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July 1, 2013
Are undocumented immigrants eligible for Bar admission?

By Jan Pudlow
Senior Editor

When José Manuel Godinez-Samperio was 9 years old, he traveled with his parents from Pachuca, Mexico, to the United States on a tourist visa. When the visa expired, his parents stayed, and so did José.

José learned to speak English, excelled in school, became an Eagle Scout, and earned the distinction of valedictorian of Armwood High School in Seffner, east of Tampa.

Jose Manuel Godinez-Samperio The National Honor Society scholar won scholarships to New College of Florida in Sarasota. Candid about his undocumented status when he successfully applied to Florida State University College of Law, he graduated with honors and took classes taught by Sandy D’Alemberte, a former ABA president, FSU president, and FSU law school dean.

Now, D’Alemberte and his partner, Patsy Palmer, are representing Godinez-Samperio pro bono in a case of first impression.

The Florida Board of Bar Examiners waived its 2008 policy to show proof of citizenship or immigration status and allowed Godinez-Samperio to sit for the bar exam — and he passed on the first try in 2011. The bar examiners also certified he passed the character and fitness investigation.

Here’s the holdup. The board asked the Florida Supreme Court this advisory question: “Are undocumented immigrants eligible for admission to The Florida Bar?”

That question asked in a petition filed with the court on December 13, 2011, (in Case No. SC 11-2568) has become a contentious swirl of legalities and politics and remains unanswered to this day, while 27-year-old Godinez-Samperio waits to become a full-fledged Florida lawyer.

Three former ABA presidents — Martha Barnett, Steve Zack, and the late Wm. Reece Smith, Jr. — joined in a chorus of support for Godinez-Samperio, filing an amicus brief: “The U.S. Constitution requires Florida to educate undocumented students through 12th grade. But few of them, no matter how promising they may be, can go on to college, because they are ineligible for federal loans, Florida Bright Futures scholarships, and federal financial aid. Therefore, only a handful of undocumented students attend college and then earn law degrees. Those who graduate from law school have overcome substantial barriers — language barriers, cultural differences, inadequate finances. Imposing a blanket ban on their admission to the Bar would be a waste of exceptional talent for our profession.”

The U.S. Department of Justice filed its own amicus brief trying to block Godinez-Samperio’s admission to the Bar, arguing 8 U.S.C. §1621 prohibits the court from issuing a law license to an “unlawfully present alien” because federal law limits categories of aliens who may receive a professional license that is “provided . . .by appropriated funds of a state.”

That federal law had Justice Charles Canady raising his voice at the October 2, 2012, oral arguments: “Hasn’t the Department of Justice taken the position that that federal law would preclude the issuance of a license to practice law in circumstances such as are before us? . . . I think we’re using appropriated funds as we sit here this morning.”

Here’s what has changed since oral arguments: Godinez-Samperio is lawfully living in the U.S., because on December 24, 2012, he received notice that the U.S. Department of Homeland Security had granted him “deferred action” under the Deferred Action for Childhood Arrivals program (DACA). He now has a Social Security card, a Florida driver’s license, and a work permit, and he is employed as a law graduate at Gulf Coast Legal Services in Clearwater.

In light of those circumstances, D’Alemberte said, the proper question to put before the Supreme Court should be: “Whether an applicant who has complied with all requirements for admission, who has lawful presence in the U.S., and who has work authorization may be admitted to the Bar.”

Rather than fight the feds, D’Alemberte has taken an unusual tack.

He gathered more than 75 signatures of Florida lawyers and took out an ad in this Florida Bar News of his “notice of intent to file a petition to amend the Rules Regulating The Florida Bar,” specifically Rule 1-3 Membership and Rule 1-3.1 Composition. The proposed new language reads: “No person who has complied with the requirements for admission to The Florida Bar shall be disqualified because he or she is not a United States citizen.”

The petition will ask the Supreme Court to amend the rules and “opt out of portions of a federal statute that potentially interfere with the court’s exclusive constitutional jurisdiction over bar admissions and the practice of law.”

The issue is on the agenda of The Florida Bar Board of Governor’s July 26 meeting.

“It’s strange to me. Look at the dynamics. Here the Obama administration announces a policy that allows someone like José to apply for and have a lawful presence in the U.S. and have work authorization and a Social Security card. And now, with all of that, what in the devil is the Department of Justice doing trying to block his admission to the Bar? I think it’s another example of a dysfunctional Department of Justice,” D’Alemberte said.

Waiting to Launch His Career
Why does Godinez-Samperio want to be a lawyer?

“I want to serve my community. I want to make a difference. I want to bring justice to those who need it the most,” he answers.

Saying he is “very committed to public interest law,” Godinez-Samperio wants to practice immigration law and help others with language and economic barriers.

“I have lived here most of my life. I have to wait for what the future holds for me. My main concern is getting my law license,” he said. “I can’t apply for any jobs.”

He is not surprised his legal career has been put on hold this long.

“I know the court is considering everything they can, as they should. I am very hopeful. I have a Social Security number and a work permit. And now they are talking about immigration reform. I think all the energy is very positive. I think the court will take a lot of those things into account. I have never been in trouble or arrested for anything.”

He points to an amicus brief by the Americans for Immigrant Justice that argues immigration law is so complex, and there are so many unique situations, that determining who is undocumented is a “very problematic question” for the court to issue a bright-line rule.

