 C.F.R. § 274a.2(b).) IRCA establishes a list of permissible verification documents, enabling employees to prove eligibility by supplying any documentonthelist.'° (8 U.S.C. § 1324a(b)(1)(A)-(b)(1)(D); see also Chamber ofCommerce of U.S.v. Edmondson (10th Cir. 2010) 594 F.3d 742, 751.) No reasonable employer would assumethat the issuance of a law license to an individualrelieves them oftheir obligation to verify employmenteligibility consistent with the I-9 System. Thus,for all practical purposes, undocumented immigrants would not be able to work for an employer. However, IRCA does not preclude all avenuesofuse for a law license. An undocumented immigrant can engage in an independent contractor relationship or perform pro bonoservices. '° Notably,a law licenseis notlisted as a permissible verification document. (See 8 C.F.R. § 274(a).2(b)(v).) -27- IRCA only applies to employmentand only penalizes employers for hiring undocumented immigrant employees. Excluded from the definition of employee under IRCAis “independent contractor” and excluded from the definition of employer is a “person or entity using contract labor.” (8 C.F.R. § 274a.1(f) [“employee... does not mean independent contractor”]; 8 C.F.R. § 274a.1(g) [“employer shall ... not [mean] the person or entity using the contract labor’’].) Thetypical relationship between an attorney in private practice with a client is that of an independent contractor rather than an employee. (See Associated Indemnity Corp. v. Industrial Accident Commission (1943) 56 Cal.App.2d 804 [133 P.2d 698]; Merritt v. Reserve Ins. Co. (1973) 34 Cal.App.3d 858, 880-81 [110 Cal. Rptr. 511]; Channel Lumber Co., Inc. v. Porter Simon (2000) 78 Cal.App.4th 1222, 1230 [93 Cal.Rptr.2d 482].) If an undocumented immigrant was engagedbya client as an independent contractor, that relationship would not subject the client to penalties under 8 U.S.C.section 1324a.!° '® As an independent contractor, Mr. Garcia would be required and fully able to report and pay income taxes. For IRS purposes, individuals who do not have and are not eligible to obtain a social security number may apply for an ITIN. (See 26 C.F.R. § 301.6109-1(d)(3).) ITINsare also accepted by the State of California Franchise Tax Board in reporting income and paying taxes (payable via electronic funds transfers from bank accounts, moneyorders, or cash). (See, e.g., Form (Cont’d on nextpage) -28- An undocumented immigrant can also provide pro bonoservicesfor a client, or any other person or entity for that matter, as section 1324a only applies to the employmentof an employee for wages or other remuneration. (8 C.F.R. § 274a.1(c).) Again, whatever an individual choosesto do after licensure, if anything, must be done in accordance with the profession’s high legal and ethical obligations and within the confinesof all applicable laws. 2. The Five State Interests Raised and Rejected in Raffaelli Dealing with Non-Immigrant Aliens Are Equally Applicable to Undocumented Immigrants In Raffaelli v. Committee ofBar Examiners (1972) 7 Cal.3d 288 [101 Cal.Rptr. 896], this Court invalidated a statutory provision requiringall applicants for bar admissionto becitizens of the United States, expressly holding that citizenship bears no rational relationship to one’s professional or vocational competency or qualification. (/d. at pp. 303-04.) Raffaelli had initially entered the United States as a non-immigrant alien on an exchangevisitor visa, and later obtained a studentvisa that authorized him to remain in the United States until his education was completed. (Raffaelli, supra, 7 Cal.3d at p. 291.) He attended college and law school in California, and then took and passed the California Bar Examination in 1969. (/bid.) Between 1969 and 1971 it appears he had no (Cont'dfrom previous page) 540ES [as of June 6, 2012].) -29- lawful status in the United States; however, he subsequently married an American citizen and was granted the status of a permanentresident alien in 1971. (Ubid.) The Committee rejected his application for law licensure based solely on the fact that he was not a citizen as mandatedbystatute. The California Supreme Court declared the citizenship requirement void. In reaching its decision, the Court dismissed the following five state interests as not rationally connected to the citizens-only ban. This Court’s analysis in Raffaelli is equally applicable here, where the issue involves undocumented immigrants. a. “A lawyer must appreciate the spirit of American institutions” A state cannot constitutionally authorize exclusion from the practice of law on the groundthat the applicant holds particular beliefs concerning American