Monday, August 6, 2012

Snakes In A Hissing Contest

The green mambas at the US Department of Justice and the spitting cobras at the California State Bar have gotten into a hissing contest over admissions policies for illegal immigrants. The dumbed-down, y'all come California Bar has provisionally admitted one Sergio C. Garcia after he passed the Bar exam in 2009. He has been in lawyer limbo ever since.

But he won't be practicing law in California or anywhere else until the conflict with the feds is resolved. Oddly, Garcia is a victim of the Obama administration's order-imposed DREAM Policy.

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.

40 comments:

Tennessee Jed said...

proof positive that politics is the art of having one's cake and eating it too.

Tennessee Jed said...

as informative as your post is, Hawk, I must add that I thought this was going to be about voter fraud when I saw he was named Sergio Garcia.

StanH said...

This is a tale that could only be told using government as the backdrop. By allowing our border to be breached with impunity for decades now, we’ve created hard choices that no one wants, or should have to make. Sadly, this is taking place throughout our great land, and always as a result of ignoring our own laws, acting instead on emotion (liberal group think). We now have a nearly intractable conundrum where by following our laws makes us look inhumane. We are either a country of laws or we are not. If we are, they must be followed without regard too color, creed, or any special interest. If we are not, God help us, next comes mob rule.

Solution: Secure the border! Deport recent arrivals, or lone wolves with zero ties to this country. Then methodically process the hard cases, giving deference to people with deep roots in our country, instantly ridding ourselves of the criminal element once found. Then go forth and sin no more.

USS Ben USN (Ret) said...

Excellent post, LawHawk!

Still, it wouldn't surprise me to see an increasingly desperate Obama make yet another executive decision to grant Garcia citizenship (and those who may be in similar circumstances.
All in the name of the "spirit" of his policy and the CA state law.

Obama has proven he can't resist pandering.

USS Ben USN (Ret) said...

BTW, since you are using snake metaphors ("metaphors" being debatable) I reckon the CA Supreme Court would be the King Snake. :^)

Unless they prove otherwise.

T-Rav said...

Ow. It's too early in the morning for me to process all these technicalities. The only thing I can say with some certainty is that where laws are concerned, talking about their "spirit" is not a great idea.

tryanmax said...

Wow! What a story! It doesn't help Garcia in any way to say this, but this makes an excellent case for a principle of fewer and simpler laws accompanied by strict enforcement.

tryanmax said...

I also feel the need to speak in favor of the "spirit" of the law. I agree that it is an abused concept, but I don't think it should be discarded out of hand. The problem is that as the letter of the law grows more complex, it becomes easier to massage out any "spirit" one chooses. When the laws are few and simple, the spirit is more easily agreed upon and less prone to abuse. In short, more laws make for more litigiousness.

Tehachapi Tom said...

Hawk
The State of California as well as the Federal Governments are off the rails and plowing through the grasses along the right of way and headed for the trees.
When the train hits the trees there will be a big bang and all will come to a stop.
It is more than just critical for the train to be re railed before this disaster can happen.
Twisted logic and misplaced compassion with knee jerk responses is what a lot of the law in our country has become.
9/11 was just a small bump compared to a 9/'12 possible outcome.
I for one am afraid, very afraid of what may be in our future.
There is a glimmer of hope though, if enough of our fellow citizens will only look to the basic tenants of the Tea Party they will find the answers. That is why I am sure the liberals and MSM are so aggressive in their attacks on the Tea Party.
Along that line of thought,
Thomas Jefferson wrote. "The force of public opinion cannot be resisted when permitted freely
to be expressed. The agitation it produces must be submitted to. It is necessary, to keep the waters pure."

bo is attempting to quash the freedoms which allows for the Tea Party to exist. One of his vehicles is the long-dead, misnamed "Fairness Doctrine" an FCC rule that forced broadcasters, under threat of loss of their license to operate, to present all the sides to a political issue. Since 1987 that rule has been defunct, but bo likes it because it is built in bias to bigger more controlling Government. You see the Government it's self gets to decide if an issue has been treated fairly under this doctrine. Sort of like letting the neighborhood Bobcat determine who guards the chickens.

LawHawkRFD said...

Tennessee: But you can't have your cross and show it too.

LawHawkRFD said...

