My answer is: “It depends.” I know, typical lawyer response, but this is a difficult issue for me on many levels and one which many states will soon be dealing with. The State of California’s Supreme Court issued a decision Friday holding that there is no reason under State law why an documented immigrant should be denied a license to practice law in the State if they are otherwise qualified. While the case was pending, the legislature enacted a law saying qualified applicants could be admitted to the state bar regardless of their immigration status. In its ruling, the court said that California had paved the way for Mr. Garcia’s admission to the bar in October when the Legislature overwhelmingly passed the bill. The court went on to suggest that immigration status should not be considered any differently from any other class: like gender, race or religion:
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. The fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the state bar.
The new statute made this decision an easy one for the court as a State can always give more rights than the Federal Constitution, it just can’t give less rights. But the US Supreme Court has never held that immigration status is a protected class like the others cited by the court. So states will either have to pass a law similar to California or have their courts rule that in their State, immigration status deserves the same Constitutional protection as the already recognized classes of race, religion, national origin and gender. Every State with a large immigrant population is likely to have an anti-immigrant voting bloc in their midst that could force legislators to pick sides on this issue in the way they do on abortion rights and same-sex marriage.
As an immigrant from the Dominican Republic, I know the many difficulties the undocumented face in the States and the pressing need for immigration reform. And it would be easy for me to say that, hey – my parents did it the right way, getting visas, then green cards, then becoming citizens as soon as they could. But if the current immigration restrictions were in place, would my folks have chosen to stay in the Dominican Republic under Dictator Trujillo’s iron rule and faced his death squads? Hell, no – we had to leave in a hurry as it was, as my father was no friend of the government and was a marked man. That’s him on the right edge of this photo taken on our first night in the US and that’s me on my mother’s lap at age 2 1/2. So no law would likely have prevented him from bringing his family to safety and opportunity. Now flash forward to 24 years later, and me having graduated law school and passed the bar but never having had the chance or ability to change my status. Should I be prevented from practicing law because my parents chose to come here illegally? The plaintiff in the California case, Sergio Gomez, had a similar story to mine – he came here with his family at a young age and lived for decades in the US with a clean record which the court called “stellar.” Should this one fact have forced him to continue to live in the shadows or not practice his chosen profession?
But to quote that wise sage Tevye the Milkman “On the other hand . . .” I have represented many professionals in my career who have had their licenses suspended or revoked for criminal transgressions. Can you be a lawyer if you are not following the law yourself? The answer is “Yes you can.” Many lawyers get arrested and if the crime is minor (misdemeanors) or doesn’t involve their clients, the court system or “moral turpitude,” they can usually continue to practice law after no or a brief suspension. And staying in the country illegally violates no State law in California (or NY) and is not a crime under Federal law either. Now the funny thing is that Mr. Gomez cannot be legally hired by any law firm in the country. The firm who hired him would be violating Federal law which criminalizes the hiring of illegal immigrants. Mr. Gomez intends to open his own personal injury firm. The tricky issue that lies ahead may be his ability to pay taxes on his income. In its ruling, the court in Mr. Gomez’s case appeared to leave aside the issue of employment, saying only that “we assume that a licensed undocumented immigrant will make all necessary inquiries and take appropriate steps to comply with applicable legal restrictions and will advise potential clients of any possible adverse or limiting effect the attorney’s immigration status may pose.” The Obama administration’s Deferred Action for Childhood Arrivals, which allows immigrants under 31 who were brought here by their parents to live and work legally in the United States, is likely to create more appeals for admission to the Bar from would-be lawyers without permanent legal status.
So I think this issue needs to be handled on a case-by-case basis in the same manner as the case of any law student seeking admission is handled. Look at all the factors involved- how long ago did the candidate come into the country; at what age; what were the circumstances; did he have the opportunity and ability to correct his status and choose not to; did he lead an otherwise law-abiding life; what is the total picture of the person and does that total add up to someone who would be a positive addition to the Bar?
This same analysis is applied to lawyers who have committed crimes before and/or after their admission to the Bar. There is no reason that analysis should not be applied to bar admission candidates who did not enter the country legally.