By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania
On February 8, Pennsylvania quietly posted a new rule about who can become a lawyer. The amended rule, adopted by Pennsylvania’s Board of Law Examiners (an arm of the Pennsylvania Supreme Court), makes clear that DACA recipients are eligible to be licensed attorneys in the commonwealth of Pennsylvania.
This may seem obvious. Of course DACA recipients should be able to be lawyers—just like anyone else who graduates from law school in the U.S., passes the bar exam, and satisfies the “character and fitness” requirements. Immigration status has no bearing on someone’s ability to be a good lawyer.
But before this month, there was no official word from Pennsylvania on this issue.
The new rule stops short of welcoming all qualified candidates to the bar, regardless of immigration status. It applies only to non-citizens with DACA status or some future equivalent status based on a DACA successor program. It is hopefully not the last word from Pennsylvania about immigration status and fitness to be a lawyer, but it was an important step in the right direction.
And the new rule was a long time in the making.
You can trace its origins back to December 2017, when ACLU client Parthiv Patel became the first Dreamer admitted to the Pennsylvania bar.
Or maybe further back to October 2016, when the Board of Law Examiners initially rejected Parthiv from the bar because of his DACA status, and the ACLU appealed and began advocating for his admission in what would become a year-long fight involving letters of support from dozens of respected institutions from across the commonwealth and beyond.
Or maybe even further back to 2012, when Parthiv got his DACA status, and his future opened up.
Deferred Action and Law School Dreams
Parthiv Patel was born in India. Like every beneficiary of President Obama’s Deferred Action for Childhood Arrivals (DACA) program, Parthiv was brought to the United States as a child. Like many, he grew up believing he was American. It was not until his late teens that he learned he was undocumented.
Under DACA, he was eligible to get authorization to work in the United States, and a small window of time during which the federal government promises not to deport him.
With that breathing room, Parthiv was able to set his sights on becoming a lawyer. He had seen how his immigrant parents had been cheated and lost money, unable to navigate the American legal system to protect their rights and without the resources to hire expensive lawyers. He wanted to become a lawyer to protect other small business owners against fraud.
After receiving DACA, Parthiv was accepted to the Drexel University Thomas R. Kline School of Law in Philadelphia.
Done with Law School But Not Yet a Lawyer
Three years later, in July 2016, Parthiv spent several days sitting alongside thousands of other law school grads taking the Pennsylvania and New Jersey bar exams. Like virtually all of his classmates, he was stressed about the grueling exam. And like many, he was anxious about whether he would clear the “character and fitness” evaluation, but for very different reasons from his colleagues.
What he was worried about what his immigration status. He was, as far as he knew, the first Dreamer to apply for a bar license in Pennsylvania or New Jersey.
In October 2016, just before Pennsylvania bar exam results were going to be posted online, Parthiv got a phone call from the Pennsylvania Board of Law Examiners. They told him, “I have good news and I have bad news. The good news is, congratulations, you passed the bar exam! The bad news is that we can’t admit you because of your DACA status.”
Opting Out of Exclusion
In 1973, the U.S. Supreme Court ruled that states can’t require U.S. citizenship as a condition of becoming a lawyer. But a 1996 federal statute prohibits states from giving “benefits”—including professional licenses—to non-citizens without certain forms of legal status.
The statute contained an “opt out” provision, though. The law allows states to opt out of the prohibition by affirmatively deciding to confer certain benefits without regard to immigration status.
The ACLU-PA, along with Fred Magaziner and Rhiannon DiClemente from Dechert LLP and Samuel Stretton, represented Parthiv in appealing his Pennsylvania bar denial. In Pennsylvania, the courts have the exclusive power to regulate lawyers. So we argued that the Board of Law Examiners should exercise that authority to opt out. Dozens of organizations agreed with us and wrote letters of support.
More than a year after it had rejected him, the Board of Law Examiners finally sent Parthiv the standard letter that goes out to everyone who has been admitted to the bar in Pennsylvania.
Further to Go
There are thousands of other would-be non-citizen lawyers who missed out on DACA and may never get to become lawyers in Pennsylvania under the current rules.
In fighting for Parthiv’s bar admission, we argued that his admission should not be contingent on his DACA status. We stressed that all qualified candidates should be eligible to become lawyers, regardless of immigration status. Even without work authorization under DACA, undocumented people can legally work as lawyers in the United States on a pro bono basis or as independent contractors or solo practitioners.
Pennsylvania—and every state—should go further to remove barriers to professional licensing based on immigration status.
But in an era of near-constant, overwhelming bad news for immigrants, the step Pennsylvania took to open the doors of the legal profession to Dreamers—as imperfect as it is—is still a step in the right direction. Apart from the young, future lawyers who will benefit from the rule change, standing with Dreamers also has powerful symbolic value. Hopefully it will prompt other states—most of which have not addressed this issue yet—to lift barriers to bar admission based on immigration status and take other steps to protect undocumented people.
So welcome to the bar, Pennsylvania Dreamers. Together, we can keep fighting to make our profession—and our country—more inclusive.