NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A170A
SPONSOR: Cruz TITLE OF BILL:
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
PURPOSE OR GENERAL IDEA OF BILL:
The Access to Representation Act would: (1) establish a universal right
to counsel for indigent New Yorkers who are subject to removal
proceedings under federal immigration law, as well as related
Proceedings such as efforts to obtain special findings orders or certif-
ications of helpfulness in state court; (2) appoint the Director of the
New York State Office for New Americans as the administrator in charge
of effectuating this right, and empowering the administrator to promul-
gate rules, policies, and procedures as needed; (3) monitor and improve
the legal services provided to covered individuals and submit an annual
report to state officials summarizing its activities; (4) require that
New York State appropriate the sums necessary to effectuate the right to
counsel;
(5) encourage local governments and private sources that currently
provide funding for legal services to continue providing such funding;
and (6) establish an advisory committee to advise and assist the admin-
istrator in carrying out its responsibilities.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill is the title clause, establishing the Access to
Representation Act.
Section 2 of the bill creates a new Section 94-C to Article 6 of the New
York State Executive Law ("Right to Counsel in Immigration Court
Proceedings") with the following provisions:
-Subdivision 1 establishes the definitions used throughout the Act,
including establishing that the Director of the Office .for New Ameri-
cans is be the administrator of the right to counsel program. Other
definitions delineate exactly which individuals are covered individuals
under this statute, and therefore have a right to counsel, and the
circumstances in which they benefit from those rights.
-Subdivision 2 mandates that covered individuals be provided with legal
counsel, and enumerates the points at which the right to counsel
attaches, differentiating between removal proceedings, expedited removal
proceedings, the reinstatement of a final order of removal, instances
where an individual's proceedings are consolidated with those of a
covered individual, and instances involving a minor whose parent is a
covered individual in immigration proceedings. This subdivision also
enumerates the circumstances under which the rights granted by this
statute will terminate, including if such individual's proceedings are
terminated or dismissed by an immigration court or other competent
authority, if a final order or judgment is issued and there remains no
reasonable pathway to seek relief, if an individual ceases to be a New
York domiciliary, if an individual's income is found to be too high to
qualify for coverage, or if an individual waives the right to counsel
knowingly and voluntarily on the record.
-Subdivision 3 delegates responsibility to the administrator to effectu-
ate the right to Counsel, and grants the administrator authority to
promulgate rules, policies, and procedures in order to do so.
-Subdivision 4 requires the state to establish a dedicated fund, and
appropriate sufficient sums in to such fund, to allow for the provision
of legal services to covered individuals. This subdivision contains
provisions to ensure that funds appropriated will be used only to
supplement and not supplant any existing state, local, or private fund-
ing that is, or is anticipated to be, expended for the provision of
legal services to covered individuals. This subdivision also makes clear
that the state is not required to expend funds to provide services to
covered individuals to the extent that local governments, or private
sources, are already providing such funds.
-Subdivision 5 establishes an advisory committee to assist the adminis-
trator effectuating the right to counsel. The advisory committee is made
up of appointees from the governor, the temporary president of the
senate, and the speaker of the assembly, and must include three repre-
sentatives from legal services providers designated by the administra-
tor, one representative from community-based organizations that provide
services to covered individuals in immigration proceedings, and one
representative from the private bar. The administrator serves on the
committee in an ex-officio capacity.
-Subdivision 6 clarifies that private rights of action to enforce the
provisions of this statute are explicitly barred.
-Subdivision 7 contains miscellaneous provisions including a preemption
clause and a severability clause.
Section 3 of the bill is the effective date.
JUSTIFICATION:
This legislation is necessary to ensure due process and access to
justice for immigrant New Yorkers for three main reasons: * Immigrants
face potentially severe consequences in immigration proceedings, includ-
ing removal and family separation; ** Immigrant New Yorkers face signif-
icant challenges in accessing counsel in immigration court proceedings;
and *** Immigrants with access to counsel fare dramatically better in
immigration court proceedings. Each reason is discussed in detail
below.
Federal law does not provide a guaranteed right to counsel in immi-
gration proceedings. (1) In certain removal proceedings, whether an
immigrant is allowed to remain in the United States, or instead forced
to return to her country of origin, is a matter of life and death. In
other cases, an immigrant in immigration proceedings may face the loss
of home, family, cr community. For some immigrants, this loss may be
especially draconian, as the United States may have been the only home
they have ever known, and losing this home means being separated from
their families and communities and deported to a country that they do
not know or recognize.
