Last fall, the California Legislature passed a law that permits the state supreme court “to admit to the practice of law an applicant who is not lawfully present in the United States . . . .” The law was prompted by the case of Sergio Garcia, an undocumented immigrant that had graduated from law school, passed the bar exam, and was awaiting the California Supreme Court’s decision on whether he could be lawfully admitted to the bar. The court heard oral arguments in September that centered around the question of whether federal law prohibits the issuance of law licenses to undocumented immigrants. The law at issue, 8 U.S.C. § 1621, generally prohibits states from providing public benefits to undocumented immigrants. However, the statute’s “savings clause,” § 1621(d), permits states to provide the prohibited public benefits if there is “an affirmative enactment of State law . . . which affirmatively provides for such eligibility.”
The new California law freed the state supreme court from addressing the most complicated issues in the case. The court held simply that the state law satisfied the requirements set forth in the “savings clause,” and thus, undocumented immigrants could lawfully be admitted to the bar. In so holding, the court was able to sidestep the question of whether Congress intended a law license to be included in the category of prohibited public benefits. The question also remains whether, in the absence of a state legislative enactment, a court rule permitting bar eligibility of undocumented immigrants would suffice as “an affirmative enactment of State law.” The last question is particularly important for the large number of states whose legislatures will likely be hesitant to pass a law granting bar eligibility to undocumented immigrants. Volume 19 Executive Note Editor, Adam Wright, addresses these questions in his Note, Federal Constraints on States’ Ability to License an Undocumented Immigrant to Practice Law, published in Volume 19.1 of the Michigan Journal of Race & Law.