A01961 Summary:

COSPNSRPerry, Rozic, Colton, Carroll, Reyes, Darling, Simon, Kim, Epstein, Rosenthal L, Weprin, O'Donnell, Hyndman, Barron, Ramos, Cahill, Taylor, Cook, Thiele, Davila, Quart, Joyner, Fall, Williams, Gottfried, Abinanti, Seawright, Burgos, Dinowitz, Clark, Mitaynes, Mamdani, Forrest, Kelles, Jackson, Gonzalez-Rojas, Burdick, Otis, Gallagher, Niou, Jacobson, De Los Santos, Cunningham, Dickens, Fernandez, Rivera JD
Add §94-d, Exec L
Establishes the right to legal counsel in immigration court proceedings; provides for the administration thereof.
Go to top    

A01961 Actions:

01/13/2021referred to codes
01/05/2022referred to codes
09/16/2022amend and recommit to codes
09/16/2022print number 1961a
Go to top

A01961 Committee Votes:

Go to top

A01961 Floor Votes:

There are no votes for this bill in this legislative session.
Go to top

A01961 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
  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 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 administrator 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 Americans is be the administrator of the right to counsel program. Other defi- nitions 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 immi- grant 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, or community. For some immigrants, this loss may be espe- cially 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 due 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.
Go to top

A01961 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                   IN ASSEMBLY
                                    January 13, 2021
        Introduced  by  M.  of  A. CRUZ, ROZIC, COLTON, CARROLL, REYES, DARLING,
          DEZ, J. D. RIVERA -- read once and referred to the Committee on  Codes
          --  recommitted  to the Committee on Codes in accordance with Assembly
          Rule  3,  sec.  2  --  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;

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 1961--A                          2
     1    (ii) a New York state domiciliary who is a United  States  citizen  or
     2  whose United States citizenship is in dispute; or
     3    (iii) any individual whose proceedings have a significant nexus to New
     4  York  state such that they should be provided relief under this statute.
     5  Significant nexus shall be established in the  following  circumstances:
     6  if  an  individual  is  in detention or incarcerated in the state of New
     7  York, if an individual is transferred by federal immigration authorities
     8  from New York to immigration detention in another state, if an  individ-
     9  ual  has  an  immigration case in a tribunal located in the state of New
    10  York, if an individual is a New York domiciliary and detained by federal
    11  immigration authorities anywhere in the United States, if an  individual
    12  had  an  immigration case located in a tribunal in New York before being
    13  transferred by immigration authorities from detention in New  Jersey  to
    14  immigration detention in another state or, as determined by the adminis-
    15  trator or designee of the administrator.
    16    (c)  "Covered  proceeding"  means any proceeding in a covered venue in
    17  which a covered individual is seeking an avenue of relief  from  removal
    18  from the United States, or is challenging his or her arrest or detention
    19  under  the  Immigration and Nationality Act ("INA"), as amended, and its
    20  implementing regulations. A covered proceeding includes, if  applicable,
    21  a  proceeding  or  hearing in immigration court; a proceeding before the
    22  United States Citizenship and Immigration Services; a  proceeding  in  a
    23  tribunal  located in New York for purposes of obtaining any order neces-
    24  sary for or relevant to immigration relief; a  habeas  corpus  or  other
    25  relevant  petition  to  a  federal  district court challenging detention
    26  under the INA; motions to reopen or reconsider under 8 U.S.C. § 1229(a);
    27  a petition for review under 8 U.S.C. §  1252;  a  remand  to  a  federal
    28  district  court  from  the  United  States Circuit Courts of Appeals for
    29  fact-finding purposes; and any appeal related to any of the foregoing to
    30  the Board of Immigration Appeals, the United States  Circuit  Courts  of
    31  Appeals, and/or the United States Supreme Court.
    32    (d)  "Covered  venue"  means: (i) an immigration court anywhere in the
    33  United States where the case of a covered individual  is  located;  (ii)
    34  any  tribunal  located within New York state, including, but not limited
    35  to, family courts and federal district courts; (iii) with respect to the
    36  provision of legal services in the context of  expedited  removals,  any
    37  location  within  the borders of New York state where expedited removals
    38  are processed; (iv) the Board of Immigration  Appeals;  (v)  the  United
    39  States  Circuit Courts of Appeals; (vi) the United States Supreme Court;
    40  (vii) United States Citizenship and Immigration Services; and (viii) any
    41  tribunal as determined by the administrator or a designee of the  admin-
    42  istrator on a case-by-case basis.
    43    (e)  "Domicile"  means  a  principal location where a person, wherever
    44  temporarily located, intends to reside.
    45    (f) "Domiciliary" means a person that has  established  domicile  with
    46  respect to a particular jurisdiction.
    47    (g)  "Immigration  court" means a tribunal of the Executive Office for
    48  Immigration Review or a successor entity tasked with deciding the  inad-
    49  missibility  or  deportability of a noncitizen of the United States that
    50  is presided over by an immigration  judge  as  defined  in  8  U.S.C.  §
    51  1101(b)(4).
    52    (h)  "Income-eligible  individual"  means  an individual who is deemed
    53  eligible for legal services in a covered  proceeding  based  on  pre-set
    54  income-related  criteria  promulgated  by  the administrator, but in any
    55  event must at a minimum include any individual whose annual gross house-
    56  hold income is not in excess of  two  hundred  percent  of  the  federal

