Undocumented Lawyers and Rogue States

Undocumented Lawyers and Rogue States

So far, 2014 has been a year of states doing as they please.


In the first week of 2014, thirteen states increased their minimum wage, Colorado legalized recreational marijuana use and California restricted gun registration and granted more rights to transgender students. There are always new laws each January: Illinois banned anyone under 18 from using a tanning salon, Oregon now permits new mothers to keep their placentas, and Wisconsin has legitimized “pedal pubs”—which, for the uninitiated, refers to a dozen or so bicycles hitched together with a keg mounted on top. But the ideological aggressiveness of some of the 2014 laws have inspired many to proclaim 2014 as a “liberal moment.” Another example supporting the liberal moment thesis: the California Supreme Court ruled last week that an undocumented immigrant who passed the state bar should be able to practice law.

In October, California governor Jerry Brown signed a series of immigrant-friendly laws, including one that allows the state bar to admit “an applicant who is not lawfully present in the United States [who] has fulfilled the requirements for admission to practice law.” That law, AB1024, did not take effect until this year. Sergio Garcia, a Mexican citizen who has lived in California since 1994, graduated from Cal Northern School of Law in 2009, and passed the bar shortly after, waited to appeal his case until AB1024 was implemented.

The California Supreme Court (which, in a rhetorical break from legal tradition, used the phrase “undocumented immigrant” rather than “unauthorized” or “illegal alien” in its opinion) ruled that the passage of AB1024 supersedes the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which prohibits undocumented immigrants from receiving federal benefits but allows states to adjust these restrictions with their own laws. The opinion also stated that Garcia’s presence in California “does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar.” The opinion mentioned that Garcia had tried to immigrate legally—he applied for a visa in 1995. He is still waiting for it to come though.

Now Garcia is an authorized lawyer under California state law. But under federal law, no law firms are able to hire him.

Immigration has increasingly become a state issue. Some state programs are federally sanctioned—after 9/11, for example, the Justice Department deputized police officers with the powers of immigration officials. Sometimes, as with Garcia’s case, state immigration laws are more symbolic than they are functional, meant to call attention to federal inaction on immigration reform: Cities have declared themselves sanctuaries for undocumented immigrants, even if they have little recourse if ICE chooses to make an arrest. Many states gave college-aged undocumented immigrants access to in-state tuition even if those students wouldn’t be able to work in the United States after they graduated. These tuition laws helped pressure President Obama in 2012 to approve the Deferred Action for Childhood Arrivals program, which gave young immigrants access to working papers. Garcia, similarly, might set a precedent that allows young, undocumented immigrants who are eligible to work in the United States (Garcia is too old to qualify for deferred action) to be able to practice law one day.

Such laws have made the quality of life for undocumented immigrants vastly different from state to state: immigrants can get a driver’s license in New Mexico, and they pay the same tuition as their high-school classmates at any state university, but next door, in Arizona, they’ll never be eligible for a license and will pay three times as much for college as their peers. California has become, arguably, the most immigrant-friendly state in the country, having just implemented the Trust Act, a law that limits ICE’s power to hold and deport nonviolent immigrants.

Minimum-wage increases at the state level have inspired the federal government to do the same—President Obama and House Democrats are pushing a bill that would increase the minimum wage to $10.10 an hour. But more immediately, these laws will lift many thousands of people out of poverty. Washington, where the minimum wage is the highest in the country, at $9.32 an hour, has become a preferable place to live for anyone working in a low-paid industry.

States doing as they please sets up a kind of political experiment, a competition between not just two Americas but as many as fifty. “One question I’m curious about is whether we’ll see an increase in people picking up and moving to places where public policy either accords better with their values or offers them important benefits they need to live their lives (or both),” Paul Waldman recently wrote in The American Prospect. This has already taken place among the undocumented community, and perhaps other groups will do the same in 2014. Maybe these laws will incite federal action. And maybe it will shift the political discourse from red vs. blue to what actually works.

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