Immigrants can be detained indefinitely in prison-type settings under
civil, administrative authority only, without the constitutional
protections available in the criminal context. Immigration court
proceedings directly affect the liberty interests of these detained
immigrants, and their success in these proceedings could mean the
difference between freedom or continued imprisonment.
In immigration proceedings, the government is always represented by a
trained attorney, but many indigent immigrants have no choice but to
defend their cases alone. New and ever-changing administrative policies
compound the difficulties indigent immigrants face in navigating a
complex legal system with which they are not familiar. Increasing
access to representation is thus imperative to ensure due process and
access to justice.
Because immigration is primarily an area of federal law, and given the
critical interests involved, both the New York State Bar Association and
the American Bar Association have called for the creation of a federally
funded system of appointed counsel for indigent immigrants in immi-
gration court proceedings. However, until such a federally funded system
is established, both Associations have noted that states must act to
protect the rights of immigrants.
New York is home to more than 4.5 million immigrants, (2) all of whom
could potentially face immigration court proceedings. It is estimated
that nearly 1 million of those immigrants lack lawful status (3) and are
thus particularly vulnerable to immigration enforcement. Many others are
ineligible to become United States citizens' and are at risk of removal
from the United States.
Despite the critical interests at risk in such proceedings, immigrant
New Yorkers face numerous challenges in their access to counsel, includ-
ing geographic distances, political fears, financial considerations,
long waiting lists, and language barriers.(4) Indigent immigrant New
Yorkers cannot afford an attorney to defend them in immigration court
proceedings, and they often cannot obtain low-cost or pro bono legal
counsel either due to a lack of funding, or restrictive funding, a lack
of such providers in many areas of New York, or other barriers. The
legal service providers that exist to serve these vulnerable populations
are understaffed and overburdened, located far from the vulnerable popu-
lations, or lack the necessary resources to help non-English-speaking
immigrants.
Immigrants wishing to appeal negative immigration court decisions face
even greater challenges in accessing counsel. Only 58% of nonprofits
even handle appeals of immigration court cases, (5) and the burden on
them to do so is tremendous, given the current challenges of adequate
funding and staffing.
This legislation would help ensure appropriate funding for immigration
legal services and remove these common barriers so that immigrant New
Yorkers can access counsel, regardless of their income, language, or
geographic location.
Access to counsel is inexorably linked to access to justice in immi-
gration court. Having legal representation is one of the most important
variables in obtaining a successful outcome.(6) A study by the American
Immigration Council, which analyzed data on case outcomes obtained from
the Department of Justice Executive Office for Immigration Review,
demonstrated that having an attorney made it more likely for an immi-
grant to:
-Be released from custody: 44% of represented immigrants were given a
custody hearing, compared to 18% of unrepresented immigrants, and 44% of
represented immigrants were actually released from custody, compared to
11% of unrepresented immigrants;(7)
-Appear in immigration court: "Ninety percent of unrepresented immi-
grants with removal orders were removed in absentia versus only 29
percent of their represented counterparts with removal orders;"(8)
-Defend themselves against removal charges: 21% of represented detained
immigrants fought off removal either by filing successful applications
for relief or successfully challenging the proceedings in the first
instance, compared to 2% of unrepresented detained immigrants, and 60%
of never-detained represented immigrants did the same versus 17% of
never-detained unrepresented immigrants;(9) and Win their cases: Of
those that filed applications for relief from removal, 32% of detained
immigrants won their case, compared to 3% of unrepresented detained
immigrants, and 78% of never-detained represented immigrants won their
case versus 15% of never-detained unrepresented immigrants. (10)
The benefits of legal representation in immigration court proceedings
has become even more evident through the successes of the New York Immi-
grant Family Unity Project (NYIFUP), the pioneering public defender
model for detained immigrants that began in New York City in 2013. The
first round of assessment of.NYIFUP shows that access to lawyers has
resulted in a 48% success rate for detained New Yorkers, compared to 4%
pre-NYIFUP.(11) This represents a 1,100% increase in a detained individ-
ual's chances of winning their cases before an immigration judge.(12)
The proven impact of legal representation on case outcomes makes it
imperative to provide access to counsel for immigrant New Yorkers facing
immigration proceedings, especially given the quasi-criminal and adver-
sarial nature of such proceedings. This is true despite additional
burdens that may be placed on legal services providers in New York
State. This legislation will help ensure that dua process is served for
vulnerable immigrant New Yorkers and.that the principles of fundamental
fairness are observed.
