STATE OF NEW YORK
________________________________________________________________________
4075--A
2017-2018 Regular Sessions
IN SENATE
February 2, 2017
___________
Introduced by Sens. SERRANO, HOYLMAN -- read twice and ordered printed,
and when printed to be committed to the Committee on Finance --
committee discharged, bill amended, ordered reprinted as amended and
recommitted 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.
14 319-f. Limitation on use of certain facilities.
15 319-g. Legal representation.
16 319-h. Effect on other laws.
17 § 319. Definitions. For purposes of this article, the following terms
18 and phrases shall be defined as follows:
19 1. "Agency" shall mean any state or municipal department, board,
20 bureau, division, commission, committee, public authority, public corpo-
21 ration, council, office or other governmental entity performing a
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09294-07-7
S. 4075--A 2
1 governmental or proprietary function for the state or any one or more
2 municipalities thereof.
3 2. "Agent" shall mean any officer, official, employee or volunteer
4 working for, employed by or providing assistance to an agency.
5 3. "Civil immigration detainer" shall mean an administrative request
6 issued pursuant to 8 C.F.R. § 287.7 or any similar request issued by an
7 agency or agent of the United States for the detention of a person
8 suspected of violating the immigration law of the United States.
9 4. "Family or household member" shall mean a family or household
10 member, as defined in subdivision two of section four hundred fifty-
11 nine-a of the social services law.
12 5. "Federal immigration authority" shall mean any officer, employee
13 or person otherwise paid by or acting as an agent of the United States
14 immigration and customs enforcement or any division thereof or any other
15 officer, employee or person otherwise paid by or acting as an agent of
16 the United States department of homeland security or any other federal
17 entity who is charged with enforcement of the provisions of any federal
18 immigration law.
19 6. "Federal law" shall mean a provision of the Constitution of the
20 United States, or a statute or similar provision approved by the
21 Congress of the United States that has been enacted and taken effect.
22 7. "Immigration status" or "immigration status information" shall mean
23 immigration status, lawful or unlawful, of an individual under the laws
24 and regulations of the United States of America.
25 8. "Judicial warrant" shall mean a warrant based on probable cause and
26 issued by a judge serving pursuant to article three of the United States
27 constitution or a federal magistrate judge serving by appointment pursu-
28 ant to 28 U.S.C. § 631, that authorizes a federal immigration authority
29 to take into custody a person who is the subject of such warrant.
30 9. "Law enforcement agency" shall mean any agency that is empowered by
31 law to conduct an investigation or make an arrest for a crime or
32 offense, or any agency that is authorized by law to prosecute or partic-
33 ipate in the prosecution of a crime or offense, or any agency authorized
34 by law to jail, detain or imprison a person under color of law, or any
35 agency employing a police officer, as defined in subdivision thirty-four
36 of section 1.20 of the criminal procedure law or peace officer, as
37 defined in subdivision thirty-three of section 1.20 of the criminal
38 procedure law.
39 10. "Terrorist screening database" shall mean the United States
40 terrorist watch list database lawfully maintained by the terrorist
41 screening center of the government of the United States.
42 § 319-a. Access to services, assistance and eligible benefits. 1.
43 Except where explicitly required by state or federal law for the purpose
44 of verifying eligibility, continued eligibility, or upon recertif-
45 ication, no state or local agency, or agent thereof, may make any
46 inquiry or record any information concerning the immigration status or
47 place of birth of a person who is seeking public assistance and care, as
48 such phrase is defined in subdivision eighteen of section two of the
49 social services law, or seeking any other benefit, assistance or service
50 for himself, herself, or on behalf of a family or household member or
51 any other potential beneficiary. Provided, further, that such informa-
52 tion shall not be used or disclosed to any state or federal agency for
53 any purpose other than verifying eligibility, continued eligibility, or
54 upon recertification.
