Cyrus Mehta

All eyes are focused on
whether the California Supreme Court will grant an undocumented lawyer a law
license in the case of Sergio
. If an undocumented lawyer like Garcia is granted a license, what
would happen if he chooses to practice immigration law? In the past,
undocumented lawyers who practiced immigration law have been disciplined by bar
counsel within the immigration agencies.  The same fate should not befall future
undocumented lawyers if they choose to practice immigration law after the state
has granted them a license to practice law.

The first question is
whether an undocumented lawyer can be granted a law license by the relevant state.
 The Department of Justice has argued
that 8 USC §1621 prohibits a state from granting a public benefit to an
undocumented alien, which also includes a professional license. At the oral
argument last Wednesday, September 4, the judges seemed to agree with the DOJ’s
position. However, 8 USC §1621 also allows a state to bypass §1621 by enacting
specific legislation that could grant a benefit to an undocumented alien. Thus,
even if the California Supreme Court rules against Garcia,  the California legislature has passed specific legislation, AB 1024, that
would authorize the granting of law licenses to undocumented aliens. This legislation, if signed by the governor,  will moot the case in the California Supreme Court, but the DOJ is likely to make the same argument in other states.

The DOJ’s hypertechnical
argument clearly goes against the spirit of the Obama Administration’s deferred
action for childhood arrivals (DACA) policy, although Garcia was too old to
take advantage of it. The DOJ
has also argued in a similar case in Florida
that §1621 precludes a state
from granting a law licenses to a person who has since received work authorization
under DACA.  It boggles the mind as to why
the DOJ would read §1621 so broadly so as to oppose the granting of a license
to a lawyer who has been authorized to remain in the US and work under DACA.

There are compelling
arguments why an undocumented lawyer should be granted a law license
. A law
license should be separated from the ability to work in the US. There are many
foreign lawyers who get law licenses in this country even though they may not
be eligible to work in the US. They have entered the US on student or tourist
visas, and take the state bar exam. While they may not be able to remain in the
US longer than their visa and plan to return to their countries, they are nevertheless
granted a license based on their competence and fitness to be lawyers. Such
lawyers can practice US law in their own countries, and even apply their
knowledge of such law, when they legitimately visit the US for business

With respect to an
undocumented lawyer who may remain in the US, he or she need not be employed by
an employer in violation of federal immigration law. Such a lawyer could
potentially work as an independent contractor or perform pro bono work as a
volunteer without potentially violating the employer sanction laws. The DOJ in
its brief cites Matter of Tong, 16 I&N Dec. 593
(BIA 1978) to argue that self-employment qualifies as working without
authorization. But Matter of Tong was
decided long before the Immigration Reform and Control Act of 1986, which made
it unlawful for an employer to hire a person who is not authorized to work in
the US. Matter of Tong only held that
an alien who engages in self-employment, when otherwise not authorized to work,
cannot adjust status under INA §245. It does not prohibit self-employment, and
in any event, an undocumented person is ineligible to adjust status.  

So, what would happen
if an undocumented lawyer is granted a license, which is about to happen in California,  and then decides to practice
immigration law? The DOJ’s brief in the Sergio Garcia case cites instances of
disciplinary action taken against licensed attorneys who were not authorized to
work in the United States by disciplinary counsel within the USCIS and the EOIR
. See Matter
of Ravindra Singh Kanwal
, D2009-053 (OCIJ July 8, 2009) and Matter
of Noel Peter Mpaka Canute
, D2020_124 (OCIJ March 16, 2001). In both
the cases, the attorneys had work authorization and then fell out of status,
but never contested the charges and consented to the order of discipline. They
were indefinitely suspended, but could apply for reinstatement if they could
demonstrate that they had lawful immigration status or were granted employment
authorization. Both of these attorneys were then reciprocally disciplined by
their state bars in New York
and Colorado
and other states where they were admitted as attorneys.  

Despite the groundswell
of support for granting licenses to undocumented attorneys, bar counsel within
the immigration agencies could potentially start disciplinary actions against
them if they practice immigration law based on the prior precedents.  When a state has granted a law license to an
undocumented lawyer, knowing fully well that the lawyer is undocumented, one is
hard pressed to think about the ethical basis to discipline a lawyer who
decides to practice immigration law. Under 8 CFR 1.1 and 1001.1, both the DHS
and EOIR must recognize an attorney “who is eligible to practice law in and is
a member in good standing of the bar of the highest court of any State,
possession, territory, or Commonwealth of the United States, or the District of
Columbia, and is not under any order suspending, enjoining, restraining,
disbarring, or otherwise restricting him in the practice of law.” An undocumented
attorney who falls under this definition is recognized under federal law to
engage in the practice of immigration law.

