S07261 Summary:

Add §94-c, Exec L
Establishes the right to legal counsel in immigration court proceedings and provides for the administration thereof.
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S07261 Actions:

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S07261 Committee Votes:

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S07261 Floor Votes:

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S07261 Memo:

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S07261 Text:

                STATE OF NEW YORK
                    IN SENATE
                                    January 15, 2020
        Introduced  by  Sen. HOYLMAN -- 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-c to read
     4  as follows:
     5    §  94-c.  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 subject
    10  to removal pursuant to 8 U.S.C. § 1229a or 8 U.S.C.  §  1225  and  their
    11  implementing  regulations,  or a final order of removal under 8 C.F.R. §
    12  1241.1, regardless of age, in a covered proceeding who is:
    13    (i) a New York state domiciliary who is a non-United States citizen;
    14    (ii) a New York state domiciliary who is a United  States  citizen  or
    15  whose United States citizenship is in dispute; or
    16    (iii)  an  individual  who is not a New York state domiciliary if such
    17  non-domiciliary and their proceedings have a significant  nexus  to  New
    18  York  state such that they should be provided relief under this statute,
    19  as determined by the administrator or designee of the administrator on a
    20  case-by-case basis.
    21    (c) "Covered proceeding" means any proceeding in a  covered  venue  in
    22  which  a  covered individual is seeking an avenue of relief from removal
    23  from the United States, or is challenging his or her arrest or detention
    24  under the Immigration and Nationality Act ("INA"), as amended,  and  its
    25  implementing regulations.  A covered proceeding includes, if applicable,
    26  a  proceeding  or hearing in immigration court; a proceeding in New York
    27  state family court for purposes of obtaining a special findings order; a
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 7261                             2
     1  habeas corpus petition to a federal district court located in  New  York
     2  challenging  detention  under  the  INA; motions to reopen or reconsider
     3  under 8 U.S.C. § 1229(a); a petition for review under 8 U.S.C. § 1252; a
     4  remand to a federal district court from the United States Circuit Courts
     5  of  Appeals  for fact-finding purposes; and any appeal related to any of
     6  the foregoing to the Board of Immigration  Appeals,  the  United  States
     7  Circuit Courts of Appeals, and/or the United States Supreme Court.
     8    (d)  "Covered  venue"  means: (i) any tribunal located within New York
     9  state, including family courts, immigration courts, and federal district
    10  courts; (ii) immigration  courts  located  in  New  Jersey;  (iii)  with
    11  respect  to  the provision of legal services in the context of expedited
    12  removals, any location within the borders of New York state where  expe-
    13  dited removals are processed; (iv) the Board of Immigration Appeals; (v)
    14  the  United States Circuit Courts of Appeals; and (vi) the United States
    15  Supreme Court.
    16    (e) "Domicile" has the meaning ascribed to  it  by  the  administrator
    17  pursuant  to  its rulemaking authority under this section, provided that
    18  in any event it shall include a fixed, permanent, and principal home  to
    19  which a person wherever temporarily located always intends to return.
    20    (f)  "Domiciliary"  means  a person that has established domicile with
    21  respect to a particular jurisdiction.
    22    (g) "Immigration court" means a tribunal of the Executive  Office  for
    23  Immigration  Review or a successor entity tasked with deciding the inad-
    24  missibility or deportability of a noncitizen of the United  States  that
    25  is  presided  over  by  an  immigration  judge  as defined in 8 U.S.C. §
    26  1101(b)(4).
    27    (h) "Income-eligible individual" means an  individual  who  is  deemed
    28  eligible  for  legal  services  in a covered proceeding based on pre-set
    29  income-related criteria promulgated by the  administrator,  but  in  any
    30  event must at a minimum include any individual whose annual gross house-
    31  hold  income  is  not  in  excess  of two hundred percent of the federal
    32  poverty guidelines as updated periodically in the  Federal  Register  by
    33  the  United  States  Department  of  Health and Human Services under the
    34  authority of 42 U.S.C. § 9902(2).
    35    (i) "Legal services" means individualized legal assistance in a single
    36  consultation and/or ongoing legal representation, provided  by  a  legal
    37  services provider to a covered individual, and all legal advice, advoca-
    38  cy, and assistance associated with such service.
    39    (j)  "Legal  services  provider" means an individual, organization, or
    40  association that has the authority to  provide  legal  services  and  is
    41  designated by the administrator to provide such services.
    42    2.  Right to counsel in immigration proceedings. (a) All covered indi-
    43  viduals shall have the right to legal services as provided in this para-
    44  graph.
    45    (i) Covered individuals facing a covered proceeding in an  immigration
    46  court  in  New  York or New Jersey shall have the right to ongoing legal
    47  representation.
    48    (ii) Covered individuals facing a  covered  proceeding  in  a  covered
    49  venue  other  than  an immigration court in New York or New Jersey shall
    50  have the right to a consultation provided by a legal services  provider,
    51  and if found by the legal services provider to have a viable application
    52  for  appeal,  challenge  to  a court order, or other form of relief from
    53  removal from the United States, shall have the right  to  ongoing  legal
    54  representation.
    55    (b) The right to counsel established in paragraph (a) of this subdivi-
    56  sion shall attach:

