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Can Massachusetts Prohibit Non-Citizens from becoming Lawyers?

Massachusetts is often considered an immigrant-friendly state, but according to the General Laws, only citizens of the United States can obtain admission to the Massachusetts Bar. The three statutes governing admission are G.L. c. 221, §§ 37, 38A, and 39. Section 37 and 39 both specifically require applicants to be citizens of the United States to petition for admission. Section 38A allows non-citizens to petition for admission, but directs the Board of Bar Examiners to not recommend admission until the applicant demonstrates that they have become a citizen of the United States. All three statutes are unconstitutional.

In Application of Griffiths, 413 U.S. 717 (1973), the Supreme Court of the United States ruled that a state cannot prohibit bar admission based solely on the non-citizenship of a lawful permanent resident. Lower courts have clarified the limited scope of the holding. Soon after Griffiths was issued, the Supreme Courts of Wyoming and Washington invalidated similar rules that barred lawful permanent residents from applying for admission. See Mansfield v. State Board of Law Examiners, 601 P.2d 174 (Wyo. 1979); Nielsen v. Washington State Bar Association, 585 P.2d 1191 (Wash. 1978) (en banc). The Sixth Circuit, on the other hand has noted that while a state can no longer require that a bar applicant be a citizen, “Citizenship continues, however, to be a requirement for admission by motion.” Bashir v. Supreme Court of Ohio, 652 F.2d 641, 642 (6th Cir. 1981) (per curiam). Recently, a number of other courts have considered whether the state can prohibit a visa-holding applicant or an undocumented applicant from being admitted to the bar.

In LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005), the Fifth Circuit Court of Appeals upheld a Louisiana rule requiring that every applicant to the bar be a citizen of the United States or a “resident alien” thereof. The Fifth Circuit held that “nonimmigrant aliens,” meaning those who hold a visa instead of a green card, are not suspect class and therefore legislation classifying them are subject only to rational basis review. See id. at 418-19. The Fifth Circuit held the exclusion constitutionally permissible because the classification was rationally related to the state’s interest in assuring “continuity and accountability in legal representation.” See id. at 421.

For those who live in the United States without documentation, the path to becoming a lawyer is made even more complicated by federal legislation. Federal law prohibits a state from issuing professional licenses to undocumented immigrants unless the state adopts legislation affirmatively authorizing the issuance of such licenses. 8 U.S.C. § 1621. For example, the Supreme Court of Florida held that the state bar could not admit an otherwise qualified undocumented immigrant because 8 U.S.C. § 1621 prevented the state from doing so absent any state legislation affirmatively opting out of 8 U.S.C. § 1621. Florida Board of Bar Examiners re Question, 134 So.3d 432, 432 (Fla. 2014) (per curiam).

So where does that all leave a non-citizen’s eligibility in Massachusetts? It is clear that Massachusetts cannot deny admission to those who hold a green card, regardless of what the General Laws say. On the other hand, Massachusetts may constitutionally prevent visa holders from petitioning for admission. Finally, Massachusetts could admit undocumented applicants, but only if the General Court adopts legislation that expressly states that undocumented aliens are eligible for admission to the bar. Absent affirmative legislative authorization, however, admitting an undocumented applicant to the Massachusetts bar would be a violation of federal law. See 8 U.S.C. § 1621; Florida Board of Bar Examiners re Question, 134 So.3d at 434-437.