New York Court Allows Bar Admission for "Undocumented" Immigrant

Professor Ruthann Robson, City University of New York (CUNY) School of Law

A New York appellate court has held that an "undocumented" immigrant can be admitted to the state bar and the practice of law in its opinion in In the Matter of Application of Cesar Adrian Vargas.

Cesar Vargas via

The court considered whether Vargas (pictured right), an "undocumented" immigrant who does posses documents authorizing him to be in the United States and to work under the Deferred Action for Childhood Arrivals (DACA) policy, could be admitted to the New York bar.  The court determined that under state law he could.  Importantly, the court also determined that pursuant to the Tenth Amendment, this state law should prevail.

The statutory landscape is somewhat complex.  As the court explains most succinctly:

[The issue is] whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses.  This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.

We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government.  Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), 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.  

In essence, the court holds that a federal statute cannot constitutionally require that only a legislative enactment of a state will satisfy the statute's opt-out provision. 

While the court noted that it is "unusual" for a state court to pass judgment on the constitutionality of a federal statute, it is not unprecedented. 

The court found that the Tenth Amendment is implicated because "although Congress has left the ultimate determination whether to extend public benefits, including professional licensure, to the states, it has, at the same time, prescribed the mechanism" - - - exclusively legislative - - - "by which the states may exercise that authority."  But in New York,  the legislature has "determined that the state judiciary is the sovereign authority vested with the responsibility for formulating the eligibility qualifications and processes governing the admission of attorneys and counselors to the practice of law."  Thus, the court concludes that the legislative limitation in the federal statute "cannot withstand scrutiny under the Tenth Amendment."

The court analogized to Gregory v. Ashcroft (1991) in which the United States Supreme Court relied on the Tenth Amendment to reject a federal age discrimination claim by state judges to Missouri's mandatory retirement age of 70.  

Although Gregory addressed the state’s interest in determining who holds office, the State of New York has no less an interest in determining which of its branches of government is empowered to exercise the discretion authorized by section 1621(d) to determine who may be licensed as an attorney and counselor-at-law.  Indeed, the role of New York courts in regulating attorneys is deliberate, well-considered, and time-tested.  There are sound reasons why, in New York, the responsibility for attorney admissions is vested in the state’s judiciary rather than in other branches or departments of government.  As Judge Benjamin Cardozo declared nearly 90 years ago, an attorney is “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”

The court then cites the "variety of rules governing the admission and conduct of attorneys" that the New York  judicial branch formulates and oversees: the Rules of Professional Conduct;  the State Board of Law Examiners;  the 50-hour pro bono requirement for new attorney admissions;  the licensure of legal consultants; the admission of counsel pro hac vice;  the payment of biennial attorney registration fees;  the parameters of attorney advertising;  the requirements for attorney-client retainer agreements;  and the imposition of discipline upon attorneys who violate the state’s ethics rules.

For the court, the "ability, indeed the right, of the states to structure their governmental decision-making processes as they see fit is essential to the sovereignty protected by the Tenth Amendment."  Thus, the federal statute cannot limit the decision regarding noncitizen licensure to only one branch of a state's government.

While equal protection and other constitutional arguments were raised in the case, the court's interpretation of the federal statute and its own conclusion regarding the applicant's suitability for bar admission obviated consideration of those arguments.

[full disclosure: Vargas is a graduate of CUNY School of Law].