55 2. Notwithstanding the provisions of subdivision one of this section,
56 limited inquiry of such information concerning the relevant person may
S. 4075--A 3
1 be made when such information is requested for the benefit of the person
2 by the office for new Americans established pursuant to section ninety-
3 four-b of this chapter or any other similar agency that is assisting
4 such person in matters related to such person's immigration status,
5 provided that the status of such person shall not be disclosed for any
6 purpose.
7 3. In addition to any other right to the assistance of interpretation
8 or translation services, any foreign-born person, or person not profi-
9 cient in the English language, to whom inquiry is made pursuant to this
10 section shall be entitled to the assistance of a neutral and qualified
11 interpreter or translator, as the case may be, with respect to such
12 inquiry, provided at no cost or expense to such person.
13 § 319-b. Federal agencies to investigate and enforce federal immi-
14 gration laws. 1. No state or local law enforcement agency, or agent
15 thereof, shall stop, question, interrogate, investigate or arrest a
16 person for any of the following:
17 (a) suspected United States immigration or citizenship status
18 violation;
19 (b) suspected violation of the United States immigration law or
20 authorized regulations; or
21 (c) a civil immigration detainer.
22 2. No state or local law enforcement agency, nor any agent thereof,
23 shall make any inquiry or record any information concerning the immi-
24 gration status or place of birth of a person who: (a) contacts,
25 approaches or asks for or is in need of assistance of a law enforcement
26 agency or (b) is stopped, questioned, interrogated, investigated or
27 arrested; except where such immigration status or place of birth infor-
28 mation is an element of a criminal offense in a specific, ongoing law
29 enforcement investigation engaged in by such state or local law enforce-
30 ment agency, or agent thereof, or where such inquiry or recording of
31 such information is otherwise authorized by this article.
32 3. No state or local law enforcement agency, or agent thereof, shall
33 perform the function of or be cross-designated as a federal immigration
34 officer or otherwise engage or significantly assist in the enforcement
35 of federal immigration law, pursuant to 8 U.S.C. § 1357 (g) or any other
36 federal law, regulation or policy. Nothing in this subdivision shall
37 prevent detention of a person in accordance with and to the extent
38 permitted by section three hundred nineteen-e of this article.
39 4. In addition to any other right to the assistance of interpretation
40 or translation services, any foreign-born person, or person not profi-
41 cient in the English language, to whom inquiry is made pursuant to
42 subdivision one or two of this section shall be entitled to the assist-
43 ance of a neutral and qualified interpreter or translator, as the case
44 may be, with respect to such inquiry, provided at no cost or expense to
45 such person.
46 § 319-c. Confidentiality of information. Unless disclosure is required
47 by a lawful court order, no state or local agency, or agent thereof, or
48 state or local law enforcement agency, or agent thereof, shall provide
49 to a federal immigration authority any information collected or obtained
50 with respect to a person in accordance with this article or otherwise,
51 including but not limited to home, work or school address, except that:
52 1. providing immigration status information shall not be prohibited if
53 requested by such federal immigration authority and required to be
54 provided to it in accordance with 8 U.S.C. § 1373 or another federal
55 law;
S. 4075--A 4
1 2. the division of criminal justice services or a qualified agency, as
2 defined in subdivision nine of section eight hundred thirty-five of this
3 chapter, may provide criminal history information, as defined in para-
4 graph (c) of subdivision one of section eight hundred forty-five-b of
5 this chapter, when lawfully requested about a specific person and such
6 disclosure is permitted by state law; and
7 3. a state or local agency, or agent thereof, or state or local law
8 enforcement agency, or agent thereof, may provide such information,
9 other than the information described in subdivision one of this section,
10 concerning a person, including but not limited to status as a victim of
11 or witness to suspected criminal activity, home address and/or work
12 address, only with informed written consent of the person and, if
13 represented by counsel, written authorization by such attorney.
