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March 15, 2014
Court says no to undocumented Florida lawyers

By Jan Pudlow
Senior Editor

Saying it was bound by the supremacy of federal law, the Florida Supreme Court declared March 6 that unauthorized immigrants are ineligible for admission to The Florida Bar. Now José Manual Godinez-Samperio — who graduated at the top of his class at Florida State University and passed the Florida bar exam three years ago — pins his hopes with the Florida Legislature on becoming a lawyer.

“It would not surprise you to know I have already started talking to legislators and lobbyists to see if we can get some movement toward getting a law enacted this session,” said Sandy D’Alemberte, a former FSU law school dean who taught Godinez-Samperio in law school and represents him pro bono.

Because the deadline has passed to file new bills, D’Alemberte said he would try to piggyback on another bill, that would create a Florida law opting out of 8 U.S.C. §§1961 (a) and (c) (2012) — as the California Legislature did recently to clear the only impediment to Sergio Garcia’s admission to the State Bar of California.

That federal law prohibits public benefits to an “unlawfully present alien,” and those benefits include “any . . . professional license, or commercial license” that is provided “by appropriated funds of a state.” The U.S. Department of Justice argued that federal statute prohibited the Florida Supreme Court from issuing a law license to an “unlawfully present alien.”

“A state license to practice law is a professional license,” a unanimous Florida Supreme Court said in Case No. SC11-2568.

“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.”

D’Alemberte unsuccessfully argued that the Florida Legislature doesn’t have authority to adopt a law governing bar admission, because that authority rests with the Florida Supreme Court, under Art. V, §15.

When Godinez-Samperio was 9 years old, he traveled with his parents from Mexico to the United States on a tourist visa. When the visa expired, his parents stayed, and so did José. He graduated from New College in Sarasota, and with honors from FSU College of Law.

The 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?” In this opinion, the court answered “no.”

D’Alemberte said his client is unwilling to go back to Mexico and wait a decade for the OK to live in the United States as a citizen.

Currently, Godinez-Samperio is a paralegal at Gulf Coast Legal Services. He has a Social Security number, a work permit, and a driver’s license. He was granted temporary permission to stay in the United States, called “Deferred Action for Childhood Arrivals.”

Because it is an executive branch policy and not a law passed by Congress, it does “not provide this court with legal authority to disregard the laws currently enacted by Congress and admit unauthorized immigrants into Florida Bar membership,” the opinion said.

Godinez-Samperio said he feels “very disappointed. But more than anything, I am feeling outraged at Congress for failing to take action on immigration reform.”

In a concurring opinion, Justice Jorge Labarga said: “Indeed, in many respects, Applicant’s life in the United States parallels my own. He and I were brought to this great nation as young children by our hardworking immigrant parents. . . .

“Both of us were driven by the opportunities this great nation offered to realize the American dream. Sadly, however, here the similarities end and the perceptions of our accomplishments begin.

“When I arrived in the United States from Cuba in 1963, soon after the Cuban Missile Crisis — the height of the Cold War — my parents and I were perceived as defectors from a tyrannical communist regime. Thus, we were received with open arms, our arrival celebrated, and my path to citizenship and the legal profession unimpeded by public policy decisions.

“Applicant, however, who is perceived to be a defector from poverty, is viewed negatively because his family sought an opportunity for economic prosperity. It is this distinction of perception, a distinction that I cannot justify regarding admission to The Florida Bar, that is at the root of Applicant’s situation.

“Applicant is so near to realizing his goals yet so agonizingly far because, regrettably, unlike the California Legislature, the Florida Legislature has not exercised its considerable authority on this important question. Thus, only reluctantly do I concur with the majority decision.”

[Revised: 07-23-2014]