S00081 Summary:

Add 94-d, Exec L
Establishes the right to legal counsel in immigration court proceedings; provides for the administration thereof.
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S00081 Actions:

03/01/2021PRINT NUMBER 81A
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S00081 Committee Votes:

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S00081 Floor Votes:

There are no votes for this bill in this legislative session.
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S00081 Memo:

Memo not available
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S00081 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                    IN SENATE
                                     January 6, 2021
        Introduced  by  Sens.  HOYLMAN,  BRISPORT,  GIANARIS, KAVANAGH, PERSAUD,
          RAMOS, RIVERA, SALAZAR, SEPULVEDA -- 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, 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-d to read
     4  as follows:
     5    § 94-d. 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.

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

        S. 81--A                            2
     1    (c)  "Covered  proceeding"  means any proceeding in a covered venue in
     2  which a covered individual is seeking an avenue of relief  from  removal
     3  from the United States, or is challenging his or her arrest or detention
     4  under  the  Immigration and Nationality Act ("INA"), as amended, and its
     5  implementing regulations.  A covered proceeding includes, if applicable,
     6  a  proceeding  or hearing in immigration court; a proceeding in New York
     7  state family court for purposes of obtaining a special findings order; a
     8  habeas corpus petition to a federal district court located in  New  York
     9  challenging  detention  under  the  INA; motions to reopen or reconsider
    10  under 8 U.S.C. § 1229(a); a petition for review under 8 U.S.C. § 1252; a
    11  remand to a federal district court from the United States Circuit Courts
    12  of Appeals for fact-finding purposes; and any appeal related to  any  of
    13  the  foregoing  to  the  Board of Immigration Appeals, the United States
    14  Circuit Courts of Appeals, and/or the United States Supreme Court.
    15    (d) "Covered venue" means: (i) any tribunal located  within  New  York
    16  state, including family courts, immigration courts, and federal district
    17  courts;  (ii)  immigration  courts  located  in  New  Jersey; (iii) with
    18  respect to the provision of legal services in the context  of  expedited
    19  removals,  any location within the borders of New York state where expe-
    20  dited removals are processed; (iv) the Board of Immigration Appeals; (v)
    21  the United States Circuit Courts of Appeals; and (vi) the United  States
    22  Supreme Court.
    23    (e)  "Domicile"  has  the  meaning ascribed to it by the administrator
    24  pursuant to its rulemaking authority under this section,  provided  that
    25  in  any event it shall include a fixed, permanent, and principal home to
    26  which a person wherever temporarily located always intends to return.
    27    (f) "Domiciliary" means a person that has  established  domicile  with
    28  respect to a particular jurisdiction.
    29    (g)  "Immigration  court" means a tribunal of the Executive Office for
    30  Immigration Review or a successor entity tasked with deciding the  inad-
    31  missibility  or  deportability of a noncitizen of the United States that
    32  is presided over by an immigration  judge  as  defined  in  8  U.S.C.  §
    33  1101(b)(4).
    34    (h)  "Income-eligible  individual"  means  an individual who is deemed
    35  eligible for legal services in a covered  proceeding  based  on  pre-set
    36  income-related  criteria  promulgated  by  the administrator, but in any
    37  event must at a minimum include any individual whose annual gross house-
    38  hold income is not in excess of  two  hundred  percent  of  the  federal
    39  poverty  guidelines  as  updated periodically in the Federal Register by
    40  the United States Department of Health  and  Human  Services  under  the
    41  authority of 42 U.S.C. § 9902(2).
    42    (i) "Legal services" means individualized legal assistance in a single
    43  consultation  and/or  ongoing  legal representation, provided by a legal
    44  services provider to a covered individual, and all legal advice, advoca-
    45  cy, and assistance associated with such service.
    46    (j) "Legal services provider" means an  individual,  organization,  or
    47  association  that  has  the  authority  to provide legal services and is
    48  designated by the administrator to provide such services.
    49    2. Right to counsel in immigration proceedings. (a) All covered  indi-
    50  viduals shall have the right to legal services as provided in this para-
    51  graph.
    52    (i)  Covered individuals facing a covered proceeding in an immigration
    53  court in New York or New Jersey shall have the right  to  ongoing  legal
    54  representation.
    55    (ii)  Covered  individuals  facing  a  covered proceeding in a covered
    56  venue other than an immigration court in New York or  New  Jersey  shall

