Multi-American | How immigrants are redefining 'American' in Southern California

A lawyer without a green card? California justices weigh a landmark case

The California Supreme Court will hear arguments in the case of an undocumented immigrant who passed the State Bar and has requested a license to practice law.
The California Supreme Court will hear arguments in the case of an undocumented immigrant who passed the State Bar and has requested a license to practice law.
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On Wednesday, the California Supreme Court will hear oral arguments in the case of Sergio Garcia, a law school graduate from the Chico area who is in the United States illegally.

If he is allowed to practice law, it would set a precedent that will be closely watched by other states, including Florida and New York, where law school graduates who are in the U.S. without papers have so far been denied the ability to practice.

Garcia, who is 36, passed the state bar exam and was recommended for a California law license in 2011. But while it would have been a rubber-stamp decision in most cases, the California Supreme Court raised questions over his legal status. Since then, the federal government and others have filed briefs in opposition. A long list of others, including State Attorney General Kamala Harris, have filed briefs in favor of Garcia being allowed to practice law.

Garcia's case is especially interesting because if the line for legal immigration moved faster, his admission would be a non-issue: He was born in Mexico, originally arriving as a toddler with his parents, and grew up travelling between Mexico and the U.S., where he finished high school. In 1994, his father, a naturalized U.S. citizen, sponsored him for a green card. He's still waiting.

"I'm the son of a U.S. citizen and I still don't have a green card, which is one of the Department of Justice's arguments, that I don't have a green card so I can't have a law license," Garcia said in a phone interview. "But they always fail to mention that the reason why I don’t have a green card is because it's taken them 19 years to process one."

By Garcia's calculations, his green card might not arrive until 2019. 

But the rule of law is the rule of law, says Larry DeSha, a former State Bar prosecutor who has filed a brief opposing a law license for Garcia.

DeSha says that among other problems, because Garcia is in the U.S. illegally, the oath he must take as an attorney under California statute to uphold state and federal laws presents a conflict. Then there's the fact that federal law bars the employment of unauthorized immigrants.

"Clients cannot pay an illegal under federal law," DeSha says.

This is also part of the federal government's argument against Garcia practicing law, along with the argument that obtaining a state law license constitutes a public benefit and that unauthorized immigrants are ineligible for these.

But while Garcia cannot work as the employee of a law firm, he could practice on his own, argues his attorney, Jerome Fishkin.

Fishkin said that while employers can't get around the law by calling unauthorized immigrant workers independent contractors, Garcia can legally employ himself.

"The laws regulating immigration do not prohibit even the undocumented immigrants from being self-employed," Fishkin said, "and therefore the State Bar can admit him to practice law, and there are legal ways for Sergio Garcia to make a living."

Garcia says he's wanted to practice law ever since he was a boy. He's stuck with it, through years of working odd jobs as he studied to become a paralegal, then putting himself through Cal Northern School of Law, a small Chico law school where he took evening classes.

"I had this idea in my head that I'm eventually going to become an attorney, and that idea remains there," Garcia said. "Even with all these obstacles, I still believe that eventually I will be an attorney."

But while people have asked, Garcia isn't planning to practice immigration law if he obtains a license. He wants to work as a civil litigator - in his own practice.