PRIOR LEGISLATIVE HISTORY:
A.9125 of 2020.
FISCAL IMPLICATIONS:
$300 Million when fully implemented.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law. Effective immediately the addition, amendment and/or
repeal of any rule or regulation necessary for the implementation of
this act on its effective date are authorized to be made and completed
on or before such date.
STATE OF NEW YORK
________________________________________________________________________
170--A
2023-2024 Regular Sessions
IN ASSEMBLY(Prefiled)
January 4, 2023
___________
Introduced by M. of A. CRUZ, ROZIC, COLTON, CARROLL, REYES, DARLING,
SIMON, KIM, EPSTEIN, L. ROSENTHAL, WEPRIN, HYNDMAN, RAMOS, TAYLOR,
COOK, THIELE, DAVILA, JOYNER, FALL, WILLIAMS, SEAWRIGHT, BURGOS,
DINOWITZ, CLARK, MITAYNES, MAMDANI, KELLES, JACKSON, GONZALEZ-ROJAS,
BURDICK, OTIS, GALLAGHER, JACOBSON, DE LOS SANTOS, CUNNINGHAM, DICK-
ENS, RIVERA, ARDILA, RAGA, SHRESTHA, HEVESI, FORREST, ANDERSON, BORES,
AUBRY, SOLAGES, WALKER, ALVAREZ, SHIMSKY, JEAN-PIERRE, McDONALD, HUNT-
ER, LEVENBERG, LEE, MEEKS, LAVINE, PAULIN, FAHY, GIBBS, SIMONE,
O'DONNELL, TAPIA, BICHOTTE HERMELYN, SEPTIMO -- read once and referred
to the Committee on Codes -- 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:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01980-05-3
A. 170--A 2
1 (i) a New York state domiciliary who is a non-United States citizen;
2 (ii) a New York state domiciliary who is a United States citizen or
3 whose United States citizenship is in dispute; or
4 (iii) any individual whose proceedings have a significant nexus to New
5 York state such that they should be provided relief under this statute.
6 Significant nexus shall be established in the following circumstances:
7 if an individual is in detention or incarcerated in the state of New
8 York, if an individual is transferred by federal immigration authorities
9 from New York to immigration detention in another state, if an individ-
10 ual has an immigration case in a tribunal located in the state of New
11 York, if an individual is a New York domiciliary and detained by federal
12 immigration authorities anywhere in the United States, if an individual
13 had an immigration case located in a tribunal in New York before being
14 transferred by immigration authorities from detention in New Jersey to
15 immigration detention in another state or, as determined by the adminis-
16 trator or designee of the administrator.
17 (c) "Covered proceeding" means any proceeding in a covered venue in
18 which a covered individual is seeking an avenue of relief from removal
19 from the United States, or is challenging his or her arrest or detention
20 under the Immigration and Nationality Act ("INA"), as amended, and its
21 implementing regulations. A covered proceeding includes, if applicable,
22 a proceeding or hearing in immigration court; a proceeding before the
23 United States Citizenship and Immigration Services; a proceeding in a
24 tribunal located in New York for purposes of obtaining any order neces-
25 sary for or relevant to immigration relief; a habeas corpus or other
26 relevant petition to a federal district court challenging detention
27 under the INA; motions to reopen or reconsider under 8 U.S.C. § 1229(a);
28 a petition for review under 8 U.S.C. § 1252; a remand to a federal
29 district court from the United States Circuit Courts of Appeals for
30 fact-finding purposes; and any appeal related to any of the foregoing to
31 the Board of Immigration Appeals, the United States Circuit Courts of
32 Appeals, and/or the United States Supreme Court.
33 (d) "Covered venue" means: (i) an immigration court anywhere in the
34 United States where the case of a covered individual is located; (ii)
35 any tribunal located within New York state, including, but not limited
36 to, family courts and federal district courts; (iii) with respect to the
37 provision of legal services in the context of expedited removals, any
38 location within the borders of New York state where expedited removals
39 are processed; (iv) the Board of Immigration Appeals; (v) the United
40 States Circuit Courts of Appeals; (vi) the United States Supreme Court;
41 (vii) United States Citizenship and Immigration Services; and (viii) any
42 tribunal as determined by the administrator or a designee of the admin-
43 istrator on a case-by-case basis.
