Friday, March 7, 2014

Will Florida Legislature Now Act to Authorize Undocumented Attorneys?

As Professor Bill Hing reported on the ImmigrationProf blog yesterday, the Florida Supreme Court unanimously agreed with the Obama administration that federal law requires that, in order for undocumented immigrants to be admitted to the practice of law, the state legislature must affirmatively authorize licensing.  This court so ruled even though the issue arose in the case of Jose Godinez-Samperio, a noncitizen from Mexico who had been granted relief under the Obama administration's Deferred Action for Childhood Arrivals (DACA) program. The court stated that it was not ruling on Godinez-Samperio's fitness to practice law but instead was focused on the question posed to it by the Florida Board of Bar Examiners:  "Are undocumented immigrants eligible for admission to The Florida Bar?"

Recall that the California Supreme Court in January 2014 ruled unanimously that Sergio Garcia, an undocumented immigrant, could be admitted to the practice of law.   For analysis of the implications of the case in light of the history of the exclusion of immigrants from the practice of law, click here.  

In both the California and Florida cases, the Obama administration filed briefs opposing admission and argued that a state legislative enactment was required by federal law for admission of undocumented immigrants to the bar.  In California, after questioning by the Justices during oral arguments suggested that the some Justices thought that legislative authorization was required, the California legislature in a matter of weeks passed legislation.  In Florida, the legislature has not addressed the question but the Florida Supreme Court specifcally invited the Florida legislature to act.  Justice Labarga's powerful concurrence, which notes the parallels between his immigrant journey from Cuba with Godinez-Samperio's, is particularly emphatic on this point.

As it stands, the lack of legislative authorization seems to be the legal distinction between the California and Florida cases.     

There are colorable arguments that the federal law regulating the award "benefits" from public agencies to undocumented immigrants does not apply to licenses to practice law bestowed by the state courts.  A legislative fix, however, in Florida apparently would convince the Florida Supreme Court that DREAMers like Jose Godinez-Samperio can be licensed to practice law in the state consistent with federal law.  Now the question is whether the Florida legislature will step up to the plate like the California Legislature did.

For further news analysis of the case, click here.


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