        S. 7261                             3

     1    (i)  In  the  case  of  proceedings for removal pursuant to 8 U.S.C. §
     2  1229a, upon receipt of a Notice to Appear, as  defined  in  8  U.S.C.  §
     3  1229.   The obligations of this section shall be satisfied if counsel is
     4  provided to a covered individual no later than their first appearance in
     5  a covered proceeding, or as soon thereafter as is practicable.
     6    (ii)  In  the case of removal proceedings pursuant to 8 U.S.C. § 1225,
     7  upon the commencement of such proceedings, or as soon thereafter  as  is
     8  practicable.
     9    (iii)  In the case of a referral to an immigration judge for a hearing
    10  pursuant to 8 U.S.C.  § 1231(b)(3) or 8 U.S.C. § 1158, upon receipt of a
    11  Notice of Referral to Immigration Judge, or as  soon  thereafter  as  is
    12  practicable.
    13    (iv)  In the case of a reinstatement of a final order of removal, upon
    14  such reinstatement, or as soon thereafter as is practicable.
    15    (v) In all other cases, as soon as is practicable.
    16    (c) Subject to the provisions of paragraph (d)  of  this  subdivision,
    17  the  right  to  counsel established in paragraph (a) of this subdivision
    18  shall terminate:
    19    (i) upon the termination or dismissal of removal  proceedings  or  any
    20  related appellate matter in respect of a covered individual by the immi-
    21  gration court or other competent tribunal or authority;
    22    (ii)  upon  the  issuance of a final order or judgment in respect to a
    23  covered individual's removal proceedings from  which  there  remains  no
    24  opportunity  for  appeal  or  other avenue for relief including, but not
    25  limited to, motions to reopen, motions to reconsider, and petitions  for
    26  review;  provided,  however,  that legal services providers shall not be
    27  required to pursue appeals or other avenues for relief that are specula-
    28  tive or frivolous;
    29    (iii) if a covered individual ceases to be a New York state  domicili-
    30  ary  and  establishes  domicile  in  a  jurisdiction outside of New York
    31  state;
    32    (iv) if it is discovered that the initial determination that an  indi-
    33  vidual  was an income-eligible individual was erroneous at the time that
    34  such determination was made, as soon as such discovery occurs; provided,
    35  however, that such individual will continue to be  provided  with  legal
    36  services pursuant to this subdivision for a reasonable amount of time to
    37  enable  such  person  to  obtain alternative counsel, so as not to mate-
    38  rially prejudice such individual's chance  of  success  in  any  covered
    39  proceeding;
    40    (v) if a covered individual knowingly and voluntarily waives the right
    41  to counsel on the record in the presence of counsel; or
    42    (vi)  upon  a  determination  by  a  legal services provider after the
    43  consultation described in subparagraph (ii) of  paragraph  (a)  of  this
    44  subdivision  that  a covered individual facing a covered proceeding in a
    45  covered venue other than an immigration court in New York or New  Jersey
    46  has  no  viable  application for appeal, challenge to a court order, nor
    47  other form of relief from removal from the United States.
    48    (d) Notwithstanding the requirements of paragraph (c) of this subdivi-
    49  sion, the rights established in paragraph (a) of this subdivision  shall
    50  not terminate if:
    51    (i)  an  immigration judge declines to allow a legal services provider
    52  to withdraw from representing a covered individual; or
    53    (ii) a legal services provider is prohibited from ceasing  to  provide
    54  legal services pursuant to the New York Rules of Professional Conduct or
    55  the Executive Office for Immigration Review's Practice Manual.