44 (e) "Domicile" means a principal location where a person, wherever
45 temporarily located, intends to reside.
46 (f) "Domiciliary" means a person that has established domicile with
47 respect to a particular jurisdiction.
48 (g) "Immigration court" means a tribunal of the Executive Office for
49 Immigration Review or a successor entity tasked with deciding the inad-
50 missibility or deportability of a noncitizen of the United States that
51 is presided over by an immigration judge as defined in 8 U.S.C. §
52 1101(b)(4).
53 (h) "Income-eligible individual" means an individual who is deemed
54 eligible for legal services in a covered proceeding based on pre-set
55 income-related criteria promulgated by the administrator, but in any
56 event must at a minimum include any individual whose annual gross house-
A. 170--A 3
1 hold income is not in excess of two hundred percent of the federal
2 poverty guidelines as updated periodically in the Federal Register by
3 the United States Department of Health and Human Services under the
4 authority of 42 U.S.C. § 9902(2).
5 (i) "Legal services" means individualized legal assistance in a single
6 consultation and/or ongoing legal representation, provided by a legal
7 services provider to a covered individual, and all legal advice, advoca-
8 cy, and assistance, including but not limited to social service assist-
9 ance, associated with such service.
10 (j) "Legal services provider" means an individual, organization, or
11 association that has the authority to provide legal services and is
12 designated by the administrator to provide such services.
13 2. Right to counsel in immigration proceedings. (a) All covered indi-
14 viduals shall have the right to legal services as provided in this para-
15 graph.
16 (i) Covered individuals facing a covered proceeding shall have the
17 right to ongoing legal representation until termination is authorized
18 pursuant to paragraphs (c) and (d) of this subdivision.
19 (ii) Covered individuals facing a covered proceeding in a covered
20 venue other than an immigration court in New York or New Jersey shall
21 have the right to a consultation provided by a legal services provider,
22 and if found by the legal services provider to have a viable application
23 for appeal, challenge to a court order, or other form of relief from
24 removal from the United States, shall have the right to ongoing legal
25 representation.
26 (b) The right to counsel established in paragraph (a) of this subdivi-
27 sion shall attach:
28 (i) In the case of proceedings for removal pursuant to 8 U.S.C. §
29 1229a, upon receipt of a Notice to Appear, as defined in 8 U.S.C. §
30 1229. The obligations of this section shall be satisfied if counsel is
31 provided to a covered individual no later than their first appearance in
32 a covered proceeding, or as soon thereafter as is practicable.
33 (ii) In the case of removal proceedings pursuant to 8 U.S.C. § 1225,
34 upon the commencement of such proceedings, or as soon thereafter as is
35 practicable.
36 (iii) In the case of a referral to an immigration judge for a hearing
37 pursuant to 8 U.S.C. § 1231(b)(3) or 8 U.S.C. § 1158, upon receipt of a
38 Notice of Referral to Immigration Judge, or as soon thereafter as is
39 practicable.
40 (iv) In the case of a reinstatement of a final order of removal, upon
41 such reinstatement, or as soon thereafter as is practicable.
42 (v) In all other cases, as soon as is practicable.
43 (c) Subject to the provisions of paragraph (d) of this subdivision,
44 the right to counsel established in paragraph (a) of this subdivision
45 shall terminate:
46 (i) upon the termination or dismissal of removal proceedings or any
47 related appellate matter in respect of a covered individual by the immi-
48 gration court or other competent tribunal or authority;
49 (ii) upon the issuance of a final order or judgment in respect to a
50 covered individual's removal proceedings from which there remains no
51 opportunity for appeal or other avenue for relief including, but not
52 limited to, motions to reopen, motions to reconsider, and petitions for
53 review; provided, however, that legal services providers shall not be
54 required to pursue appeals or other avenues for relief that are specula-
55 tive or frivolous;
A. 170--A 4
1 (iii) if an individual covered by virtue of being a New York state
2 domiciliary ceases to be a New York state domiciliary and establishes
3 domicile in a jurisdiction outside of New York state;
4 (iv) if an individual covered by virtue of being transferred from New
5 York to immigration detention in another state is released from
6 detention and is not a New York state domiciliary;
7 (v) if it is discovered that the initial determination that an indi-
8 vidual was an income-eligible individual was erroneous at the time that
9 such determination was made, as soon as such discovery occurs; provided,
10 however, that such individual will continue to be provided with legal
11 services pursuant to this subdivision for a reasonable amount of time to
12 enable such person to obtain alternative counsel, so as not to mate-
13 rially prejudice such individual's chance of success in any covered
14 proceeding;
15 (vi) if a covered individual knowingly and voluntarily waives the
16 right to counsel; or
17 (vii) upon a determination by a legal services provider after the
18 consultation described in subparagraph (ii) of paragraph (a) of this
19 subdivision that a covered individual facing a covered proceeding in a
20 covered venue other than an immigration court has no viable application
21 for appeal, challenge to a court order, nor other form of relief from
22 removal from the United States.
