In re Fla. Bd. of Bar Examiners Re Question Bar

• Decision Date: 06 March 2014
• Docket Number: No. SC11–2568.,SC11–2568.
• Citation: 134 So.3d 432
• Parties: FLORIDA BOARD OF BAR EXAMINERS RE QUESTION AS TO WHETHER UNDOCUMENTED IMMIGRANTS ARE ELIGIBLE FOR ADMISSION TO THE FLORIDA BAR.
• Court: Florida Supreme Court

134 So.3d 432

FLORIDA BOARD OF BAR EXAMINERS RE QUESTION AS TO WHETHER UNDOCUMENTED IMMIGRANTS ARE ELIGIBLE FOR ADMISSION TO THE FLORIDA BAR.

No. SC11–2568.

Supreme Court of Florida.

March 6, 2014.

Original Proceeding—Florida Board of Bar Examiners.

Alan H. Aronson, Chair, Michele A. Gavagni, Executive Director, and Robert G. Blythe, General Counsel, Florida Board of Bar Examiners, Tallahassee, FL; James J. Dean and Robert J. Telfer III of Messer Caparello, P.A., Tallahassee, FL, for Petitioner.

Talbot D'Alemberte and Patsy Palmer of D'Alemberte & Palmer, PLLC, Tallahassee, FL, for Respondent.

Terence S. Coonan, Executive Director, and Wendi Adelson, Counsel, Tallahassee, FL, for Amicus Curiae Florida State University Center for Advancement of Human Rights.

Cheryl Little and Lana Chiariello, Miami, FL, for Amicus Curiae Americans for Immigrant Justice.

Martha W. Barnett, Tallahassee, FL; William Reece Smith, Jr. of Carlton Fields, Tampa, Florida; and Stephen N. Zack of Boies Schiller & Flexner, Miami, FL, for Amici Curiae Past Presidents of the American Bar Association.

Amy R. Pedersen of the Mexican American Legal Defense and Educational Fund, Washington, DC; and Cecilia M. Olavarria of the Law Offices of Cecilia M. Olavarria, PA, Miami, FL, for Amicus Curiae Dream Bar Association.

Stuart F. Delery, Acting Assistant Attorney General, and Mark B. Stern and Daniel Tenny, Attorneys, United States Department of Justice, Washington, DC, for Amicus Curiae The United States of America.

PER CURIAM.

The Florida Board of Bar Examiners (“Board”) has filed a petition requesting an advisory opinion to provide it guidance in determining the eligibility for admission to The Florida Bar of a current applicant, who is an unauthorized immigrant, and future similarly situated applicants. The Board has presented the following question: Are undocumented immigrants eligible for admission to The Florida Bar? ¹ We have jurisdiction. Seeart. V, § 15, Fla. Const.²

The Board states that in January 2008, it adopted a policy to require all applicants for admission to The Florida Bar to produce information pertaining to their citizenship or immigration status. The policy is based in part on a United States District Court decision, Godoy v. Office of Bar Admissions, No. 1:05–CV–0675–RWS, 2006 WL 2085318 (N.D.Ga. July 25, 2006).³ Consistent with the federal district court's opinion, the Board requires applicants who are citizens of the United States to submit a certified copy of their birth certificate, or provide a photocopy of their certificate of naturalization or certificate of citizenship. Applicants who are not citizens are required to provide a photocopy of the immigration document that demonstrates their status.

Currently, the Board is considering an applicant (“Applicant”) for admission to The Florida Bar who is an unauthorized immigrant living in the United States. Applicant graduated from an American Bar Association accredited law school and passed The Florida Bar Examination. However, he is and continues to be an unauthorized immigrant. The Board asks the Court whether Applicant and any future similarly situated applicants are eligible for admission to The Florida Bar.⁴ As explained below, we answer the question by holding that unauthorized immigrants are ineligible for admission to The Florida Bar.

The United States Supreme Court recently reiterated in Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492, 2498, 183 L.Ed.2d 351 (2012), that the “Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” The federal government has the “constitutional power to ‘establish an (sic) uniform Rule of Naturalization’ [resting on, in part,] its inherent power as sovereign to control and conduct relations with foreign nations.” Id. A person's status in this country as an authorized or unauthorized alien is determined solely by federal law. That determination addresses whether the person is lawfully present in the United States. Further, Congress has enacted laws that set the terms of employment for aliens and impose civil and criminal penalties on employers who attempt to recruit or hire an unauthorized alien. See8 U.S.C. §§ 1324–1324a (2012). Therefore, a license issued by a state cannot permit an unauthorized alien to perform work if such conduct is prohibited by federal law. “The federal power to determine immigration policy is well settled.” Arizona, 132 S.Ct. at 2498.