        S. 7261                             4

     1    3.  Powers  and  duties  of  the  administrator.  The administrator is
     2  charged with implementing the requirements of this section no later than
     3  January first, two thousand twenty-one, and may promulgate  such  rules,
     4  policies,  and  procedures as may be necessary and appropriate to accom-
     5  plish  such implementation.   The administrator shall have the power and
     6  responsibility to:
     7    (a) ensure that all covered individuals be advised of their  right  to
     8  counsel  and  be  offered legal services as provided in paragraph (a) of
     9  subdivision two of this section;
    10    (b) ensure  independent,  competent,  and  zealous  representation  of
    11  covered  individuals  receiving legal services provided pursuant to this
    12  section;
    13    (c) examine, evaluate, and monitor legal services provided pursuant to
    14  this section;
    15    (d) collect and receive information and data regarding  the  provision
    16  of legal services not protected by attorney-client privilege, work prod-
    17  uct  privilege,  or  any  other  applicable  privilege,  or  that can be
    18  disclosed by legal services providers without  violating  the  New  York
    19  Rules of Professional Conduct, including but not limited to:
    20    (i)  the types and combinations of such services being utilized across
    21  the state;
    22    (ii) the salaries and other compensation paid to  individual  adminis-
    23  trators,  attorneys,  and staff in connection with the provision of such
    24  services;
    25    (iii) the  caseloads  of  legal  services  providers  providing  legal
    26  services in connection with the provision of such services;
    27    (iv) the types, nature, and timing of dispositions of cases handled by
    28  legal services providers providing legal services;
    29    (v)  the  actual  expenditures currently being made in connection with
    30  the provision of legal services; and
    31    (vi) the time, funds, and in-kind resources currently being  spent  on
    32  providing  such  legal  services and the amount being spent on ancillary
    33  services such as support staff and expert witnesses;
    34    (e) analyze and evaluate collected data, and undertake  any  necessary
    35  research  and  studies,  in  order to consider and recommend measures to
    36  enhance the provision of effective legal services  and  to  ensure  that
    37  recipients  of  legal  services are provided with quality representation
    38  from fiscally responsible providers, which  shall  include  but  not  be
    39  limited to standards, criteria, and a process for qualifying and re-qua-
    40  lifying legal services providers to provide legal services;
    41    (f)  establish  measures of performance which programs shall regularly
    42  report to the administrator to assist the  administrator  in  monitoring
    43  the quality of legal services;
    44    (g) establish the standards and criteria used in programs to determine
    45  whether  individual  legal  services  providers are qualified to provide
    46  legal services;
    47    (h) establish the criteria and procedures used to determine whether  a
    48  person  is  eligible  to  receive legal services, including requirements
    49  related to income and domicile, and  to  track  the  number  of  persons
    50  considered  for and applicants denied such services, the reasons for the
    51  denials, and the results of any review of such denials;
    52    (i) establish standards  and  criteria  for  the  provision  of  legal
    53  services in cases involving a conflict of interest;
    54    (j) develop recommendations to improve the delivery of legal services;

