Bill Text: NY A07098 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to providing access to services, law enforcement and counsel in certain immigration related matters.
Spectrum: Partisan Bill (Democrat 21-0)
Status: (Introduced - Dead) 2020-01-08 - referred to codes [A07098 Detail]
Download: New_York-2019-A07098-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7098 2019-2020 Regular Sessions IN ASSEMBLY April 8, 2019 ___________ Introduced by M. of A. REYES -- read once and referred to the Committee on Codes 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 22 governmental or proprietary function for the state or any one or more 23 municipalities thereof. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04008-01-9A. 7098 2 1 2. "Agent" shall mean any officer, official, employee or volunteer 2 working for, employed by or providing assistance to an agency. 3 3. "Civil immigration detainer" shall mean an administrative request 4 issued pursuant to 8 C.F.R. § 287.7 or any similar request issued by an 5 agency or agent of the United States for the detention of a person 6 suspected of violating the immigration law of the United States. 7 4. "Family or household member" shall mean a family or household 8 member, as defined in subdivision two of section four hundred fifty- 9 nine-a of the social services law. 10 5. "Federal immigration authority" shall mean any officer, employee 11 or person otherwise paid by or acting as an agent of the United States 12 immigration and customs enforcement or any division thereof or any other 13 officer, employee or person otherwise paid by or acting as an agent of 14 the United States department of homeland security or any other federal 15 entity who is charged with enforcement of the provisions of any federal 16 immigration law. 17 6. "Federal law" shall mean a provision of the Constitution of the 18 United States, or a statute or similar provision approved by the 19 Congress of the United States that has been enacted and taken effect. 20 7. "Immigration status" or "immigration status information" shall mean 21 immigration status, lawful or unlawful, of an individual under the laws 22 and regulations of the United States of America. 23 8. "Judicial warrant" shall mean a warrant based on probable cause and 24 issued by a judge serving pursuant to article three of the United States 25 constitution or a federal magistrate judge serving by appointment pursu- 26 ant to 28 U.S.C. § 631, that authorizes a federal immigration authority 27 to take into custody a person who is the subject of such warrant. 28 9. "Law enforcement agency" shall mean any agency that is empowered by 29 law to conduct an investigation or make an arrest for a crime or 30 offense, or any agency that is authorized by law to prosecute or partic- 31 ipate in the prosecution of a crime or offense, or any agency authorized 32 by law to jail, detain or imprison a person under color of law, or any 33 agency employing a police officer, as defined in subdivision thirty-four 34 of section 1.20 of the criminal procedure law or peace officer, as 35 defined in subdivision thirty-three of section 1.20 of the criminal 36 procedure law. 37 10. "Terrorist screening database" shall mean the United States 38 terrorist watch list database lawfully maintained by the terrorist 39 screening center of the government of the United States. 40 § 319-a. Access to services, assistance and eligible benefits. 1. 41 Except where explicitly required by state or federal law for the purpose 42 of verifying eligibility, continued eligibility, or upon recertif- 43 ication, no state or local agency, or agent thereof, may make any 44 inquiry or record any information concerning the immigration status or 45 place of birth of a person who is seeking public assistance and care, as 46 such phrase is defined in subdivision eighteen of section two of the 47 social services law, or seeking any other benefit, assistance or service 48 for himself, herself, or on behalf of a family or household member or 49 any other potential beneficiary. Provided, further, that such informa- 50 tion shall not be used or disclosed to any state or federal agency for 51 any purpose other than verifying eligibility, continued eligibility, or 52 upon recertification. 53 2. Notwithstanding the provisions of subdivision one of this section, 54 limited inquiry of such information concerning the relevant person may 55 be made when such information is requested for the benefit of the person 56 by the office for new Americans established pursuant to section ninety-A. 7098 3 1 four-b of this chapter or any other similar agency that is assisting 2 such person in matters related to such person's immigration status, 3 provided that the status of such person shall not be disclosed for any 4 purpose. 5 3. In addition to any other right to the assistance of interpretation 6 or translation services, any foreign-born person, or person not profi- 7 cient in the English language, to whom inquiry is made pursuant to this 8 section shall be entitled to the assistance of a neutral and qualified 9 interpreter or translator, as the case may be, with respect to such 10 inquiry, provided at no cost or expense to such person. 11 § 319-b. Federal agencies to investigate and enforce federal immi- 12 gration laws. 1. No state or local law enforcement agency, or agent 13 thereof, shall stop, question, interrogate, investigate or arrest a 14 person for any of the following: 15 (a) suspected United States immigration or citizenship status 16 violation; 17 (b) suspected violation of the United States immigration law or 18 authorized regulations; or 19 (c) a civil immigration detainer. 20 2. No state or local law enforcement agency, nor any agent thereof, 21 shall make any inquiry or record any information concerning the immi- 22 gration status or place of birth of a person who: (a) contacts, 23 approaches or asks for or is in need of assistance of a law enforcement 24 agency or (b) is stopped, questioned, interrogated, investigated or 25 arrested; except where such immigration status or place of birth infor- 26 mation is an element of a criminal offense in a specific, ongoing law 27 enforcement investigation engaged in by such state or local law enforce- 28 ment agency, or agent thereof, or where such inquiry or recording of 29 such information is otherwise authorized by this article. 