In re Vargas

131 A.D.3d 4

10 N.Y.S.3d 579

2015 N.Y. Slip Op. 04657

In the Matter of the Application of Cesar Adrian VARGAS for Admission to the Bar of the State of New York.

2013-10725

Supreme Court, Appellate Division, Second Department, New York.

June 3, 2015.

Juan Cartagena, New York, N.Y. (Jose Perez of counsel), for applicant.

Loretta E. Lynch, Attorney General of the United States, Washington, D.C. (Joyce R. Branda, Mark B. Stern, Daniel Tenny, and Lindsey Powell of counsel), for amicus curiae United States of America.

Eric T. Schneiderman, Attorney General of New York, Albany, N.Y. (Barbara D. Underwood, Kristen Clarke, Denise A. Hartman, and Andrew B. Ayers of counsel), for amicus curiae State of New York.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, REINALDO E. RIVERA, PETER B. SKELOS, and MARK C. DILLON, JJ.

Opinion

PER CURIAM.

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.¹ 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 U.S.C. § 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 U.S.C. § 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 U.S.C. § 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 U.S.C. § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 U.S.C. § 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.

I. Facts Applicable to Cesar Adrian Vargas

The applicant, Cesar Adrian Vargas, was born in Puebla, Mexico, in September 1983. His mother brought him and his siblings to the United States when Mr. Vargas was 5 1/2 years old, without lawful documentation to enter or remain in the United States. The family settled in the New York City area, where Mr. Vargas continues to reside today. 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.

In accordance with the guidelines established by the Secretary of the United States Department of Homeland Security (hereinafter DHS), Mr. Vargas submitted an application for deferred action from removal under a program entitled Deferred Action for Childhood Arrivals (hereinafter DACA).

On October 25, 2012, while Mr. Vargas' DACA application was pending, he submitted an application for admission to practice law in the courts of the State of New York (hereinafter bar application) to the Committee on Character and Fitness for the Second Judicial Department (hereinafter the Character Committee). In his bar application, Mr. Vargas disclosed that he was not a citizen of the United States and that his immigration status was “without status.” He further disclosed that he did not have a social security number, and reported his tax identification number in lieu thereof. However, Mr. Vargas also advised that he had submitted an application under DACA for deferred action from removal enforcement, and explained that upon approval of his DACA application, he would receive an employment authorization and would be eligible for a social security number. On or about February 19, 2013, Mr. Vargas' DACA application was approved by the DHS, Office of United States Citizenship and Immigration Services (hereinafter USCIS). On April 16, 2013, Mr. Vargas notified the Character Committee that his DACA application had been approved by USCIS. Thereafter, he supplemented his bar application with copies of the USCIS Notice of Approval, an employment authorization document,² a social security number and identification card issued by the Social Security Administration, a license to drive issued by the New York State Department of Motor Vehicles, and an updated employment authorization document issued by DHS. He further disclosed that he had applied for DACA renewal. More recently, Mr. Vargas submitted a copy of a USCIS Notice of Action dated February 26, 2015, which indicates that his application for renewal of deferred action relief had been approved.³

As required of all applicants for admission to the practice of law, Mr. Vargas' bar application was supported by several affidavits describing each respective affiant's relationship with Mr. Vargas and the affiant's opinion that he possessed the character and fitness necessary to practice law in the State of New York (see 22 NYCRR 520.12 ). A review of the affidavits reveals that Mr. Vargas disclosed to each affiant that he was an undocumented immigrant.

A subcommittee of the Character Committee conducted a hearing on Mr. Vargas' bar application on July 29, 2013 (see CPLR art. 94; 22 NYCRR 690.6 ). In its written report, the subcommittee found that Mr. Vargas “appears to have stellar character,” but recommended against his admission solely on the ground that it should be left to the Court to determine whether his eligibility for admission to practice law was barred by reason of his undocumented immigration status. Absent this legal issue, the subcommittee reported that it “would have no hesitation in recommending Mr. Vargas' admission to the New York Bar.” The Full Committee on Character and Fitness for the Second, Tenth, Eleventh, and Thirteenth Judicial Districts adopted the subcommittee's report by a vote of 28 to 8, with 2 abstentions. In accordance with 22 NYCRR 690.15 of the Rules of the Supreme Court, Appellate Division, Second Department, the Character Committee conveyed its findings to this Court.

II. Law and Rules Governing the Admission of Attorneys and Counselors–at–Law in the State of New York

In New York, by legislative enactment, the Court of Appeals—the state's highest court—is vested with the rule-making authority to regulate “the admission of attorneys and counsellors at law, to practice in all the courts of record of the state,” subject to the State constitution and statutes (Judiciary Law § 53[1] ).⁴ Indeed, in the United States, the authority of the judiciary to regulate the practice of law, whether it be the admission of attorneys to the bar or the disciplining of attorneys, is recognized in every state in the union (see In re Garcia, 58 Cal.4th at 452, 165 Cal.Rptr.3d 855, 315 P.3d at 124–125 ). The United States Supreme Court has also acknowledged that “the courts have historically regulated admission to the practice of law before them” (Gentile v. State Bar of Nev., 501 U.S. 1030, 1066, 111 S.Ct. 2720, 115 L.Ed.2d 888 ).

The Court of Appeals has succinctly summarized the authority of the judiciary in the admission process as follows:

“Admission to the Bar is a two-part qualification process. Section 53 of the Judiciary Law vests the Court of Appeals with broad authority to promulgate rules regulating the admission of attorneys to practice in this State, including the power to provide for a uniform system of examining candidates seeking admission (Judiciary Law § 53[1], [3] ). Pursuant to that authority, this Court has promulgated rules governing uniform educational requirements (22 NYCRR 520.3, 520.4, 520.5 ), rules creating a uniform Bar examination (22 NYCRR 520.7, 520.8 ), and a rule governing admission without examination (22 NYCRR 520.9 ). Although a person may be admitted to the Bar only by order of the appropriate Appellate Division department (22 NYCRR 520.1 [a] ), no application may be entertained by that court unless the Board of Law Examiners, which oversees the examination, has certified that the applicant has successfully completed the examination process (see, 22 NYCRR 520.6, 520.7 ; 22 NYCRR part 6000; see also, Judiciary Law § 56 ).

“The second phase of the qualification process commences with certification by the Board, indicating that the candidate has demonstrated the requisite knowledge of the law and legal ability. The Appellate Division in each department is then charged with determining that the applicant for admission ‘possesses the character and general fitness requisite for an attorney and

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