Cyrus Mehta: Can An Undocumented Lawyer Practice Immigration Law?

"All eyes are focused on whether the California Supreme Court will grant an undocumented lawyer a law license in the case of Sergio Garcia.  If an undocumented lawyer like Garcia is granted a license, what would happen if he chooses to practice immigration law?  In the past, undocumented lawyers who practiced immigration law have been disciplined by bar counsel within the immigration agencies.  The same fate should not befall future undocumented lawyers if they choose to practice immigration law after the state has granted them a license to practice law.

The first question is whether an undocumented lawyer can be granted a law license by the relevant state.  The Department of Justice has argued that 8 USC §1621 prohibits a state from granting a public benefit to an undocumented alien, which also includes a professional license.  At the oral argument last Wednesday, September 4, the judges seemed to agree with the DOJ’s position.  However, 8 USC §1621 also allows a state to bypass §1621 by enacting specific legislation that could grant a benefit to an undocumented alien.  Thus, even if the California Supreme Court rules against Garcia,  the California legislature has passed specific legislation, AB 1024, that would authorize the granting of law licenses to undocumented aliens.  This legislation, if signed by the governor,  will moot the case in the California Supreme Court, but the DOJ is likely to make the same argument in other states. 

The DOJ’s hypertechnical argument clearly goes against the spirit of the Obama Administration’s deferred action for childhood arrivals (DACA) policy, although Garcia was too old to take advantage of it.  The DOJ has also argued in a similar case in Florida that §1621 precludes a state from granting a law licenses to a person who has since received work authorization under DACA.   It boggles the mind as to why the DOJ would read §1621 so broadly so as to oppose the granting of a license to a lawyer who has been authorized to remain in the US and work under DACA.

There are compelling arguments why an undocumented lawyer should be granted a law license. ..." - Cyrus D. Mehta, Sept. 13, 2013.