30 3. No state or local law enforcement agency, or agent thereof, shall 31 perform the function of or be cross-designated as a federal immigration 32 officer or otherwise engage or significantly assist in the enforcement 33 of federal immigration law, pursuant to 8 U.S.C. § 1357 (g) or any other 34 federal law, regulation or policy. Nothing in this subdivision shall 35 prevent detention of a person in accordance with and to the extent 36 permitted by section three hundred nineteen-e of this article. 37 4. In addition to any other right to the assistance of interpretation 38 or translation services, any foreign-born person, or person not profi- 39 cient in the English language, to whom inquiry is made pursuant to 40 subdivision one or two of this section shall be entitled to the assist- 41 ance of a neutral and qualified interpreter or translator, as the case 42 may be, with respect to such inquiry, provided at no cost or expense to 43 such person. 44 § 319-c. Confidentiality of information. Unless disclosure is required 45 by a lawful court order, no state or local agency, or agent thereof, or 46 state or local law enforcement agency, or agent thereof, shall provide 47 to a federal immigration authority any information collected or obtained 48 with respect to a person in accordance with this article or otherwise, 49 including but not limited to home, work or school address, except that: 50 1. providing immigration status information shall not be prohibited if 51 requested by such federal immigration authority and required to be 52 provided to it in accordance with 8 U.S.C. § 1373 or another federal 53 law; 54 2. the division of criminal justice services or a qualified agency, as 55 defined in subdivision nine of section eight hundred thirty-five of this 56 chapter, may provide criminal history information, as defined in para-A. 7098 4 1 graph (c) of subdivision one of section eight hundred forty-five-b of 2 this chapter, when lawfully requested about a specific person and such 3 disclosure is permitted by state law; and 4 3. a state or local agency, or agent thereof, or state or local law 5 enforcement agency, or agent thereof, may provide such information, 6 other than the information described in subdivision one of this section, 7 concerning a person, including but not limited to status as a victim of 8 or witness to suspected criminal activity, home address and/or work 9 address, only with informed written consent of the person and, if 10 represented by counsel, written authorization by such attorney. 11 § 319-d. Custody of certain persons: bail and related pre-trial 12 issues. 1. Except as provided in section three hundred nineteen-e of 13 this article, no state or local law enforcement agency, or agent there- 14 of, or court shall delay or deny release of a person on recognizance or 15 bail, pursuant to article five hundred thirty of the criminal procedure 16 law or otherwise, on the basis of the person's immigration status, a 17 civil immigration detainer, or a federal immigration authority's request 18 for notification about, transfer of, detention of, or interview or 19 interrogation of such person. 20 2. Upon receipt from a federal immigration authority of a civil immi- 21 gration detainer, or a request for transfer, notification, interview, 22 interrogation or other request, a state or local law enforcement agency, 23 or agent thereof, shall promptly notify the person who is the subject of 24 such detainer or request and such person's counsel, provide a copy of 25 such detainer or request, as the case may be, to such person and coun- 26 sel, inform such person of the right to counsel pursuant to the 27 provisions of section three hundred nineteen-g of this article, and 28 inform such person and counsel, reasonably in advance of responding to 29 the federal immigration authority, as to whether or not such agency 30 intends to comply with such detainer or request. 31 3. A person in the custody of a state or local law enforcement agency, 32 or agent thereof, shall be subject to booking, processing, right to 33 counsel, release and transfer procedures, policies and practices of that 34 agency that are at least as protective of individual rights as other 35 persons in such agency's custody, regardless of the person's actual or 36 suspected immigration status. 37 § 319-e. Civil immigration detainers. 1. A state or local law enforce- 38 ment agency, or agent thereof, lawfully holding a person in its custody, 39 may thereafter detain such person solely on the basis of a civil immi- 40 gration detainer, for a single period not exceeding forty-eight hours 41 excluding weekends and holidays, beyond the time when such person would 42 otherwise have been released from such agency's custody, only if: 43 (a) an authorized federal immigration agency presents such state or 44 local law enforcement agency with a judicial warrant for the detention 45 of the person who is the subject of such civil immigration detainer at 46 the time such civil immigration detainer is presented; or 47 (b) notice has been received from a court or any other governmental 48 entity, documenting that the person illegally reentered the United 49 States after a previous removal or return as defined in 8 U.S.C. § 50 1326, and the person stands convicted of a violent felony offense as 51 defined in subdivision one of section 70.02 of the penal law, or a class 52 A felony offense defined in the penal law, or an offense in any other 53 jurisdiction that has the same essential elements of any such violent 54 felony offense or class A felony offense; orA. 7098 5 1 (c) such person is identified by such state or local law enforcement 2 agency as a likely match with a person listed in the terrorist screening 3 database. 