I 118TH CONGRESS 1ST SESSION H. R. 2697 To establish the right to counsel, at Government expense for those who cannot afford counsel, for people facing removal. IN THE HOUSE OF REPRESENTATIVES APRIL 18, 2023 Mrs. TORRES of California (for herself, Ms. MENG, Ms. JAYAPAL, Mr. MCGOVERN, Ms. BARRAGA´N, Ms. LEE of California, Ms. SCHAKOWSKY, Ms. JACOBS, Mr. ESPAILLAT, Mrs. NAPOLITANO, Mr. HUFFMAN, Mr. CASAR, Ms. VELA´ZQUEZ, Ms. NORTON, Mr. GARCI´A of Illinois, Ms. CLARKE of New York, Ms. TOKUDA, Mr. JOHNSON of Georgia, Mr. CA´RDENAS, Ms. SALINAS, and Mr. GRIJALVA) introduced the following bill; which was 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 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 2697 IH Sec. 1. Short title; table of contents. TITLE I—GUARANTEEING THE RIGHT TO COUNSEL Sec. 101. Guaranteeing and expanding the right to counsel. Sec. 102. Public charge. TITLE II—OFFICE OF IMMIGRATION REPRESENTATION Sec. 201. Definitions. Sec. 202. Establishment; purpose; independence. Sec. 203. Board of Directors. Sec. 204. Director. Sec. 205. Employees. Sec. 206. Local immigration representation boards. Sec. 207. Types of immigration defenders. Sec. 208. Compensation and reimbursement of expenses of counsel. Sec. 209. Services other than counsel. Sec. 210. Immigration Representation Advisory Board. TITLE III—AUTHORIZATION OF APPROPRIATIONS Sec. 301. Authorization of appropriations. Sec. 302. Minimum funding for the Office of Immigration Representation. TITLE I—GUARANTEEING THE 1 RIGHT TO COUNSEL 2 SEC. 101. GUARANTEEING AND EXPANDING THE RIGHT TO 3 COUNSEL. 4 Section 292 of the Immigration and Nationality Act 5 (8 U.S.C. 1362) is amended to read as follows: 6 ‘‘SEC. 292. RIGHT TO COUNSEL. 7 ‘‘(a) IN GENERAL.—Any individual in any removal, 8 exclusion, deportation, bond, or expedited removal pro- 9 ceeding under section 212(d)(5)(A), 235(b)(1)(B), 236, 10 238, 240, or 241 or in any matter related to any such 11 proceeding before U.S. Citizenship and Immigration Serv- 12 ices, any State court, or any court created under article 13 III of the Constitution of the United States, any individual 14 who is financially unable to obtain representation subject 15 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 2697 IH to such proceeding shall be entitled to legal representation 1 at Government expense in accordance with this section. 2 ‘‘(b) MATTERS INCLUDED.—Proceedings and mat- 3 ters referred to in subsection (a) shall include— 4 ‘‘(1) petitions for a writ of habeas corpus under 5 section 2241 of title 28, United States Code, or any 6 other similar proceeding; 7 ‘‘(2) administrative and judicial proceedings for 8 individuals who may be eligible for special immigrant 9 juvenile status under section 1101(a)(27)(J)(ii) of 10 title 8, United States Code; 11 ‘‘(3) applications before the U.S. Citizenship 12 and Immigration Services related to relief from re- 13 moval, and post-conviction relief in criminal pro- 14 ceedings; 15 ‘‘(4) post-conviction relief in criminal pro- 16 ceedings; and 17 ‘‘(5) any other legal proceeding involving an in- 18 dividual described in subsection (a) that is related to 19 such individual’s legal status in the United States. 20 ‘‘(c) SCOPE OF COUNSEL.— 21 ‘‘(1) ADVOCACY.—Consistent with Rule 1.3 of 22 the American Bar Association’s Model Rules of Pro- 23 fessional conduct, attorneys and other persons pro- 24 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 2697 IH viding representation to individuals in proceedings or 1 matters described in subsection (a) shall— 2 ‘‘(A) act with reasonable diligence, prompt- 3 ness, commitment, and dedication to the inter- 4 ests of the client and with zeal in advocating on 5 the client’s behalf; and 6 ‘‘(B) hold the Government to its burden by 7 presenting the fullest defense possible in each 8 such proceeding or matter. 9 ‘‘(2) SCOPE OF REPRESENTATION.—Represen- 10 tation under this section shall include— 11 ‘‘(A) counsel and interpretation and trans- 12 lation services; and 13 ‘‘(B) any other services that are necessary 14 for effective representation, including the serv- 15 ices described in section 309 of the Fairness to 16 Freedom Act of 2023. 17 ‘‘(3) COMMENCEMENT OF REPRESENTATION.— 18 ‘‘(A) IN GENERAL.