        A. 1961--A                          3
     1  poverty  guidelines  as  updated periodically in the Federal Register by
     2  the United States Department of Health  and  Human  Services  under  the
     3  authority of 42 U.S.C. § 9902(2).
     4    (i) "Legal services" means individualized legal assistance in a single
     5  consultation  and/or  ongoing  legal representation, provided by a legal
     6  services provider to a covered individual, and all legal advice, advoca-
     7  cy, and assistance, including but not limited to social service  assist-
     8  ance, associated with such service.
     9    (j)  "Legal  services  provider" means an individual, organization, or
    10  association that has the authority to  provide  legal  services  and  is
    11  designated by the administrator to provide such services.
    12    2.  Right to counsel in immigration proceedings. (a) All covered indi-
    13  viduals shall have the right to legal services as provided in this para-
    14  graph.
    15    (i) Covered individuals facing a covered  proceeding  shall  have  the
    16  right  to  ongoing  legal representation until termination is authorized
    17  pursuant to paragraphs (c) and (d) of this subdivision.
    18    (ii) Covered individuals facing a  covered  proceeding  in  a  covered
    19  venue  other  than  an immigration court in New York or New Jersey shall
    20  have the right to a consultation provided by a legal services  provider,
    21  and if found by the legal services provider to have a viable application
    22  for  appeal,  challenge  to  a court order, or other form of relief from
    23  removal from the United States, shall have the right  to  ongoing  legal
    24  representation.
    25    (b) The right to counsel established in paragraph (a) of this subdivi-
    26  sion shall attach:
    27    (i)  In  the  case  of  proceedings for removal pursuant to 8 U.S.C. §
    28  1229a, upon receipt of a Notice to Appear, as  defined  in  8  U.S.C.  §
    29  1229.   The obligations of this section shall be satisfied if counsel is
    30  provided to a covered individual no later than their first appearance in
    31  a covered proceeding, or as soon thereafter as is practicable.
    32    (ii) In the case of removal proceedings pursuant to 8 U.S.C.  §  1225,
    33  upon  the  commencement of such proceedings, or as soon thereafter as is
    34  practicable.
    35    (iii) In the case of a referral to an immigration judge for a  hearing
    36  pursuant to 8 U.S.C.  § 1231(b)(3) or 8 U.S.C. § 1158, upon receipt of a
    37  Notice  of  Referral  to  Immigration Judge, or as soon thereafter as is
    38  practicable.
    39    (iv) In the case of a reinstatement of a final order of removal,  upon
    40  such reinstatement, or as soon thereafter as is practicable.
    41    (v) In all other cases, as soon as is practicable.
    42    (c)  Subject  to  the provisions of paragraph (d) of this subdivision,
    43  the right to counsel established in paragraph (a)  of  this  subdivision
    44  shall terminate:
    45    (i)  upon  the  termination or dismissal of removal proceedings or any
    46  related appellate matter in respect of a covered individual by the immi-
    47  gration court or other competent tribunal or authority;
    48    (ii) upon the issuance of a final order or judgment in  respect  to  a
    49  covered  individual's  removal  proceedings  from which there remains no
    50  opportunity for appeal or other avenue for  relief  including,  but  not
    51  limited  to, motions to reopen, motions to reconsider, and petitions for
    52  review; provided, however, that legal services providers  shall  not  be
    53  required to pursue appeals or other avenues for relief that are specula-
    54  tive or frivolous;

