These are private thoughts, publicly available. They do not constitute legal advice or comments upon any individual case in litigation, and should not be taken as such. Michael A. Olivas
Notes on undocumented bar applicants
First, a few details— Sergio Garcia's own immigration status is not clear in all the various press reports, but with the 2011 prosecutorial discretion policy changes, he is likely not removable, as he would be considered a low-priority by the DHS. My reactions to this issue in California do not turn on this particular applicant, but more on the overall issues and future DREAM Act-eligible students who will be in a similar situation. And immigration law is so complex and shifting that it is not even clear he is removable. Finally, the state bar had all this information and his entire record, put him through the Moral Character & F itness inquiries, and recommended h e be admitted. The California Supreme Court has certified several questions, and invited questions through a Show Cause Order.
His possible "employment" after licensing were to be granted is not my expertise. I do not believe that licensed lawyers who represent clients are "employees" for IRCA purposes, so these issues are navigable. This is an emplyment law question, rather than a pure immigration question, as the relationship is between clients and lawyers, and an undocumented lawyer, properly licensed, would be no different for professional responsibility or other relavant purposes. It is clear that the undocumented pay taxes, can and should hold ITIN numbers, and can transact banking and the other required administrative requirements of being lawyers or other licensed professionals.
I am concerned with the application of Sec. 1621, which the CA Supreme Court asked about, so here is my logic: (statute bolded and italicized)
(d) State authority to provide for eligibility of illegal aliens for State and local public benefits. A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.
It does not say a State statute, but State law. By my reading, the bar authority has said it would admit him, and existing state law gives them that authority—and this ruling to let him in is in furtherance of and operationalizing such state law. Structurally, this is adoption of a rule, pursuant to state law, which was enacted after 1996. CA does not enact a new statute every time that the state bar makes a rule.
This argument is essentially a version of the successful reasoning in the 2010 Martinez v Regents, when the CA Supreme Court unanimously upheld 1621 B: any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.
Despite the apparent prohibition on postsecondary education (and 1621’s more explicit mention of residency requirements), CA and a number of states allow the undocumented college students to enroll—and RI has promulgated a regulation/Board policy—without a state statute—to allow these students to receive in-state tuition.
It is a structural reading, where a state can choose to afford such a benefit (license) or choose not to do so, pursuant to a state statute such as in place in CA for the state bar. Here, their decision to let him be admitted is a function of this decisionmaking structure—and they did so only after adding immigration status as a consideration. It had not been so before, and I am aware that there are already undocumented lawyers in the state, and in other states. I would argue that each time they change their operating rules substantively, it constitutes “state law” for 1621 purposes. This interpretation of what constitutes “state law” would go back at least to Erie RR v Tompkins. My reading of whether a state bar or licensing authority can or cannot license an applicant based upon immigraton status is also grounded in LeClerc v. Webb, which holds that a state bar may choose not to admit a non-immigrant to practice. I am not commenting upon the Florida case, under litigation, or the pending New York matter.
Here is the leading source for such materials, the National Conference of Bar Examiners (NCBE), who also have a generic service to help multiple state applicants: http://www.ncbex.org/bar-admissions/
They publish an annual Comprehensive Guide that covers most of the waterfront about bar admissions:
http://www.ncbex.org/assets/media_files/Comp-Guide/CompGuide.pdf
Rather than answer questions about these requirements and the effect of undocumented status on any given state, readers can look it up here, and go to the specific state site: see Chart One and elaborations (at 1-2)
Q: Is there an in-state or U.S. residency requirement for licensing?
A: Florida--All applicants are required to document their citizenship or immigration status.
Georgia-- All applicants are required to document their citizenship or immigration status.
Minnesota--Prior to admission must be a resident, maintain an office in the state, or designate the clerk of the Supreme Court as agent for service of process for all purposes.
New Hampshire--Applicants must be domiciled in the United States.
Ohio--Motion applicants are required to attest to being a citizen or a resident alien of the United States.
South Dakota--Prior to admission must be a resident, maintain an office in the state, or designate the clerk of the Supreme Court as agent for service of process for all purposes.
Utah--There is no residency requirement, but applicants do need to prove that they are in the United States legally.