“I have a work permit, but I don’t have a visa,” Godinez-Samperio said.

That brief also notes that the Bar Board of Governors “recognizes that those with diverse statuses should be included in its vision of diversity,” quoting this May 2010 statement from the BOG to define diversity: “The term ‘diversity’ has a dynamic meaning that changes as the demographics of Floridians change. Apart from differences in race, color, gender, national origin, religion, age, sexual orientation, citizenship, and geography, to mention a few, the public and our profession will experience changes in thought, culture, and beliefs. These demographics are constantly in flux.”

The Bar’s goal is that the legal profession in Florida “will accurately reflect the makeup of society.”

“There is no question that immigrants of every status make up a significant and valuable part of society,” the Americans for Immigrant Justice brief argues.

While he practices patience waiting for a law license, Godinez-Samperio said he is “very frustrated with Congress in particular.”

“Honestly, this issue would not have come up if they would have passed immigration reform when they should have. If Congress had passed immigration reform, I could have adjusted my status.”

Godinez-Samperio has not shrunk back watching from the sidelines.

He went public with his predicament before a Florida legislative committee in April 2011.

“I decided to come out with my story because I’m undocumented, unapologetic, and unafraid,” he told NBC News at that time. “In telling the truth, I am risking my liberty. But that’s what a lawyer is about — telling the truth.”

He went to Capitol Hill lobbying for the DREAM (Development, Relief, and Education for Alien Minors) Act, which aims to allow students who entered the U.S. before their 16th birthday, who have lived in the country for at least five years, who are in good moral standing, and who have graduated from high school to be classified as permanent residents and pursue a path toward citizenship.

He met President Obama. And he co-founded the DREAM Bar Association, an organization describing itself in its amicus brief as welcoming “undocumented and allied legal professionals, law students, and aspiring law students.”

One of Godinez-Samperio’s supporters is U.S. Rep. Kathy Castor, D-FL, who filed a letter with the Supreme Court on March 16, 2012: “We must encourage our nation’s next generation — not place obstacles in their path to success. It would be so unfortunate to see a young person, like José Godinez-Samperio, Hillsborough County Armwood High School’s 2004 valedictorian, work so hard and achieve the success of graduating law school and passing the bar only to be prevented from ever working a day as a lawyer because of misguided policies. It is short-sighted and arbitrary to deny students like him acceptance to The Florida Bar because of decisions that were made for him as a child. The correct result certainly is admission.”

Waiting for the Court to Rule
In its original petition asking for an advisory opinion, the Bar Examiners explained how its policy came about to require information from applicants about their citizenship or immigration status.

“In considering this issue, the board had before it information regarding a decision from Georgia. In that case, a Georgia bar applicant sued the Georgia Office of Bar Admissions alleging that the Fitness Board’s practice of requiring certain immigration documentation from non-citizens and ‘all foreign-born applicants’ is violative of the Supremacy and Equal Protection Clauses as well as his substantive due process rights,” according to the petition. But a federal judge found in favor of the Georgia bar examiners.

At oral argument, Florida Board of Bar Examiners General Counsel Bob Blythe explained Godinez-Samperio filed a petition with the board asking for a waiver of that requirement. The board agreed and allowed him to sit for the exam.

That caused Justice Fred Lewis to say: “It just seems very strange that we would have taken all these steps and you bring a person right to the edge and then you push him off the cliff. . . . Now the position being advanced is we have an individual, I mean a highly qualified individual, a very good character person, but that it would be a crime if somebody employs the person. . . . I’m at a loss how the board got the state in this kind of position.”

Blythe answered: “Certainly, with hindsight, perhaps it would have been a better course to try to address this issue at that time, but that is not what happened.”

Later, Blythe said, “This is the only person who approached the board proposing to apply for admission to the Bar that was not able to provide the documentation” — but he stressed from the board’s perspective the case is about the bright-line rule, not just one individual.

Upon hearing that the process was moving forward for Godinez-Samperio to get a Social Security card and work permit, Justice Jorge Labarga asked: “If he is able to obtain a Social Security number, then what is the issue here?”

“Your honor, you just summed up my argument,” D’Alemberte responded.

In court pleadings, D’Alemberte argued that the Florida Department of Business and Professional Regulation’s public policy on licensing many professionals, as well as the policy for professionals licensed by Florida Department of Health and the Florida Department of Financial Services — set forth by F.S. §456.019 and F.S. §455.10 (2012) — states: “No person shall be disqualified from practicing an occupation or profession regulated by the state solely because he or she is not a United States citizen.” “My real prediction is that the court will deny my petition and use their inherent authority to either admit José or change the rule and have The Florida Bar rule consistent with the statutes governing the licensing of other professions,” D’Alemberte said.

“That may show I still have a streak of stubborn optimism in me. In my judgment, that is what they should do. I still believe in the court. I don’t really want a drawn-out rulemaking procedure.

“José has complied with all the rules that would allow him to be admitted to the Bar. I would be quite happy to have all these side-show motions denied. I’ve got a client, and I want to see his interests served and to get on with his life as a young lawyer. I think he is likely to have such a distinguished career as a lawyer. I hope the court will understand that to rule with José, they will be on the right side of history.”

[Revised: 10-30-2014]