        A. 1961--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, two thousand thirty, and  shall  promulgate  such  rules,
    34  policies,  and  procedures  necessary and appropriate to accomplish such
    35  implementation no later than January first,  two  thousand  twenty-four.
    36  Such  rules,  policies, and procedures shall include, but not be limited
    37  to, the measures delineated in this subdivision, with annual  benchmarks
    38  to  ensure  full  implementation  by January first, two thousand thirty.
    39  The administrator shall have the power and responsibility, independently
    40  and/or through one or more designees, to:
    41    (a) ensure that all covered individuals be advised of their  right  to
    42  counsel  and  be  offered legal services as provided in paragraph (a) of
    43  subdivision two of this section;
    44    (b) ensure independent, competent, high quality, and zealous represen-
    45  tation of covered individuals receiving legal services provided pursuant
    46  to this section;
    47    (c) examine, evaluate, and monitor legal services provided pursuant to
    48  this section;
    49    (d) collect and receive information and data regarding  the  provision
    50  of legal services not protected by attorney-client privilege, work prod-
    51  uct  privilege,  or  any  other  applicable  privilege,  or  that can be
    52  disclosed by legal services providers without  violating  the  New  York
    53  Rules of Professional Conduct, including but not limited to:
    54    (i)  the types and combinations of such services being utilized across
    55  the state;

        A. 1961--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;

        A. 1961--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  eighty
     4  days  after  the  enactment  of this section, and to monitor and period-
     5  ically 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 in two thousand twenty-five, and by September fifteenth
    15  of each year thereafter, submit a report to the governor, the speaker of
    16  the assembly, and the temporary  president  of  the  senate,  describing
    17  compliance  with  the  requirements  of  this section, including but not
    18  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 in two thousand twenty-five, and by September  fifteenth
    29  of  every  second  year  thereafter,  in  consultation with the advisory
    30  committee, submit a report to the governor, the speaker of the assembly,
    31  the temporary president of the senate, and the director of the  division
    32  of  the  budget,  presenting an analysis of qualitative and quantitative
    33  data on immigration court cases and immigration enforcement activity and
    34  recommendations for adjustments in funding  to  ensure  compliance  with
    35  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.

        A. 1961--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 on January first, two thousand twenty-four and
    30  expiring  on  December  thirty-first,  two  thousand twenty-six. Initial
    31  appointments under this subdivision must be made within twenty  days  of
    32  the  effective  date  of  this  section.   Any vacancies shall be filled
    33  promptly and in the same manner as the  original  appointment,  and  the
    34  appointee  filling such vacancy shall serve for the unexpired portion of
    35  the term of the succeeded member. Any  committee  member  may  be  reap-
    36  pointed  for  additional terms. A member of the advisory committee shall
    37  continue in such position upon the expiration of their  term  and  until
    38  such  time  as  they are reappointed or their successor is appointed, as
    39  the case may be.
    40    (d) Members of the advisory  committee  shall  serve  without  compen-
    41  sation,  but shall be allowed and reimbursed for their reasonable actual
    42  and necessary expenses incurred in performance of their functions  under
    43  this section by the administrator.
    44    (e)  The  advisory committee's initial meeting shall take place within
    45  thirty days of the appointment of all required committee  members  under
    46  paragraph (b) of this subdivision, or within sixty days of the effective
    47  date  of this section, whichever is sooner. The advisory committee shall
    48  meet no less than four times per year. The advisory committee may estab-
    49  lish its own procedures with respect to the conduct of its meetings  and
    50  its  other  affairs;  provided,  however,  that  the quorum and majority
    51  provisions of section forty-one of the general  construction  law  shall
    52  govern all actions taken by the advisory committee.
    53    (f)  Membership  on  the  advisory  committee shall not constitute the
    54  holding of an office.  The advisory committee shall not have  the  power
    55  to  exercise  any portion of the sovereign power of the state. No member
    56  of the advisory committee shall be disqualified from holding any  public

        A. 1961--A                          8

     1  office  or  employment,  nor  shall he or she forfeit any such office or
     2  employment, by reason  of  his  or  her  appointment  pursuant  to  this
     3  section,  notwithstanding  the provisions of any other general, special,
     4  or local law; ordinance; or city charter.
     5    (g)  Beginning  in  two  thousand  twenty-four, the advisory committee
     6  shall produce a report concerning its duties pursuant  to  this  section
     7  and  any  related  recommendations, and such report shall be included in
     8  the report submitted by the administrator to the governor,  the  speaker
     9  of  the  assembly, and the temporary president of the senate under para-
    10  graph (q) of subdivision 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.
Go to top