institutions. (Raffaelli, supra, 7 Cal.3d at p. 296.) “[W]hen a State attempts to make inquiries about a person’s beliefs or associations, its poweris limited by the First Amendment. [Citation omitted].” ([bid.) Whata state can do is ensure that an applicant has a general understanding of the theory and practice of the American governmentalsocial system in which he must function. Ubid.) To suggest, however, that such a person 663lacks “appreciation of the spirit of American institutions’ merely because -30)- he is not himself a citizen”is an irrational basis for excluding aliens on this ground. (/bid.) As this Court eloquently stated: Knowledge ofthis kind is acquired in many ways, both formal and informal. It comes not so much from the accident ofbirth as from the experience ofthe daily life of the community andtherole of governmentin that life. These manifestations unfold to everyone who haslived in America or taken an active interest in the American scene. (Raffaelli, supra, 7 Cal.3d at p. 296.) There is no indication that undocumented immigrants lack appreciation for the spirit of American institutions, particularly those who — like Mr. Garcia — have been in the United States since they were minors, attended and graduated from American schools, and proclaimeda desire to legalize their immigration status and becomecitizens. Further, there is no justifiable basis for believing that undocumented immigrants will be disloyal to America. Nevertheless, the issue of the possibly treasonous behavior of anyone seeking a law license is dealt with in the State Bar Act. Under Business and Professions Code section 6064.1, “[{n]o person who advocates the overthrow of the Governmentof the United States or of this State by force, violence, or other unconstitutional means” will be admitted to practice law in California. -31- b. “A lawyer must take an oath to supportthe Constitutions of the United States and California” Business and Professions Code section 6067 requires “[e]very person on his admission ... [to] ... take an oath to support the Constitution of the United States and the Constitution of the State of California.” In Raffaelli, this Court held that it was inconceivable that “aliens as a class are incapable of honestly subscribing to this oath.” (Raffaelli, supra, 7 Cal.3d at p. 297.) The attorney’s oath is a forward-looking obligation imposed on the individual at the time of his admission. There is no indication that Mr. Garcia’s prior undocumentedentries into the United States, both of which occurred when he was a minor,will taint his promise to prospectively uphold and support the laws. The oathis not givento “aliens as a class” but to attorneys as individuals, and Mr. Garcia as an individual will have to subscribe to it if he is admitted. There is no basis in the extant record to believe that Mr. Garcia as an individual will be unable to do so. Mr. Garcia has resided continuously in the United States since the age of 17; he is the son of a United States citizen; and he is the beneficiary of an approved visa application, which places him on track to achieve lawful permanent residency and ultimately gives him a clear pathwayto naturalization — all of which underscorehis affinity to this country and strong incentive to be law abiding. -32- Moreover, not every breach of the law or indication of a continuing offense prevents a person from taking the oath and faithfully discharging the duties of an attorney. In Hallinan v. Committee ofBar Examiners ofState Bar (1966) 65 Cal.2d 447 [55 Cal.Rptr. 228, 421 P.2d 76], the Court considered and approvedthe certification of an applicant with a lengthy history of civil disobedience violations. It did so even though the applicant suggested that lawyers are not always required to obey the laws and admitted that as an attorney he might well take part in future civil disobedience. (/d. at pp. 457-58.) In issuing the order of admission, this Court held that “every intentional violation of the law is not, ipso facto, grounds for excluding an individual from membership in the legal profession.” (Hallinan, supra, 65 Cal.2d at p. 469.) “The question is not whetherthe [applicant’s] conduct can be condoned. It cannot. The question is whether such conduct demonstrates that he does not presently possess the character to be entitled to practice law. We think that it does not.” (d. at p. 471.) Similarly, Mr. Garcia’s status in the United States, should not, ipso facto, be grounds for excluding him from law licensure. He has metall of the prescribed qualifications and there is no reason to believe he cannot take the oath and faithfully uphold his duties as an attorney. -33- Cc. “A