Can an Undocumented Immigrant Become a U.S. Lawyer?

California High Court Will Decide Sergio Garcia's fate.

Sergio Garcia, 35, has wanted to become an attorney since he was 10 years old.

In 2009, his dream was about to become a reality. The longtime California resident had graduated from law school, passed the state bar, and received the approval of the State Bar Board of Examiners.

There was just one problem: Garcia didn't have documentation to work legally in the United States.

Born in Mexico, he was brought to the United States by his family when he was a little more than a year old. He lived in California until he was nine years old, then went back to Mexico before returning to the Golden State to finish high school and attend college and law school. His father says he applied for a green card for his son 18 years ago, but the application is still pending.

Once the California Supreme Court, which has to sign off on all new bar members, found out about Garcia's status, it stopped short of letting him practice law. The court asked the Obama Justice Department to weigh in on the case instead; Justice said Garcia should not receive a license, reasoning that an illegal alien - albeit one who has spent decades in the U.S. - doesn’t have the right to work in the Land of the Free.

“Independently of my status, I have to fulfill my dreams. I have to believe that all the work I’ve put into it is not going to be in vain,” says Garcia. “The knowledge you gain [...] is not dependent on a piece of paper.”

“The fact that we can give a license to practice law to someone who cannot lawfully practice law under federal law is a bit bizarre,” says John Eastman, former dean of Chapman University Law School. Eastman says that federal law stipulates that states cannot provide benefits to people that are illegally in the country. Benefits, argues Eastman, include professional licenses. “He’s here unlawfully. He’s not gone back to his home country and sought to apply like everyone else who waited in line in his home country. He’s trying to short-circuit the process and jump in front of the line."

“There’s no real line for people to stand in,” counters UCLA Law's Hiroshi Motomura. “[Garcia] is qualified but the problem is that he is from Mexico and you have to wait longer if you are from Mexico.” Figures from the State Department show that there are more Mexicans on the wait list for work and family visas than any other country. Motomura, the author of Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States, points out that the U.S. has developed a system over the last century that relies on undocumented labor. “We’ve allowed...11, 12 million people in the country outside the law," he says. Regardless of the laws on the books, he says, "the system, the economy and government policies invited them to be here.”

Eastman says that tolerating undocumented immigrants drains state resources for services such as emergency health care and K-12 education that should be reserved for legal residents. Yet Motomura notes that these immigrants routinely pay payroll and income taxes that they will never be able to access via Social Security and other programs. While the Social Security Administration doesn’t keep track of taxes paid by undocumented immigrants, they do keep track of W-2 tax forms that don’t match up with names or numbers in their system. These "earnings suspense files" are widely understood to be a proxy for undocumented immigrants who provide fake Social Security numbers to employers. The Social Security Administration told Reason TV that the earnings suspense file collected $28.6 billion in uncredited taxes from 2008 to 2010. Even economists critical of immigration concede that when all the costs and benefits of legal and illegal immigration are factored, immigrants add billions more to economy every year than they possibly take out. (For more on immigration, read Reason's "Reality-Based Guide to Immigration Reform" and our topic page here).

Garcia's case will be heard and decided by California's Supreme Court in early 2013. As he waits for his day in court - as a plaintiff, not as a lawyer - he will doubtless be thinking about the current treatment of undocumented immigrants in the U.S. Over the past four years, the Obama administration has deported 1.4 million undocumented immigrants, a rate that is 1.5 times faster than his predecessor, President George W. Bush.

While President Obama has enacted a temporary program for to defer deportation of some young undocumented immigrants, Garcia is too old for the program.

Written and produced by Paul Detrick. Shot by Detrick, Tracy Oppenheimer, Zach Weissmuller and Mark Wagner.

Music by Audionautix.com and the following:

"Calling (Instrumental)" by Dexter Britain

"Cigarettes" by Dyman

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  • R C Dean||

    I think the headline you were looking for is "Can an Illegal Immigrant become a U.S. Lawyer?"

