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Uncertain future awaits undocumented law students

Cesar Vargas
Cesar Vargas (center, with flag) became one of the first undocumented immigrants to be sworn in as a member of the New York State Bar.

Imagine getting into, paying for, and succeeding in law school—and then not being permitted to practice. That’s the risk for students who aren’t U.S. citizens.

Invariably, law students work incredibly hard to get into law school and then to become attorneys. Many have faced serious hurdles along the way. Just think about your own experience—the effort, the hours, and the perseverance it has taken you to get to where you are today.

Now try to imagine the obstacles you’d have to navigate if you were an undocumented immigrant. Coming out of high school, you must find a college that will accept you without requiring you to provide proof of citizenship. If you accomplish that, you then have to figure out how to finance your education since no government loans will be available to you.

Next, assuming you beat the odds and do really well as an undergrad and on the LSAT, you start the process over again, needing to find a law school that will accept you and again figuring out how to pay for it. If you’ve somehow managed to do all this, you’ll spend the next three years studying and preparing for a bar exam you may or may not be allowed to take. Unless you’re in a state that has dealt with the issue head on—of which there are few—even if you do sit for the bar exam and pass it, all of that time, money, and hard work may still not be enough for you to gain admission to your state’s bar. You might have to file a lawsuit to get the ultimate answer on whether your state will bar a person without legal status. Oh, and there’s also the ever-present looming threat of deportation in the background. Believe it or not, that’s exactly the type of Sisyphean journey Cesar Vargas undertook to become one of the first undocumented immigrants to be sworn in as a member of the New York State Bar last February.

Cesar Vargas

A world collapses

Vargas was five years old when his mother brought him across the border from Mexico into the United States. His family settled on Staten Island in New York City, and Vargas grew up dealing with the realities of being an undocumented immigrant. It was precisely those experiences that fueled his desire to become an attorney. “I wanted to be that attorney who represented my community, to be the attorney who’s there when your neighbors need you the most,” said Vargas. “My mother always told me that the American dream is really not about a fancy car or a big house. It’s about you opening the door for others, just the way others have opened the door for me.” Vargas didn’t truly understand how difficult a battle he was facing until he started applying to colleges and realized his immigration status would be a serious obstacle.

“It really hit home when I was in high school, and I went to my guidance counselor to talk about colleges,” recalled Vargas. “At some point, he asked for my Social Security number, and I couldn’t respond. He was unsure of what to do, like I was. And he basically said, ‘I don’t know if you’ll be able to go to college.’ My world pretty much collapsed.” But Vargas didn’t give up. He began visiting local universities to see if he could find a school that would take him. He was able to enroll at St. Francis College in Brooklyn, but because he was unable to get loans, he first worked for a year at a restaurant to save enough money to start school.

Cesar Vargas

One challenge down, another to conquer

Vargas graduated and quickly set his sights on law school, finding sanctuary at the City University of New York School of Law. But Vargas again had to go back to work to save up enough money for his first year of law school at CUNY. “I couldn’t get state or federal financial aid,” he said. “This time, I worked two years, seven days a week, at a restaurant to save for law school.” Until he got into law school, Vargas had been keeping his immigration status quiet, telling only his closest friends and those he absolutely needed to. He decided, however, that his only path to becoming a licensed attorney would be to fight for himself. And he decided the first step was to reveal his journey to others. “When I got into law school, that was the moment that I realized I really need to be vocal about my story,” said Vargas. “I had saved money, but I didn’t have enough to finish law school. I needed help.”

Vargas went to the dean and simply told the truth. “I told her I was accepted to the school but didn’t have ‘papers,’ that I couldn’t afford law school, and that I needed some support,” remembered Vargas. “The CUNY system embraced me and my potential. They helped me get funds to pay for school. It made me realize that telling my story to others is really powerful and can change minds and hearts.”

Cesar Vargas

New meaning to ‘passing the bar’

During law school, Vargas said he got involved in legislative work and was exposed to the lawmaking process, which helped him gear up for his coming battle to become licensed in New York. “I passed the bar exam on the first try,” Vargas said. “But then came the fight to get admitted.” Vargas said he was told by several people that he should apply to the bar but keep his status quiet. However, he felt he could achieve more by making his battle public. “I wanted New York to confront this situation,” he said. “I wanted my home state to really take this issue head on. I felt like it was about more than just me. I wrote in big letters on my application that I was undocumented. Instead of it being an ordinary two-month process to get admitted, I had a four-and-a-half-year legal fight.”

In June 2015, New York’s highest court decided unanimously to allow Vargas to become a member of the New York bar. There were tears of joy, but Vargas quickly got back to work. He said since being sworn in, he’s been working on the issues that drove him to become an attorney in the first place. “My main objective has been to ensure that our communities, especially immigrant communities, have access to legal representation,” he said. “That’s the reason I went to law school.”

Barriers to practicing still abound

As amazing as Vargas’ story is, his isn’t the only story in the nation. Undocumented students in at least three states—California, Florida, and New York—have gone through similar battles, including having to pursue their case all the way to their state’s highest court, to get barred. According to Professor Evelyn Cruz at Arizona State University— Sandra Day O’Connor College of Law in Phoenix, students who come from immigrant families are already at a disadvantage, but being undocumented creates much bigger obstacles. “Students who are part of the immigrant community face many, many challenges, whether they’re here legally or not,” said Cruz, who teaches immigration law and is the director of the school’s Immigration Law and Policy Clinic. “An undocumented immigration status amplifies these challenges. People who are foreign born but are citizens are able to tap into programs that provide assistance, including financing.

