Without considering the DREAM Act in either its actual or fantasy version, a 1996 federal statute denies public benefits to illegal immigrants. Those few courts which have addressed the issue have declared that a license for a professional practice of any sort is a public benefit. DOJ officials who are involved in the Garcia dilemma have stated: “The 1996 law was drafted to preclude undocumented aliens from receiving commercial and professional licenses issued by states and the federal government.” The case is presently pending before the California Supreme Court.
There are multiple ironies involved in this case. To start with, the California Supreme Court is quite conservative, unlike every other branch of government in the state. But what does that mean for this case? One conservative view would be to hold that a non-citizen has never enjoyed the right to a professional license in California, and shouldn't now. That would put California on the same side as the DOJ. But the other would be to hold that under the Tenth Amendment, California has the sole right to determine the qualifications of its own professionals, and that the semi-independent State Bar has determined that Garcia should be allowed to practice law. That would put California on the side of the State Bar Committee of Bar Examiners and state Attorney General Kamala Harris. I won't even hazard a guess as to which way the state high court will go.
Then there's Garcia himself. He would seem to be a perfect candidate for DREAM Act treatment. California has actually formally approved a DREAM Act of its own, in advance of any Congressional action on the matter. But the devil is in the details. Garcia was brought to California illegally by his parents when he was seventeen months old. When he was nine, they went back to Mexico just ahead of the [then] INS agents. They came back in again when Garcia was seventeen years old. His father applied for citizenship, which was ultimately granted, but the parents didn't at first do anything to get citizenship proceedings instituted for the children, include young Sergio. In 1994, his father finally applied for a green card for Sergio. Garcia is now 35 years old, and under the arcane terms and mathematical formulas of the California DREAM Act (as well as the fantasy federal DREAM Act), he doesn't qualify for the exception.
Given the nature of the immigration services and the backlog of immigrants awaiting legal status, it is unlikely that Garcia would be able to get full legal American citizenship any time before 2021 or 2022. The procedure in California is that the State Bar certifies a candidate to the State Supreme Court, which then determines whether or not to issue a license to the applicant. In Garcia's case, the Supreme Court reviewed his file, and put his application on hold, resulting in the current litigation.
By the calculations of the Obama administration (and therefore the DOJ), Garcia wouldn't qualify for expedited citizenhip and “public benefits” even under the fantasy federal standard. Technically, Garcia [re]entered the US when he was seventeen. Obama's order says “before turning sixteen.” Deportations are halted and “public benefits” bestowed if the applicant is age thirty or under. Garcia is thirty-five, and will be in his mid-forties by the time the immigration authorities are likely to grant him citizenship.
Even Garcia's supporters, such as the political hack attorney general, admit that Garcia is not eligible under either state or federal law to be licensed at the present time. But then they pull out the liberal catch-all: “Allowing him to become a lawyer would be in keeping with the spirit of the new policy.” Note that the federal standard is indeed a “policy,” but California's DREAM Act is cold, hard law. It was designed to get rafts of illegals into the professions, but in Garcia's case it has had exactly the opposite effect.
State AG Harris said that “Garcia exemplifies the kind of self-sufficiency that Congress has stated should be a basic principle of immigration law.” True or not, it's irrelevant, since Congress has never passed a DREAM Act. Harris is arguing against a federal policy that she thinks ought to be interpreted differently in each case, totally ignoring the fact that the state she represents has actually passed a DREAM Act, under which Garcia still doesn't qualify. As I mentioned earlier, she's a political hack from San Francisco taking a purely political position on a legal matter.
So my final question is, “why is the Department of Justice attempting to force federal supremacy in a case that is in direct opposition to its position of 'putting undocumented aliens on the fast track'?” I think the answer may be simple. Obama has taken a position that he is a strict enforcer of immigration law (even though we all know that's a lie). But Garcia is just one hapless pawn in the political game. Obama and Attorney General Holder can express their deep sympathies for illegal immigrants in general, but use this specific case to point out their spurious dedication to strict enforcement of the law. Typical and cynical Obama smoke and mirrors.