        S. 7261                             5
     1    (k)   target  grants  in  support  of  innovative  and  cost-effective
     2  solutions that enhance the provision of legal services, including colla-
     3  borative efforts serving multiple jurisdictions within New York state;
     4    (l) investigate and monitor any other matter relevant to the provision
     5  of legal services which the administrator deems important;
     6    (m)  request and receive from any department, division, board, bureau,
     7  commission, or other agency of the state or any political subdivision of
     8  the state or any public authority such assistance, information, and data
     9  as will enable the administrator to properly carry  out  its  functions,
    10  powers, and duties, subject to limitations on the disclosure of informa-
    11  tion provided on a privileged basis to legal services providers, as well
    12  as  limitations  on  the  disclosure  of  information  by legal services
    13  providers under the New York Rules of Professional Conduct;
    14    (n) apply for and accept any grant or  other  source  of  funding  for
    15  purposes  of  carrying out the requirements of this section. Any sums so
    16  received may be expended by the administrator to effectuate the fulfill-
    17  ment of any such  requirement,  subject  to  any  relevant  requirements
    18  related  to  the  approval  of  expenditure  of funds and audits of such
    19  expenditures;
    20    (o) develop, publish, and implement a written  plan  that  establishes
    21  numerical  caseload/workload standards for all legal services providers,
    22  with such plan to be completed and published within one  hundred  eighty
    23  days  after  the  enactment  of this section, and to monitor and period-
    24  ically report on the implementation of and compliance with the plan;
    25    (p) develop and implement a written plan, and to monitor  and  period-
    26  ically report on the implementation of and compliance with such plan, to
    27  improve  the  quality of legal services provided to covered individuals,
    28  and to ensure that legal services  providers  providing  such  represen-
    29  tation  receive  effective  supervision and training, have access to and
    30  appropriately utilize interpreters and expert  witnesses  on  behalf  of
    31  clients,  communicate effectively with their clients, have the necessary
    32  qualifications and experience; and
    33    (q) beginning in two thousand twenty-two, and by  September  fifteenth
    34  of each year thereafter, submit a report to the governor, the speaker of
    35  the  assembly,  and  the  temporary  president of the senate, describing
    36  compliance with the requirements of  this  section,  including  but  not
    37  limited to:
    38    (i)  the  criteria used to determine whether an individual is eligible
    39  for legal services;
    40    (ii) the procedures used to determine whether an individual is  eligi-
    41  ble to receive legal services;
    42    (iii)  the  number  of  individuals deemed eligible and ineligible for
    43  legal services;
    44    (iv) the number of cases started and completed  and  the  outcomes  of
    45  those cases; and
    46    (v) qualitative review of the legal services provided.
    47    4.  Funding.  (a) The state shall establish a dedicated fund and shall
    48  appropriate sufficient sums into  such  fund  to  fully  carry  out  the
    49  requirements  of  this  section.  Funds necessary to fully carry out the
    50  requirements of this section shall be determined  annually  by  December
    51  first  of  each year by the secretary of state, in consultation with the
    52  administrator and the director of the division of the budget.
    53    (b) The administrator will be charged with ensuring that  appropriated
    54  funds  are  timely  distributed  to  legal  services  providers  for the
    55  provision of legal services.

        S. 7261                             6
     1    (c) Notwithstanding the requirements of paragraphs (a) and (b) of this
     2  subdivision, sums appropriated to carry out  the  requirements  of  this
     3  section  shall  be used to supplement and not supplant any state, local,
     4  or private funding that is, or is anticipated to be,  expended  for  the
     5  provision  of legal services to covered individuals, and the state shall
     6  not be required to appropriate any  funds  for  legal  services  to  the
     7  extent  that obligations associated with the provision of legal services
     8  are otherwise fully satisfied by funds received from  state,  local,  or
     9  private  sources,  or by the United States government in satisfaction of
    10  any legal obligation.
    11    5. Advisory committee. (a) There shall be an advisory committee  which
    12  shall work, as necessary and in collaboration with the administrator, to
    13  develop programs, policies, training, and procedures necessary to effec-
    14  tuate  the requirements of this section. Matters to be considered by the
    15  advisory committee include, but are not limited to:
    16    (i) the rates of compensation for legal services;
    17    (ii) community engagement efforts;
    18    (iii) the sufficiency of access to legal services in covered venues;
    19    (iv) the sufficiency of space available for  designated  providers  in
    20  covered venues;
    21    (v)  ensuring individuals with limited English proficiency have access
    22  to appropriate translation services; and
    23    (vi) other efforts by  other  states  to  support  individuals  facing
    24  deportation.
    25    (b)  The  advisory  committee shall be comprised of nine members.  The
    26  governor shall appoint five members offering services to individuals  in
    27  covered  proceedings,  including  at  least  one  representative  of the
    28  private bar and an equal number of representatives of  designated  legal
    29  services providers and representatives of community-based organizations.
    30  The  speaker of the assembly and temporary president of the senate shall
    31  appoint two members each. The administrator shall serve ex officio.  The
    32  governor  shall  designate  one member to serve as chair of the advisory
    33  committee.
    34    (c) Each member, other than the member serving in an ex officio capac-
    35  ity, shall serve for a term of two years, with initial  terms  for  each
    36  committee  seat commencing on January first, two thousand twenty-one and
    37  expiring on December  thirty-first,  two  thousand  twenty-two.  Initial
    38  appointments  under  this subdivision must be made within twenty days of
    39  the effective date of a chapter of the laws of two thousand twenty  that
    40  added  this section.   Any vacancies shall be filled promptly and in the
    41  same manner as the original appointment, and the appointee filling  such
    42  vacancy  shall  serve  for  the  unexpired  portion  of  the term of the
    43  succeeded member. Any committee member may be reappointed for additional
    44  terms. A member of the advisory committee shall continue in  such  posi-
    45  tion  upon  the expiration of their term and until such time as they are
    46  reappointed or their successor is appointed, as the case may be.
    47    (d) Members of the advisory  committee  shall  serve  without  compen-
    48  sation,  but shall be allowed and reimbursed for their reasonable actual
    49  and necessary expenses incurred in performance of their functions  under
    50  this section by the administrator.
    51    (e)  The  advisory committee's initial meeting shall take place within
    52  thirty days of the appointment of all required committee  members  under
    53  paragraph (b) of this subdivision, or within sixty days of the effective
    54  date  of  a  chapter  of the laws of two thousand twenty that added this
    55  section, whichever is sooner. The advisory committee shall meet no  less
    56  than  four  times per year. The advisory committee may establish its own

