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Thomas Kim is on track to graduate in May from Arizona State University Sandra Day O’Connor College of Law, where he earned a full-tuition scholarship. He was a summer associate at the law firm Davis Wright Tremaine, served as a law clerk at the federal public defender in Phoenix, and will soon become the chair of the American Bar Association’s Law Student Division.

Despite his stellar resume, Kim is unsure whether he’ll be able to practice law in Oregon—his chosen jurisdiction—because he’s an undocumented immigrant. His family was denied green cards in 2011 after lawfully emigrating to the United State from Korea when Kim was a teen.

Next week, Kim and several colleagues from the law student division will ask the ABA’s House of Delegates to approve a resolution urging Congress to amend federal law to make clear that state courts may permit undocumented immigrants to join the bar and practice.

The move comes as more state courts and state legislatures are grappling with how to respond to the growing number of undocumented law graduates who pass the bar exam want to put their degrees to use.

It’s unclear how many law students and law graduates are undocumented, but the Deferred Action for Childhood Arrivals program has opened up higher education to many of the more than half-million people—Kim included—who have applied since 2012. A 2014 court brief in a New York case from an undocumented law grad seeking a license estimated that “likely dozens” of undocumented law grads will seek admission to the bar in the coming years.

“There is undeniably an overwhelming need—both currently and on behalf of a growing number of qualified, but undocumented immigrants—for the American Bar Association to weigh-in on the issue of bar admissions,” reads a report on the resolution, which the House of Delegates is slated to consider when it meets in New York August 11 and 12. “Undocumented immigrants have the desire, and increasingly the education to gain admittance to practice law before this nation’s various state bars; they simply need the authorization to do so.”

California, Florida, Illinois, Nebraska, and Wyoming have passed state laws in recent years allowing at least some undocumented immigrants to be admitted to the bar, according to the ABA report, while New York’s highest court ruled to that effect in 2015.

That leaves many jurisdictions where the question remains unresolved, proponents argue. A consistent, national, and long-term solution is needed, they said.

“Without clear direction and encouragement from organizations like the American Bar Association, many states will likely be stymied by the question of whether proceed on their own or wait for action on the federal level,” reads the report.

William Slease, president of the National Organization of Bar Counsel, said Wednesday that his group has not taken a position on the resolution.

At issue is a federal law that makes undocumented immigrants ineligible for federal, state and local “public benefits,” which include any professional license granted by an “agency of the State” or by “appropriate funds of a state.” However, the federal law allows for states to provide state and local benefits to undocumented immigrants if it passes a law to that effect.

The ABA’s law student division argues that the federal law doesn’t apply to the admission of undocumented immigrants because state courts issue law licenses, and courts are excluded from the definition of “state agencies.” Moreover, bar licenses are paid for by fees levied on the lawyers themselves, not through appropriated state funds, the division report claims.

Federal law prohibits undocumented immigrant attorneys from working as employees in the conventional sense, the report continues, but they can still legally perform pro bono work, be independent contractors, maintain solo practices, or offer legal advice outside the United States.

“Undocumented immigrants can work and make valuable contributions to the legal profession regardless of work authorization status,” the report reads.

 

Contact Karen Sloan at ksloan@alm.com. On Twitter: @KarenSloanNLJ