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