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

California High Court Will Decide Sergio Garcia's fate.


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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

"Do Le Andadora" by Kabyzdoh Obtruhamchi

"Coloured Glass" by junior85

"5 dan b4g, in C" by junior85

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