14 § 319-d. Custody of certain persons: bail and related pre-trial
15 issues. 1. Except as provided in section three hundred nineteen-e of
16 this article, no state or local law enforcement agency, or agent there-
17 of, or court shall delay or deny release of a person on recognizance or
18 bail, pursuant to article five hundred thirty of the criminal procedure
19 law or otherwise, on the basis of the person's immigration status, a
20 civil immigration detainer, or a federal immigration authority's request
21 for notification about, transfer of, detention of, or interview or
22 interrogation of such person.
23 2. Upon receipt from a federal immigration authority of a civil immi-
24 gration detainer, or a request for transfer, notification, interview,
25 interrogation or other request, a state or local law enforcement agency,
26 or agent thereof, shall promptly notify the person who is the subject of
27 such detainer or request and such person's counsel, provide a copy of
28 such detainer or request, as the case may be, to such person and coun-
29 sel, inform such person of the right to counsel pursuant to the
30 provisions of section three hundred nineteen-g of this article, and
31 inform such person and counsel, reasonably in advance of responding to
32 the federal immigration authority, as to whether or not such agency
33 intends to comply with such detainer or request.
34 3. A person in the custody of a state or local law enforcement agency,
35 or agent thereof, shall be subject to booking, processing, right to
36 counsel, release and transfer procedures, policies and practices of that
37 agency that are at least as protective of individual rights as other
38 persons in such agency's custody, regardless of the person's actual or
39 suspected immigration status.
40 § 319-e. Civil immigration detainers. 1. A state or local law enforce-
41 ment agency, or agent thereof, lawfully holding a person in its custody,
42 may thereafter detain such person solely on the basis of a civil immi-
43 gration detainer, for a single period not exceeding forty-eight hours
44 excluding weekends and holidays, beyond the time when such person would
45 otherwise have been released from such agency's custody, only if:
46 (a) an authorized federal immigration agency presents such state or
47 local law enforcement agency with a judicial warrant for the detention
48 of the person who is the subject of such civil immigration detainer at
49 the time such civil immigration detainer is presented; or
50 (b) notice has been received from a court or any other governmental
51 entity, documenting that the person illegally reentered the United
52 States after a previous removal or return as defined in 8 U.S.C. §
53 1326, and the person stands convicted of a violent felony offense as
54 defined in subdivision one of section 70.02 of the penal law, or a class
55 A felony offense defined in the penal law, or an offense in any other
S. 4075--A 5
1 jurisdiction that has the same essential elements of any such violent
2 felony offense or class A felony offense; or
3 (c) such person is identified by such state or local law enforcement
4 agency as a likely match with a person listed in the terrorist screening
5 database.
6 2. Except to the extent that disclosure is required by federal law, no
7 state or local law enforcement agency, or agent thereof, shall provide
8 to a federal immigration authority, or another agency, entity or person
9 on behalf of a federal immigration authority, any information obtained
10 concerning a person who is in or formerly was in the custody of such
11 state or local law enforcement agency, or agent thereof, including but
12 not limited to the person's release date, court appearance date or
13 dates, home, work or school address.
14 3. Nothing in this section shall be construed to confer any authority
15 on an entity to detain a person based on a civil immigration detainer
16 beyond the authority, if any, to do so that existed prior to the enact-
17 ment of this section.
18 § 319-f. Limitation on use of certain facilities. 1. No state or local
19 law enforcement agency, or agent thereof, shall provide a federal immi-
20 gration agency, or agent thereof, with access to an individual in such
21 law enforcement agency's custody or control.
22 2. Notwithstanding the provisions of subdivision one of this section,
23 a person in the custody of a state or local law enforcement agency may
24 request to be interviewed by a federal law enforcement agency or an
25 agent thereof only with knowing and voluntary written consent of the
26 individual and, if represented by counsel, written authorization by such
27 counsel, provided that if such individual is not represented and is
28 entitled to counsel assigned pursuant to section three hundred nine-
29 teen-g of this article or article eighteen-B of the county law, he or
30 she shall be notified of such right and provided a reasonable opportu-
31 nity to obtain such counsel before any such interview.