No other states list exceptions/elaborations concerning bar admissions except these, and the list is incomplete. For example, even after LeClerc v. Webb, (non-immigrant lawyers cannot practice in Louisiana), the state is not singled out. But this handbook gives you the place to start, including information about all 50 state bar authorities/state supreme courts.
I would be glad to have others interpret 1621/1623. If it worked for postsecondary education residency, it is analogous here. DHS bought this argument for college admissions, saying it is up to the states (see http://www.nacua.org/documents/AdmissionUndocAlien072008.pdf ) to choose whether to employ or not to employ 1621/1623 postsecondary admissions—despite the apparent language saying otherwise. In effect, federal law does not control states’ admissions policy, postsecondary education benefits, (or state bar licensing). Indeed, I believe that a strong case can be mounted that 1621/1623 are unconstitutional on 10th Amendment or other grounds, as they purport to control state policy, but I do not want to cloud the issue.
Finally, if one did engage an undocumented but licensed lawyer, it would not be a case of harboring, under all precedents. The harboring statutes are very narrowly construed to preclude and criminalize the importation of undocumented persons, facilitating their illegal entry into the country, or other such clandestine acts.
In short, immigration status is a complex matter and the particulars are not all known here. A number of the collateral issues appear to be well settled, but have not been definitively resolved in this narrow context. The CA state bar has not used immigration status before it changed its practice in 2009, and even though it uses it now, has recommended him. I believe that they are entitled to do so under 1621/1623, and doing so is precisely the kind of exemption that the federal statute anticipated. It could have gone the other way and not recommended him, and I would be forced to live with it, or challenge its application. Finally, the CA Supreme Court recently interpreted exactly that provision, and unanimously upheld its use with regard to resident tuition in the state colleges. That is not nothing. After I originally posted this briefing sheet, the President Obama issued his policy on Deferred Action and Prosecutorial Discretion. While this is an important step, it will likely have limited applicability for these students, unless they would enter into removal proceedings. I have written briefly about this: Michael A. Olivas, Obama's New Immigration Policy: Disappointment Is in the Details, Chronicle of Higher Education, June 18, 2012, http://chronicle.com/article/Obamas-New-Immigration/132377.
There is a growing literature on these issues, and I include several here for reference purposes, prompted by the recent developments in CA, NY, and FL:
Bill Kaczor, US representatives support Fla. immigrant lawyer, Miami Herald, April 2, 2012, http://www.miamiherald.com/2012/04/02/2728045/us-representatives-support-fla.html
Don J. DeBenedictis, State justices wade into questions about undocumented immigrant's effort to be admitted to the bar; High court considering whether applicant can be admitted to the California bar, Daily Journal, May 18, 2012.
Maura Dolan, Court takes up bid of illegal immigrant to be attorney, L.A. Times, May 17, 2012, http://www.latimes.com/news/local/la-me-immigrant-attorney-20120517,0,1730536.story
J. Austin Smithson, Comment: Educate the Exile: Creating a Double Standard in Education for Plyler Students Who Want to Sit for the Bar Exam, 11 The Scholar: St. Mary's Law Review on Minority Issues 87-126 (2008).
California Supreme Court To Decide Case of Undocumented Bar Applicant,[Press release from Lynn Holton, Judicial Council of California, May 16, 2012]
Don J. DeBenedictis, Bar Panel to Weigh In On Immigration Debate, L.A. Daily Journal, July 6, 2011, at 1
Godoy v. Office of Bar Admissions, No. 1:05-CV-0675-RWS, 2006 WL 2085318 (N.D. Ga. July 25, 2006).
Francine J. Lipman, The 'Illegal' Tax, Connecticut Public Interest Law Journal, Vol. 11, pp. 93-132, Fall/Winter 2011 (SSRN, 2012)
Miranda Leitsinger, Can an illegal immigrant become a lawyer?, msnbc.com, April 24, 2012, http://usnews.msnbc.msn.com/_news/2012/04/24/11369925-can-an-illegal-immigrant-become-a-lawyer?lite
LeClerc v. Webb, 419 F.3d 405 (2005) req. for en banc hearing denied, cert denied. S. Ct.