lawyer must remain accessible to his clients and subject to the control of the bar” The Court noted in Raffaelli that the risk of deportation is easily outweighed by the possibility that a citizen lawyer could just as easily becomeunavailable. (Raffaelli, supra, 7 Cal.3d at p. 299.) “[T]he possibility that an alien lawyer might voluntarily return to his native landis not significantly different, in today’s highly mobile society, from the possibility that a citizen lawyer might voluntarily moveto a different Jurisdiction.” (U/bid.) The Court also pointed out that all lawyers may be involuntarily removed from practice “by death, by serious illness or accident, by disciplinary suspension or disbarment, or by conscription” and that “[i]n any of [these] circumstancesthe client will undergo the same inconvenience of having to obtain substitute counsel.” (/bid.) Indeed, both statistics and immigration policy demonstrate the unlikelihood of someone in Mr. Garcia’s position being deported. In 2011, for example, there were 319,077 removals by Immigration Customs and Enforcement (“ICE”). (ICE RemovalStatistics (FY 2011 data through Sep. 30, 2011) [as of June 6, 2012].) Of those, 54.6% were criminal offenders, 19.6% were repeat immigration violators, 11.6% were border removals, 4.7% were immigration fugitives, and 9.5% were “Other Removable Aliens” comprised of mis- 34. categorized criminals or aliens removed on national security groundsor for general immigration violations. (/bid.) Moreover,if the federal government did take the extraordinary step of instituting removal proceedings, Mr. Garcia, as a long-term resident of the United States, may beeligible forrelief from removal. (See generally Johnson et al., Understanding Immigration Law (LexisNexis 2009) pp. 320- 31 [summarizing various formsofrelief from removal available to noncitizens underthe U.S. immigration laws].)'’ He would also beentitled to a due process hearing in connection with any removal proceedings. (See 8 U.S.C. §§ 1229, 1230; Woodby v. I.N.S. (1966) 385 U.S. 276 [87 S.Ct. 483, 17 L.Ed.2d 362].) Arguably, this would give him sufficient time to make arrangements for the transfer ofhis clientfiles. As a safeguard, there are already mechanismsin place to deal with attorneys who becomesuddenly unavailable and “incapable of devoting the time and attention to ... protect the interest of a client matter.” (Bus. & Prof. Code, §§ 6180, 6190.) Under sections 6180 and 6190, a superior court '7 Suchrelief may include an adjustment of his immigration status under 8 U.S.C. § 155(i). Once his visa becomes available, he does not need to depart the United States and would avoid the 10-year bar that would have otherwise been triggered if he had to leave the country. (8 U.S.C. § 1182(a)(9)(B)G).) He mayalso beeligible for cancellation of removal. (See 8 U.S.C. § 1229b(b)(1) [providing for relief from removal for undocumented immigrant whohasresided in the United States continuously for 10 years].) -35- can issue an order of assumption ofjurisdiction over an attorney’s law practice and appoint another licensed attorney or the State Bar to handle the disposition ofclient files. This process provides additional assurances of client protection, and would be equally applicable in the rare instance of an attorney’s deportation. d. “The practice of law is a privilege, not a right” The “right-privilege” dichotomy is an “out-moded adage”that is not relevant to whether an applicant should be licensed. (Raffaelli, supra, 7 Cal.3d at pp. 299-300.) The factis, “the practice of law is not a matter of grace, but the right of one whois qualified by his learning and his moral character.” (/d. at p. 300.) “Regardless ofhow the State’s grant of permission to engage in this occupation is characterized, it is sufficient to say that a person cannot be prevented from practicing except for valid reasons. Certainly the practice of law is not a matter of the State’s grace.” (lbid., citing Schware v. Board ofBar Examiners (1957) 353 U.S. 232, 239 fn. 5 [77 S.Ct. 752, 1 L.Ed.2d 796].) Here, Mr. Garcia has metthe requisite criteria for admission to practice law in California. e. “A lawyeris an ‘officer of the court’ and therefore ‘should be a citizen’” There is no nexus between being an officer of the court and a citizen; this reasoning “cannotrationally be invokedto justify the wholesale exclusion of aliens from the bar.” (Raffaelli, supra, 7 Cal.3d at p. 301; -36- accord In re Griffiths, supra, 413 U.S. 717.) Although attorneys are often referred to as “officers of the court,” they are not “officers” within the ordinary meaning of that term. (/n re Griffiths, supra, 413 U.S.at p. 728.) As noted by the United States Supreme Court, lawyers are engaged in a private profession; while they “do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts ... they are notofficials of the government.” (Ud. at p. 729.) “[H]olding a license to practice law ... [does not] place one so close to the core ofthe political process as to make him a formulator of governmentpolicy” and require him to be a citizen to carry out the functions of being a lawyer. (Ibid.)"