Tennessee: I figured we had done enough articles on illegal immigration for the time being, so I decided to do something that's just a small piece of that puzzle to demonstrate that immigration policy isn't as simple as anyone would like to believe.

LawHawkRFD said...

Stan: I think it also proves the concept that if you want to bring down a big institution, follow all the rules. When rules are so numerous and self-contradictory that no two people can come up with the same conclusions about what they mean and how they work together, then you have both chaos and rule of the most powerful.

LawHawkRFD said...

USSBen: To be truthful with you, nothing would surprise me anymore. Obama very well might just jump into this, declare the law and the Constitution impediments to "human rights," and order Garcia admitted. Of course he would do it right before the election.

LawHawkRFD said...

USSBen: LOL. The king snake, whose favorite diet is other snakes.

LawHawkRFD said...

T-Rav: So true. If you're talking about the spirit of the law, you've already conceded that you're wrong on the law itself.

Ya want complications? If California decided that Garcia should have a valid law license, and the feds continued to disagree, then he could practice law in California only. The federal court doesn't license lawyers directly, but does so within the federal judicial district located in the given state upon recommendation of the State Bar that the applicant has a valid license in that state. That would pretty much preclude a federal practice for Garcia. BUT, even his state cases would be called into question because his opposition could still claim that Garcia has violated the opponent's client's civil rights by practicing law in violation of federal law. Thus, every case Garcia won would be appealed. I'm getting a headache.

LawHawkRFD said...

T-Rav: Oh, and if Garcia lost, his clients could appeal based on inadequate representation by their lawyer. The twists and turns are too many to contemplate.

LawHawkRFD said...

tryanmax: AMEN! Corruptissima republica, plurimae leges. The more corrupt the government, the more laws it has.

Barack Hussein Obama said...

"If you're talking about the spirit of the law, you've already conceded that you're wrong on the law itself."

Am not!

LawHawkRFD said...

tryanmax: I have no problem with the "spirit" of the law so long as it is interpreted according to the constitutional rules of the conservative members of the US Supreme Court. If the Constitution doesn't address the issue in plain words, look to the context. If the context isn't enough, look to the Declaration of Independence and the other founding documents (such as the Federalist Papers). Finally, look to the longest list of precedents in cases involving the same or similar issues. If done any other way, the "spirit" becomes anything rogue judges decide it is. Your point is very well taken.

LawHawkRFD said...

Tehachapi Tom: Well, that was a bit off-topic, but I can't find much to disagree with.

LawHawkRFD said...

B-HO: Are too. Nyah, nyah, nyah.

Joel Farnham said...

LawHawk,

You are going to have to work on your Kill Bill references.

It is Black Mamba and California Mountain Snake.

Just saying. ;-)

T-Rav said...

LawHawk, now my head really is hurting.

Has INS or anybody weighed in on this at any point? Or is Garcia now a legal resident? I shouldn't have to ask that, but when big-shot reporters "come out" as illegal aliens, I guess you have to.

LawHawkRFD said...

Joel: I specifically avoided black mamba for obvious reasons. If I had given it more consideration, I would have localized it with rattler and coral snake and then I wouldn't have had to worry about being called a racist. LOL

BevfromNYC said...

Lawhawk - If you didnt' live in California, I would demand that Mexico take it back Gov Moonbeam and all. They make my head hurt.

LawHawkRFD said...

T-Rav: The State Bar is like the sanctuary cities. If there's no criminal record, they just ignore the law and don't report the illegals to INS/ICE. By all accounts, Garcia has a squeaky-clean civil and criminal record, except for that "illegal alien" thing.

It's part of the schizophrenic behavior of the Obama administration. They're big on the "spirit of the law" (above), but if they want to prove a point, they'll switch to the letter of the law. So in this case, they'll exercise the spirit of the law by making no attempts to deport Garcia, but they are enforcing the letter of the law by denying him the ability to practice law.

If I had to draw a conclusion, it would probably be that poor, government-dependent illegals are a good thing for Democrats, and intelligent hard-working illegals who want to get into a profession are not quite so good since they might defect to the non-dependent middle class.

As for Garcia, he's now here legally with a work visa. But that doesn't entitle him to a professional license according to the feds. It does entitle him to a professional license according to every level of state government so far, but is still pending at the state Supreme Court.

LawHawkRFD said...

Bev: Considering the exodus of illegals from the state lately, it may be that even Mexico wouldn't take it. I could be wrong. But I do thank you for thinking of me.