But many of those programs aren’t available to undocumented individuals. “There’s also fear and uncertainty,” added Cruz, “being discouraged because of your status and being afraid that you’re investing in something that might not pay off in the end because you might not be able to get licensed or even remain in the United States.” While federal immigration law certainly intersects in many circumstances, Cruz pointed out that legal licensing requirements are almost completely determined at the state level. That means where undocumented students live plays a key role in whether they’ll be able to get barred. “It’s a state-by-state situation,” explained Cruz. “Some states have looked at these individuals as valuable assets and found ways to allow them to practice. On a federal level, the federal practice rules admit individuals based on their admission to practice at the state level.

Who’ll hire these grads?

According to Cruz, one of the issues with current immigration law is that it’s designed to penalize the company that hires an undocumented person. As a result, even if undocumented law students are able to get licensed, they still face an employment challenge. “The immigration statutes are designed to punish the hiring of individuals who lack immigration status, not the employees themselves,” noted Cruz. “This dissuades firms from hiring undocumented law graduates. “But technically, if you’re a solo practitioner, you’re an independent contractor, and you don’t have to fill out an I-9 form,” asserted Cruz, referring to the federal form used to verify employees’ identity and employment authorization.

“So often someone who doesn’t have immigration status is limited to being a solo practitioner. However, that person still also faces challenges, even with simple things like opening bank accounts or paying taxes.” However, Cruz argued undocumented students should be embraced for the incredible effort and determination they’ve demonstrated to get where theyare. “What these students demonstrate is an amazing ability to be resourceful, they are good problem solvers, and that they figure things out,” she contended. “I’ve always said that the best lawyers are the ones who figure out how to solve problems by tapping into what’s available to them and making lemonade out of lemons.”

Pushing for progress

Professor F. Dan Siciliano, who teaches immigration law at Stanford University Law School, said that while individuals like Vargas have created a path for other undocumented students to become members of their state’s bar, it’s likely not a categorically open door for undocumented students. “I think that at least for the near future, these are going to be very fact-specific cases because of the character and fitness piece of the process,” he stated. “For example, people may disagree about whether lying about your immigration status goes against you. “My opinion is that it’s almost always unreasonable, particularly when people are young, to say that if you represented yourself as allowed to be here that it reflects poorly on your character,” argued Siciliano. “If you’re 15 or 16 and you’ve been in this country for 10 years, it just doesn’t strike me as reasonable to expect people to go around and at every moment when that issue comes up to say, ‘Oh yeah, I’m undocumented…but, hey, let’s continue talking, anyway.’ It’s just not the way humans work.”

Because undocumented students and attorneys often advocate for their cause, as Vargas and others have, Siciliano believes that can put them in a potentially compromising situation. “For someone like Vargas, who was arrested during a protest, his work as an activist actually brings him into the crosshairs of deportation, and having a bar license in that situation isn’t going to help you,” he asserted. “Depending on where you’re arrested and the circumstances, if you’re undocumented and you get put into the system, you then are potentially subject to deportation.” But the stories of undocumented students like Vargas are also important, according to Siciliano, because they’re creating further discourse on an important issue.

“I think it’s wonderful that we now have a more sophisticated way of thinking about people who were or are undocumented and their admission to the bar,” stated Siciliano. “And it will serve to highlight the even bigger issues that arise in the context of people who were or are undocumented and the challenges they have in engaging meaningfully in the field of law. “Imagine if we had 1,000 attorneys like Vargas who become members of the bar, who are potentially subject to deportation, who have all of these other limitations, who are limited to only working for themselves—then what happens?” asks Siciliano. “Then we’re going to have even bigger conversations, which is good.”

Cesar Vargas

The message is to keep fighting

As someone who has helped to create that conversation, Vargas said the struggles and hard times were worth it. His message to other undocumented students who are considering trying to get into law school and ultimately to get licensed is to come forward with their experiences, and don’t stop fighting. “Your stories are powerful,” he insisted. “Tell your story. There are amazing people who’ll help you and guide you. Talk to your teachers. Talk to your professors. It will help others understand your situation, and it will open doors for you. “Perseverance comes a lot easier once you find those amazing allies to pick you up when you fall down or push you when you feel like you can’t keep going,” Vargas stated. “Find those allies, and you can achieve whatever you want to achieve. “I do believe the American dream isn’t just for the few,” professed Vargas. “It’s for everyone, regardless of immigration status and regardless of sexual orientation, gender, or race.”

ERIK BADIA is the deputy student editor at Student Lawyer and a second-year student at Georgia State University College of Law. He was previously a journalist, most recently for The New York Daily News.

Eric D. Smith Eric D. Smith is an associate professor at the University of Texas at El Paso (UTEP), having earned a B.S. in Physics in 1994, an M.S. in Systems Engineering in 2003, a Ph.D. in Systems and Industrial Engineering in 2006, and his J.D. in 2011. His book, "Bar Exam Review: Complementary Model-Based Systems Engineering of Law" is available at Amazon and Barnes & Noble.