® '8 In LeClere v. Webb (Sth Cir. 2005) 419 F.3d 405, the Fifth Circuit upheld a Louisianabar rule prohibiting non-immigrantaliens (those here legally on a student, work,or visitor’s visa) from sitting for the bar examination. Applying an equal protection analysis, the Court limited the holdings of Raffaelli and Griffiths to citizens and permanentresident aliens, and reasoned that non-immigrant aliens constituted a separate class of aliens that could be precluded from attorney licensure pursuant to a rational basis test. That case is distinguishable, however,as here, there is no California bar rule prohibiting certain classes of aliens from taking the exam or becoming licensed, and in 2005 the California Legislature enacted Business and Professions Codesection 6060.6 specifically permitting non-immigrantaliens the ability to take the California Bar Examination. (Cf. Dingemans, supra, 568 A.2d 354 [Vermontallows non-immigrant aliens to take the Vermont Bar Examination].) -37- E. What, If Any, Other Public Policy Concerns Arise With A Grant Of This Application? Today, federal, state, and local governments and the courts continue to grapple with the modern day reality of undocumented immigration. In 1982, the Supreme Court in Plyler v. Doe (1982) 457 U.S. 202, 218-19 [102 S.Ct. 2382, 72 L.Ed.2d 786], in wordsthat ring true today, observed that: Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants — numbering in the millions — within our borders. This situation raises the specter of a permanent caste of undocumentedresident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality underlaw. An estimated 11 million undocumented immigrants live in the United States.” Because of the availability ofjobs in the United States, greatly increased border enforcement has had limited impacts on decreasing the undocumented population. (See Kevin R. Johnson & Bernard J. Trujillo, Immigration Law and the US Mexico Border(2011) pp. 220-21.) '9 See Jeffrey Passel & D’Vera Cohn, U.S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade (Sept. 2010), Pew Hispanic Center, . -38- Consequently, both Presidents Bush and Obamahavesupported reform of the U.S. immigration laws.”° As Congress has not passed comprehensive immigration reform, many state and local governments have stepped in to enact immigration enforcementlegislation. (See National Conference of State Legislatures, 2010 Immigration Related Bills and Resolutionsin the States (January- March 2010) p.1 [With federal immigration reform stalled in Congress, state legislatures continue to tackle immigration issues at an unprecedented rate.”’]; see, e.g., United States v. Arizona (9th Cir. 2011) 641 F.3d 339,cert. granted (2011) 132 S.Ct. 845.) The question facing the courts andstate legislatures is how to reasonably, fairly, and legally respondto the existence of the substantial undocumented population in the United States. The answersare not always easy. Despite what someactivists from both sides of *° See President George W. Bush,President Bush Proposes a New Temporary Worker Program (Jan. 7, 2004), [proposing temporary worker program and observing that undocumented immigrants whoseek only to earn a living end up in the shadowsof Americanlife — fearful, often abused and exploited]; see also Lee, President Obama on Fixing Our Broken Immigration System: “E Pluribus, Unum,” (May 10, 2011) White House Blog, [calling for reform of “broken” immigration system and advocating for passage of the DREAM Act because “we should stop punishing innocent young people for the actions oftheir parents”]. -39. the political spectrum often contend, the complex legal and policy questions are not subject to simple policy solutions. 