Does “Deferred Action” Affect Undocumented Immigrants’ Ability To Practice Law?

Steven Martin/ Flickr Creative Commons

BY SAM WARDLE — A recent brief filed with the Florida Supreme Court raises an interesting question. Does the Obama Administration’s new “deferred action” policy for undocumented immigrants affect those immigrants’ ability to practice law?

Jose Godinez-Samperio argues that it does. Godinez-Samperio is an undocumented immigrant who was brought by his parents to the United States as a child, and has since graduated from FSU Law and passed the Florida Bar Exam. Godinez-Samperio’s application for a law license is currently under consideration by the Florida Supreme Court.

It’s worth pointing out that the only issue realistically under consideration by the Court is whether an undocumented immigrant can legally obtain a law license in Florida. It would be absurd to argue that Godinez-Samperio lacks the requisite character or competence to practice law. He is an Eagle Scout and former high school valedictorian who graduated from New College and FSU Law without the benefit of student loans or part-time jobs, and then went on to pass the Bar. Most of us, if faced with similar impediments, never would have even gotten through high school, much less law school.

Unfortunately, I’m not sure Godinez-Samperio has a colorable argument as to why the “deferred action” policy would affect his attempt to become Bar-licensed.  “Deferred action” is an executive policy guaranteeing certain classes of undocumented immigrants that they will not be deported. The Homeland Security memo announcing the policy specifically stated that it confers no legal right or status.

Moreover, the Personal Responsibility and Work Opportunity Reconciliation Act, a federal law passed in 1996, specifically forbids state and local governments from giving professional licenses to immigrants who are not “qualified.” Undocumented immigrants under the statute are almost never “qualified,” and the executive branch of the federal government has no power to unilaterally amend a statute. The Obama Administration has tacitly recognized this–the DOJ recently filed an amicus brief in the California Supreme Court arguing that an undocumented immigrant there could not, under federal law, be licensed to practice.

However, the PRWORA, 8 U.S.C. § 1621, does allow that state governments can affirmatively provide undocumented immigrants with professional licenses via the enactment of a law. Various academics and immigration rights advocates are arguing in California that this statutory definition of a “law” is the same as that posited by the United States Supreme Court in Erie v. Tompkins, that is, state “law” can include legislative acts as well as decisions of the state appellate courts. Under this interpretation of the PRWORA, the Florida Supreme Court could, conceivably, simply amend the PRWORA as it applies to undocumented immigrants in Florida, and allow otherwise deserving immigrants to obtain professional licenses.

I’m not sure this is going to fly, either. The PRWORA is not entirely clear, but its use of the terms “enactment” and “affirmative” indicates to me that Congress meant that only state legislatures–and not state courts–could alter its prohibitions on benefits to undocumented immigrants. According to Black’s Law Dictionary, “enactment” indicates a “legislative bill.” The definition doesn’t say anything about judicial opinions.

Most of the blogosphere commentary regarding Godinez-Samperio and his California/ New York counterparts has focused on fairness–these students have worked hard and demonstrated the kind of ingenuity and character that the legal profession desperately needs. But the law says what it says. Unfortunately, these applicants’ best chance may be legislative. The DREAM Act, which has been collecting congressional dust for nearly a decade, would certainly solve this problem in a way that “deferred action,” an executive policy, cannot.