II 118TH CONGRESS 1ST SESSION S. 1187 To establish the right to counsel, at Government expense for those who cannot afford counsel, for people facing removal. IN THE SENATE OF THE UNITED STATES APRIL 18, 2023 Mrs. GILLIBRAND (for herself, Mr. BOOKER, Mr. PADILLA, Mr. MARKEY, Mr. SANDERS, Ms. WARREN, and Mr. MERKLEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To establish the right to counsel, at Government expense for those who cannot afford counsel, for people facing removal. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Fairness to Freedom Act of 2023’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. TITLE I—GUARANTEEING THE RIGHT TO COUNSEL Sec. 101. Guaranteeing and expanding the right to counsel. VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1187 IS Sec. 102. Public charge. TITLE II—OFFICE OF IMMIGRATION REPRESENTATION Sec. 201. Definitions. Sec. 202. Establishment; purpose; independence. Sec. 203. Board of Directors. Sec. 204. Director. Sec. 205. Employees. Sec. 206. Local immigration representation boards. Sec. 207. Types of immigration defenders. Sec. 208. Compensation and reimbursement of counsel expenses. Sec. 209. Services other than counsel. Sec. 210. Immigration Representation Advisory Board. TITLE III—AUTHORIZATION OF APPROPRIATIONS Sec. 301. Authorization of appropriations. Sec. 302. Minimum funding for the Office of Immigration Representation. TITLE I—GUARANTEEING THE 1 RIGHT TO COUNSEL 2 SEC. 101. GUARANTEEING AND EXPANDING THE RIGHT TO 3 COUNSEL. 4 Section 292 of the Immigration and Nationality Act 5 (8 U.S.C. 1362) is amended to read as follows: 6 ‘‘SEC. 292. RIGHT TO COUNSEL. 7 ‘‘(a) IN GENERAL.—Any individual in any removal, 8 exclusion, deportation, bond, or expedited removal pro- 9 ceeding under section 212(d)(5)(A), 235(b)(1)(B), 236, 10 238, 240, or 241 or in any matter related to any such 11 proceeding before U.S. Citizenship and Immigration Serv- 12 ices, any State court, or any court created under article 13 III of the Constitution of the United States, any individual 14 who is financially unable to obtain representation subject 15 to such proceeding shall be entitled to legal representation 16 at Government expense in accordance with this section. 17 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1187 IS ‘‘(b) MATTERS INCLUDED.—Proceedings and mat- 1 ters referred to in subsection (a) shall include— 2 ‘‘(1) petitions for a writ of habeas corpus under 3 section 2241 of title 28, United States Code, or any 4 other similar proceeding; 5 ‘‘(2) administrative and judicial proceedings for 6 individuals who may be eligible for special immigrant 7 juvenile status under section 101(a)(27)(J)(ii); 8 ‘‘(3) applications before the U.S. Citizenship 9 and Immigration Services related to relief from re- 10 moval, and post-conviction relief in criminal pro- 11 ceedings; 12 ‘‘(4) post-conviction relief in criminal pro- 13 ceedings; and 14 ‘‘(5) any other legal proceeding involving an in- 15 dividual described in subsection (a) that is related to 16 such individual’s legal status in the United States. 17 ‘‘(c) SCOPE OF COUNSEL.— 18 ‘‘(1) ADVOCACY.—Consistent with Rule 1.3 of 19 the American Bar Association’s Model Rules of Pro- 20 fessional conduct, attorneys and other persons pro- 21 viding representation to individuals in proceedings or 22 matters described in subsection (a) shall— 23 ‘‘(A) act with reasonable diligence, prompt- 24 ness, commitment, and dedication to the inter- 25 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1187 IS ests of the client and with zeal in advocating on 1 the client’s behalf; and 2 ‘‘(B) hold the Government to its burden by 3 presenting the fullest defense possible in each 4 such proceeding or matter. 5 ‘‘(2) SCOPE OF REPRESENTATION.—Represen- 6 tation under this section shall include— 7 ‘‘(A) counsel and interpretation and trans- 8 lation services; and 9 ‘‘(B) any other services that are necessary 10 for effective representation, including the serv- 11 ices described in section 209 of the Fairness to 12 Freedom Act of 2023. 13 ‘‘(3) COMMENCEMENT OF REPRESENTATION.— 14 ‘‘(A) IN GENERAL.—The right to counsel 15 of a person detained in, or released from, the 16 custody of the Department of Homeland Secu- 17 rity or the Department of Health and Human 18 Services shall attach at the earlier of— 19 ‘‘(i) the placement of the person in 20 the custody of either department, regard- 21 less of whether the person has been for- 22 mally placed in a proceeding described in 23 subsection (a); or 24 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1187 IS ‘‘(ii) the issuance to the person of a 1 Notice to Appear or other document initi- 2 ating proceedings under section 235, 238, 3 240, or 241. 