LawHawkRFD said...

OFF TOPIC: Since I already did an opinion/obit on Gore Vidal, I won't add anything to it at this point. But for anyone who thinks I was a bit unkind toward the old sybarite, take a look at what the house organ of the liberal wing of the Democratic Party said about him today: The New Republic on Gore Vidal.

T-Rav said...

Better solution: Get that South California secession movement going, then build a wall between the old state and the new one. They'll implode, and then you all can claim to represent what's left of the Golden State.

LawHawkRFD said...

T-Rav: Actually, the Central California Republic, though we might be willing to include San Diego since we'd need a big port city and San Diego hasn't gone all lefty-loony. Once we've done it, the rest of the state can just sink into oblivion.

USS Ben USN (Ret) said...

If I had to draw a conclusion, it would probably be that poor, government-dependent illegals are a good thing for Democrats, and intelligent hard-working illegals who want to get into a profession are not quite so good since they might defect to the non-dependent middle class."

That's very perceptive, LawHawk, and it makes sense (for the democrats)!
Because once their constituents become successful, they won't wanna pay the draconian taxes the democrats want nor will they want to be targets of the class warfare the democrats incite.

Generally speaking, of course.
Once one becomes successful they tend to wanna keep more of what they have earned.

LawHawkRFD said...

USSBen: Thanks. I also think the same reasoning is behind the Democrats' love of bilingualism. And by that I don't mean the great ability to speak two (or more) languages, but rather the downgrading of English as the language of America. Keep Hispanic immigrants speaking either Spanish or broken English, and they make a great "victim" group, oppressed by ethnocentric, whites and unable to rise out of poverty. And we all know which party protects the "victims."

Another facet of this is to slow all immigration to give the nation time to absorb Hispanics rather than encourage them to be "Mexicans living in America." One can delight in Spanish culture and the Hispanic heritage without stubbornly clinging to all things Hispanic. The "melting pot" only works if enough heat is added to the brew to make the various elements blend. It is neither ethnocentric nor racist to believe that future citizens should see American culture, history and the English language as desirable over what they left behind.

AndrewPrice said...

Huh, fascinating case. I had no idea this could be a problem. It will be interesting to see how the court rules.

LawHawkRFD said...

Andrew: It is, and I'm equally interested in the outcome. Of course we both know that if the state Supreme Court rules against the DOJ it's immediately headed for the crazed Ninth Circuit.

This is an example of why we need genuine and comprehensive immigration reform, including securing the borders. I can't help being sympathetic to Garcia, but it's not my fault he got caught in an immigration mess that nobody is genuinely trying to solve on a rational basis.

Individualist said...

Lawhawk

Is there any way that Garcia can go to Mexico and qualify to become a lawyer there. Then under thje auspices of providing unique benefits that an American Citizen cannot. (Being a Mexican Lawyer who passed the bar in California and therefore is conversant in both sides of the law) get a green card to work in California as a lawyer. I don't know what term yhou'd have to use.

Seems to me he could make this argument for customs, cases, illegal immigration cases and other issues that involve crossing the American Mexican border. Perhaps even NAFTA could be something he claims an advantage in.

What do You think?

LawHawkRFD said...

Indi: That's just wild enough to be possible, but I don't know the rules of comity between Mexico and California/US. Getting a license from one state to another is relatively simple, but I simply don't know about foreign nationals who have actually passed the Bar in California.

Joel Farnham said...

LawHawk,

Remember that blog I directed you to?

My bad, I went back. Was I really that bad of a person?

LawHawkRFD said...

Joel: I actually didn't think you were particularl wrong in the first place. But reading another of their articles only confirms my belief that it's not worth reading in the first place. Their format sucks. It's hard to tell until a second read which position they're taking and which position the "enemy" has taken. I finally figured out that the answer is to go straight the their conclusions, where they will come up with their own skewed opinions. I wouldn't waste any more valuable time with them.

Joel Farnham said...

LawHawk,

You just confirmed what I think. Thanks.

LawHawkRFD said...

Joel: You're welcome. There are so many blogs out there it's sometimes hard to choose a small list to read regularly. I basically use four or five conservative sites, two or three liberal sites, and try to avoid the extremes at both ends. For news sites, I use the NY Times, the Washington Post, the Washington Examiner and Times, and the Wall Street Journal to keep balance.

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