Bar Exams, California, Immigration

This Guy Might Not Get Admitted To The Bar Over Something He Did When He Was 17 Months Old

Sergio Garcia (not the racist golfer) has lived in California most of his life. He worked his way through law school and then took and passed the California bar exam on the first try.

Yesterday, the California Supreme Court heard argument on whether Garcia could be admitted to practice law.

Sergio Garcia was brought to the United States when he was 17 months old. The California justices must decide whether an undocumented immigrant can be admitted. The State of California says yes. The Obama Administration says no.

The news coverage of the case implies that California has the equities on its side while the Obama Administration has the law.

It’s a tidy narrative for a story, but the media hasn’t really focused on the briefs, because when you actually unpack the statute the administration cites, it requires tortured mental gymnastics to support rejecting Garcia’s application….

You may remember the broad outline of this case from our prior coverage. Basically, Garcia came here at 17 months, was taken back to Mexico at 9, and returned at 17 years old and applied for citizenship, sponsored by his father who had since become an American citizen. His application for citizenship was filed in 1994. In the intervening 19 years, Garcia has worked hard and managed to finance himself through Cal Northern School of Law. From a school with a 45 percent bar passage rate at last report, Garcia’s passing on the first try defied the odds.

So we have a guy brought here illegally as a child, with no criminal record, who demonstrates a drive for personal achievement. Seems like the model DREAM Act case. Except he’s too old for the program.

The Department of Justice argues in an amicus brief that the Personal Responsibility and Work Opportunity Reconciliation Act, passed in 1996, precludes undocumented aliens from receiving commercial and professional licenses issued by states and the federal government. So whether or not it aligns with the administration objectives outlined in the DREAM Act, Obama is bound by the law to oppose Garcia’s admission. It’s odd, because of all the legislative commands of Congress in 1996, it seems as though Congress might have cared a little bit more about that other law that Obama told the DOJ to stop enforcing.

Specifically, the DOJ argues that the 8 U.S.C. § 1621(c)(2) bars states from providing a variety of benefits, including certain licenses, to undocumented persons unless the state passes a statute specifically authorizing the benefits. To quote the DOJ brief:

Therefore, Mr. Garcia seeks a “professional license… provided… by appropriated funds of a State or local government.” 8 U.S.C. § 1621(c)(2).

Important life lesson: If an adversary inserts an ellipsis into a direct quote of a statute or contract, they’re probably trying to deceive. If an adversary inserts two ellipses into a direct quote of a statute or contract, they’re definitely trying to deceive.

The relevant text of 8 U.S.C. § 1621(c)(2) is the entirety of subsection (a):

any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government

The DOJ fixates on the “appropriated funds” argument because it concedes that the California judiciary, the issuer of law licenses, does not constitute an agency under prevailing law. It then argues that, while the courts are not an agency, the courts are funded by state funds and therefore everything they do, including granting licenses, is therefore “provided… by appropriated funds.”

But placing the “professional license” language in context shows how dumb that argument is. Plain English doesn’t support the idea that licenses are “provided… by appropriated funds.” The license is not provided by funds. The entity issuing the license may be provided funds, but the license itself has nothing to do with funds. The indirect leap is just not supported on the face of the sentence.

Meanwhile, a “grant, contract, loan” could easily be “provided… by appropriated funds.” The “appropriated funds” language is a catch-all to prevent third parties like an independent contractor from handing out state money through grants, contracts, or loans. The drafting is a sloppy combination of what was intended to be a bar on agencies handing out money or licenses and a catch-all that was intended to prevent private contractors funded by state money from hiring undocumented immigrants.

For all the textualists out there, this is probably how the drafting happened:

Staffer A: So I just combined those two provisions to save time.

Staffer B: But they don’t really overlap entirely.

Staffer A: Who cares? No one is going to read that much into it. Besides, it’s Ladies’ Night at [insert douchebag D.C. bar here], so let’s pop our collars and go talk about how impressive our bottom-rung Hill job is as though that’s a pickup line!

Staffer B: Awesome, bro!

Indeed, if the DOJ reading is correct, the entire language about “agencies” becomes redundant because agencies per se receive appropriated funds. It can be excised from the statute with no effect if the DOJ is right. That’s a red flag.

But at oral argument, most observers saw the California Supreme Court leaning the other way:

Justice Goodwin Liu said it was “commonsensical” that Congress meant to include lawyer licenses in the law.

The five other justices on the court made similar comments, essentially arguing that the law bars them from making Garcia a lawyer unless the state Legislature acts.

And that’s probably true. The Contract With America Congress probably did hope to include law licenses. But waterboarding the plain meaning of the sentence to suggest that the “appropriated funds” language includes courts giving zero dollars to someone just because Congress failed to understand the scope of “agencies” isn’t justified by a vague guess as to what Congress thought. This is distinct from the average legislative intent question because the concept of courts not being agencies and yet issuing law licenses was foreseeable in 1996 and yet ignored.

The full DOJ brief is reproduced on the next page….

(hidden for your protection)

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