23 (d) Notwithstanding the requirements of paragraph (c) of this subdivi-
24 sion, the rights established in paragraph (a) of this subdivision shall
25 not terminate if:
26 (i) an immigration judge declines to allow a legal services provider
27 to withdraw from representing a covered individual; or
28 (ii) a legal services provider is prohibited from ceasing to provide
29 legal services pursuant to the New York Rules of Professional Conduct or
30 the Executive Office for Immigration Review's Practice Manual.
31 3. Powers and duties of the administrator. The administrator is
32 charged with implementing the requirements of this section no later than
33 January first of the sixth year following the effective date of this
34 section, and shall promulgate such rules, policies, and procedures
35 necessary and appropriate to accomplish such implementation no later
36 than January first of the first year following the effective date of
37 this section. Such rules, policies, and procedures shall include, but
38 not be limited to, the measures delineated in this subdivision, with
39 annual benchmarks to ensure full implementation by January first of the
40 sixth year following the effective date of this section. The adminis-
41 trator shall have the power and responsibility, independently and/or
42 through one or more designees, to:
43 (a) ensure that all covered individuals be advised of their right to
44 counsel and be offered legal services as provided in paragraph (a) of
45 subdivision two of this section;
46 (b) ensure independent, competent, high quality, and zealous represen-
47 tation of covered individuals receiving legal services provided pursuant
48 to this section;
49 (c) examine, evaluate, and monitor legal services provided pursuant to
50 this section;
51 (d) collect and receive information and data regarding the provision
52 of legal services not protected by attorney-client privilege, work prod-
53 uct privilege, or any other applicable privilege, or that can be
54 disclosed by legal services providers without violating the New York
55 Rules of Professional Conduct, including but not limited to:
A. 170--A 5
1 (i) the types and combinations of such services being utilized across
2 the state;
3 (ii) the salaries and other compensation paid to individual adminis-
4 trators, attorneys, and staff in connection with the provision of such
5 services;
6 (iii) the caseloads of legal services providers providing legal
7 services in connection with the provision of such services;
8 (iv) the types, nature, and timing of dispositions of cases handled by
9 legal services providers providing legal services;
10 (v) the actual expenditures currently being made in connection with
11 the provision of legal services; and
12 (vi) the time, funds, and in-kind resources currently being spent on
13 providing such legal services and the amount being spent on ancillary
14 services such as support staff and expert witnesses;
15 (e) analyze and evaluate collected data, and undertake any necessary
16 research and studies, in order to consider and recommend measures to
17 enhance the provision of effective legal services and to ensure that
18 recipients of legal services are provided with quality representation
19 from fiscally responsible providers, which shall include but not be
20 limited to standards, criteria, and a process for qualifying and re-qua-
21 lifying legal services providers to provide legal services;
22 (f) establish measures of performance which programs shall regularly
23 report to the administrator to assist the administrator in monitoring
24 the quality of legal services;
25 (g) establish the standards and criteria used in programs to determine
26 whether individual legal services providers are qualified to provide
27 legal services;
28 (h) establish the criteria and procedures used to determine whether a
29 person is eligible to receive legal services, including requirements
30 related to income and domicile, and to track the number of persons
31 considered for and applicants denied such services, the reasons for the
32 denials, and the results of any review of such denials;
33 (i) establish standards and criteria for the provision of legal
34 services in cases involving a conflict of interest;
35 (j) develop recommendations to improve the delivery of legal services;
36 (k) target grants and establish strategic programs in support of inno-
37 vative and cost-effective solutions that enhance the provision of and
38 capacity for legal services, including, but not limited to, a capacity
39 building pipeline to bring new attorneys into the field and including
40 collaborative efforts serving multiple jurisdictions where covered indi-
41 viduals and covered proceedings are located;