The United States Department of Justice argues that federal statutes prohibit this Court from issuing a law license to an unlawfully present alien, citing 8 U.S.C. § 1621 (2012). The Department of Justice also cites the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Pub.L. No. 104–193, 110 Stat. 2105 (Aug. 22, 1996). This federal law prohibits specified categories of aliens from obtaining certain state public benefits. The statute first states that aliens are not “eligible for any State ... public benefit” unless they are “qualified alien[s]” (defined in 8 U.S.C. § 1641 (2012)), nonimmigrant aliens (defined in 8 U.S.C. § 1101(a)(15) (2012)), or aliens who are “paroled” into the United States for less than one year. See8 U.S.C. § 1621(a) (2012). Thus, pursuant to the statute, aliens who lack lawful immigration status are ineligible for certain public benefits (unless a state takes specific action as set forth in 8 U.S.C. § 1621(d) (2012), discussed below).

Next, the statute defines the state public benefits for which these aliens are ineligible. The benefits include “any ... professional license, or commercial license” that is provided “by appropriated funds of a State.” See8 U.S.C. § 1621(c) (2012). A State license to practice law is a professional license. As this Court is funded through appropriations, the issuance of a license to practice law therefore falls within the prohibition set out in the federal statute. Simply stated, current federal law prohibits this Court from issuing a license to practice law to an unlawful or unauthorized immigrant.

Counsel for Applicant notes that 8 U.S.C. § 1621(d) (2012) allows a state to take specific action to “override the federal barrier” and provide a state public benefit to unauthorized immigrants. Under subdivision (d), 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 under [8 U.S.C. § 1621(a) (2012) ].” However, the state may only do so “through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.” 8 U.S.C. § 1621(d) (2012) (emphasisadded). The plain language of the statute and case law indicate that the phrase “enactment of a State law” requires a state legislature to address this appropriations-related issue and pass legislation, which the governor must either approve or permit to become the law of the State.⁵See generally Martinez v. Regents of the Univ. of Ca., 50 Cal.4th 1277, 117 Cal.Rptr.3d 359, 241 P.3d 855, 859 (2010) (examining whether a statute passed by the California Legislature met the requirements of 8 U.S.C. § 1621(d), which permits a state to make unlawful aliens eligible for public benefits otherwise prohibited by 8 U.S.C. § 1621); Day v. Sebelius, 376 F.Supp.2d 1022 (D.Kan.2005) (plaintiffs challenging a Kansas statute that made certain state university tuition benefits available to illegal aliens, and arguing that it did not meet the federal requirements set forth in 8 U.S.C. § 1621(d), were found to lack standing); League of United Latin American Citizens v. Wilson, 997 F.Supp. 1244, 1253 (C.D.Cal.1997) (stating that 8 U.S.C. § 1621(d) provides “a description of state legislative options in the area of immigrant eligibility for state or local benefits”). In contrast to the clear language of the federal statute and case law, the amici and counsel for Applicant claim that non-legislative forms of “State law” could meet the requirements set forth in 8 U.S.C. § 1621(d) (2012). However, they have failed to present any existing State of Florida law that governs the instant situation and complies with section 1621(d). Cf. Martinez, 117 Cal.Rptr.3d 359, 241 P.3d at 867–8 (stating that for the California statute to comply with federal requirements, “the state statute must expressly state that it applies to undocumented aliens, rather than conferring a benefit generally without specifying that its beneficiaries may include undocumented aliens,” with the court ultimately holding that the California statute did not violate 8 U.S.C. § 1621 because it expressly refers to “a person without lawful immigration status” and “undocumented immigrant[s]”) ⁶; see also Kaider v. Hamos, 363 Ill.Dec. 641, 975 N.E.2d 667, 674–5 (Ill.App. 1 Dist.2012) (stating that a statute that confers “a benefit generally, without any indication that the [State] legislature intends to opt out of section 1621,” would not satisfy the federal statute because section 1621(d) requires a state law to convey “a positive expression of legislative intent to opt out of section 1621(a) by extending state or local benefits to unlawful aliens”). Thus, there is no current State law that meets the requirements of section 1621(d) and permits this Court to issue a law license to an unauthorized immigrant.

Next, several amici and counsel for Applicant assert that unauthorized immigrants should be admitted to Florida Bar membership based on policies announced by the executive branch of the federal government. They refer to a memorandumfrom Mr. John Morton, Director of United States Immigration and Customs Enforcement, which lists “individuals present in the U.S. since childhood” among the types of individuals who should not be considered priorities when deciding whom to prosecute for being illegally present in the United States. More significantly, they rely upon a new type of...