Bill Text: NY S00999 | 2023-2024 | General Assembly | Amended
Bill Title: Establishes the right to legal counsel in immigration court proceedings; provides for the administration thereof.
Spectrum: Partisan Bill (Democrat 30-0)
Status: (Introduced) 2024-01-03 - REFERRED TO FINANCE [S00999 Detail]
Download: New_York-2023-S00999-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 999--A 2023-2024 Regular Sessions IN SENATE January 9, 2023 ___________ Introduced by Sens. HOYLMAN-SIGAL, BAILEY, BRESLIN, BRISPORT, BROUK, CLEARE, COMRIE, COONEY, FERNANDEZ, GIANARIS, GONZALEZ, GOUNARDES, HARCKHAM, JACKSON, KAVANAGH, LIU, MAY, MAYER, MYRIE, PARKER, PERSAUD, RAMOS, RIVERA, SALAZAR, SEPULVEDA, SERRANO, STAVISKY, THOMAS, WEBB -- read twice and ordered printed, and when printed to be committed to the Committee on Finance -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the executive law, in relation to establishing the right to legal counsel in immigration court proceedings and providing for the administration thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as "the access to 2 representation act". 3 § 2. The executive law is amended by adding a new section 94-d to read 4 as follows: 5 § 94-d. Right to counsel in immigration court proceedings. 1. Defi- 6 nitions. As used in this section: 7 (a) "Administrator" means the director of the New York state office 8 for new Americans. 9 (b) "Covered individual" means any income-eligible individual in 10 detention in New York, transferred from detention in New York to immi- 11 gration detention in another state, or who is subject to removal or 12 inspection pursuant to 8 U.S.C. § 1229a or 8 U.S.C. § 1225 and their 13 implementing regulations, or subject to a final order of removal under 8 14 C.F.R. § 1241.1, regardless of age, in a covered proceeding who is: 15 (i) a New York state domiciliary who is a non-United States citizen; 16 (ii) a New York state domiciliary who is a United States citizen or 17 whose United States citizenship is in dispute; or 18 (iii) any individual whose proceedings have a significant nexus to New 19 York state such that they should be provided relief under this statute. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01980-04-3S. 999--A 2 1 Significant nexus shall be established in the following circumstances: 2 if an individual is in detention or incarcerated in the state of New 3 York, if an individual is transferred by federal immigration authorities 4 from New York to immigration detention in another state, if an individ- 5 ual has an immigration case in a tribunal located in the state of New 6 York, if an individual is a New York domiciliary and detained by federal 7 immigration authorities anywhere in the United States, if an individual 8 had an immigration case located in a tribunal in New York before being 9 transferred by immigration authorities from detention in New Jersey to 10 immigration detention in another state or, as determined by the adminis- 11 trator or designee of the administrator. 12 (c) "Covered proceeding" means any proceeding in a covered venue in 13 which a covered individual is seeking an avenue of relief from removal 14 from the United States, or is challenging his or her arrest or detention 15 under the Immigration and Nationality Act ("INA"), as amended, and its 16 implementing regulations. A covered proceeding includes, if applicable, 17 a proceeding or hearing in immigration court; a proceeding before the 18 United States Citizenship and Immigration Services; a proceeding in a 19 tribunal located in New York for purposes of obtaining any order neces- 20 sary for or relevant to immigration relief; a habeas corpus or other 21 relevant petition to a federal district court challenging detention 22 under the INA; motions to reopen or reconsider under 8 U.S.C. § 1229(a); 23 a petition for review under 8 U.S.C. § 1252; a remand to a federal 24 district court from the United States Circuit Courts of Appeals for 25 fact-finding purposes; and any appeal related to any of the foregoing to 26 the Board of Immigration Appeals, the United States Circuit Courts of 27 Appeals, and/or the United States Supreme Court. 28 (d) "Covered venue" means: (i) an immigration court anywhere in the 29 United States where the case of a covered individual is located; (ii) 30 any tribunal located within New York state, including, but not limited 31 to, family courts and federal district courts; (iii) with respect to the 32 provision of legal services in the context of expedited removals, any 33 location within the borders of New York state where expedited removals 34 are processed; (iv) the Board of Immigration Appeals; (v) the United 35 States Circuit Courts of Appeals; (vi) the United States Supreme Court; 36 (vii) United States Citizenship and Immigration Services; and (viii) any 37 tribunal as determined by the administrator or a designee of the admin- 38 istrator on a case-by-case basis. 39 (e) "Domicile" means a principal location where a person, wherever 40 temporarily located, intends to reside. 41 (f) "Domiciliary" means a person that has established domicile with 42 respect to a particular jurisdiction. 