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January 27, 2014

The Broader Lesson from Garcia's Fight to Practice

by Dean Kevin R. Johnson
Republished from The National Law Journal.

On Feb. 1, an undocumented lawyer will be sworn-in to the California State Bar. The move comes almost one month after the California Supreme Court held that undocumented immigrants were not automatically disqualified from being licensed as attorneys in the Golden State. Under the ruling, Sergio Garcia, the undocumented immigrant at the center of the controversy, can be admitted to the state bar.

Garcia-like many others in the country-was brought to the United States as a child, and remained undocumented through no fault of his own. He grew up in Northern California, graduated from college and law school, passed the notoriously difficult California bar exam on the first try, and satisfied the Committee of Bar Examiners of his good moral character.

Besides the important ruling that allows for the admission of Garcia to the bar, the case reveals the daunting real-world challenges facing undocumented immigrants who were raised and educated in this country, and are undeniably American in all respects except for their immigration status. This is not the first time (or the last) that the courts have faced such issues.  In 1982, the U.S. Supreme Court in Plyler v. Doe invalidated a Texas law that effectively prohibited undocumented children from attending public elementary and secondary schools. More generally, state legislatures in recent years have sought to better integrate undocumented immigrants into civil society by, among other things, extending driver's license eligibility and nonresident tuition and fees for public colleges and universities.

For many years, Congress has considered versions of the DREAM Act (an acronym for Development, Relief, and Education for Alien Minors), which, among other things, would create a path to legalization for undocumented youth. Ultimately, DREAMers convinced the Obama administration in 2012 to provide stop-gap, temporary relief through the Deferred Action to Childhood Arrivals program-one of the positive immigration achievements of the Obama administration. Congress, however, should act on a broader scale to allow the DREAMers to be full Americans.

Deficiencies in the Law

Moreover, Sergio Garcia's case demonstrates serious deficiencies in the U.S. immigrant visa system that require reform. Decades ago, Garcia became eligible for an immigrant visa sponsored by his parents, who had become lawful permanent residents. Garcia submitted the paperwork to apply for a visa in 1994. Now, nearly 20 years later, he is still waiting for a visa. Current U.S. immigration law is the cause of the delay. The law imposes a limit-known as the per-country ceiling-on the number of immigrant visas issued to nationals from any single country per year. The ceiling makes the line for a visa decades-long for prospective immigrants in certain visa categories from Mexico, Garcia's native country, as well as India and the Philippines.

The per-country ceilings have contributed to the growth in the undocumented immigrant population in the United States, especially from Mexico, the nation with the highest demand for immigration to the United States. Many immigrants feel that delays of as long as 20 years for lawful immigration to rejoin parents and other family members are unrealistic, and they choose the unauthorized route. To limit the incentives for undocumented immigration, Congress needs to consider something more flexible than the per-country ceilings and ensure that the law allows for the admission of immigrants in numbers that are more closely aligned to immigration demand.

In addition, many low- and medium-skilled noncitizens who seek to work in this country are ineligible for any visa under current U.S. immigration law and, thus, don't even have a "line" to wait in. The law offers few avenues for legal migration of these workers, and is another flaw in the immigration laws that warrants congressional attention. The end result of the current immigration system is that roughly 11 million undocumented immigrants today live in the United States. About 60 percent of those immigrants are from Mexico.

As President George W. Bush said in a 2006 speech, undocumented immigrants "live in the shadows of our society . . . yet we must remember that the vast majority . . . are decent people who work hard, support their families, practice their faith, and lead responsible lives." Congress needs to address the status of those who live in the shadows-those like Sergio Garcia.

Despite the California Supreme Court ruling allowing him to practice law, Garcia's options as a licensed lawyer appear to be limited because of his uncertain immigration status. For example, the Obama administration had effectively claimed that the law prohibits an undocumented attorney from being employed by a law firm or a corporation. In the end, the court's decision still does not allow this high-achieving Sergio Garcias of the world to become fully integrated into American society.

Ultimately, the Garcia case illustrates precisely why Congress should enact immigration reform. The nation needs to address the situation of the DREAMers - undocumented youth of good character who want to live the American Dream and sorely deserve a path to legalization. The same is true for many of the millions of undocumented immigrants living in the shadows of our America. To avoid the growth of a future undocumented population, Congress should increase the limited number of immigrant visas and eliminate decades of backlogged visa applications so that law-abiding noncitizens can lawfully come to the United States.

Kevin R. Johnson is dean of the University of California, Davis, School of Law and was one of the attorneys on the briefs for the State Bar of California in the Sergio Garcia case.