        S. 81--A                            3
     1  have  the right to a consultation provided by a legal services provider,
     2  and if found by the legal services provider to have a viable application
     3  for appeal, challenge to a court order, or other  form  of  relief  from
     4  removal  from  the  United States, shall have the right to ongoing legal
     5  representation.
     6    (b) The right to counsel established in paragraph (a) of this subdivi-
     7  sion shall attach:
     8    (i) In the case of proceedings for removal  pursuant  to  8  U.S.C.  §
     9  1229a,  upon  receipt  of  a  Notice to Appear, as defined in 8 U.S.C. §
    10  1229.  The obligations of this section shall be satisfied if counsel  is
    11  provided to a covered individual no later than their first appearance in
    12  a covered proceeding, or as soon thereafter as is practicable.
    13    (ii)  In  the case of removal proceedings pursuant to 8 U.S.C. § 1225,
    14  upon the commencement of such proceedings, or as soon thereafter  as  is
    15  practicable.
    16    (iii)  In the case of a referral to an immigration judge for a hearing
    17  pursuant to 8 U.S.C.  § 1231(b)(3) or 8 U.S.C. § 1158, upon receipt of a
    18  Notice of Referral to Immigration Judge, or as  soon  thereafter  as  is
    19  practicable.
    20    (iv)  In the case of a reinstatement of a final order of removal, upon
    21  such reinstatement, or as soon thereafter as is practicable.
    22    (v) In all other cases, as soon as is practicable.
    23    (c) Subject to the provisions of paragraph (d)  of  this  subdivision,
    24  the  right  to  counsel established in paragraph (a) of this subdivision
    25  shall terminate:
    26    (i) upon the termination or dismissal of removal  proceedings  or  any
    27  related appellate matter in respect of a covered individual by the immi-
    28  gration court or other competent tribunal or authority;
    29    (ii)  upon  the  issuance of a final order or judgment in respect to a
    30  covered individual's removal proceedings from  which  there  remains  no
    31  opportunity  for  appeal  or  other avenue for relief including, but not
    32  limited to, motions to reopen, motions to reconsider, and petitions  for
    33  review;  provided,  however,  that legal services providers shall not be
    34  required to pursue appeals or other avenues for relief that are specula-
    35  tive or frivolous;
    36    (iii) if a covered individual ceases to be a New York state  domicili-
    37  ary  and  establishes  domicile  in  a  jurisdiction outside of New York
    38  state;
    39    (iv) if it is discovered that the initial determination that an  indi-
    40  vidual  was an income-eligible individual was erroneous at the time that
    41  such determination was made, as soon as such discovery occurs; provided,
    42  however, that such individual will continue to be  provided  with  legal
    43  services pursuant to this subdivision for a reasonable amount of time to
    44  enable  such  person  to  obtain alternative counsel, so as not to mate-
    45  rially prejudice such individual's chance  of  success  in  any  covered
    46  proceeding;
    47    (v) if a covered individual knowingly and voluntarily waives the right
    48  to counsel on the record in the presence of counsel; or
    49    (vi)  upon  a  determination  by  a  legal services provider after the
    50  consultation described in subparagraph (ii) of  paragraph  (a)  of  this
    51  subdivision  that  a covered individual facing a covered proceeding in a
    52  covered venue other than an immigration court in New York or New  Jersey
    53  has  no  viable  application for appeal, challenge to a court order, nor
    54  other form of relief from removal from the United States.

