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.