32 3. In addition to any other right to the assistance of interpretation
33 or translation services, any foreign-born person, or person not profi-
34 cient in the English language, to whom inquiry is made pursuant to this
35 section shall be entitled to the assistance of a neutral and qualified
36 interpreter or translator, as the case may be, with respect to such
37 inquiry, provided at no cost or expense to such person.
38 4. Except as provided in subdivision two of this section, federal
39 immigration authorities shall not be permitted to use or maintain, for
40 the purpose of interviewing any person or witness or investigating or
41 adjudicating any alleged violation of federal immigration law, any
42 office or quarters in any building or facility or any land owned, leased
43 or operated by a state or local law enforcement agency; provided, howev-
44 er that the federal Executive Office for Immigration Review, pursuant to
45 an otherwise lawful agreement with the state department of corrections
46 and community supervision, may make use of offices in one or more build-
47 ings or facilities operated as state correctional facilities in this
48 state for the purpose of conducting adjudicatory hearings involving
49 alleged violation of federal immigration law.
50 § 319-g. Legal representation. 1. A person unable to afford counsel
51 against whom a removal proceeding may be or has been commenced, shall be
52 entitled to representation by assigned counsel and related assistance,
53 pursuant to subdivision one of section thirty-five of the judiciary law,
54 when the person:
55 (a) was present in this state when questioned, taken into custody,
56 charged, summoned or presented with the allegations of the removal
S. 4075--A 6
1 proceedings, and the person resides or is detained in either this state
2 or an adjoining state; or
3 (b) resided in this state when questioned, taken into custody,
4 charged, summoned or presented with the allegations of the removal
5 proceedings, and the person continues to reside in this state or an
6 adjoining state, or if detained, continues to be detained in either this
7 state or an adjoining state.
8 2. Representation and related assistance provided in accordance with
9 subdivision one of this section shall be a state charge, pursuant to
10 subdivision one of section thirty-five of the judiciary law.
11 § 319-h. Effect on other laws. This article shall supersede conflict-
12 ing local laws, rules, policies, procedures and practices, except to the
13 extent that the provisions of any such local law, rule, policy or any
14 such procedure or practice may provide any additional or greater right
15 or protection. Nothing in this article shall prohibit any entity from
16 cooperating with a federal immigration authority to the extent required
17 by federal law. Nothing in this article shall be interpreted or applied
18 so as to create any power, duty or obligation in conflict with federal
19 law.
20 § 2. The opening paragraph of paragraph a of subdivision 1 of section
21 35 of the judiciary law is designated as subparagraph (i) and a new
22 subparagraph (ii) is added to read as follows:
23 (ii) Persons providing assigned counsel and related assistance in
24 immigration-related matters pursuant to section three hundred nineteen-g
25 of the executive law shall be compensated in accordance with this
26 section. In any case where a person entitled to assigned representation
27 pursuant to section three hundred nineteen-g of the executive law
28 petitions the criminal court of the city of New York, the county court
29 or district court, with jurisdiction where the person is to be ques-
30 tioned or detained, or is detained, or was charged in such immigration-
31 related matter, or most recently resided, the court shall assign coun-
32 sel, with appropriate expertise and experience in immigration-related
33 matters, in accordance with this section.
34 § 3. Severability. If any clause, sentence, subdivision, paragraph,
35 section or other part of this act shall be adjudged by any court of
36 competent jurisdiction to be invalid, such judgment shall not affect,
37 impair or invalidate the remainder thereof, but shall be confined in its
38 operation to the clause, sentence, subdivision, paragraph, section or
39 part thereof directly involved in the controversy in which such judgment
40 shall have been rendered.
41 § 4. This act shall take effect immediately.