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A03049 Summary:

BILL NOA03049B
 
SAME ASSAME AS S04075-A
 
SPONSORMoya
 
COSPNSRHeastie, Crespo, Solages, Lentol, Rivera, Arroyo, Barron, Bichotte, Blake, Cook, Cahill, Jean-Pierre, Joyner, De La Rosa, Dickens, Harris, Hooper, Hyndman, Mosley, Ortiz, Peoples-Stokes, Perry, Niou, Pichardo, Otis, Pretlow, Richardson, Rodriguez, Rozic, Ramos, Aubry, Kim, Davila, Sepulveda, Titus, Gantt, O'Donnell, Lifton, Abinanti, Dinowitz, Glick, Kavanagh, Nolan, Quart, Simon, Simotas, Carroll, Weprin, Fahy, Gottfried, Jaffee, Seawright, Dilan
 
MLTSPNSR
 
Add Art 15-AA 319 - 319-h, Exec L; amd 35, Judy L
 
Relates to providing access to services, law enforcement and counsel in certain immigration related matters.
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A03049 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3049B
 
SPONSOR: Moya
  TITLE OF BILL: An act to amend the executive law and the judiciary law, in relation to access to services, law enforcement and counsel in certain immigration related matters; and to amend the judiciary law, in relation to compen- sation of legal counsel for certain matters   SUMMARY OF PROVISIONS: The executive law is amended to add a new article 15-AA regarding relations with immigrant communities and detention of certain persons. This new article would: *establish definitions; *ensure that people are not unnecessarily questioned about immigration status when seeking state or local services, benefits or assistance; *establish that state or local law enforcement agencies shall not stop, question, investigate or arrest a person based on perceived immigration status or suspected violation of federal immigration law; *generally prohibit law enforcement agencies from inquiring about the immigration status of persons contacting such agencies when in need of assistance, including victims and witnesses; *require state and local agencies and their employees to maintain the confidentiality of immigration status information, unless acting in accordance with 8 U.S.C. § 1373, and other information absent valid consent of the individual; *prohibit the detention of individuals based on administratively-issued immigration detainers and require notification to an individual if an immigration detainer or related request has been filed; *curtail the use of state and local facilities for the purposes of federal immigration enforcement; *establish a right to legal representation for persons subject to removal or deportation proceedings (the bill also amends Judiciary Law § 35 for this purpose);   JUSTIFICATION: Regrettably, some persons in New York State are reluctant to interact with state and local agencies out of fear or mistrust. Regardless of individual immigration status, these persons are concerned with possible immigration-related consequences for themselves or family members upon interacting with law enforcement or other agencies that provide vital services and benefits. While much of immigration law is established at the federal level, there are policies that can be enacted by New York to ensure that persons are not stereotyped, profiled or deterred from accessing services for which they may be eligible. This bill, therefore, includes various measures designed to encourage cooperation and foster positive relations between agency officials and individuals in our state. Consistent with constitutional principles, the bill would prohibit New York state and local law enforcement officials from acting based on suspected federal immigration status or suspected violation of U.S. immigration law, and would prohibit these officials from performing immigration-related duties that are designated by law for federal immigration officials. This would include a prohibition on access and use of state and local governmental facilities, such as jails and detention centers, for the purpose of immigration inquiries, absent request of the individual. People in New York should not be afraid to report crime to the police or seek benefits or services for which they are eligible. A victim of domestic violence, for example, or pedestrian injured by an automobile, should be able to seek help without fear of repercussions. This bill would limit the collection of unnecessary information concerning immi- gration status in these circumstances and others. State and local offi- cials may, in some circumstances, be required by federal law to respond to certain requests regarding immigration status, but federal law does not require that other personal information be shared. This bill also addresses when a civil immigration detainer would be given effect by state and local law correctional authorities. A civil immigration detainer, issued by an agency and not a judge, is a request by a federal immigration agency for temporary detention of an individ- ual. This bill would allow detention based on such a civil administra- tive detainer when the individual named therein has been convicted of a class A felony or violent felony offense and there is documented proba- ble cause to believe the person illegally re-entered the United State after a previous removal, or is listed in the national terrorist screen- ing database, or if a judicial warrant has been issued. California, Connecticut, Illinois and the cities of Philadelphia and New York, for example, have similar laws or executive orders in place. The bill would also help assure due process by providing a right to assigned legal counsel for immigrants in New York who are unable to afford counsel, and who are subject to removal or deportation proceedings. The bill complies with federal law and also sets forth constitutional- ly-permissible state and local procedures that will help assure fair and just treatment for all persons in New York State.   LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS: To be determined.   EFFECTIVE DATE: Immediately
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A03049 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3049--B
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 25, 2017
                                       ___________
 