    Enough with the twee euphemisms, already.

  • American||

    Even refering to them as "immigrants," rather than "aliens," is generous.

  • Unindicted Co-conspirator||

    As someone who has gone through the California bar admissions rigamarole, I am seriously conflicted about this.

    Part of state bar admissions is what's called a moral character and fitness declaration. You're basically required to disclose your entire personal background, whether you've had any personal bankruptcies or criminal or civil judgments against you, whether you've been involved in litigation, whether you've ever been committed (voluntarily or involuntarily) to a psychiatric health facility, et cetera et cetera. The bar then performs through background checking to verify that you're telling the truth, and while the bar will overlook some truly minor stuff, they're not overly charitable. For instance, I know of a guy who failed his MC&F on the basis of having too many unpaid parking tickets, which supposedly evidenced a disrespect for the law. That's the level of crap that's disqualifying.

    I take a backseat to nobody in my loathing of current immigration law, but it is the law, and Mr. Garcia is here unlawfully. His continued presence in the country is a felony. That ought to change, but until it does the state bar should treat Mr. Garcia's felonious conduct at least as seriously as it does unpaid parking tickets.

  • ||

    So anyone who believes this is ineligible for the bar?

    One may want to ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all"

    Perhaps if the parking ticket scofflaw made a moral argument for why he didn't pay his parking tickets, he would have passed. Of course, it's a lot easier -- trivial, in fact -- to make a moral argument against current immigration law!

  • Unindicted Co-conspirator||

    You're not going to fail your MC&F because of your beliefs. You're going to fail your MC&F because of what you've done.

    Also, importantly, while you may have a moral obligation to challenge unjust laws, as an attorney you have a professional obligation to do so in an appropriate manner. Civil disobedience is fine if you're a minister; it's less so for an officer of the court.

  • Sarah Conner||

    Fake morality though isn't it? It's just a purity test to keep non-bootlickers out really.

  • Ronulanus||

    To be honest, I really don't care too much about illegal aliens coming into America, especially if they're just looking for a better life. It's when they come here, specifically, to exploit the Welfare State at the expense of hard-working American citizens - and politicians openly encourage them to - which infuriates me.

    A genuine libertarian solution would be to let the states handle it on their own and shut off the federal benefit faucet for illegals. Just my take, though.

  • Gene||

    Sergio Garcia's fate?
    Easy one, to never win a major.

  • dinkster||

    "He’s here unlawfully."

    I thought it was illegally.

  • American||

    Can someone who has spent his whole life violating the law, practice law in our country? Even immigration enthusiasts have to concede that it sounds pretty bad. As for illegal immigrants "paying more in taxes then they take out," it's a lie, plain and simple. Just think about it. It costs, on average 9,000 dollars to educate a child in the public schools. Do reasonites realy believe that the average illegal, with MORE than one child, pays over 9,000$ a year? That's not even counting our police, prison system, welfare for anchor babies, ect, ect.

  • XM||

    The nation (or most of the states at least) is legally required to provide education to illegal students.

    I'm not convinced that massive illegal immigration will be great for the country. But if illegal aliens do harm the nation, a lot has to do with they way it spends, and how it coddles low income group (which include legal citizens).

    As for Mr. Garcia, I wish him well, but it seems to me anyone who's in a position of upholding the law has to be a legal citizen. What's the opposing counsel going to say, if he's has to defend / prosecute an illegal alien?

  • ||

    Do reasonites realy believe that the average illegal person, with MORE than one child, pays over 9,000$ a year?

    Fixed.

  • d||

    Yes, but illegals are more of a drag on the welfare system, because they make less money -- hence, they pay less in total taxes (and do NOT pay income taxes, despite what was said in the video) -- and they have many more children than the average poor or lower middle-class citizen.

  • uythsb||

    Merry Christmas which it is nice day

  • Nicholas Sarwark||

    Could that Eastman guy have possibly been any more smug or glib? And what a complete non sequitur of talking about welfare benefits for undocumented immigrants in the context of a story about a guy who put himself through law school. Wonder if he has an agenda?