4 ‘‘(B) CLARIFICATION.—The appointment 5 of counsel based on the issuance of a Notice to 6 Appear shall occur regardless of whether the 7 Notice to Appear has been filed with the immi- 8 gration court. The appointment of counsel for a 9 detained person shall occur as soon as possible, 10 but in no event later than 24 hours after such 11 person is taken into the custody of the Depart- 12 ment of Homeland Security. 13 ‘‘(4) CONTINUOUS REPRESENTATION.— 14 ‘‘(A) IN GENERAL.—An individual for 15 whom counsel is appointed under this section 16 shall be represented continuously at every stage 17 of proceedings beginning with the initial ap- 18 pearance before any official with adjudicatory 19 authority and including any proceedings before 20 the Immigration Courts, the Board of Immigra- 21 tion Appeals, Federal district courts, Federal 22 courts of appeal, and the United States Su- 23 preme Court, including ancillary matters related 24 to the proceedings described in subsection (a), 25 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1187 IS and ending when all such proceedings have con- 1 cluded. 2 ‘‘(B) APPOINTMENT OF DIFFERENT COUN- 3 SEL.—If the nature of the representation need- 4 ed by a person in proceedings under this section 5 requires the appointment of different represent- 6 atives for different stages of such proceedings, 7 all such representatives shall comply with the 8 minimum standards of representation described 9 in paragraph (1). 10 ‘‘(C) APPOINTMENT OF NEW COUNSEL 11 AFTER RELOCATION.—The Office of Immigra- 12 tion Representation established under section 13 202 of the Fairness to Freedom Act of 2023 14 shall ensure that each individual who is released 15 from custody and moves to a State or munici- 16 pality other than the State or municipality in 17 which he or she was in custody, or who is trans- 18 ferred to a detention facility in another State or 19 municipality is provided with counsel in the new 20 State or municipality in which the individual re- 21 sides or is detained. 22 ‘‘(5) CONSTRUCTION.—This subsection shall be 23 broadly construed to attach in any proceeding and 24 related matter, including any petition for review or 25 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1187 IS appellate process, request for re-interview, request 1 for reconsideration, and motion to reopen, arising 2 from a proceeding or matter described in subsection 3 (a). 4 ‘‘(d) ELIGIBILITY AND COMMENCEMENT OF IMMI- 5 GRATION PROCEEDINGS.— 6 ‘‘(1) NOTIFICATION.—A proceeding described in 7 subsection (a) shall not commence until counsel has 8 been appointed to represent the individual subject to 9 such proceeding. If such a proceeding has already 10 commenced without the appointment of counsel, 11 such proceeding shall be paused until such counsel 12 is appointed. Before commencing a proceeding de- 13 scribed in subsection (a), the adjudicatory official, 14 who may be an official of U.S. Immigration and 15 Customs Enforcement or of U.S. Customs and Bor- 16 der Protection, under a plan approved by the Office 17 of Immigration Representation, shall notify the indi- 18 vidual subject to such proceeding that— 19 ‘‘(A) such individual has the right to be 20 represented by counsel; and 21 ‘‘(B) counsel will be appointed to represent 22 such individual before the commencement of 23 such proceeding if the individual— 24 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •S 1187 IS ‘‘(i) has not retained private counsel; 1 and 2 ‘‘(ii) is financially unable to obtain 3 counsel. 4 ‘‘(2) DETERMINATION OF FINANCIAL ABILITY 5 TO OBTAIN COUNSEL.— 6 ‘‘(A) IN GENERAL.—An individual shall be 7 deemed to be financially unable to obtain coun- 8 sel under paragraph (1)(B)(ii) if the individ- 9 ual’s net financial resources and income are in- 10 sufficient to obtain qualified counsel. 11 ‘‘(B) ELIGIBILITY FOR COUNSEL.—An in- 12 dividual who makes a sworn statement to the 13 adjudicatory official referred to in subsection 14 (a) that he or she is a member of a family 15 whose income is not more than 200 percent of 16 the poverty line (as defined in section 673(2) of 17 the Community Services Block Grant Act (42 18 U.S.C. 9902(2))) is eligible for Government-ap- 19 pointed counsel under this section. 