        Introduced  by M. of A. MOYA, HEASTIE, CRESPO, SOLAGES, LENTOL, FARRELL,
          RIVERA, ARROYO, BARRON, BICHOTTE, BLAKE,  COOK,  CAHILL,  JEAN-PIERRE,
          JOYNER,  DE LA ROSA,  DICKENS, HARRIS, HOOPER, HYNDMAN, MOSLEY, ORTIZ,
          PEOPLES-STOKES, PERRY,  NIOU,  PICHARDO,  OTIS,  PRETLOW,  RICHARDSON,
          RODRIGUEZ,  ROZIC, RAMOS, AUBRY, KIM, DAVILA, SEPULVEDA, TITUS, GANTT,
          O'DONNELL, LIFTON, ABINANTI, DINOWITZ, GLICK, KAVANAGH, NOLAN,  QUART,
          SIMON,  SIMOTAS,  CARROLL,  WEPRIN  --  read  once and referred to the
          Committee on Codes -- reported and referred to the Committee  on  Ways
          and  Means -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee -- again reported from  said
          committee  with amendments, ordered reprinted as amended and recommit-
          ted to said committee
 
        AN ACT to amend the executive law and the judiciary law, in relation  to
          access to services, law enforcement and counsel in certain immigration
          related  matters;  and  to  amend  the  judiciary  law, in relation to
          compensation of legal counsel for certain matters
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1.  The executive law is amended by adding a new article 15-AA
     2  to read as follows:
     3                                ARTICLE 15-AA
     4    ACCESS TO SERVICES AND LAW ENFORCEMENT IN CERTAIN IMMIGRATION RELATED
     5                                   MATTERS
     6  Section 319.    Definitions.
     7          319-a.  Access to services, assistance and eligible benefits.
     8          319-b.  Federal  agencies  to  investigate  and  enforce federal
     9                    immigration laws.
    10          319-c.  Confidentiality of information.
    11          319-d.  Custody of certain persons: bail and  related  pre-trial
    12                    issues.
    13          319-e.  Civil immigration detainers.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09294-06-7

