Monday, October 29, 2012

Immigration Roundup: To Admit or Not to Admit? That Is the Question

by Laura D. Francis

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As of Oct. 22, there are now three states grappling with the question of whether a bar applicant’s status as an undocumented immigrant prevents him or her from being able to practice law. Cesar Vargas, a graduate of the City University of New York School of Law, has applied to the New York bar, joining undocumented immigrants with bar applications pending in Florida and California.

The granting of law licenses generally is a state-by-state consideration, so the different states have different rules for admission. For example, New York does not require U.S. citizenship or legal immigration status for bar admission—it only requires passing the state’s bar exam and the multi-state professional responsibility exam and graduation from an American Bar Association-accredited law school. Florida, on the other hand, recently added a requirement that applicants state their citizenship or legal immigration status as part of the process for determining an applicant’s “character and fitness” for practicing law.

But there is a federal-level wrinkle that could impact all three cases: 8 U.S.C. § 1621. The law, which is part of the Welfare Reform Act, bars state agencies from granting professional licenses and other benefits to undocumented immigrants. Vargas and his Florida counterpart, Jose Godinez-Samperio, are arguing that law licenses are granted by the states’ highest courts—which are not state agencies.

But the Department of Justice believes the law does apply, and it said as much in a brief to the California Supreme Court regarding Sergio Garcia’s bar application there. The Florida justices during oral argument Oct. 2 additionally brought up the point that, even if the court is not a state agency, the law also prevents states from granting licenses using “appropriated funds.”

In addition, the deferred action for childhood arrivals program further complicates matters. The federal program that defers deportation and grants work authorization to young, undocumented immigrants who meet certain conditions could grant the legal status that the bar applicants need to prove their eligibility for law licenses, mooting the Section 1621 issue.

Garcia is too old to qualify for the DACA program, so it remains to be seen whether California will grant him a license regardless of his immigration status. Considering Congress’s inaction on immigration legislation, it will be interesting to see the individual states’ approaches.

In Other News:

• U.S. Citizenship and Immigration Services announced Oct. 12 that it has approved 4,591 DACA applications, a big leap from the 29 approvals announced in mid-September. The Federation for American Immigration Reform, Rep. Lamar Smith (R-Texas), and Sen. Chuck Grassley (R-Iowa) all were skeptical of the lack of denials thus far, but USCIS claims that process just takes longer than approvals, and there will be denial numbers in the future.

• The Government Accountability Office Oct. 15 released a report critical of the way the H-2A low-skilled, agricultural guestworker program is administered, making recommendations for both the Labor Department and the Homeland Security Department such as making more of the process electronic and collecting more data on applications from start to finish in order to see where improvements could be made.

• President Obama and GOP presidential candidate Mitt Romney sparred over immigration during the second presidential debate Oct. 16. Romney slammed Obama for failing to enact an immigration overhaul measure his first year in office, while stating that he would not grant “amnesty” to undocumented immigrants already in the country. Obama continued to insist that comprehensive legislation was needed, but highlighted what his administration has done in the absence of congressional action—including prosecutorial discretion and DACA.

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