New York Admits Dreamer

An important  bar admission decision from the New York Appellate Division for the Second Judicial Department

We are called upon to determine whether an undocumented immigrant, who is authorized to be present in the United States under the auspices of the Deferred Action for Childhood Arrivals policy of the federal government, and who meets the statutory eligibility requirements and the rules of court governing admission to the practice of law in the State of New York, may satisfy the standard of good character and general fitness necessary for admission. We are further called upon to determine whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.

We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York. Accordingly, we answer the first question in the affirmative and the second question in the negative.

The admitted applicant was born in Mexico and came to the United States at the age of 5 1/2.

Mr. Vargas enrolled in, and graduated from, elementary school and high school in the public school system of the City of New York. He attended St. Francis College in Brooklyn, and graduated in December 2005. Mr. Vargas thereafter applied for admission to, was accepted to, and enrolled in, the law school of the City University of New York (hereinafter CUNY). While attending law school, he served as a law intern for Main Street Legal Services, Inc., the Office of the District Attorney of Kings County, and a New York State Supreme Court Justice. He also served as a legislative intern for a member of the United States Congress. Upon graduating from CUNY in 2011, Mr. Vargas sat for the examination administered by the New York State Board of Law Examiners in July of 2011. He obtained a passing score.

Holding

We find that the undocumented status of an individual applicant does not, alone, suggest that the applicant is not possessed of the qualities that enable attorneys to vigorously defend their client’s interests within the bounds of the law, nor does it suggest that the applicant cannot protect, as an officer of the court, the rule of law and the administration of justice. Toward that end, we note that the states of California (see Cal Bus & Prof Code § 6064[b]) and Florida (see Fla Stat 454.021[3]) have enacted statutes which specifically authorize the admission of certain persons without lawful immigration status to the practice of law provided they otherwise meet the eligibility standards for admission. Our sister states have thereby determined that the absence of lawful immigration status does not, per se, adversely reflect on the character and fitness of a person for admission to the practice of law.

Thus

Admission decisions are ordinarily matters considered in camera by the Character Committee and ultimately determined by the Appellate Division upon the application of the Character Committee without a formal opinion determining the application. Recognizing the effect this determination will have on the practice of law in the State of New York and potentially on the practice of law in our sister states, we elect to publish this Opinion and Order to the public at large.

In light of the foregoing, the application of Cesar Adrian Vargas for admission to the practice of law in the State of New York is hereby granted, subject to his submission of satisfactory proof that he has completed the pro bono service requirement of 22 NYCRR 520.16, the taking of the required oath, and the signing of the roll of attorneys and counselors-at-law.

The United States and the State of New York filed amicus briefs in the case. (Mike Frisch)