        A. 3049--B                          2
 
     1          319-f.  Limitation on use of certain facilities.
     2          319-g.  Legal representation.
     3          319-h.  Effect on other laws.
     4    §  319. Definitions. For purposes of this article, the following terms
     5  and phrases shall be defined as follows:
     6    1. "Agency" shall mean  any  state  or  municipal  department,  board,
     7  bureau, division, commission, committee, public authority, public corpo-
     8  ration,  council,  office  or  other  governmental  entity  performing a
     9  governmental or proprietary function for the state or any  one  or  more
    10  municipalities thereof.
    11    2.  "Agent"  shall  mean  any officer, official, employee or volunteer
    12  working for, employed by or providing assistance to an agency.
    13    3. "Civil immigration detainer" shall mean an  administrative  request
    14  issued  pursuant to 8 C.F.R. § 287.7 or any similar request issued by an
    15  agency or agent of the United States  for  the  detention  of  a  person
    16  suspected of violating the immigration law of the United States.
    17    4.    "Family  or  household  member" shall mean a family or household
    18  member, as defined in subdivision two of  section  four  hundred  fifty-
    19  nine-a of the social services law.
    20    5.    "Federal immigration authority" shall mean any officer, employee
    21  or person otherwise paid by or acting as an agent of the  United  States
    22  immigration and customs enforcement or any division thereof or any other
    23  officer,  employee  or person otherwise paid by or acting as an agent of
    24  the United States department of homeland security or any  other  federal
    25  entity  who is charged with enforcement of the provisions of any federal
    26  immigration law.
    27    6. "Federal law" shall mean a provision of  the  Constitution  of  the
    28  United  States,  or  a  statute  or  similar  provision  approved by the
    29  Congress of the United States that has been enacted and taken effect.
    30    7. "Immigration status" or "immigration status information" shall mean
    31  immigration status, lawful or unlawful, of an individual under the  laws
    32  and regulations of the United States of America.
    33    8. "Judicial warrant" shall mean a warrant based on probable cause and
    34  issued by a judge serving pursuant to article three of the United States
    35  constitution or a federal magistrate judge serving by appointment pursu-
    36  ant to 28 U.S.C.  § 631, that authorizes a federal immigration authority
    37  to take into custody a person who is the subject of such warrant.
    38    9. "Law enforcement agency" shall mean any agency that is empowered by
    39  law  to  conduct  an  investigation  or  make  an  arrest for a crime or
    40  offense, or any agency that is authorized by law to prosecute or partic-
    41  ipate in the prosecution of a crime or offense, or any agency authorized
    42  by law to jail, detain or imprison a person under color of law,  or  any
    43  agency employing a police officer, as defined in subdivision thirty-four
    44  of  section  1.20  of  the  criminal  procedure law or peace officer, as
    45  defined in subdivision thirty-three of  section  1.20  of  the  criminal
    46  procedure law.
    47    10.  "Terrorist  screening  database"  shall  mean  the  United States
    48  terrorist watch list  database  lawfully  maintained  by  the  terrorist
    49  screening center of the government of the United States.
    50    §  319-a.  Access  to  services, assistance and eligible benefits.  1.
    51  Except where explicitly required by state or federal law for the purpose
    52  of verifying  eligibility,  continued  eligibility,  or  upon  recertif-
    53  ication,  no  state  or  local  agency,  or  agent thereof, may make any
    54  inquiry or record any information concerning the immigration  status  or
    55  place of birth of a person who is seeking public assistance and care, as
    56  such  phrase  is  defined  in subdivision eighteen of section two of the

