Barack Obama

Immigrant law grads fight to practice in the U.S.

March 10, 2014: 12:46 PM ET

Recent court cases have put a spotlight on whether undocumented immigrants can gain admission to the legal bar.

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FORTUNE -- You've graduated law school and passed the bar. Excellent news, you've completed the two critical steps to becoming a lawyer. That is, of course, unless you're an undocumented immigrant. In that case, the congratulations train may stop right here.

Three recent court cases have put a spotlight on whether undocumented immigrants can gain admission to the bar, and the two that have been decided don't make the path for aspiring immigrant attorneys all too clear.

The most recent decision came late last week in the Florida Supreme Court, which ruled that Jose Godinez-Samperio, who moved from Mexico to the U.S. when he was nine years old, can't practice law in the state even though he passed the bar exam and was authorized to work in the U.S. under the Deferred Action for Childhood Arrivals (DACA) program that the Obama administration enacted in June 2012.

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That decision came in the wake of a ruling by the California Supreme Court in January that determined just the opposite: Sergio Garcia, whose parents brought him to the U.S. from Mexico at 17 months, was allowed to join the state bar and practice law.

The differing outcomes of these cases hinge on a 1996 federal law Congress passed as part of President Bill Clinton's effort to "end welfare as we know it." The Personal Responsibility and Work Opportunity Act included a provision that denies undocumented immigrants access to "state public benefits" that are taxpayer funded, such as a license to practice law that's granted by a state court.

The only way to get around this federal law is for states to enact their own legislation to override it. The California legislature did just that in October 2013. The Florida legislature, meanwhile, has failed to act.

In addition to the Florida and California cases that have already been decided, there's the case of Cesar Vargas, a law school graduate and former intern for a State Supreme Court judge who came to the U.S. from Mexico when he was five years old. He's fighting for admission to the bar in New York, though it'll be a tough battle since the state has no law that supersedes the federal ban on law licenses for undocumented immigrants.

Vargas's case certainly won't be the last. The question of what rights and benefits undocumented immigrants can access will loom large as more who arrived in the U.S. as children gain work authorization through DACA -- there were approximately 900,000 eligible individuals as of the initiative's enactment -- and as Congress stalls on a major immigration overhaul.

"Many of these [undocumented immigrant] students have become very politically active," says Nicholas Espíritu, a staff attorney at the National Immigration Law Center. "The fact that there hasn't been real immigration reform is unjust, and one of the ways that people attempt to address injustices is by going to law school. It's not surprising that these people want to join the bar."

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Some states have passed immigrant-friendly bills in recent years -- like the 11 states that now allow immigrants to get a driver's license -- but so far California is the only state to pass legislative authorization of the admission of undocumented immigrants to practice law, according to Kevin Johnson, dean of the UC Davis School of Law.

For many states, it's a question of whether it's ideal to move ahead on their own or hold for action on the federal level. When signing California's law, Governor Jerry Brown made his stance clear: "I'm not waiting," he said.

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