—The right to counsel 19 of a person detained in, or released from, the 20 custody of the Department of Homeland Secu- 21 rity or the Department of Health and Human 22 Services shall attach at the earlier of— 23 ‘‘(i) the placement of the person in 24 the custody of either department, regard- 25 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 2697 IH less of whether the person has been for- 1 mally placed in a proceeding described in 2 subsection (a); or 3 ‘‘(ii) the issuance to the person of a 4 Notice to Appear or other document initi- 5 ating proceedings under section 235, 238, 6 240, or 241. 7 ‘‘(B) CLARIFICATION.—The appointment 8 of counsel based on the issuance of a Notice to 9 Appear shall occur regardless of whether the 10 Notice to Appear has been filed with the immi- 11 gration court. The appointment of counsel for a 12 detained person shall occur as soon as possible, 13 but in no event later than 24 hours after such 14 person is taken into the custody of the Depart- 15 ment of Homeland Security. 16 ‘‘(4) CONTINUOUS REPRESENTATION.— 17 ‘‘(A) IN GENERAL.—An individual for 18 whom counsel is appointed under this section 19 shall be represented continuously at every stage 20 of proceedings beginning with the initial ap- 21 pearance before any official with adjudicatory 22 authority and including any proceedings before 23 the Immigration Courts, the Board of Immigra- 24 tion Appeals, Federal district courts, Federal 25 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 2697 IH courts of appeal, and the United States Su- 1 preme Court, including ancillary matters related 2 to the proceedings described in subsection (a), 3 and ending when all such proceedings have con- 4 cluded. 5 ‘‘(B) APPOINTMENT OF DIFFERENT COUN- 6 SEL.—If the nature of the representation need- 7 ed by a person in proceedings under this section 8 requires the appointment of different represent- 9 atives for different stages of such proceedings, 10 all such representatives shall comply with the 11 minimum standards of representation described 12 in paragraph (1). 13 ‘‘(C) APPOINTMENT OF NEW COUNSEL 14 AFTER RELOCATION.—The Office of Immigra- 15 tion Representation established under section 16 202 of the Fairness to Freedom Act of 2023 17 shall ensure that each individual who is released 18 from custody and moves to a State or munici- 19 pality other than the State or municipality in 20 which he or she was in custody, or who is trans- 21 ferred to a detention facility in another State or 22 municipality is provided with counsel in the new 23 State or municipality in which the individual re- 24 sides or is detained. 25 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 2697 IH ‘‘(5) CONSTRUCTION.—This subsection shall be 1 broadly construed to attach in any proceeding and 2 related matter, including any petition for review or 3 appellate process, request for re-interview, request 4 for reconsideration, and motion to reopen, arising 5 from a proceeding or matter described in subsection 6 (a). 7 ‘‘(d) ELIGIBILITY AND COMMENCEMENT OF IMMI- 8 GRATION PROCEEDINGS.— 9 ‘‘(1) NOTIFICATION.—A proceeding described in 10 subsection (a) shall not commence until counsel has 11 been appointed to represent the individual subject to 12 such proceeding. If such a proceeding has already 13 commenced without the appointment of counsel, 14 such proceeding shall be paused until such counsel 15 is appointed. Before commencing a proceeding de- 16 scribed in subsection (a), the adjudicatory official, 17 who may be an official of U.S. Immigration and 18 Customs Enforcement or of U.S. Customs and Bor- 19 der Protection, under a plan approved by the Office 20 of Immigration Representation, shall notify the indi- 21 vidual subject to such proceeding that— 22 ‘‘(A) such individual has the right to be 23 represented by counsel; and 24 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 2697 IH ‘‘(B) counsel will be appointed to represent 1 such individual before the commencement of 2 such proceeding if the individual— 3 ‘‘(i) has not retained private counsel; 4 and 5 ‘‘(ii) is financially unable to obtain 6 counsel. 7 ‘‘(2) DETERMINATION OF FINANCIAL ABILITY 8 TO OBTAIN COUNSEL.— 9 ‘‘(A) IN GENERAL.—An individual shall be 10 deemed to be financially unable to obtain coun- 11 sel under paragraph (1)(B)(ii) if the individ- 12 ual’s net financial resources and income are in- 13 sufficient to obtain qualified counsel. 14 ‘‘(B) ELIGIBILITY FOR COUNSEL.