42 (l) investigate and monitor any other matter relevant to the provision
43 of legal services which the administrator deems important;
44 (m) request and receive from any department, division, board, bureau,
45 commission, or other agency of the state or any political subdivision of
46 the state or any public authority such assistance, information, and data
47 as will enable the administrator to properly carry out its functions,
48 powers, and duties, subject to limitations on the disclosure of informa-
49 tion provided on a privileged basis to legal services providers, as well
50 as limitations on the disclosure of information by legal services
51 providers under the New York Rules of Professional Conduct;
52 (n) apply for and accept any grant or other source of funding for
53 purposes of carrying out the requirements of this section. Any sums so
54 received may be expended by the administrator to effectuate the fulfill-
55 ment of any such requirement, subject to any relevant requirements
A. 170--A 6
1 related to the approval of expenditure of funds and audits of such
2 expenditures;
3 (o) develop, publish, and implement a written plan that establishes
4 numerical caseload/workload standards for all legal services providers,
5 with such plan to be completed and published within one hundred twenty
6 days after the effective date of this section, and to monitor and peri-
7 odically report on the implementation of and compliance with the plan;
8 (p) develop and implement a written plan, and to monitor and period-
9 ically report on the implementation of and compliance with such plan, to
10 improve the quality of legal services provided to covered individuals,
11 and to ensure that legal services providers providing such represen-
12 tation receive effective supervision and training, have access to and
13 appropriately utilize interpreters and expert witnesses on behalf of
14 clients, communicate effectively with their clients, have the necessary
15 qualifications and experience;
16 (q) beginning on September fifteenth, one year after the effective
17 date of this section, and by September fifteenth of each year thereaft-
18 er, submit a report to the governor, the speaker of the assembly, and
19 the temporary president of the senate, describing compliance with the
20 requirements of this section, including but not limited to:
21 (i) the criteria used to determine whether an individual is eligible
22 for legal services;
23 (ii) the procedures used to determine whether an individual is eligi-
24 ble to receive legal services;
25 (iii) the number of individuals deemed eligible and ineligible for
26 legal services;
27 (iv) the number of cases started and completed and the outcomes of
28 those cases; and
29 (v) qualitative review of the legal services provided; and
30 (r) beginning on September fifteenth, one year after the effective
31 date of this section, and by September fifteenth of every second year
32 thereafter, in consultation with the advisory committee, submit a report
33 to the governor, the speaker of the assembly, the temporary president of
34 the senate, and the director of the division of the budget, presenting
35 an analysis of qualitative and quantitative data on immigration court
36 cases and immigration enforcement activity and recommendations for
37 adjustments in funding to ensure compliance with this section.
38 4. Funding. (a) The state shall establish a dedicated fund and shall
39 appropriate sufficient sums into such fund to fully carry out the
40 requirements of this section. Funds necessary to fully carry out the
41 requirements of this section shall be determined annually by December
42 first of each year by the secretary of state, in consultation with the
43 administrator and the director of the division of the budget upon review
44 of the report submitted by the administrator pursuant to paragraph (r)
45 of subdivision three of this section.
46 (b) The administrator will be charged with ensuring that appropriated
47 funds are timely distributed to legal services providers for the
48 provision of legal services.
49 (c) Notwithstanding the requirements of paragraphs (a) and (b) of this
50 subdivision, sums appropriated to carry out the requirements of this
51 section shall be used to supplement and not supplant any state, local,
52 or private funding that is, or is anticipated to be, expended for the
53 provision of legal services to covered individuals, and the state shall
54 not be required to appropriate any funds for legal services to the
55 extent that obligations associated with the provision of legal services
56 are otherwise fully satisfied by funds received from state, local, or
A. 170--A 7
1 private sources, or by the United States government in satisfaction of
2 any legal obligation.
