Bias in the Legal System? An Essay on the Eligibility of Undocumented Immigrants to Practice Law

Abstract

This paper was prepared for the panel entitled “Deconstruct and Reconstruct: Re-examining Bias in the Legal System: Searching for New Approaches” at the 2012 annual meeting of the Association of American Law Schools (AALS). This Essay considers one aspect of what some observers might characterize as bias in the legal profession — the restriction of undocumented immigrants — from the practice of law. In contrast, others might consider the alleged “bias” as a permissible regulation of the admission of lawyers to practice law.Like laws affecting immigrants indirectly, such as street vendor regulations, or directly, as in efforts by state and local governments at immigration enforcement, restricting access to the legal profession based on immigration status under contemporary conditions will unquestionably have disparate impacts on communities of color. Specifically, the vast majority of today’s immigrants are from Mexico and Central America, as well as Asia, and the reliance on undocumented immigrant status to screen access to the bar will directly impact those communities.Heated debates have raged in the United States in recent years over “illegal” immigrants, immigration, and immigration reform. Despite ongoing public dialogue for more than a decade, Congress has been unable to pass comprehensive immigration reform. Ostensibly seeking to fill a perceived void in immigration enforcement as well as to respond to the failure of reform at the national level, several states in the last several years have enacted controversial immigration enforcement laws. This Essay considers a small but important ancillary issue involving state treatment of undocumented immigrants — restrictions on undocumented immigrants to practice law.The question of licensing undocumented immigrants as attorneys is part of the larger question of the integration of undocumented immigrants into American social life. Like it or not, millions of undocumented immigrants live in this country. Many come to the United States as children and attend American public elementary and secondary schools. Undocumented college students, popularly known as DREAMers, have captured the national imagination; their political struggles also have resulted in meaningful changes in policy. The natural educational progression for some college graduates is to attend graduate and professional school. Professional licensing is ordinarily the next step for professional school graduates. Part I of this Essay sketches the history of the exclusion by the various states of immigrants from the legal profession. Part II considers the possibility of licensing undocumented immigrants as lawyers.