S04075 Summary:

BILL NOS04075A
 
SAME ASNo Same As
 
SPONSORSERRANO
 
COSPNSRALCANTARA, BAILEY, BENJAMIN, COMRIE, DILAN, GIANARIS, HAMILTON, HOYLMAN, KAVANAGH, KRUEGER, MONTGOMERY, PARKER, PERALTA, PERSAUD, RIVERA, SANDERS, STAVISKY
 
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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S04075 Actions:

BILL NOS04075A
 
02/02/2017REFERRED TO FINANCE
02/06/2017AMEND AND RECOMMIT TO FINANCE
02/06/2017PRINT NUMBER 4075A
01/03/2018REFERRED TO FINANCE
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S04075 Committee Votes:

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S04075 Floor Votes:

There are no votes for this bill in this legislative session.
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S04075 Text:



 
                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.
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