43 (g) "Immigration court" means a tribunal of the Executive Office for 44 Immigration Review or a successor entity tasked with deciding the inad- 45 missibility or deportability of a noncitizen of the United States that 46 is presided over by an immigration judge as defined in 8 U.S.C. § 47 1101(b)(4). 48 (h) "Income-eligible individual" means an individual who is deemed 49 eligible for legal services in a covered proceeding based on pre-set 50 income-related criteria promulgated by the administrator, but in any 51 event must at a minimum include any individual whose annual gross house- 52 hold income is not in excess of two hundred percent of the federal 53 poverty guidelines as updated periodically in the Federal Register by 54 the United States Department of Health and Human Services under the 55 authority of 42 U.S.C. § 9902(2).S. 999--A 3 1 (i) "Legal services" means individualized legal assistance in a single 2 consultation and/or ongoing legal representation, provided by a legal 3 services provider to a covered individual, and all legal advice, advoca- 4 cy, and assistance, including but not limited to social service assist- 5 ance, associated with such service. 6 (j) "Legal services provider" means an individual, organization, or 7 association that has the authority to provide legal services and is 8 designated by the administrator to provide such services. 9 2. Right to counsel in immigration proceedings. (a) All covered indi- 10 viduals shall have the right to legal services as provided in this para- 11 graph. 12 (i) Covered individuals facing a covered proceeding shall have the 13 right to ongoing legal representation until termination is authorized 14 pursuant to paragraphs (c) and (d) of this subdivision. 15 (ii) Covered individuals facing a covered proceeding in a covered 16 venue other than an immigration court in New York or New Jersey shall 17 have the right to a consultation provided by a legal services provider, 18 and if found by the legal services provider to have a viable application 19 for appeal, challenge to a court order, or other form of relief from 20 removal from the United States, shall have the right to ongoing legal 21 representation. 22 (b) The right to counsel established in paragraph (a) of this subdivi- 23 sion shall attach: 24 (i) In the case of proceedings for removal pursuant to 8 U.S.C. § 25 1229a, upon receipt of a Notice to Appear, as defined in 8 U.S.C. § 26 1229. The obligations of this section shall be satisfied if counsel is 27 provided to a covered individual no later than their first appearance in 28 a covered proceeding, or as soon thereafter as is practicable. 29 (ii) In the case of removal proceedings pursuant to 8 U.S.C. § 1225, 30 upon the commencement of such proceedings, or as soon thereafter as is 31 practicable. 32 (iii) In the case of a referral to an immigration judge for a hearing 33 pursuant to 8 U.S.C. § 1231(b)(3) or 8 U.S.C. § 1158, upon receipt of a 34 Notice of Referral to Immigration Judge, or as soon thereafter as is 35 practicable. 36 (iv) In the case of a reinstatement of a final order of removal, upon 37 such reinstatement, or as soon thereafter as is practicable. 38 (v) In all other cases, as soon as is practicable. 39 (c) Subject to the provisions of paragraph (d) of this subdivision, 40 the right to counsel established in paragraph (a) of this subdivision 41 shall terminate: 42 (i) upon the termination or dismissal of removal proceedings or any 43 related appellate matter in respect of a covered individual by the immi- 44 gration court or other competent tribunal or authority; 45 (ii) upon the issuance of a final order or judgment in respect to a 46 covered individual's removal proceedings from which there remains no 47 opportunity for appeal or other avenue for relief including, but not 48 limited to, motions to reopen, motions to reconsider, and petitions for 49 review; provided, however, that legal services providers shall not be 50 required to pursue appeals or other avenues for relief that are specula- 51 tive or frivolous; 52 (iii) if an individual covered by virtue of being a New York state 53 domiciliary ceases to be a New York state domiciliary and establishes 54 domicile in a jurisdiction outside of New York state;S. 999--A 4 1 (iv) if an individual covered by virtue of being transferred from New 2 York to immigration detention in another state is released from 3 detention and is not a New York state domiciliary; 4 (v) if it is discovered that the initial determination that an indi- 5 vidual was an income-eligible individual was erroneous at the time that 6 such determination was made, as soon as such discovery occurs; provided, 7 however, that such individual will continue to be provided with legal 8 services pursuant to this subdivision for a reasonable amount of time to 9 enable such person to obtain alternative counsel, so as not to mate- 10 rially prejudice such individual's chance of success in any covered 11 proceeding; 12 (vi) if a covered individual knowingly and voluntarily waives the 13 right to counsel; or 14 (vii) upon a determination by a legal services provider after the 15 consultation described in subparagraph (ii) of paragraph (a) of this 16 subdivision that a covered individual facing a covered proceeding in a 17 covered venue other than an immigration court has no viable application 18 for appeal, challenge to a court order, nor other form of relief from 19 removal from the United States. 