—An in- 15 dividual who makes a sworn statement to the 16 adjudicatory official referred to in subsection 17 (a) that he or she is a member of a family 18 whose income is not more than 200 percent of 19 the poverty line (as defined in section 673(2) of 20 the Community Services Block Grant Act (42 21 U.S.C. 9902(2))) is eligible for Government-ap- 22 pointed counsel under this section. 23 ‘‘(3) ACCESS TO PERTINENT DOCUMENTS AND 24 INFORMATION.— 25 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 2697 IH ‘‘(A) IN GENERAL.—An individual de- 1 scribed in subsection (a) and his or her counsel 2 shall automatically receive a complete copy of 3 all documents and information pertaining to 4 such individual that are in the possession of the 5 Department of Homeland Security or the De- 6 partment of Health and Human Services, in- 7 cluding documents obtained from other Govern- 8 ment agencies, unless the disclosure of any such 9 document or information is barred by privilege 10 or otherwise prohibited by law. 11 ‘‘(B) RECORDS.—Not later than 7 days 12 after counsel is appointed to represent an indi- 13 vidual under this Act, the Director of U.S. Citi- 14 zenship and Immigration Services shall— 15 ‘‘(i) provide such individual and coun- 16 sel with a complete copy of the individual’s 17 immigration file (commonly known as the 18 ‘A-file’); and 19 ‘‘(ii) facilitate the provision to such 20 individual and counsel of a copy of any 21 Record of Proceeding that is in the posses- 22 sion of the Department of Homeland Secu- 23 rity, the Department of Health and 24 Human Services, or the Department of 25 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 2697 IH Justice (other than documents protected 1 from disclosure under section 552(b) of 2 title 5, United States Code). 3 ‘‘(4) RESTRICTION.—A proceeding described in 4 subsection (a) may not commence before the date 5 that is 10 days after the date on which the indi- 6 vidual, or the individual’s counsel, has received all of 7 the documents described in paragraph (3), in order 8 to review and assess such documents, unless the in- 9 dividual or his or her counsel knowingly and volun- 10 tarily waives such restriction. 11 ‘‘(e) APPOINTMENT OF COUNSEL.— 12 ‘‘(1) NOTIFICATION REQUIREMENT.—If an indi- 13 vidual who is entitled to representation under this 14 section is not represented by counsel, the adjudica- 15 tory official shall— 16 ‘‘(A) notify the Local Administrator ap- 17 pointed pursuant to section 206(k)(3) of the 18 Fairness to Freedom Act of 2023 (or the des- 19 ignee of the Local Administrator) that such in- 20 dividual is not represented by counsel; and 21 ‘‘(B) advise such individual— 22 ‘‘(i) of his or her right to be rep- 23 resented by counsel; and 24 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 2697 IH ‘‘(ii) that such counsel will be ap- 1 pointed if such person is financially unable 2 to obtain counsel. 3 ‘‘(2) WAIVER.—An individual’s right to be rep- 4 resented by appointed counsel may only be waived by 5 the individual— 6 ‘‘(A) in the physical presence of appointed 7 counsel; 8 ‘‘(B) if such waiver is knowing and vol- 9 untary; and 10 ‘‘(C) if the individual demonstrates that he 11 or she— 12 ‘‘(i) understands the nature of any 13 charges and the possible defenses and out- 14 comes; and 15 ‘‘(ii) possesses the knowledge and in- 16 telligence necessary to conduct his or her 17 own defense. 18 ‘‘(3) APPEAL OF WAIVER; RETROACTIVE AP- 19 POINTMENT.—Counsel may appeal any putative 20 waiver to the Office of Immigration Representation 21 established under section 202 of the Fairness to 22 Freedom Act of 2023 if counsel reasonably believes 23 that such waiver did not meet the requirements 24 under paragraph (2). If the Office of Immigration 25 VerDate Sep 11 2014 21:30 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H2697.IH H2697 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 2697 IH Representation concurs with counsel’s assessment, 1 the Office may retroactively appoint counsel in order 2 to include any representation furnished pursuant to 3 the plan before such appointment. 4 ‘‘(4) APPOINTMENT OF COUNSEL.—Unless an 5 individual waives representation by counsel pursuant 6 to paragraph (2), the Local Administrator, upon no- 7 tification that an individual may meet the criteria 8 for appointed counsel, shall appoint counsel for such 9 individual in accordance with the Local Plan devel- 10 oped pursuant to section 206(k)(1) of the Fairness 11 to Freedom Act of 2023 if the Local Administrat [Text truncated for display. Full text available on Congress.gov.]