        S. 81--A                            4
     1    (d) Notwithstanding the requirements of paragraph (c) of this subdivi-
     2  sion, the rights established in paragraph (a) of this subdivision  shall
     3  not terminate if:
     4    (i)  an  immigration judge declines to allow a legal services provider
     5  to withdraw from representing a covered individual; or
     6    (ii) a legal services provider is prohibited from ceasing  to  provide
     7  legal services pursuant to the New York Rules of Professional Conduct or
     8  the Executive Office for Immigration Review's Practice Manual.
     9    3.  Powers  and  duties  of  the  administrator.  The administrator is
    10  charged with implementing the requirements of this section no later than
    11  January first, two thousand twenty-two, and may promulgate  such  rules,
    12  policies,  and  procedures as may be necessary and appropriate to accom-
    13  plish such implementation.  The administrator shall have the  power  and
    14  responsibility to:
    15    (a)  ensure  that all covered individuals be advised of their right to
    16  counsel and be offered legal services as provided in  paragraph  (a)  of
    17  subdivision two of this section;
    18    (b)  ensure  independent,  competent,  and  zealous  representation of
    19  covered individuals receiving legal services provided pursuant  to  this
    20  section;
    21    (c) examine, evaluate, and monitor legal services provided pursuant to
    22  this section;
    23    (d)  collect  and receive information and data regarding the provision
    24  of legal services not protected by attorney-client privilege, work prod-
    25  uct privilege, or  any  other  applicable  privilege,  or  that  can  be
    26  disclosed  by  legal  services  providers without violating the New York
    27  Rules of Professional Conduct, including but not limited to:
    28    (i) the types and combinations of such services being utilized  across
    29  the state;
    30    (ii)  the  salaries and other compensation paid to individual adminis-
    31  trators, attorneys, and staff in connection with the provision  of  such
    32  services;
    33    (iii)  the  caseloads  of  legal  services  providers  providing legal
    34  services in connection with the provision of such services;
    35    (iv) the types, nature, and timing of dispositions of cases handled by
    36  legal services providers providing legal services;
    37    (v) the actual expenditures currently being made  in  connection  with
    38  the provision of legal services; and
    39    (vi)  the  time, funds, and in-kind resources currently being spent on
    40  providing such legal services and the amount being  spent  on  ancillary
    41  services such as support staff and expert witnesses;
    42    (e)  analyze  and evaluate collected data, and undertake any necessary
    43  research and studies, in order to consider  and  recommend  measures  to
    44  enhance  the  provision  of  effective legal services and to ensure that
    45  recipients of legal services are provided  with  quality  representation
    46  from  fiscally  responsible  providers,  which  shall include but not be
    47  limited to standards, criteria, and a process for qualifying and re-qua-
    48  lifying legal services providers to provide legal services;
    49    (f) establish measures of performance which programs  shall  regularly
    50  report  to  the  administrator to assist the administrator in monitoring
    51  the quality of legal services;
    52    (g) establish the standards and criteria used in programs to determine
    53  whether individual legal services providers  are  qualified  to  provide
    54  legal services;
    55    (h)  establish the criteria and procedures used to determine whether a
    56  person is eligible to receive  legal  services,  including  requirements