        A. 3049--B                          3
 
     1  social services law, or seeking any other benefit, assistance or service
     2  for himself, herself, or on behalf of a family or  household  member  or
     3  any  other  potential beneficiary. Provided, further, that such informa-
     4  tion  shall  not be used or disclosed to any state or federal agency for
     5  any purpose other than verifying eligibility, continued eligibility,  or
     6  upon recertification.
     7    2.  Notwithstanding the provisions of subdivision one of this section,
     8  limited inquiry of such information concerning the relevant  person  may
     9  be made when such information is requested for the benefit of the person
    10  by  the office for new Americans established pursuant to section ninety-
    11  four-b of this chapter or any other similar  agency  that  is  assisting
    12  such  person  in  matters  related  to such person's immigration status,
    13  provided that the status of such person shall not be disclosed  for  any
    14  purpose.
    15    3.  In addition to any other right to the assistance of interpretation
    16  or translation services, any foreign-born person, or person  not  profi-
    17  cient  in the English language, to whom inquiry is made pursuant to this
    18  section shall be entitled to the assistance of a neutral  and  qualified
    19  interpreter  or  translator,  as  the  case may be, with respect to such
    20  inquiry, provided at no cost or expense to such person.
    21    § 319-b. Federal agencies to investigate  and  enforce  federal  immi-
    22  gration  laws.  1.  No  state  or local law enforcement agency, or agent
    23  thereof, shall stop, question,  interrogate,  investigate  or  arrest  a
    24  person for any of the following:
    25    (a)   suspected   United  States  immigration  or  citizenship  status
    26  violation;
    27    (b) suspected violation  of  the  United  States  immigration  law  or
    28  authorized regulations; or
    29    (c) a civil immigration detainer.
    30    2.    No state or local law enforcement agency, nor any agent thereof,
    31  shall make any inquiry or record any information  concerning  the  immi-
    32  gration  status  or  place  of  birth  of  a  person  who: (a) contacts,
    33  approaches or asks for or is in need of assistance of a law  enforcement
    34  agency  or  (b)  is  stopped,  questioned, interrogated, investigated or
    35  arrested; except where such immigration status or place of birth  infor-
    36  mation  is  an  element of a criminal offense in a specific, ongoing law
    37  enforcement investigation engaged in by such state or local law enforce-
    38  ment agency, or agent thereof, or where such  inquiry  or  recording  of
    39  such information is otherwise authorized by this article.
    40    3.  No  state or local law enforcement agency, or agent thereof, shall
    41  perform the function of or be cross-designated as a federal  immigration
    42  officer  or  otherwise engage or significantly assist in the enforcement
    43  of federal immigration law, pursuant to 8 U.S.C. § 1357 (g) or any other
    44  federal law, regulation or policy.   Nothing in this  subdivision  shall
    45  prevent  detention  of  a  person  in  accordance with and to the extent
    46  permitted by section three hundred nineteen-e of this article.
    47    4. In addition to any other right to the assistance of  interpretation
    48  or  translation  services, any foreign-born person, or person not profi-
    49  cient in the English language, to  whom  inquiry  is  made  pursuant  to
    50  subdivision  one or two of this section shall be entitled to the assist-
    51  ance of a neutral and qualified interpreter or translator, as  the  case
    52  may  be, with respect to such inquiry, provided at no cost or expense to
    53  such person.
    54    § 319-c. Confidentiality of information. Unless disclosure is required
    55  by a lawful court order, no state or local agency, or agent thereof,  or
    56  state  or  local law enforcement agency, or agent thereof, shall provide

        A. 3049--B                          4
 
     1  to a federal immigration authority any information collected or obtained
     2  with respect to a person in accordance with this article  or  otherwise,
     3  including but not limited to home, work or school address, except that:
     4    1. providing immigration status information shall not be prohibited if
     5  requested  by  such  federal  immigration  authority  and required to be
     6  provided to it in accordance with 8 U.S.C. §  1373  or  another  federal
     7  law;
     8    2. the division of criminal justice services or a qualified agency, as
     9  defined in subdivision nine of section eight hundred thirty-five of this
    10  chapter,  may  provide criminal history information, as defined in para-
    11  graph (c) of subdivision one of section eight  hundred  forty-five-b  of
    12  this  chapter,  when lawfully requested about a specific person and such
    13  disclosure is permitted by state law; and
    14    3.  a state or local agency, or agent thereof, or state or  local  law
    15  enforcement  agency,  or  agent  thereof,  may provide such information,
    16  other than the information described in subdivision one of this section,
    17  concerning a person, including but not limited to status as a victim  of
    18  or  witness  to  suspected  criminal  activity, home address and/or work
    19  address, only with informed  written  consent  of  the  person  and,  if
    20  represented by counsel, written authorization by such attorney.
    21    §  319-d.  Custody  of  certain  persons:  bail  and related pre-trial
    22  issues. 1.  Except as provided in section three  hundred  nineteen-e  of
    23  this  article, no state or local law enforcement agency, or agent there-
    24  of, or court shall delay or deny release of a person on recognizance  or
    25  bail,  pursuant to article five hundred thirty of the criminal procedure
    26  law or otherwise, on the basis of the  person's  immigration  status,  a
    27  civil immigration detainer, or a federal immigration authority's request
    28  for  notification  about,  transfer  of,  detention  of, or interview or
    29  interrogation of such person.
    30    2.  Upon receipt from a federal immigration authority of a civil immi-
    31  gration detainer, or a request for  transfer,  notification,  interview,
    32  interrogation or other request, a state or local law enforcement agency,
    33  or agent thereof, shall promptly notify the person who is the subject of
    34  such  detainer  or  request and such person's counsel, provide a copy of
    35  such detainer or request, as the case may be, to such person  and  coun-
    36  sel,  inform  such  person  of  the  right  to  counsel  pursuant to the
    37  provisions of section three hundred  nineteen-g  of  this  article,  and
    38  inform  such  person and counsel, reasonably in advance of responding to
    39  the federal immigration authority, as to  whether  or  not  such  agency
    40  intends to comply with such detainer or request.
    41    3. A person in the custody of a state or local law enforcement agency,
    42  or  agent  thereof,  shall  be  subject to booking, processing, right to
    43  counsel, release and transfer procedures, policies and practices of that
    44  agency that are at least as protective of  individual  rights  as  other
    45  persons  in  such agency's custody, regardless of the person's actual or
    46  suspected immigration status.
    47    § 319-e. Civil immigration detainers. 1. A state or local law enforce-
    48  ment agency, or agent thereof, lawfully holding a person in its custody,
    49  may thereafter detain such person solely on the basis of a  civil  immi-
    50  gration  detainer,  for  a single period not exceeding forty-eight hours
    51  excluding weekends and holidays, beyond the time when such person  would
    52  otherwise have been released from such agency's custody, only if:
    53    (a)  an  authorized  federal immigration agency presents such state or
    54  local law enforcement agency with a judicial warrant for  the  detention
    55  of  the  person who is the subject of such civil immigration detainer at
    56  the time such civil immigration detainer is presented; or

