Doctors who DREAM: Clearing up Confusion on Citizenship Requirements

By Nadia N. Sawicki

Loyola University Chicago’s Stritch School of Medicine recently announced that it is accepting applications from DREAMers – undocumented immigrants who are eligible for the Deferred Action for Childhood Arrivals (DACA) program, which grants qualified applicants a two-year, renewable authorization to remain and work within the United States. This news was met with predictable responses on both sides of the immigration debate – DREAMers applauded the decision, while critics of immigration reform derided the program as a “campaign by that elites who run higher education” who are insensitive to the program’s effects on American citizens.

Media reporting on Loyola’s new policy, however, has been unclear with respect to one issue – whether DREAMer graduates will ultimately be able to obtain medical licenses in the states in which they intend to practice.  According to Geoffrey Young, senior director of student affairs and programs at the Association of American Medical Colleges in Washington, who was quoted in an article in Crain’s Chicago Business, “They’ll all be M.D.s, but whether or not they can practice legally in states is to be determined.”

Under the best interpretation of current law, however, DREAMers who successfully graduate medical school cannot be barred from obtaining a medical license on account of their citizenship status.  While some states’ licensing requirements still include a citizenship requirement (New Jersey, for example, requires that applicants for a medical license be U.S. citizens or declare their intention to be a citizen; those who fail to gain citizenship within a set period of time will have their temporary licenses revoked), Supreme Court precedent indicates that withholding medical licensure based on citizenship status would likely violate the Equal Protection clause of the Fourteenth Amendment.

Under the Equal Protection clause, legal restrictions based on alienage are subject to strict scrutiny – that is, a state may not distinguish between citizens and non-citizens unless it can demonstrate that the restriction is narrowly tailored to serve a compelling state interest. In In re Griffiths, a 1972 case, the Supreme Court rejected a Connecticut rule requiring that those admitted to the bar be U.S. citizens. The Court held that Connecticut “failed to show the relevance of citizenship to any likelihood that a lawyer will fail to protect faithfully the interests of his clients.” Numerous federal courts have affirmed this conclusion with respect to both the legal and medical professions, including, most recently, the Second Circuit in Dandamudi v. Tisch (holding, in 2012, that aliens who are legally authorized to reside and work in the United States cannot be barred from working in certain professions, including pharmacy practice).

Illinois, where Loyola’s Stritch School of Medicine is located, does not have a citizenship requirement for admission to medical practice. Moreover, a 1974 opinion by the Illinois Attorney General stated in no uncertain terms that constitutional limitations would prohibit enforcement of state laws requiring applicants for professional licensure to satisfy citizenship requirements. As the Attorney General wrote, “it does not appear that there is any substantial state interest advanced by requiring these applicants to fulfill any type of citizenship requirement.” Moreover, enforcement of such requirements, according to the opinion, would be preempted due to their potential conflict with Congress’ authority to regulate immigration and naturalization. A federal district court in Illinois reached the same conclusion with respect to citizenship requirements for applications to become a notary public (Cheng v. State, 1977).

Many other states have reached the same conclusions, either by way of Attorney General opinions (Wisconsin, 1924; Pennsylvania, 1972; California, 1972), court opinions, or legislation. For example, §455.10 of Florida’s business and professional regulation statute explicitly states, “No person shall be disqualified from practicing an occupation or profession regulated by the state solely because he or she is not a United States citizen.”

There is only one exception to the otherwise consistent interpretation of the Equal Protection clause as prohibiting most citizenship requirements for professional licensure – in a 2005 case, LeClerc v. Webb, the Fifth Circuit upheld a rule prohibiting “nonimmigrant aliens” from sitting for the Louisiana Bar.  According to the court, licensing restrictions for nonimmigrant aliens (defined as non-citizens who are in the country legally but on a temporary basis – like DREAMers) could be analyzed using rational basis review, rather than strict scrutiny.  This opinion, however, was strongly criticized in the Second Circuit’s 2012 Dandamundi decision, in which the court wrote that “the Supreme Court has repeatedly affirmed the general principle that alienage is a suspect classification and has only ever created two exceptions to that view. We decline to create a third in a case where the statute discriminates against aliens who have been granted the legal right to reside and work in the United States.”

*** UPDATE, 9/24/13 ***

A colleague suggested that I clarify the constitutional limitations as they apply to lawful permanent residents versus other non-citizens, and I am happy to do so.

Those granted DACA status receive a renewable two-year suspension of deportation, as well as the right to work in the U.S. during that time. As such, they are not considered lawful permanent residents of the U.S., and the analysis of their rights under Griffiths is somewhat more nuanced.

In re Griffiths, the Supreme Court case overturning Connecticut’s citizenship requirement for bar applicants, dealt with a non-citizen plaintiff who had married a U.S. citizen and was a lawful permanent resident.  In a later case, Plyler v. Doe, the Court clarified that the strict scrutiny it applied to non-citizens in Griffiths would not necessarily apply to non-citizens who are in the U.S. unlawfully – such as illegal aliens or their children (who, under the Texas law at issue in Plyler, were excluded from public schools).  The fact that undocumented immigrants are in violation of federal law, the Court wrote, is not a “constitutional irrelevancy;” therefore this group of aliens ought not be treated as a suspect class. Subsequently, the Fifth Circuit in LeClerc relied on the Court’s reasoning when it applied a lower standard of review to restrictions on aliens with temporary worker visas. The Supreme Court in Plyler, however, noted that its argument did not apply with the same force to children of illegal aliens, who had no control over the circumstances of their entry into the U.S.  State restrictions on their access to education, the Court concluded, would be subject to a heightened rational basis review, requiring that the state demonstrate a “substantial” interest in excluding this group.  Moreover, the Court did not address the question of what standard of review would apply to licensure restrictions on unlawful aliens with temporary status, like DACA applicants.

An Arizona district court in Arizona Dream Act Coalition v. Brewer (2013) recently recognized this uncertainty, noting that deferred action status under DACA falls somewhere between lawful permanent residency (as in Griffith) and undocumented status (as in Plyler).  It concluded that DACA applicants were most akin to aliens with temporary worker visas (to whom the Fifth Circuit in LeClerc applied rational basis review), and rejected the Second Circuit’s argument in Dandamudi that temporary aliens with Employment Authorization Documents are “legally authorized” to reside and work in the US and therefore receive the benefit of strict scrutiny.

I consider the Second Circuit’s approach more in line with the Supreme Court jurisprudence.  According to the U.S. Citizenship and Immigration Service, DACA does not confer legal status – however, those granted DACA deferrals are not considered to be “unlawfully present” in the U.S.  Indeed, like those with temporary visas and/or Employment Authorization Documents, DACA applicants are granted a right to work in the U.S. for a set period of time.  The fact that only those who were brought into the U.S. as children are eligible for DACA further suggests, in line with Plyler, that states ought to be held to higher scrutiny when imposing licensing requirements on them.

Ultimately, these constitutional questions are moot in states with no citizenship requirements for medical licensure (like Illinois), and will not be practically relevant unless medical boards in states with citizenship requirements decide to take aggressive action against medical school graduates granted deferred action under DACA.  Until then, DACA applicants to Loyola’s medical school who intend to practice in Illinois can proceed with a reasonable degree of confidence.

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