20 (d) Notwithstanding the requirements of paragraph (c) of this subdivi- 21 sion, the rights established in paragraph (a) of this subdivision shall 22 not terminate if: 23 (i) an immigration judge declines to allow a legal services provider 24 to withdraw from representing a covered individual; or 25 (ii) a legal services provider is prohibited from ceasing to provide 26 legal services pursuant to the New York Rules of Professional Conduct or 27 the Executive Office for Immigration Review's Practice Manual. 28 3. Powers and duties of the administrator. The administrator is 29 charged with implementing the requirements of this section no later than 30 January first of the sixth year following the effective date of this 31 section, and shall promulgate such rules, policies, and procedures 32 necessary and appropriate to accomplish such implementation no later 33 than January first of the first year following the effective date of 34 this section. Such rules, policies, and procedures shall include, but 35 not be limited to, the measures delineated in this subdivision, with 36 annual benchmarks to ensure full implementation by January first of the 37 sixth year following the effective date of this section. The adminis- 38 trator shall have the power and responsibility, independently and/or 39 through one or more designees, to: 40 (a) ensure that all covered individuals be advised of their right to 41 counsel and be offered legal services as provided in paragraph (a) of 42 subdivision two of this section; 43 (b) ensure independent, competent, high quality, and zealous represen- 44 tation of covered individuals receiving legal services provided pursuant 45 to this section; 46 (c) examine, evaluate, and monitor legal services provided pursuant to 47 this section; 48 (d) collect and receive information and data regarding the provision 49 of legal services not protected by attorney-client privilege, work prod- 50 uct privilege, or any other applicable privilege, or that can be 51 disclosed by legal services providers without violating the New York 52 Rules of Professional Conduct, including but not limited to: 53 (i) the types and combinations of such services being utilized across 54 the state;S. 999--A 5 1 (ii) the salaries and other compensation paid to individual adminis- 2 trators, attorneys, and staff in connection with the provision of such 3 services; 4 (iii) the caseloads of legal services providers providing legal 5 services in connection with the provision of such services; 6 (iv) the types, nature, and timing of dispositions of cases handled by 7 legal services providers providing legal services; 8 (v) the actual expenditures currently being made in connection with 9 the provision of legal services; and 10 (vi) the time, funds, and in-kind resources currently being spent on 11 providing such legal services and the amount being spent on ancillary 12 services such as support staff and expert witnesses; 13 (e) analyze and evaluate collected data, and undertake any necessary 14 research and studies, in order to consider and recommend measures to 15 enhance the provision of effective legal services and to ensure that 16 recipients of legal services are provided with quality representation 17 from fiscally responsible providers, which shall include but not be 18 limited to standards, criteria, and a process for qualifying and re-qua- 19 lifying legal services providers to provide legal services; 20 (f) establish measures of performance which programs shall regularly 21 report to the administrator to assist the administrator in monitoring 22 the quality of legal services; 23 (g) establish the standards and criteria used in programs to determine 24 whether individual legal services providers are qualified to provide 25 legal services; 26 (h) establish the criteria and procedures used to determine whether a 27 person is eligible to receive legal services, including requirements 28 related to income and domicile, and to track the number of persons 29 considered for and applicants denied such services, the reasons for the 30 denials, and the results of any review of such denials; 31 (i) establish standards and criteria for the provision of legal 32 services in cases involving a conflict of interest; 33 (j) develop recommendations to improve the delivery of legal services; 34 (k) target grants and establish strategic programs in support of inno- 35 vative and cost-effective solutions that enhance the provision of and 36 capacity for legal services, including, but not limited to, a capacity 37 building pipeline to bring new attorneys into the field and including 38 collaborative efforts serving multiple jurisdictions where covered indi- 39 viduals and covered proceedings are located; 40 (l) investigate and monitor any other matter relevant to the provision 41 of legal services which the administrator deems important; 42 (m) request and receive from any