        S. 81--A                            5
     1  related  to  income  and  domicile,  and  to track the number of persons
     2  considered for and applicants denied such services, the reasons for  the
     3  denials, and the results of any review of such denials;
     4    (i)  establish  standards  and  criteria  for  the  provision of legal
     5  services in cases involving a conflict of interest;
     6    (j) develop recommendations to improve the delivery of legal services;
     7    (k)  target  grants  in  support  of  innovative  and   cost-effective
     8  solutions that enhance the provision of legal services, including colla-
     9  borative efforts serving multiple jurisdictions within New York state;
    10    (l) investigate and monitor any other matter relevant to the provision
    11  of legal services which the administrator deems important;
    12    (m)  request and receive from any department, division, board, bureau,
    13  commission, or other agency of the state or any political subdivision of
    14  the state or any public authority such assistance, information, and data
    15  as will enable the administrator to properly carry  out  its  functions,
    16  powers, and duties, subject to limitations on the disclosure of informa-
    17  tion provided on a privileged basis to legal services providers, as well
    18  as  limitations  on  the  disclosure  of  information  by legal services
    19  providers under the New York Rules of Professional Conduct;
    20    (n) apply for and accept any grant or  other  source  of  funding  for
    21  purposes  of  carrying out the requirements of this section. Any sums so
    22  received may be expended by the administrator to effectuate the fulfill-
    23  ment of any such  requirement,  subject  to  any  relevant  requirements
    24  related  to  the  approval  of  expenditure  of funds and audits of such
    25  expenditures;
    26    (o) develop, publish, and implement a written  plan  that  establishes
    27  numerical  caseload/workload standards for all legal services providers,
    28  with such plan to be completed and published within one  hundred  eighty
    29  days  after  the  enactment  of this section, and to monitor and period-
    30  ically report on the implementation of and compliance with the plan;
    31    (p) develop and implement a written plan, and to monitor  and  period-
    32  ically report on the implementation of and compliance with such plan, to
    33  improve  the  quality of legal services provided to covered individuals,
    34  and to ensure that legal services  providers  providing  such  represen-
    35  tation  receive  effective  supervision and training, have access to and
    36  appropriately utilize interpreters and expert  witnesses  on  behalf  of
    37  clients,  communicate effectively with their clients, have the necessary
    38  qualifications and experience; and
    39    (q) beginning in two thousand twenty-three, and by September fifteenth
    40  of each year thereafter, submit a report to the governor, the speaker of
    41  the assembly, and the temporary  president  of  the  senate,  describing
    42  compliance  with  the  requirements  of  this section, including but not
    43  limited to:
    44    (i) the criteria used to determine whether an individual  is  eligible
    45  for legal services;
    46    (ii)  the procedures used to determine whether an individual is eligi-
    47  ble to receive legal services;
    48    (iii) the number of individuals deemed  eligible  and  ineligible  for
    49  legal services;
    50    (iv)  the  number  of  cases started and completed and the outcomes of
    51  those cases; and
    52    (v) qualitative review of the legal services provided.
    53    4. Funding. (a) The state shall establish a dedicated fund  and  shall
    54  appropriate  sufficient  sums  into  such  fund  to  fully carry out the
    55  requirements of this section. Funds necessary to  fully  carry  out  the
    56  requirements  of  this  section shall be determined annually by December

        S. 81--A                            6
     1  first of each year by the secretary of state, in consultation  with  the
     2  administrator and the director of the division of the budget.
     3    (b)  The administrator will be charged with ensuring that appropriated
     4  funds are  timely  distributed  to  legal  services  providers  for  the
     5  provision of legal services.
     6    (c) Notwithstanding the requirements of paragraphs (a) and (b) of this
     7  subdivision,  sums  appropriated  to  carry out the requirements of this
     8  section shall be used to supplement and not supplant any  state,  local,
     9  or  private  funding  that is, or is anticipated to be, expended for the
    10  provision of legal services to covered individuals, and the state  shall
    11  not  be  required  to  appropriate  any  funds for legal services to the
    12  extent that obligations associated with the provision of legal  services
    13  are  otherwise  fully  satisfied by funds received from state, local, or
    14  private sources, or by the United States government in  satisfaction  of
    15  any legal obligation.
    16    5.  Advisory committee. (a) There shall be an advisory committee which
    17  shall work, as necessary and in collaboration with the administrator, to
    18  develop programs, policies, training, and procedures necessary to effec-
    19  tuate the requirements of this section. Matters to be considered by  the
    20  advisory committee include, but are not limited to:
    21    (i) the rates of compensation for legal services;
    22    (ii) community engagement efforts;
    23    (iii) the sufficiency of access to legal services in covered venues;
    24    (iv)  the  sufficiency  of space available for designated providers in
    25  covered venues;
    26    (v) ensuring individuals with limited English proficiency have  access
    27  to appropriate translation services; and
    28    (vi)  other  efforts  by  other  states  to support individuals facing
    29  deportation.
    30    (b) The advisory committee shall be comprised of nine  members.    The
    31  governor  shall appoint five members offering services to individuals in
    32  covered proceedings,  including  at  least  one  representative  of  the
    33  private  bar  and an equal number of representatives of designated legal
    34  services providers and representatives of community-based organizations.
    35  The speaker of the assembly and temporary president of the senate  shall
    36  appoint  two members each. The administrator shall serve ex officio. The
    37  governor shall designate one member to serve as chair  of  the  advisory
    38  committee.
    39    (c) Each member, other than the member serving in an ex officio capac-
    40  ity,  shall  serve  for a term of two years, with initial terms for each
    41  committee seat commencing on January first, two thousand twenty-two  and
    42  expiring  on  December  thirty-first, two thousand twenty-three. Initial
    43  appointments under this subdivision must be made within twenty  days  of
    44  the  effective  date of a chapter of the laws of two thousand twenty-one
    45  that added this section.  Any vacancies shall be filled promptly and  in
    46  the  same  manner as the original appointment, and the appointee filling
    47  such vacancy shall serve for the unexpired portion of the  term  of  the
    48  succeeded member. Any committee member may be reappointed for additional
    49  terms.  A  member of the advisory committee shall continue in such posi-
    50  tion upon the expiration of their term and until such time as  they  are
    51  reappointed or their successor is appointed, as the case may be.
    52    (d)  Members  of  the  advisory  committee shall serve without compen-
    53  sation, but shall be allowed and reimbursed for their reasonable  actual
    54  and  necessary expenses incurred in performance of their functions under
    55  this section by the administrator.

