Licensing the Undocumented

Gov Jerry BrownTwo bills sit on the Governor of California’s desk that could drastically improve life for undocumented immigrants living in the state. One bill would allow undocumented individuals to obtain a driver’s license and the other makes them eligible to practice law in the state. The former will have a wider impact but the latter is a greater threat to the common perceptions of undocumented immigrants, specifically to the rhetoric of illegality.

Of course, some people are equally outraged by both of these laws. The trend in the last decade or so has been to criminalize undocumented immigrants, making it harder for them to live in the United States with the hopes that they would “self-deport”. We have seen a growing number of laws that monitor immigrants within the border, such as requiring legal status to secure a drivers license or proof of legal status when stopped by police. These laws want to make it easier to catch an undocumented person committing a crime.

This is important because it is not a criminal offense to be undocumented, violations of immigration law are civil offenses. So, it is not true to say “illegals” are criminals just by the fact that they are here “illegally”–hence the APs decision to drop the use of the word. In many ways, this is unfortunate for the millions of undocumented because it means they have no right to due process or counsel once the deportation proceedings have begun.

attorneyOk, undocumented aren’t criminals but should they be lawyers? Well, the judicial branch has conflicting views. The California Supreme Court deferred to the legislature and the Department of Justice advised against it. The DOJ cites the 1996 immigration reform law that prohibited granting any “public benefit” to undocumented, which includes professional licenses–unless otherwise authorized by the state. This led Sergio C. Garcia, the would-be lawyer, to begin lobbying for California’s AB1024. With a week left in the session, the bill was drafted and passed and made it to Gov. Brown’s desk.

California, like 49 other states and DC, has no citizenship or residency requirements for lawyers. In fact, the Supreme Court tends to rule against citizenship and residency requirements for professional licenses. In 1981, a Federal Court ruled it unconstitutional for Louisiana to require US citizenship to get a dentistry license. And in 1985, a law requiring residency to practice law in New Hampshire was struck down by the U.S. Supreme Court. This makes sense because personal characteristics, such as legal status, do more to restrict access (ie fetter the market) than to protect the public–ostensibly the purpose of professional licensing.

Much like a driver’s license, a professional license is the state’s way of sanctioning, or legalizing, a particular practice. Like a driver’s license, it is meant to protect the public by ensuring that certain requirements are met and the individual is qualified to engage in that activity. Being in violation of a civil law, such as not paying rent or breach of contract, does not impair one’s ability to drive any more than it impairs one’s ability to practice law. Though, arguably, enough violations could indicate “poor moral standing” and thus disqualify someone from the bar.

Normalizing undocumented immigrants is not the same as normalizing crime. It is the first step to bringing these individuals out of the shadows, taming the rhetoric of illegality, and addressing the problems with our immigration system that created this mess to begin with. I only hope that more states and more professional licensing boards follow suit.

 

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4 thoughts on “Licensing the Undocumented

  1. “Being in violation of a civil law, such as not paying rent or breach of contract, does not impair one’s ability to drive any more than it impairs one’s ability to practice law.” – I am wondering how do you feel about taking away driving licenses for non-criminal offenses – like not paying child support, for instance. Should the government be able to do so? (well, it already does it in Russia))) I guess in this case we can see obtaining a license as a privilege, and not as a right.

  2. It is also true that in the US failure to pay child support can lead to suspension of driving privileges–which is silly in my opinion because it further impedes one’s ability to pay child support by making it difficult to get to work. But this is not done lightly, it requires the intervention of a judge after other attempts to enforce payment, such as automatic deduction of wages. It is a matter of degree of violation and similarly admission to the bar can be denied based on “character and fitness”. People have been questioned for civil violations, such as speeding tickets, and even denied for excessive debt but there has not been a blanket ban based on a single civil violation with no room for review.

    So, I would be opposed an automatic revoking of driving privileges for a single failure to pay child support. I would place the burden of proof on the courts to justify the suspension of privileges on a per case basis.

  3. I agree with “opposed an automatic revoking of driving privileges for a single failure to pay child support,” even though I not that concern “it further impedes one’s ability to pay child support by making it difficult to get to work” – to the best of my knowledge, it is usually the case of a father actively avoiding paying the child support, and not just him being broke. I like how you talk about ” a blanket ban based on a single civil violation with no room for review” – it does put things in perspective. Well, I guess next thing I would ask is – so how and why an illegal status would matter at all? If you can go to school, work, etc – what is a likely state-level affect? [feeling weirdly conservative))]

    • When it comes to child support, and debts in general, I feel like punitive measures are often counter-productive. It makes more sense to garner wages, seize assets, or redirect tax refunds as oppose to revoking driving privileges or incarcerating those who fail to pay.

      Since I am feeling weirdly libertarian, I don’t think the state should determine who is eligible to work, learn, live based on citizenship and visa status. If the state’s goal is to monitor the population within their territory, then it should avoid measures that push people to the shadows. But if the state wants to get involved in labor disputes, address the fears that undocumented people raise. Afraid of pushing down wages?–increase the minimum wage and document workers to bring them out from under the table. Afraid they will steal jobs? –train Americans better so they will be tough to replace.

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