Guarantee Lawyers for Immigrants

Section 1. This act shall be known and may be cited as "the access to representation act".

§ 2. The executive law is amended by adding a new section 94-e to read as follows:

§ 94-e. Right to counsel in immigration court proceedings. 1. Definitions. As used in this section:

(a) "Administrator" means the director of the New York state office for new Americans.

(b) "Covered individual" means any income-eligible individual in detention in New York, transferred from detention in New York to immigration detention in another state, or who is subject to removal or inspection pursuant to 8 U.S.C. § 1229a or 8 U.S.C. § 1225 and their implementing regulations, or subject to a final order of removal under 8 C.F.R. § 1241.1, regardless of age, in a covered proceeding who is:

(i) a New York state domiciliary who is a non-United States citizen;

(ii) a New York state domiciliary who is a United States citizen or whose United States citizenship is in dispute; or

(iii) any individual whose proceedings have a significant nexus to New York state such that they should be provided relief under this statute. Significant nexus shall be established in the following circumstances: if an individual is in detention or incarcerated in the state of New York, if an individual is transferred by federal immigration authorities from New York to immigration detention in another state, if an individ-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD00166-01-5

ual has an immigration case in a tribunal located in the state of New York, if an individual is a New York domiciliary and detained by federal immigration authorities anywhere in the United States, if an individual had an immigration case located in a tribunal in New York before being transferred by immigration authorities from detention in New Jersey to immigration detention in another state or, as determined by the administrator or designee of the administrator.

(c) "Covered proceeding" means any proceeding in a covered venue in which a covered individual is seeking an avenue of relief from removal from the United States, or is challenging their arrest or detention under the Immigration and Nationality Act ("INA"), as amended, and its implementing regulations. A covered proceeding includes, if applicable, a proceeding or hearing in immigration court; a proceeding before the United States Citizenship and Immigration Services; a proceeding in a tribunal located in New York for purposes of obtaining any order necessary for or relevant to immigration relief; a habeas corpus or other relevant petition to a federal district court challenging detention under the INA; motions to reopen or reconsider under 8 U.S.C. § 1229(a); a petition for review under 8 U.S.C. § 1252; a remand to a federal district court from the United States Circuit Courts of Appeals for fact-finding purposes; and any appeal related to any of the foregoing to the Board of Immigration Appeals, the United States Circuit Courts of Appeals, and/or the United States Supreme Court.

(d) "Covered venue" means: (i) an immigration court anywhere in the United States where the case of a covered individual is located; (ii) any tribunal located within New York state, including, but not limited to, family courts and federal district courts; (iii) with respect to the provision of legal services in the context of expedited removals, any location within the borders of New York state where expedited removals are processed; (iv) the Board of Immigration Appeals; (v) the United States Circuit Courts of Appeals; (vi) the United States Supreme Court; (vii) United States Citizenship and Immigration Services; and (viii) any tribunal as determined by the administrator or a designee of the administrator on a case-by-case basis.

(e) "Domicile" means a principal location where a person, wherever temporarily located, intends to reside.

(f) "Domiciliary" means a person that has established domicile with respect to a particular jurisdiction.

(g) "Immigration court" means a tribunal of the Executive Office for Immigration Review or a successor entity tasked with deciding the inadmissibility or deportability of a noncitizen of the United States that is presided over by an immigration judge as defined in 8 U.S.C. § 1101(b)(4).

(h) "Income-eligible individual" means an individual who is deemed eligible for legal services in a covered proceeding based on pre-set income-related criteria promulgated by the administrator, but in any event must at a minimum include any individual whose annual gross household income is not in excess of two hundred percent of the federal poverty guidelines as updated periodically in the Federal Register by the United States Department of Health and Human Services under the authority of 42 U.S.C. § 9902(2).

(i) "Legal services" means individualized legal assistance in a single consultation and/or ongoing legal representation, provided by a legal services provider to a covered individual, and all legal advice, advocacy, and assistance, including but not limited to social service assistance, associated with such service.

(j) "Legal services provider" means an individual, organization, or association that has the authority to provide legal services and is designated by the administrator to provide such services.

2. Right to counsel in immigration proceedings. (a) All covered individuals shall have the right to legal services as provided in this paragraph.

(i) Covered individuals facing a covered proceeding shall have the right to ongoing legal representation until termination is authorized pursuant to paragraphs (c) and (d) of this subdivision.

(ii) Covered individuals facing a covered proceeding in a covered venue other than an immigration court in New York or New Jersey shall have the right to a consultation provided by a legal services provider, and if found by the legal services provider to have a viable application for appeal, challenge to a court order, or other form of relief from removal from the United States, shall have the right to ongoing legal representation.

(b) The right to counsel established in paragraph (a) of this subdivision shall attach:

(i) In the case of proceedings for removal pursuant to 8 U.S.C. § 1229a, upon receipt of a Notice to Appear, as defined in 8 U.S.C. § 1229. The obligations of this section shall be satisfied if counsel is provided to a covered individual no later than their first appearance in a covered proceeding, or as soon thereafter as is practicable.