        S. 81--A                            7
     1    (e) The advisory committee's initial meeting shall take  place  within
     2  thirty  days  of the appointment of all required committee members under
     3  paragraph (b) of this subdivision, or within sixty days of the effective
     4  date of a chapter of the laws of two thousand twenty-one that added this
     5  section,  whichever is sooner. The advisory committee shall meet no less
     6  than four times per year. The advisory committee may establish  its  own
     7  procedures  with  respect  to  the conduct of its meetings and its other
     8  affairs; provided, however, that the quorum and majority  provisions  of
     9  section  forty-one  of  the  general  construction  law shall govern all
    10  actions taken by the advisory committee.
    11    (f) Membership on the advisory  committee  shall  not  constitute  the
    12  holding  of  an office.  The advisory committee shall not have the power
    13  to exercise any portion of the sovereign power of the state.  No  member
    14  of  the advisory committee shall be disqualified from holding any public
    15  office or employment, nor shall he or she forfeit  any  such  office  or
    16  employment,  by  reason  of  his  or  her  appointment  pursuant to this
    17  section, notwithstanding the provisions of any other  general,  special,
    18  or local law; ordinance; or city charter.
    19    (g)  Beginning  in  two  thousand twenty-three, the advisory committee
    20  shall produce a report concerning its duties pursuant  to  this  section
    21  and  any  related  recommendations, and such report shall be included in
    22  the report submitted by the administrator to the governor,  the  speaker
    23  of  the  assembly, and the temporary president of the senate under para-
    24  graph (p) of subdivision three of this section.
    25    6. No private right of action. Nothing in this section or the adminis-
    26  tration or application thereof shall be construed to  create  a  private
    27  right of action on the part of any person or entity against the state or
    28  any agency, instrumentality, official, or employee thereof.
    29    7.  Miscellaneous  provisions.  (a)  Any legal services performed by a
    30  legal services provider pursuant to this  section  shall  not  supplant,
    31  replace,  or  satisfy  any obligations or responsibilities of such legal
    32  services provider pursuant to any other program, agreement, or contract.
    33    (b) The provisions of this section shall supersede  conflicting  state
    34  or local laws, rules, policies, procedures, and practices, except to the
    35  extent that the provisions of any such state or local law, rule, policy,
    36  procedure,  or  practice  may provide any additional or greater right or
    37  protection. Nothing in this section shall be interpreted or  applied  so
    38  as to create any power, duty, or obligation prohibited by federal law.
    39    (c) If any provision of this section or any application thereof to any
    40  person or circumstance is held invalid, such invalidity shall not affect
    41  any  provision  or  application of this section that can be given effect
    42  without  the  invalid  provision  or  application.  To  this  end,   the
    43  provisions of this section are severable.
    44    §  3.  This  act shall take effect on the ninetieth day after it shall
    45  have become a law.  Effective immediately the addition, amendment and/or
    46  repeal of any rule or regulation necessary  for  the  implementation  of
    47  this  act  on its effective date are authorized to be made and completed
    48  on or before such date.
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