Should Undocumented Immigrants Be Allowed to Practice Law?

The rite of passage to become an attorney draws to a conclusion when the law school graduate passes the bar in his or her respective jurisdiction(s). At this point, the applicant’s bar application is reviewed to ensure that the character and fitness of the applicant is suitable for admission to the bar. To assist in this process, an applicant is required to disclose any civil or criminal violations that have occurred in his or her past, and any other activities or situations that could be considered a "character issue." We’ve all seen and heard stories of the applicants who are denied acceptance to the bar because of prior conduct that reflects poorly on the character of the applicant. Fraudulent behavior, criminal violations or a failure to disclose a violation to the bar examiners are all examples of typical conduct that prevents admittance to the bar. But what if, after years of exemplary behavior and after achieving high levels of academic success, an applicant is denied admission to the bar through no conduct of his or her own? These are the facts before several state supreme courts with respect to law school graduates and bar applicants who are undocumented immigrants. While each of these cases, like any bar applicant before a supreme court, is very fact-dependent, we will use Sergio Garcia’s case in part to analyze this issue.

The California Supreme Court is one such court wrestling with this set of facts. Garcia, according to the briefs submitted to the court, was brought into the United States by his parents from Mexico when he was an infant and most recently when he was 17 years old, each time without inspection. His father, who is now a U.S. citizen, filed a family petition for his son in 1994 and the petition was approved in 1995. Garcia, however, being an adult son of a U.S. citizen (and thus no longer in the more favorable category of "[minor] child of a U.S. citizen") is now on a long list of individuals who are waiting for their priority dates to become current, at which point Garcia will be able to apply to adjust to legal permanent resident status, a process that in some cases can take decades to complete. Garcia has worked in various positions and paid taxes, worked his way through Cal Northern School of Law, graduated at the top of his class, and passed the California bar exam. The Committee of Bar Examiners in California submitted Garcia’s name, on motion, as an applicant certified for attorney licensure to the California Supreme Court. The motion included Garcia’s immigration status. The Supreme Court issued an order to show cause to the committee as to why its pending motion should be granted and requested that the committee answer several questions and also invited amicus curiae participation.