On May 20, 2012, the U.S. Department of Justice (DOJ) filed an amicus curiae brief in the matter of Florida Board of Bar Examiners Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Florida Bar (SC11-2568). That proceeding was initiated by the Florida Board of Bar Examiners, which seeks an advisory opinion as to whether undocumented immigrants are eligible to be licensed to practice law. The amicus brief, filed at the invitation of the Florida Supreme Court, argues that Jose Godinez-Samperio, a graduate of the Florida State University College of Law, an undocumented immigrant who was brought to Florida by his parents when he was nine on a temporary visa and has stayed since, is not eligible for licensure as an attorney in Florida. The Department of Justice relies on 8 U.S.C. sec. 1621, which provides in pertinent part that any undocumented alien is not eligible for “any State or local public benefit”. “Public benefit” in turn includes any “professional license…provided by an agency of a State or local government or by appropriated funds of a State or local government.” While the statute allows states to create categories of aliens that are eligible for state licenses, the statute requires that such categories may only be created by the enactment of state law. No such carve out is applicable to Mr. Godinez-Samperio in Florida.

The Department of Justice noted that the Supreme Court of Florida, which ultimately governs the admission of attorneys to the Florida Bar, is an agency funded by moneys appropriated by a State, and is therefore bound by 8 U.S.C. sec. 1621 in the absence of a carve out created by state law. The federal government went on to point out that the deferred action policy recently announced by the Department of Homeland Security (DHS), whereby certain undocumented immigrants will not be subject to deportation proceedings but will rather receive authorization to work, does not affect the statutory prohibitions imposed by 8 U.S.C. sec. 1621. According to DOJ, while DHS may authorize undocumented workers to work legally in some cases, the deferred action policy does not waive the statutory provisions of 8 U.S.C. sec. 1621.

The online docket of the case is available here. A brief discussion of the positions of the applicant is available here. Oral arguments held in this matter (prior to the participation of the DOJ) are available here.