Illegal aliens aren’t eligible for Florida bar membership

So holds a unanimous Florida Supreme Court in Florida Bd. of Bar Examiners re: Question as to Whether Undocumented Immigrants Are Eligible for Admission to the Florida Bar (Fla. Mar. 6, 2014). The result seems legally correct: 8 U.S.C. § 1621 generally bars illegal aliens from getting various state public benefits, including “‘any … professional license, or commercial license’ that is provided ‘by appropriated funds of a State.’” This covers bar membership.

Federal law does let states exempt themselves from this law:

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 … only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.

California, for instance, had indeed enacted such a law, which helped lead the California Supreme Court to hold that illegal aliens aren’t categorically barred from practicing law in California. But Florida has not enacted any such law. And, the court held (again, I think quite correctly) that the federal Deferred Action for Childhood Arrivals Presidential directive does not affect the federal and state legislative scheme:

Both the Morton memorandum and DACA status are executive branch policies addressing deportation and the exercise of prosecutorial discretion. They are not laws passed by Congress. These policies do not provide this Court with legal authority to disregard the laws currently enacted by Congress and admit unauthorized immigrants into Florida Bar membership.

Justice Labarga, joined by Justice Pariente, concurred, but wrote to urge the Florida legislature to exempt at least some illegal aliens from the law. Here’s an excerpt (paragraph breaks added):

The injustice of this decision is more apparent when applied to Applicant, who was the impetus for the Board’s petition for an advisory opinion only after the Board adopted a policy in January 2008 requiring applicants to provide immigration documents. As a nine-year-old child, Applicant legally entered the United States from Mexico with his family, who had passports and valid tourist visas. Through no fault of his own, however, his family overstayed their visas and opted not to return to Mexico. Although Applicant initially only spoke Spanish, he successfully integrated into American society by learning English, becoming an Eagle Scout, graduating from a Tampa high school as valedictorian, graduating
from New College of Florida, and graduating from The Florida State University College of Law with several book awards (given for outstanding academic achievement in particular classes).

Throughout the Bar admissions process, Applicant disclosed his immigration status, and the Board indicated in a notice of supplemental authority dated March 15, 2013, that “nothing presently contained in (Applicant’s) investigative file will, in and of itself, be considered disqualifying.” Further, Applicant passed The Florida Bar Examination. Moreover, numerous law professors, the general counsel of his undergraduate institution, an attorney from Gulfcoast Legal Services, and past presidents of the American Bar Association strenuously supported Applicant’s eligibility for admission to The Florida Bar. Thus, it has become increasingly apparent throughout these proceedings that Applicant is an otherwise legally qualified
applicant for admission to The Florida Bar and that he is the type of exemplary individual The Florida Bar should strive to add to its membership….

Indeed, in many respects, Applicant’s life in the United States parallels my own. He and I were brought to this great nation as young children by our hardworking immigrant parents. We both learned to read, write, and speak the English language within a short period of time. We excelled scholastically and graduated from college and law school — Applicant from Florida State University and I from the University of Florida. Both of us were driven by the opportunities
this great nation offered to realize the American dream.

Sadly, however, here the similarities end and the perceptions of our accomplishments begin. When I arrived in the United States from Cuba in 1963, soon after the Cuban Missile Crisis — the height of the Cold War — my parents and I were perceived as defectors from a tyrannical communist regime. Thus, we were received with open arms, our arrival celebrated, and my path to citizenship and the legal profession unimpeded by public policy decisions. Applicant, however, who is perceived to be a defector from poverty, is viewed negatively because his family sought an opportunity for economic prosperity.

It is this distinction of perception, a distinction that I cannot justify regarding admission to The Florida Bar, that is at the root of Applicant’s situation. Applicant is so near to realizing his goals yet so agonizingly far because, regrettably, unlike the California Legislature, the Florida Legislature has not exercised its considerable authority on this important question. Thus, only reluctantly do I concur with the majority decision.

(The concurring opinion also discusses in considerable detail why, in the concurring judges’ view, the applicant may well have been fit for bar membership if it weren’t for this particular federal statute.)

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · March 6