1. Current Policy Supports Inclusion, Rather Than Exclusion Forat least a generation, the United States Supreme Court has addressed the questions surrounding the constitutional treatment of undocumented immigrants brought into this country by their parents. The current state of the law and underlying policy in California supports inclusion, rather than exclusion, of this population. In Plyler, the Supreme Court struck down as unconstitutional a Texas law that effectively barred undocumented students from receiving an elementary and secondary school public education. In so holding, the Court recognized that: The children whoare plaintiffs in these cases are special members of [an alien] underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same forceto classifications imposing disabilities on the minor children of suchillegal entrants.... Even ifthe State foundit expedient to control the conduct ofadults by acting against their children, legislation directing the onus ofa parent's misconduct against his children does not comport with fundamental conceptions ofjustice. (Plyler, supra, 457 U.S.pp. at 219-20 [Emphasis added].)"' “| See generally, Michael A. Olivas, No Undocumented Child Left Behind (2012) [analyzing legal developments concerning access to public education by undocumentedstudents]; Maria Pabon Lopez & Gerardo R. (Cont’d on nextpage) -40- Based onthat reasoning, the Court held that the Texas law could not deny undocumented children a public education and imposea: [!]ifetime hardship on a discrete class of children not accountable for their disabling status. The stigmaofilliteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them theability to live within the structure of our civic institutions, and foreclose anyrealistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of [the Texas law], we may appropriately take into accountits costs to the Nation and to the innocent children whoareits victims. (Plyler, supra, 457 U.S. at pp. 223-24.) The Supreme Court’s decision in Plyler did not involve access to post-secondary education. The federal governmenthasleft it to the states to determine whether undocumented studentsare eligible to enroll in public colleges and universities.” The California Legislature and this Court have addressed someofthe challenges facing undocumented students who (Cont’dfrom previous page) 22 L6pez, Persistent Inequality: Contemporary Realities and the Education of Undocumented Latina/o Students (2010) [to the same effect]. The United States Department of Homeland Security (“DHS”) does not require any school to determine a student’s immigration status and has stated that DHS does not require any school to request immigration status or to report to the governmentifthey know of a studentis out of status, except in the case of those who came onstudentvisas or for exchange purposes andare registered with the Student Exchange and Visitor Program. (United States Department of HomelandSecurity, Immigration and Customs Enforcement, Letter sent to Jim Hackenberg, (May 9, 2008) .) -4|- matriculate from California high schools. (See Ed. Code, § 68120.5, upheld in Martinez, supra, 50 Cal. 4th 1277, cert. den. (2011)131 S. Ct. 2961 [rejecting claim that allowing undocumentedstudents eligibility for in-state fees at California colleges and universities violated federal law].) Last year, the California Legislature passed the California DREAM Actthat allows certain children who were brought into the United States under the age of 16 without proper immigration documentation to apply for student financial aid. (See Ed. Code, § 66021.7; see also A.B. 130, Cal. Legis. 2011 and A.B. 131, Cal. Legis. 2011.) Congress, for the last decade, has been debating various versions of the DREAM (Development, Relief, and Education for Alien Minors) Act, which, generally speaking, would allow for the regularization of the immigration status of undocumented college students and facilitate their access to public university educations. (See Michael A. Olivas, The Political Economy ofthe DREAMAct andthe Legislative Process: A Case Study ofComprehensive Immigration Reform (2009) 55 WayneL.Rev. 1757.) Undocumented students through the DREAM Act seek to be placed on the same footing as other similarly-situated residents of the state with respect to access to public colleges and universities. They specifically strive to pay the same entrance fees charged other residents of the state, and to be eligible for financial assistance programs for which otherstate residents are eligible. -42- Developing federal executive policy echoes and extendsthis sentiment. On June 15, 2012, the Secretary of the Department of Homeland Security released a memorandum on “Exercising Prosecutorial Discretion with Respect to Individuals Who Cameto the United States as Children” (see ), which will ensure that the United States governmentwill not institute removal proceedings against eligible undocumented students and will allow them to apply for work permits. TIME Magazine’s June 25, 2012 coverstory, highlights the challenges of undocumented students, who in most respects are fully assimilated into American