    Mr. Garcia's violation of the law is that he was brought to this country as an infant and didn't leave his entire family to go back to a country he never knew. You can call that a crime if you'd like, but it cheapens the concept of crime.

  • James A||

    Lets put out a little more information. He is 35 years old making him born in 1977. He came to the US via his parents (illeglly) when he was a few months old and lived here until 1986. In 1986 Ronald Reagan signed the Immigration Reform and Control Act, which legalized close to 3 million undocumented immigrants. Why did he return to Mexico? This guy returned to Mexico, went to high school down there and then returned to the US illegally, to finish high school and go to our universities. Yea it might suck for him but he can be a lawyer in Mexico just like he can be in the US.

  • James A||

    In 1986 I voted for the Simpson-Mazzoli immigration bill because we were told it would solve the problem of massive illegal immigration. In his diaries, President Ronald Reagan said he was going to sign the bill because we had to regain control of our borders. The Simpson-Mazzoli bill contained three promises:

    1. The government would make a concerted effort to control the borders.
    2. An effective employer verification program would ensure that only legal workers were hired.
    3. One-time amnesty would be granted for people illegally in the United States.

    All three promises were broken. The government has made no serious effort to control our borders. Employers continue knowingly to hire illegal immigrants without any real fear of punishment.

  • hacimo||

    Slaves also "added more to the economy than they took out". This fact is irrelevant, anyone who spends money and consumes will add to the economy in a certain sense. Even a criminal who steals for a living "adds to the economy" when he spends his loot. This whole line of argument about "net economic gain" is nothing but double talk designed to confuse people who don't understand the technical jargon. In plain English however, illegal aliens add to the labor supply and compete against unskilled native Americans workers for jobs. The net effect is to increase the unemployment rolls and to cause wage stagnation even for Americas who remain employed. That is just the grim reality of supply and demand and no economist worth his salt will deny it. The reason we have a net economic gain from illegal immigration comes about because lower labor costs and increased labor supply are very good for the businesses that employ unskilled workers. Hence the chamber of commerce lobby is always opposed to anything that decreases the inflow of illegal immigrants. The bottom line is that people at the top of the economy generally benefit from illegal immigration and people at the bottom are generally hurt. An exception is the illegal immigrants themselves (and their families). They are at the bottom but are presumably better off than they would be if they stayed home.

  • hacimo||

    Continuing the last post
    One also has to consider the issue of taxes and whether the government budget is being helped or hurt by illegal immigration. Generally the answer to this question is and emphatic NO! Our system of taxation is highly progressive and our welfare state is designed to insure that low income workers gain a lot more from the government than they pay in. Since illegal aliens are mainly in the low income category this means, other things being equal, they will tend to get more then they give. It is true that they may miss out on some government benefits like social security because they can't register, but it is also true that they avoid many taxes because they usually get paid in cash. The average effect is a drag on the treasury similar to the deficit of supporting a low income american. Importantly, in making this conclusion we have neglected the indirect consequences of the fact that illegal immigration tends to increase unemployment and poverty among working class native Americans. This costs the government money and it decreases tax receipts (especially during a recession). If we were to apply this indirect cost to the account the illegal immigrants, then the negative effect of their arrival would far outstrip any other consideration.

  • thiagodaluz7@gmail.com||

    That's pretty sad. Here's hoping his dream gets realized. I seem to be under the impression that a couple of the family lawyers in Surrey BC that I know are undocumented from Central America, but I can't say I know for sure.

  • Mark22||

    I think immigration should be much more open and easy than it is now.

    At the same time, I also think if we have laws on the books, even bad laws, they should get enforced, because the only way bad laws are removed from the books is if people see them do damage.

    If bad laws are dealt with by selective enforcement, justice and law becomes arbitrary and unpredictable, and that is even worse than having a bad law consistently applied.

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