Although the two published
decisions are devoid of details as the immigration attorneys conceded to the
disciplinary charges, it is hard to find a disciplinary ground under the
federal immigration rules in 8 CFR 1003.102 that would sanction an undocumented
attorney who chooses to practice immigration law, especially if such an
attorney is not employed in violation of the employer sanction provisions, practices
as an independent contractor and otherwise engages in ethical conduct.
Moreover, in the unfortunate event that such an attorney does get disciplined
by the immigration agencies for merely being undocumented, it would be equally
hard for a state disciplinary authority to find a reciprocal disciplinary
ground under the various state rules of professional responsibility, which have
largely adopted the ABA Model rules.  Even
ABA Model Rule 8.4(c), which can sanction attorneys who “engage in conduct
involving dishonesty, fraud, deceit or misrepresentation” or Rule 8.4(d), which
sanctions attorneys who “engage in conduct that is prejudicial to the
administration of justice” can hardly apply to an undocumented lawyer who has
been granted a license by his or her state bar, and who otherwise does not
engage in unethical conduct.

Even from a public
policy standpoint, a foreign national lawyer, who is otherwise in H-1B visa status,
can fall out of status unbeknownst to him or her if the employer forgets to
timely file an extension of the H-1B status. This lawyer may have also
mistakenly received an I-94 authorizing him or her to remain in the US up to a
date earlier than the date on the H-1B approval notice, and the lawyer only
finds out after it is too late.  A lawyer
may have also applied for adjustment of status based on marriage to a US
citizen, and timely applies for a renewal of the employment authorization
document, but may not receive such a document from the USCIS in a timely
manner. Lawyers who find themselves in such situations, and while waiting for
the government to extricate themselves from this mess, may still wish to engage
in a pro bono case for a foreign national client. Should such a lawyer be
disciplined for unethical conduct?

The disciplining of an
undocumented lawyer also goes against the grain of prevailing policies and
attitudes towards undocumented immigrants. There are millions of undocumented
people who are waiting for immigration reform, and the Senate has already
passed S. 744, which will give them Registered Provisional Status, and then put
them along the pathway to permanent residency and eventually citizenship. Indeed,
being documented or undocumented is part of the same continuum. A thoroughly
undocumented person, when placed in removal proceedings, can seek cancellation
of removal under stringent criteria pursuant to INA §240A(b), such as by being
physically present in the U.S. on a continuous basis for not less than 10
years, by demonstrating good moral character during this period, by not being
convicted of certain offenses and by demonstrating “exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child,” who is a citizen or
a permanent resident.
a person whose visa has long since expired could also possibly get wrapped up in
a romantic encounter with a U.S. citizen, marry, and dramatically convert from
undocumented to permanent resident within a few months. Until the recent fall
of DOMA, a lawyer in a same sex marriage with a US citizen could not even apply
for an immigration benefit through that marriage.  At times, Congress bestows such permanent
residency, as we have already seen, through section 245(i) or the LIFE Act, or
a person can obtain Temporary Protected Status (TPS), if a calamity were to
befall his or her country such as the recent TPS program and its extension for
Haitians after the devastating earthquake on January 12, 2010.
a documented person, such as one in H-1B status can according to the government
also technically be considered not in status, during the pendency of an
extension request, although this position has been successfully challenged.

The following extract from the U.S. Supreme Court’s decision in Plyer v. Doe,
457 U.S. 202 (1982), which held that undocumented children could not be
deprived of a public education, is worth noting:

To be sure, like all persons who have entered the United States unlawfully, these
children are subject to deportation. But there is no assurance that a child
subject to deportation will ever be deported. An illegal entrant might be
granted federal permission to continue to reside in the country, or even become
a citizen.

As undocumented
immigrants become attorneys, many may want to get involved in some way in the
practice of immigration law. Many of them were brought to the US as children
and are without status for no fault of their own.  They may engage in advocating for the rights
of immigrants, for immigration reform and may also perform pro bono work in the
immigration field.  They can hardly be
accused of engaging in unethical conduct by bar counsel within the immigration agencies,
especially when their states have granted them licenses after being fully aware
of their undocumented status.

(The view's expressed in this blog are the author's personal views and do not necessarily represent the views of any organization that he is a part of)

This post originally appeared on The Insightful Immigration Blog on September 13, 2013.

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of AILA's Ethics Committee and former Chair of AILA's Pro Bono Committee. He is also the former Chair of the Board of Trustees of the American Immigration Council (2004-06) and Chair of the Committee on Immigration and Nationality Law (2000-03) of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on administrative remedies and ethics, and is also an adjunct associate professor of Law at Brooklyn Law School, where he teaches a course entitled "Immigration and Work." Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.

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