20 ‘‘(3) ACCESS TO PERTINENT DOCUMENTS AND 21 INFORMATION.— 22 ‘‘(A) IN GENERAL.—An individual de- 23 scribed in subsection (a) and his or her counsel 24 shall automatically receive a complete copy of 25 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •S 1187 IS all documents and information pertaining to 1 such individual that are in the possession of the 2 Department of Homeland Security or the De- 3 partment of Health and Human Services, in- 4 cluding documents obtained from other Govern- 5 ment agencies, unless the disclosure of any such 6 document or information is barred by privilege 7 or otherwise prohibited by law. 8 ‘‘(B) RECORDS.—Not later than 7 days 9 after counsel is appointed to represent an indi- 10 vidual under this Act, the Director of U.S. Citi- 11 zenship and Immigration Services shall— 12 ‘‘(i) provide such individual and coun- 13 sel with a complete copy of the individual’s 14 immigration file (commonly known as the 15 ‘A-file’); and 16 ‘‘(ii) facilitate the provision to such 17 individual and counsel of a copy of any 18 Record of Proceeding that is in the posses- 19 sion of the Department of Homeland Secu- 20 rity, the Department of Health and 21 Human Services, or the Department of 22 Justice (other than documents protected 23 from disclosure under section 552(b) of 24 title 5, United States Code). 25 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •S 1187 IS ‘‘(4) RESTRICTION.—A proceeding described in 1 subsection (a) may not commence before the date 2 that is 10 days after the date on which the indi- 3 vidual, or the individual’s counsel, has received all of 4 the documents described in paragraph (3), in order 5 to review and assess such documents, unless the in- 6 dividual or his or her counsel knowingly and volun- 7 tarily waives such restriction. 8 ‘‘(e) APPOINTMENT OF COUNSEL.— 9 ‘‘(1) NOTIFICATION REQUIREMENT.—If an indi- 10 vidual who is entitled to representation under this 11 section is not represented by counsel, the adjudica- 12 tory official shall— 13 ‘‘(A) notify the Local Administrator ap- 14 pointed pursuant to section 206(k)(3) of the 15 Fairness to Freedom Act of 2023 (or the des- 16 ignee of the Local Administrator) that such in- 17 dividual is not represented by counsel; and 18 ‘‘(B) advise such individual— 19 ‘‘(i) of his or her right to be rep- 20 resented by counsel; and 21 ‘‘(ii) that such counsel will be ap- 22 pointed if such person is financially unable 23 to obtain counsel. 24 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •S 1187 IS ‘‘(2) WAIVER.—An individual’s right to be rep- 1 resented by appointed counsel may only be waived by 2 the individual— 3 ‘‘(A) in the physical presence of appointed 4 counsel; 5 ‘‘(B) if such waiver is knowing and vol- 6 untary; and 7 ‘‘(C) if the individual demonstrates that he 8 or she— 9 ‘‘(i) understands the nature of any 10 charges and the possible defenses and out- 11 comes; and 12 ‘‘(ii) possesses the knowledge and in- 13 telligence necessary to conduct his or her 14 own defense. 15 ‘‘(3) APPEAL OF WAIVER; RETROACTIVE AP- 16 POINTMENT.—Counsel may appeal any putative 17 waiver to the Office of Immigration Representation 18 established under section 202 of the Fairness to 19 Freedom Act of 2023 if counsel reasonably believes 20 that such waiver did not meet the requirements 21 under paragraph (2). If the Office of Immigration 22 Representation concurs with counsel’s assessment, 23 the Office may retroactively appoint counsel in order 24 VerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •S 1187 IS to include any representation furnished pursuant to 1 the plan before such appointment. 2 ‘‘(4) APPOINTMENT OF COUNSEL.—Unless an 3 individual waives representation by counsel pursuant 4 to paragraph (2), the Local Administrator, upon no- 5 tification that an individual may meet the criteria 6 for appointed counsel, shall appoint counsel for such 7 individual in accordance with the Local Plan devel- 8 oped pursuant to section 206(k)(1) of the Fairness 9 to Freedom Act of 2023 if the Local Administrator 10 determines, after appropriate inquiry, that such indi- 11 vidual is financially unable to obtain counsel. An ap- 12 pointment under this paragraph may be made retro- 13 active to include any representation furnished to 14 such individual by such counsel before such appoint- 15 [Text truncated for display. Full text available on Congress.gov.]