States Grapple with Undocumented Immigrant Law Licenses

Noncitizen Law LicensesWho can get law licenses? And who gets to decide?

State supreme courts typically determine the qualifications of lawyers, issue law licenses and regulate attorney conduct. However, the legislative branches also have a say. Under federal law, public benefits, including professional licenses, cannot be extended to “unlawfully present aliens” unless there is a state law opting out of the federal restrictions.

What if a state court decides that lawful immigration status is not a requirement for becoming a licensed lawyer? What if the state legislature has not passed a law exempting law licenses from the federal prohibition against professional licenses being given to undocumented  immigrants?

The wrenching cases of undocumented immigrants studying in this country, passing a bar examination and unsuccessfully seeking a license to practice law brings a clash between two co-equal branches of government that may serve as an exercise in civics.

New York Appellate Court Ruling

Last month, New York relied on the supremacy clause in holding that the judiciary has the authority to decide whether an undocumented immigrant may obtain a law license. The New York Appellate Court ruled that undocumented immigrant Cesar Vargas who came to the United States as a child could be licensed to practice law in the state.  New York’s highest court decided it was not bound by federal law prohibiting undocumented immigrants from obtaining law licenses in the absence of state law specifically allowing it. The court allowed Vargas, and anyone enrolled in the Deferred Action for Childhood Arrivals –which provides amnesty for immigrant children brought to the states illegally—to practice law in New York, if they meet the other regular requirements. The court opinion includes a full discussion of the constitutional separation of powers and the supremacy of the judiciary to regulate those who receive law licenses.

We hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law, that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York…”

This ruling comes at a time when states continue to grapple with whether or not legal status should be a prerequisite to practice law, a topic we’ve written about before.

California Supreme Court Ruling

Last year the California Supreme Court granted a law license to Sergio Garcia, an undocumented Mexican immigrant who had been brought to the U.S. as a toddler, lived in the United States for about nine years, and was again brought to the state as a teenager by his parents. Garcia graduated from law school and passed the state bar exam, but initially was not allowed to practice given his status. But the California Supreme Court changed that, ruling “Under these circumstances, we conclude that the fact that an undocumented immigrant’s presence in this country violates federal statutes is not itself a sufficient or persuasive basis for denying undocumented immigrants, as a class, admission to the State Bar.”  Last month Garcia was finally able to get a green card, as well.

Florida Legislature Amends Criteria

On the other coast, in contrast, the Florida Supreme Court determined that, given the federal law and without specific state law allowing an exemption, it did not have the authority to grant a law license to Mexican national José Manuel Godinez-Samperio, who did not have legal status.  He had come to the U.S. on a tourist visa with his parents when he was 9 and they remained there after the visas expired. Godinez-Samperio graduated with honors from Florida State University and passed the state bar exam in 2011. In response to the state Supreme Court’s ruling, the Florida legislature passed a bill amending the law licensing requirements.  The amended criteria provide that a noncitizen applicant may become a licensed lawyer is if he or she was “brought to the United States as a minor; has been present in the United States for more than 10 years; has received documented employment authorization from the United States Citizenship and Immigration Services; has been issued a Social Security number; if a male, has registered with the Selective Service System if required to do so under the Military Selective Service Act.” Thus Godinez-Samperio was admitted to the Florida bar.

To those who repeatedly asked Godinez-Samperio why he didn’t just become a citizen, he said he “would explain that I am not eligible. You have to have a green card. A lot of people don’t know that. It was nothing I could control, and nothing I could overcome.” The attorney who sponsored the Florida amendment explained that Godinez-Samperio “would have to return to Mexico, wait ten years, have someone sponsor him, and then go to the bottom of the list and wait some more.”

Illinois State Law Hurdle

Although we are not aware of any pending cases by undocumented immigrants seeking a law license in Illinois, there may be a different legislative hurdle  in Illinois. Under Illinois law, an individual must be a United States citizen or have “made a declaration of intention to become a citizen” in order to obtain a law license. This requirement would be deleted by an amendment to the Attorney Act that was passed by both legislative houses and sent to the Governor on June 26, 2015. The bill, if it became law, would also add language saying, “no person shall be prohibited from receiving a law license solely because he or she is not a citizen of the United States.” And the amended law would say the Illinois Supreme Court “may grant a license” to noncitizens who arrived in the United States before age 16.

Even if the bill becomes law, it’s unclear if it will actually have an impact. Opponents of the bill think like the New York justices, saying it’s an overreach of power because the Illinois Supreme Court has exclusive power to decide who can practice law in the state and what requirements they must meet. Admission to the Illinois bar is governed by Article VII of the Illinois Supreme Court Rules. Those rules do not contain a citizenship or a legal status requirement.

The decision-making around the undocumented immigrant attorney applications for law licenses demonstrates the balance of power between the legislative and judicial branches of government. It is unlikely that the issue will not go away anytime soon. What do you think?

 

 

Our legal intern from the University of Illinois College of Law, Lindsey Lusk, contributed to this post.

This post was modified on July 17, 2015 to clarify that although some laws refer to “noncitizens,” the issue is not the citizenship of the immigrant applicant but their lack of legal status.

 

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

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