department, division, board, bureau, 43 commission, or other agency of the state or any political subdivision of 44 the state or any public authority such assistance, information, and data 45 as will enable the administrator to properly carry out its functions, 46 powers, and duties, subject to limitations on the disclosure of informa- 47 tion provided on a privileged basis to legal services providers, as well 48 as limitations on the disclosure of information by legal services 49 providers under the New York Rules of Professional Conduct; 50 (n) apply for and accept any grant or other source of funding for 51 purposes of carrying out the requirements of this section. Any sums so 52 received may be expended by the administrator to effectuate the fulfill- 53 ment of any such requirement, subject to any relevant requirements 54 related to the approval of expenditure of funds and audits of such 55 expenditures;S. 999--A 6 1 (o) develop, publish, and implement a written plan that establishes 2 numerical caseload/workload standards for all legal services providers, 3 with such plan to be completed and published within one hundred twenty 4 days after the effective date of this section, and to monitor and peri- 5 odically report on the implementation of and compliance with the plan; 6 (p) develop and implement a written plan, and to monitor and period- 7 ically report on the implementation of and compliance with such plan, to 8 improve the quality of legal services provided to covered individuals, 9 and to ensure that legal services providers providing such represen- 10 tation receive effective supervision and training, have access to and 11 appropriately utilize interpreters and expert witnesses on behalf of 12 clients, communicate effectively with their clients, have the necessary 13 qualifications and experience; 14 (q) beginning on September fifteenth, one year after the effective 15 date of this section, and by September fifteenth of each year thereaft- 16 er, submit a report to the governor, the speaker of the assembly, and 17 the temporary president of the senate, describing compliance with the 18 requirements of this section, including but not limited to: 19 (i) the criteria used to determine whether an individual is eligible 20 for legal services; 21 (ii) the procedures used to determine whether an individual is eligi- 22 ble to receive legal services; 23 (iii) the number of individuals deemed eligible and ineligible for 24 legal services; 25 (iv) the number of cases started and completed and the outcomes of 26 those cases; and 27 (v) qualitative review of the legal services provided; and 28 (r) beginning on September fifteenth, one year after the effective 29 date of this section, and by September fifteenth of every second year 30 thereafter, in consultation with the advisory committee, submit a report 31 to the governor, the speaker of the assembly, the temporary president of 32 the senate, and the director of the division of the budget, presenting 33 an analysis of qualitative and quantitative data on immigration court 34 cases and immigration enforcement activity and recommendations for 35 adjustments in funding to ensure compliance with this section. 36 4. Funding. (a) The state shall establish a dedicated fund and shall 37 appropriate sufficient sums into such fund to fully carry out the 38 requirements of this section. Funds necessary to fully carry out the 39 requirements of this section shall be determined annually by December 40 first of each year by the secretary of state, in consultation with the 41 administrator and the director of the division of the budget upon review 42 of the report submitted by the administrator pursuant to paragraph (r) 43 of subdivision three of this section. 44 (b) The administrator will be charged with ensuring that appropriated 45 funds are timely distributed to legal services providers for the 46 provision of legal services. 47 (c) Notwithstanding the requirements of paragraphs (a) and (b) of this 48 subdivision, sums appropriated to carry out the requirements of this 49 section shall be used to supplement and not supplant any state, local, 50 or private funding that is, or is anticipated to be, expended for the 51 provision of legal services to covered individuals, and the state shall 52 not be required to appropriate any funds for legal services to the 53 extent that obligations associated with the provision of legal services 54 are otherwise fully satisfied by funds received from state, local, or 55 private sources, or by the United States government in satisfaction of 56 any legal obligation.S. 999--A 7 1 5. Advisory committee. (a) There shall be an advisory committee which 2 shall work, in collaboration with the administrator, to develop 3 programs, policies, training, and procedures necessary to effectuate the 4 requirements of this section. The administrator shall collaborate with 5 the advisory committee on matters including, but not limited to: 6 (i) the rates of compensation for legal services; 7 (ii) community engagement efforts; 8 (iii) the sufficiency of access to and the quality of legal services 9 provided to covered individuals in covered venues; 10 (iv) the sufficiency of space available for designated providers in 11 covered venues; 12 (v) ensuring individuals with limited English proficiency have access 13 to appropriate translation services; and 14 (vi) other efforts by other states to support individuals facing 15 deportation. 