On January 2nd of this year, California became the first state in the country to give an undocumented alien a professional license to practice law when the state Supreme Court determined that Sergio Garcia could be admitted to the Bar.  In re Garcia, 315 P.3d 117, 127 (Ca. 2014).  In Florida, the same question was put before its state Supreme Court which ruled on March 6, 2014 that it could not admit undocumented aliens to the Florida Bar Association.  FLORIDA BOARD OF BAR EXAMINERS RE: QUESTION AS TO WHETHER UNDOCUMENTED IMMIGRANTS ARE ELIGIBLE FOR ADMISSION TO THE FLORIDA BAR. (SC11-2568) (Fla. 2014).

The reason for the difference in policy comes down to a federal law passed in 1996 called the Personal Responsibility and Work Opportunity Reconciliation Act (“Act”).  The Act changed hundreds of statutes, including adding Section 1621 to Title 8 of the United States Code.  Section 1621(a) denied states the right to give any “public benefit” to a person who is not authorized to be in the United States.  Section 1621(b) stated that a professional license issued by a state is a public benefit for the purposes of the Act.  Yet, Section 1621(d) did provide an exemption if a state legislature would pass a law after 1996 specifically referencing that undocumented aliens can claim the benefit.

In California, Mr. Garcia and the California Board of Bar Examiners asked the state Supreme Court, which governs who may be given a license to practice law, to admit Mr. Garcia to the Bar Association.  At the time of Mr. Garcia’s petition, the state legislature had not acted to allow undocumented immigrants to have any professional licenses.  Two days after oral arguments on this matter before the California Supreme Court, a legislator proposed a bill to allow undocumented immigrants to receive a law license.  The bill was overwhelmingly passed and signed by the Governor later that month.  In light of the new statute, the California Supreme Court ordered a rehearing on January 2, 2014 (which is a day after the new law would become effective).  On January 2nd, the Court issued its opinion that California’s new statute would satisfy the exemption in 1621(d).  Therefore, Mr. Garcia and all those similarly situated will be granted a license to practice law in the state of California.

In Florida, the Florida Board of Bar Examiners asked for an advisory opinion on whether an undocumented immigrant who otherwise is qualified to receive a law license may be admitted to the Florida Bar Association.  The Florida Supreme Court issued its advisory opinion on March 6, 2014.  The Florida legislature has not passed any legislation addressing this issue.  Therefore, the Florida Supreme Court’s advisory opinion states that an undocumented immigrant, who is otherwise fully qualified to be admitted to the Bar Association, cannot receive a law license.  Since there is no relevant legislation that allows for an exemption Section 1621(a), the Florida Supreme Court had no choice but to clarify that Florida law does not allow for undocumented immigrants to be licensed to practice law in Florida.

As the federal government and states try to negotiate the problems concerning the large number of undocumented immigrants in this country that have lived here in some instances for decades, more interesting legal issues will begin to come to the forefront.

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