        S. 7261                             7
     1  procedures with respect to the conduct of its  meetings  and  its  other
     2  affairs;  provided,  however, that the quorum and majority provisions of
     3  section forty-one of the  general  construction  law  shall  govern  all
     4  actions taken by the advisory committee.
     5    (f)  Membership  on  the  advisory  committee shall not constitute the
     6  holding of an office.  The advisory committee shall not have  the  power
     7  to  exercise  any portion of the sovereign power of the state. No member
     8  of the advisory committee shall be disqualified from holding any  public
     9  office  or  employment,  nor  shall he or she forfeit any such office or
    10  employment, by reason  of  his  or  her  appointment  pursuant  to  this
    11  section,  notwithstanding  the provisions of any other general, special,
    12  or local law; ordinance; or city charter.
    13    (g) Beginning in two thousand twenty-two, the advisory committee shall
    14  produce a report concerning its duties pursuant to this section and  any
    15  related recommendations, and such report shall be included in the report
    16  submitted  by  the  administrator  to  the  governor, the speaker of the
    17  assembly, and the temporary president of the senate under paragraph  (p)
    18  of subdivision three of this section.
    19    6. No private right of action. Nothing in this section or the adminis-
    20  tration  or  application  thereof shall be construed to create a private
    21  right of action on the part of any person or entity against the state or
    22  any agency, instrumentality, official, or employee thereof.
    23    7. Miscellaneous provisions. (a) Any legal  services  performed  by  a
    24  legal  services  provider  pursuant  to this section shall not supplant,
    25  replace, or satisfy any obligations or responsibilities  of  such  legal
    26  services provider pursuant to any other program, agreement, or contract.
    27    (b)  The  provisions of this section shall supersede conflicting state
    28  or local laws, rules, policies, procedures, and practices, except to the
    29  extent that the provisions of any such state or local law, rule, policy,
    30  procedure, or practice may provide any additional or  greater  right  or
    31  protection.  Nothing  in this section shall be interpreted or applied so
    32  as to create any power, duty, or obligation prohibited by federal law.
    33    (c) If any provision of this section or any application thereof to any
    34  person or circumstance is held invalid, such invalidity shall not affect
    35  any provision or application of this section that can  be  given  effect
    36  without   the  invalid  provision  or  application.  To  this  end,  the
    37  provisions of this section are severable.
    38    § 3. This act shall take effect on the ninetieth day  after  it  shall
    39  have become a law.  Effective immediately the addition, amendment and/or
    40  repeal  of  any  rule  or regulation necessary for the implementation of
    41  this act on its effective date are authorized to be made  and  completed
    42  on or before such date.
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