        A. 3049--B                          5
 
     1    (b) notice has been received from a court or  any  other  governmental
     2  entity,  documenting  that  the  person  illegally  reentered the United
     3  States after a previous removal or return as defined  in  8  U.S.C.    §
     4  1326,  and  the  person  stands convicted of a violent felony offense as
     5  defined in subdivision one of section 70.02 of the penal law, or a class
     6  A  felony  offense  defined in the penal law, or an offense in any other
     7  jurisdiction that has the same essential elements of  any  such  violent
     8  felony offense or class A felony offense; or
     9    (c)  such  person is identified by such state or local law enforcement
    10  agency as a likely match with a person listed in the terrorist screening
    11  database.
    12    2. Except to the extent that disclosure is required by federal law, no
    13  state or local law enforcement agency, or agent thereof,  shall  provide
    14  to  a federal immigration authority, or another agency, entity or person
    15  on behalf of a federal immigration authority, any  information  obtained
    16  concerning  a  person  who  is in or formerly was in the custody of such
    17  state or local law enforcement agency, or agent thereof,  including  but
    18  not  limited  to  the  person's  release  date, court appearance date or
    19  dates, home, work or school address.
    20    3. Nothing in this section shall be construed to confer any  authority
    21  on  an  entity  to detain a person based on a civil immigration detainer
    22  beyond the authority, if any, to do so that existed prior to the  enact-
    23  ment of this section.
    24    § 319-f. Limitation on use of certain facilities. 1. No state or local
    25  law  enforcement agency, or agent thereof, shall provide a federal immi-
    26  gration agency, or agent thereof, with access to an individual  in  such
    27  law enforcement agency's custody or control.
    28    2.  Notwithstanding the provisions of subdivision one of this section,
    29  a person in the custody of a state or local law enforcement  agency  may
    30  request  to  be  interviewed  by  a federal law enforcement agency or an
    31  agent thereof only with knowing and voluntary  written  consent  of  the
    32  individual and, if represented by counsel, written authorization by such
    33  counsel,  provided  that  if  such  individual is not represented and is
    34  entitled to counsel assigned pursuant to  section  three  hundred  nine-
    35  teen-g  of  this  article or article eighteen-B of the county law, he or
    36  she shall be notified of such right and provided a  reasonable  opportu-
    37  nity to obtain such counsel before any such interview.
    38    3.  In addition to any other right to the assistance of interpretation
    39  or translation services, any foreign-born person, or person  not  profi-
    40  cient  in the English language, to whom inquiry is made pursuant to this
    41  section shall be entitled to the assistance of a neutral  and  qualified
    42  interpreter  or  translator,  as  the  case may be, with respect to such
    43  inquiry, provided at no cost or expense to such person.
    44    4. Except as provided in subdivision  two  of  this  section,  federal
    45  immigration  authorities  shall not be permitted to use or maintain, for
    46  the purpose of interviewing any person or witness  or  investigating  or
    47  adjudicating  any  alleged  violation  of  federal  immigration law, any
    48  office or quarters in any building or facility or any land owned, leased
    49  or operated by a state or local law enforcement agency; provided, howev-
    50  er that the federal Executive Office for Immigration Review, pursuant to
    51  an otherwise lawful agreement with the state department  of  corrections
    52  and community supervision, may make use of offices in one or more build-
    53  ings  or  facilities  operated  as state correctional facilities in this
    54  state for the purpose  of  conducting  adjudicatory  hearings  involving
    55  alleged violation of federal immigration law.