16 (b) The advisory committee shall be comprised of nine members. The 17 governor shall appoint five members offering services to individuals in 18 covered proceedings, representing the geographic regions where covered 19 individuals and covered venues are located. The governor's appointees 20 shall further consist of no more than one representative of the private 21 bar and four representatives of legal services providers and represen- 22 tatives of community-based organizations offering services to covered 23 individuals. The speaker of the assembly and temporary president of the 24 senate shall appoint two members each. The administrator shall serve ex 25 officio. The governor shall designate one member to serve as chair of 26 the advisory committee. 27 (c) Each member, other than the member serving in an ex officio capac- 28 ity, shall serve for a term of two years, with initial terms for each 29 committee seat commencing ninety days after the effective date of this 30 section. Initial appointments under this subdivision must be made with- 31 in sixty days of the effective date of this section. Any vacancies 32 shall be filled promptly and in the same manner as the original appoint- 33 ment, and the appointee filling such vacancy shall serve for the unex- 34 pired portion of the term of the succeeded member. Any committee member 35 may be reappointed for additional terms. A member of the advisory 36 committee shall continue in such position upon the expiration of their 37 term and until such time as they are reappointed or their successor is 38 appointed, as the case may be. 39 (d) Members of the advisory committee shall serve without compen- 40 sation, but shall be allowed and reimbursed for their reasonable actual 41 and necessary expenses incurred in performance of their functions under 42 this section by the administrator. 43 (e) The advisory committee's initial meeting shall take place within 44 thirty days of the appointment of all required committee members under 45 paragraph (b) of this subdivision, or within ninety days of the effec- 46 tive date of this section, whichever is sooner. The advisory committee 47 shall meet no less than four times per year. The advisory committee may 48 establish its own procedures with respect to the conduct of its meetings 49 and its other affairs; provided, however, that the quorum and majority 50 provisions of section forty-one of the general construction law shall 51 govern all actions taken by the advisory committee. 52 (f) Membership on the advisory committee shall not constitute the 53 holding of an office. The advisory committee shall not have the power 54 to exercise any portion of the sovereign power of the state. No member 55 of the advisory committee shall be disqualified from holding any public 56 office or employment, nor shall he or she forfeit any such office orS. 999--A 8 1 employment, by reason of his or her appointment pursuant to this 2 section, notwithstanding the provisions of any other general, special, 3 or local law; ordinance; or city charter. 4 (g) Beginning on September fifteenth, one year after the effective 5 date of this section, the advisory committee shall produce a report 6 concerning its duties pursuant to this section and any related recommen- 7 dations, and such report shall be included in the report submitted by 8 the administrator to the governor, the speaker of the assembly, and the 9 temporary president of the senate under paragraph (q) of subdivision 10 three of this section. 11 6. No private right of action. Nothing in this section or the adminis- 12 tration or application thereof shall be construed to create a private 13 right of action on the part of any person or entity against the state or 14 any agency, instrumentality, official, or employee thereof. 15 7. Miscellaneous provisions. (a) Any legal services performed by a 16 legal services provider pursuant to this section shall not supplant, 17 replace, or satisfy any obligations or responsibilities of such legal 18 services provider pursuant to any other program, agreement, or contract. 19 (b) The provisions of this section shall supersede conflicting state 20 or local laws, rules, policies, procedures, and practices, except to the 21 extent that the provisions of any such state or local law, rule, policy, 22 procedure, or practice may provide any additional or greater right or 23 protection. Nothing in this section shall be interpreted or applied so 24 as to create any power, duty, or obligation prohibited by federal law. 25 (c) If any provision of this section or any application thereof to any 26 person or circumstance is held invalid, such invalidity shall not affect 27 any provision or application of this section that can be given effect 28 without the invalid provision or application. To this end, the 29 provisions of this section are severable. 30 § 3. This act shall take effect immediately.
