Mexican-born Sergio Garcia visits a nut grove in Durham, Calif., where… (Don Bartletti, Los Angeles…)
An undocumented immigrant should be licensed to practice law even though his ability to work will be restricted, the state bar told the California Supreme Court on Monday.
The agency said Sergio C. Garcia, 35, had met all the requirements to become a lawyer and could work without pay or as an independent contractor if licensed. The granting of a law license does not confer a right to employment, the State Bar of California argued, and Garcia would be expected to act legally.
"While a license to practice law is necessary to obtain employment as an attorney, having a law license does not mean that the holder may be employed," attorneys for the bar said in a written filing.
The argument came in response to a request from the state high court, which is examining whether Garcia's undocumented status should prevent him from becoming licensed. The case is expected to attract a flurry of briefs from immigration rights activists because it will set a precedent.
Garcia came from Mexico as a toddler, returned to his homeland with his family when he was about 9 and reentered the country illegally with family members when he was 17.
He attended law school at Cal Northern School of Law and passed the bar examination on his first try. His father, who has obtained American citizenship, sponsored Garcia for a green card 18 years ago, but the application is still pending.
Bar officials, defending their recommendation, reminded the court that people who attend law school in California on a student or visitor visa have been admitted to practice law in the state.
"After receiving their law licenses, they may return home to their countries of origin, they may remain here and attempt to adjust their status, or they may seek lawful permanent residence," the bar said. "However, the grant of a law license provides no guarantee of a pathway to lawful employment in the United States for these individuals."
The bar also noted that the California Legislature appeared to favor granting law licenses to undocumented immigrants. The Legislature in 2005 passed a law permitting law school graduates who are ineligible for a Social Security number to provide alternative forms of identification when applying for a license.
Employers, who could be sanctioned for hiring an undocumented worker, should not misinterpret a law license as proof of legal residency, the filing said.
"No reasonable employer would assume that the issuance of a law license to an individual relieves them of their obligation to verify employment eligibility," the bar said.
An undocumented immigrant "can engage in an independent contractor relationship or perform pro bono services" and licensing such a person would be "consistent with all applicable laws and regulations" and would not encourage violation of the law, the bar said.
Two immigration lawyers, asked Monday about the legality of such a person working as an independent contractor, expressed different views.
Thomas Langford, a Northern California immigration lawyer, said such work by an undocumented immigrant would be "unauthorized employment" and "a violation of his status."
But Helen Sklar, a Los Angeles immigration lawyer, said it was "not illegal for an undocumented worker to accept payment for services" and observed that "a person is not deportable for working without authorization."
The state Supreme Court has not decided whether to hold a hearing on Garcia's case before issuing a ruling.
Garcia has said he would like to do litigation and personal injury law. While awaiting a decision from the court, he is working with his father in Northern California as a beekeeper.