        A. 3049--B                          6
 
     1    §  319-g.  Legal  representation. 1. A person unable to afford counsel
     2  against whom a removal proceeding may be or has been commenced, shall be
     3  entitled to representation by assigned counsel and  related  assistance,
     4  pursuant to subdivision one of section thirty-five of the judiciary law,
     5  when the person:
     6    (a)  was  present  in  this state when questioned, taken into custody,
     7  charged, summoned or presented  with  the  allegations  of  the  removal
     8  proceedings,  and the person resides or is detained in either this state
     9  or an adjoining state; or
    10    (b) resided  in  this  state  when  questioned,  taken  into  custody,
    11  charged,  summoned  or  presented  with  the  allegations of the removal
    12  proceedings, and the person continues to reside  in  this  state  or  an
    13  adjoining state, or if detained, continues to be detained in either this
    14  state or an adjoining state.
    15    2.  Representation  and related assistance provided in accordance with
    16  subdivision one of this section shall be a  state  charge,  pursuant  to
    17  subdivision one of section thirty-five of the judiciary law.
    18    §  319-h. Effect on other laws. This article shall supersede conflict-
    19  ing local laws, rules, policies, procedures and practices, except to the
    20  extent that the provisions of any such local law, rule,  policy  or  any
    21  such  procedure  or practice may provide any additional or greater right
    22  or protection. Nothing in this article shall prohibit  any  entity  from
    23  cooperating  with a federal immigration authority to the extent required
    24  by federal law. Nothing in this article shall be interpreted or  applied
    25  so  as  to create any power, duty or obligation in conflict with federal
    26  law.
    27    § 2. The opening paragraph of paragraph a of subdivision 1 of  section
    28  35  of  the  judiciary  law  is designated as subparagraph (i) and a new
    29  subparagraph (ii) is added to read as follows:
    30    (ii) Persons providing assigned  counsel  and  related  assistance  in
    31  immigration-related matters pursuant to section three hundred nineteen-g
    32  of  the  executive  law  shall  be  compensated  in accordance with this
    33  section. In any case where a person entitled to assigned  representation
    34  pursuant  to  section  three  hundred  nineteen-g  of  the executive law
    35  petitions the criminal court of the city of New York, the  county  court
    36  or  district  court,  with  jurisdiction where the person is to be ques-
    37  tioned or detained, or is detained, or was charged in such  immigration-
    38  related  matter,  or most recently resided, the court shall assign coun-
    39  sel, with appropriate expertise and  experience  in  immigration-related
    40  matters, in accordance with this section.
    41    §  3.  Severability.  If any clause, sentence, subdivision, paragraph,
    42  section or other part of this act shall be  adjudged  by  any  court  of
    43  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    44  impair or invalidate the remainder thereof, but shall be confined in its
    45  operation to the clause, sentence, subdivision,  paragraph,  section  or
    46  part thereof directly involved in the controversy in which such judgment
    47  shall have been rendered.
    48    § 4. This act shall take effect immediately.
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