society. (See Vargas, Not Legal Not Leaving (June 25, 2012; TIME Magazine U.S. .) The Committee’s recommendation to license Mr. Garcia builds logically on these evolving efforts to allow access to educational opportunities for undocumented students. The State of California, which has expressed a desire to invest in the education of undocumentedstudents, should be able to benefit from the contributions of these individuals as professionals, both economically and otherwise. -43- 2. No Policy Implications Outweigh the Committee’s Finding that Mr. Garcia, if Licensed, Can Competently Represent Clients Because He Has Met the Minimum Qualifications to Practice Law Mr. Garcia has demonstrated to the satisfaction of the Committee that he has metthe legal and regulatory requirements for licensing. As discussed above, there are no apparentlimitations because of his immigration status on his ability to zealously represent hisclients to the best of his abilities. From a consumerprotection standpoint, Mr. Garcia will be subject to the same legal and ethical obligations that are expected and demandedofall licensed attorneys. Issuing a license to Mr. Garcia is consistent with all applicable laws and regulations and does not encouragea violation of the law. Indeed, if he did violate the law in some way, he would be subject to possible discipline by the State Bar and face the possible loss of his license to practice law. As outlined above, nothing in licensing suggests impliedly or expressly that Mr. Garcia can be employed as an attorney. If licensed to practice law by the California Supreme Court, Mr. Garcia will need to comply with all employment provisions of the immigration laws with respect to his representation of clients. As we have noted earlier, however, he can engagein the practice of law as an independent contractor or provide pro bonoservices without violating IRCA. -44. The issues involved in this case and the issues surroundingthe legal status ofpersons broughtinto this country by their parents without proper authorization raise questions that are the subject of considerable contemporary public attention and discourse. Consequently, this Court has selected an appropriate time for briefing and consideration of the important question of the licensing of Mr. Garcia. /// /// /// -45- IV. CONCLUSION For all the foregoing reasons, the Committee respectfully requests that its pending motion for the admission of Sergio C. Garciato the practice of law in California be granted. DATED: June 18, 2012 Respectfully submitted, OFFICE OF GENERAL COUNSEL THE STATE BAR OF CALIFORNIA GIBSON, DUNN & CRUTCHER LLP MINAMI TAMAKI LLP ny. Obe Pode cock Starr Babcock Attorneys for THE COMMITTEE OF BAR EXAMINERSOF THE STATE BAR OF CALIFORNIA Of Counsel to Minami Tamaki LLP: Kevin R. Johnson Dean and Professor ofLaw Bill Ong Hing Professor of Law Bryan Springmeyer -46- CERTIFICATION OF WORD COUNT Pursuant to Rule 8.204(c)(1), California Rules of Court, the undersigned herebycertifies that this OPENING BRIEF OF THE COMMITTEE OF BAR EXAMINERSOF THE STATE BAR OF CALIFORNIA RE: MOTION FOR ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIAcontains 10,797 words, excluding the tables andthis certificate, according to the word count generated by the computer program used to producethis document. Sb “Raby eae Starr Babcock, Esq. Dated: June 18, 2012 -47- CERTIFICATE OF SERVICE I, Joan Sundt, declare as follows: I am employed in the County of San Francisco, State of California; I am overthe age of eighteen years and am not a party to this action; my business address is 180 HowardStreet, San Francisco, California 94105-1639, in said County and State. On June 18, 2012, I served the following document(s): OPENING BRIEF OF THE COMMITTEE OF BAR EXAMINERS OF THE STATE BAR OF CALIFORNIA RE: MOTION FOR ADMISSION OF SERGIO C. GARCIA TO THE STATE BAR OF CALIFORNIA on the parties listed below, by placing a true copy thereof in an envelope addressed as shown below bythe following meansofservice: Jerome Fishkin Attorneys for Sergio Garcia FISHKIN & SLATTER LLP Telephone: (925) 944-5600 1575 Treat Blvd., Suite 215 pee : (925) 944-5432Walnut Creek, CA 94598 Facsimile: (925) 944-54 BY MAIL:I placed a true copy in a sealed envelope addressed as indicated above, on the above-mentioned date. I am familiar with the firm's practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one dayafter date of deposit for mailing in affidavit. I am employed in the Office of General Counsel for the State Bar of California, and the foregoing document(s) was(were) printed on recycled paper. (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. Executed on June 18, 2012.