(ii) In the case of removal proceedings pursuant to 8 U.S.C. § 1225, upon the commencement of such proceedings, or as soon thereafter as is practicable.

(iii) In the case of a referral to an immigration judge for a hearing pursuant to 8 U.S.C. § 1231(b)(3) or 8 U.S.C. § 1158, upon receipt of a Notice of Referral to Immigration Judge, or as soon thereafter as is practicable.

(iv) In the case of a reinstatement of a final order of removal, upon such reinstatement, or as soon thereafter as is practicable.

(v) In all other cases, as soon as is practicable.

(c) Subject to the provisions of paragraph (d) of this subdivision, the right to counsel established in paragraph (a) of this subdivision shall terminate:

(i) upon the termination or dismissal of removal proceedings or any related appellate matter in respect of a covered individual by the immigration court or other competent tribunal or authority;

(ii) upon the issuance of a final order or judgment in respect to a covered individual's removal proceedings from which there remains no opportunity for appeal or other avenue for relief including, but not limited to, motions to reopen, motions to reconsider, and petitions for review; provided, however, that legal services providers shall not be required to pursue appeals or other avenues for relief that are speculative or frivolous;

(iii) if an individual covered by virtue of being a New York state domiciliary ceases to be a New York state domiciliary and establishes domicile in a jurisdiction outside of New York state;

(iv) if an individual covered by virtue of being transferred from New York to immigration detention in another state is released from detention and is not a New York state domiciliary;

(v) if it is discovered that the initial determination that an individual was an income-eligible individual was erroneous at the time that such determination was made, as soon as such discovery occurs; provided, however, that such individual will continue to be provided with legal services pursuant to this subdivision for a reasonable amount of time to enable such person to obtain alternative counsel, so as not to materially prejudice such individual's chance of success in any covered proceeding;

(vi) if a covered individual knowingly and voluntarily waives the right to counsel; or

(vii) upon a determination by a legal services provider after the consultation described in subparagraph (ii) of paragraph (a) of this subdivision that a covered individual facing a covered proceeding in a covered venue other than an immigration court has no viable application for appeal, challenge to a court order, nor other form of relief from removal from the United States.

(d) Notwithstanding the requirements of paragraph (c) of this subdivision, the rights established in paragraph (a) of this subdivision shall not terminate if:

(i) an immigration judge declines to allow a legal services provider to withdraw from representing a covered individual; or

(ii) a legal services provider is prohibited from ceasing to provide legal services pursuant to the New York Rules of Professional Conduct or the Executive Office for Immigration Review's Practice Manual.

3. Powers and duties of the administrator. The administrator is charged with implementing the requirements of this section no later than January first of the sixth year following the effective date of this section, and shall promulgate such rules, policies, and procedures necessary and appropriate to accomplish such implementation no later than January first of the first year following the effective date of this section. Such rules, policies, and procedures shall include, but not be limited to, the measures delineated in this subdivision, with annual benchmarks to ensure full implementation by January first of the sixth year following the effective date of this section. The administrator shall have the power and responsibility, independently and/or through one or more designees, to:

(a) ensure that all covered individuals be advised of their right to counsel and be offered legal services as provided in paragraph (a) of subdivision two of this section;

(b) ensure independent, competent, high quality, and zealous representation of covered individuals receiving legal services provided pursuant to this section;

(c) examine, evaluate, and monitor legal services provided pursuant to this section;

(d) collect and receive information and data regarding the provision of legal services not protected by attorney-client privilege, work product privilege, or any other applicable privilege, or that can be disclosed by legal services providers without violating the New York Rules of Professional Conduct, including but not limited to:

(i) the types and combinations of such services being utilized across the state;

(ii) the salaries and other compensation paid to individual administrators, attorneys, and staff in connection with the provision of such services;

(iii) the caseloads of legal services providers providing legal services in connection with the provision of such services;

(iv) the types, nature, and timing of dispositions of cases handled by legal services providers providing legal services;

(v) the actual expenditures currently being made in connection with the provision of legal services; and

(vi) the time, funds, and in-kind resources currently being spent on providing such legal services and the amount being spent on ancillary services such as support staff and expert witnesses;

(e) analyze and evaluate collected data, and undertake any necessary research and studies, in order to consider and recommend measures to enhance the provision of effective legal services and to ensure that recipients of legal services are provided with quality representation from fiscally responsible providers, which shall include but not be limited to standards, criteria, and a process for qualifying and re-qualifying legal services providers to provide legal services;

(f) establish measures of performance which programs shall regularly report to the administrator to assist the administrator in monitoring the quality of legal services;

(g) establish the standards and criteria used in programs to determine whether individual legal services providers are qualified to provide legal services;

(h) establish the criteria and procedures used to determine whether a person is eligible to receive legal services, including requirements related to income and domicile, and to track the number of persons considered for and applicants denied such services, the reasons for the denials, and the results of any review of such denials;

(i) establish standards and criteria for the provision of legal services in cases involving a conflict of interest;