3 5. Advisory committee. (a) There shall be an advisory committee which
4 shall work, in collaboration with the administrator, to develop
5 programs, policies, training, and procedures necessary to effectuate the
6 requirements of this section. The administrator shall collaborate with
7 the advisory committee on matters including, but not limited to:
8 (i) the rates of compensation for legal services;
9 (ii) community engagement efforts;
10 (iii) the sufficiency of access to and the quality of legal services
11 provided to covered individuals in covered venues;
12 (iv) the sufficiency of space available for designated providers in
13 covered venues;
14 (v) ensuring individuals with limited English proficiency have access
15 to appropriate translation services; and
16 (vi) other efforts by other states to support individuals facing
17 deportation.
18 (b) The advisory committee shall be comprised of nine members. The
19 governor shall appoint five members offering services to individuals in
20 covered proceedings, representing the geographic regions where covered
21 individuals and covered venues are located. The governor's appointees
22 shall further consist of no more than one representative of the private
23 bar and four representatives of legal services providers and represen-
24 tatives of community-based organizations offering services to covered
25 individuals. The speaker of the assembly and temporary president of the
26 senate shall appoint two members each. The administrator shall serve ex
27 officio. The governor shall designate one member to serve as chair of
28 the advisory committee.
29 (c) Each member, other than the member serving in an ex officio capac-
30 ity, shall serve for a term of two years, with initial terms for each
31 committee seat commencing ninety days after the effective date of this
32 section. Initial appointments under this subdivision must be made with-
33 in sixty days of the effective date of this section. Any vacancies
34 shall be filled promptly and in the same manner as the original appoint-
35 ment, and the appointee filling such vacancy shall serve for the unex-
36 pired portion of the term of the succeeded member. Any committee member
37 may be reappointed for additional terms. A member of the advisory
38 committee shall continue in such position upon the expiration of their
39 term and until such time as they are reappointed or their successor is
40 appointed, as the case may be.
41 (d) Members of the advisory committee shall serve without compen-
42 sation, but shall be allowed and reimbursed for their reasonable actual
43 and necessary expenses incurred in performance of their functions under
44 this section by the administrator.
45 (e) The advisory committee's initial meeting shall take place within
46 thirty days of the appointment of all required committee members under
47 paragraph (b) of this subdivision, or within ninety days of the effec-
48 tive date of this section, whichever is sooner. The advisory committee
49 shall meet no less than four times per year. The advisory committee may
50 establish its own procedures with respect to the conduct of its meetings
51 and its other affairs; provided, however, that the quorum and majority
52 provisions of section forty-one of the general construction law shall
53 govern all actions taken by the advisory committee.
54 (f) Membership on the advisory committee shall not constitute the
55 holding of an office. The advisory committee shall not have the power
56 to exercise any portion of the sovereign power of the state. No member
A. 170--A 8
1 of the advisory committee shall be disqualified from holding any public
2 office or employment, nor shall he or she forfeit any such office or
3 employment, by reason of his or her appointment pursuant to this
4 section, notwithstanding the provisions of any other general, special,
5 or local law; ordinance; or city charter.
6 (g) Beginning on September fifteenth, one year after the effective
7 date of this section, the advisory committee shall produce a report
8 concerning its duties pursuant to this section and any related recommen-
9 dations, and such report shall be included in the report submitted by
10 the administrator to the governor, the speaker of the assembly, and the
11 temporary president of the senate under paragraph (q) of subdivision
12 three of this section.
13 6. No private right of action. Nothing in this section or the adminis-
14 tration or application thereof shall be construed to create a private
15 right of action on the part of any person or entity against the state or
16 any agency, instrumentality, official, or employee thereof.
17 7. Miscellaneous provisions. (a) Any legal services performed by a
18 legal services provider pursuant to this section shall not supplant,
19 replace, or satisfy any obligations or responsibilities of such legal
20 services provider pursuant to any other program, agreement, or contract.
21 (b) The provisions of this section shall supersede conflicting state
22 or local laws, rules, policies, procedures, and practices, except to the
23 extent that the provisions of any such state or local law, rule, policy,
24 procedure, or practice may provide any additional or greater right or
25 protection. Nothing in this section shall be interpreted or applied so
26 as to create any power, duty, or obligation prohibited by federal law.
27 (c) If any provision of this section or any application thereof to any
28 person or circumstance is held invalid, such invalidity shall not affect
29 any provision or application of this section that can be given effect
30 without the invalid provision or application. To this end, the
31 provisions of this section are severable.
32 § 3. This act shall take effect immediately.