4 2. Except to the extent that disclosure is required by federal law, no 5 state or local law enforcement agency, or agent thereof, shall provide 6 to a federal immigration authority, or another agency, entity or person 7 on behalf of a federal immigration authority, any information obtained 8 concerning a person who is in or formerly was in the custody of such 9 state or local law enforcement agency, or agent thereof, including but 10 not limited to the person's release date, court appearance date or 11 dates, home, work or school address. 12 3. Nothing in this section shall be construed to confer any authority 13 on an entity to detain a person based on a civil immigration detainer 14 beyond the authority, if any, to do so that existed prior to the enact- 15 ment of this section. 16 § 319-f. Limitation on use of certain facilities. 1. No state or local 17 law enforcement agency, or agent thereof, shall provide a federal immi- 18 gration agency, or agent thereof, with access to an individual in such 19 law enforcement agency's custody or control. 20 2. Notwithstanding the provisions of subdivision one of this section, 21 a person in the custody of a state or local law enforcement agency may 22 request to be interviewed by a federal law enforcement agency or an 23 agent thereof only with knowing and voluntary written consent of the 24 individual and, if represented by counsel, written authorization by such 25 counsel, provided that if such individual is not represented and is 26 entitled to counsel assigned pursuant to section three hundred nine- 27 teen-g of this article or article eighteen-B of the county law, he or 28 she shall be notified of such right and provided a reasonable opportu- 29 nity to obtain such counsel before any such interview. 30 3. In addition to any other right to the assistance of interpretation 31 or translation services, any foreign-born person, or person not profi- 32 cient in the English language, to whom inquiry is made pursuant to this 33 section shall be entitled to the assistance of a neutral and qualified 34 interpreter or translator, as the case may be, with respect to such 35 inquiry, provided at no cost or expense to such person. 36 4. Except as provided in subdivision two of this section, federal 37 immigration authorities shall not be permitted to use or maintain, for 38 the purpose of interviewing any person or witness or investigating or 39 adjudicating any alleged violation of federal immigration law, any 40 office or quarters in any building or facility or any land owned, leased 41 or operated by a state or local law enforcement agency; provided, howev- 42 er that the federal Executive Office for Immigration Review, pursuant to 43 an otherwise lawful agreement with the state department of corrections 44 and community supervision, may make use of offices in one or more build- 45 ings or facilities operated as state correctional facilities in this 46 state for the purpose of conducting adjudicatory hearings involving 47 alleged violation of federal immigration law. 48 § 319-g. Legal representation. 1. A person unable to afford counsel 49 against whom a removal proceeding may be or has been commenced, shall be 50 entitled to representation by assigned counsel and related assistance, 51 pursuant to subdivision one of section thirty-five of the judiciary law, 52 when the person: 53 (a) was present in this state when questioned, taken into custody, 54 charged, summoned or presented with the allegations of the removal 55 proceedings, and the person resides or is detained in either this state 56 or an adjoining state; orA. 7098 6 1 (b) resided in this state when questioned, taken into custody, 2 charged, summoned or presented with the allegations of the removal 3 proceedings, and the person continues to reside in this state or an 4 adjoining state, or if detained, continues to be detained in either this 5 state or an adjoining state. 6 2. Representation and related assistance provided in accordance with 7 subdivision one of this section shall be a state charge, pursuant to 8 subdivision one of section thirty-five of the judiciary law. 9 § 319-h. Effect on other laws. This article shall supersede conflict- 10 ing local laws, rules, policies, procedures and practices, except to the 11 extent that the provisions of any such local law, rule, policy or any 12 such procedure or practice may provide any additional or greater right 13 or protection. Nothing in this article shall prohibit any entity from 14 cooperating with a federal immigration authority to the extent required 15 by federal law. Nothing in this article shall be interpreted or applied 16 so as to create any power, duty or obligation in conflict with federal 17 law. 18 § 2. The opening paragraph of paragraph a of subdivision 1 of section 19 35 of the judiciary law is designated as subparagraph (i) and a new 20 subparagraph (ii) is added to read as follows: 21 (ii) Persons providing assigned counsel and related assistance in 22 immigration-related matters pursuant to section three hundred nineteen-g 23 of the executive law shall be compensated in accordance with this 24 section. In any case where a person entitled to assigned representation 25 pursuant to section three hundred nineteen-g of the executive law 26 petitions the criminal court of the city of New York, the county court 27 or district court, with jurisdiction where the person is to be ques- 28 tioned or detained, or is detained, or was charged in such immigration- 29 related matter, or most recently resided, the court shall assign coun- 30 sel, with appropriate expertise and experience in immigration-related 31 matters, in accordance with this section. 32 § 3. Severability. If any clause, sentence, subdivision, paragraph, 33 section or other part of this act shall be adjudged by any court of 34 competent jurisdiction to be invalid, such judgment shall not affect, 35 impair or invalidate the remainder thereof, but shall be confined in its 36 operation to the clause, sentence, subdivision, paragraph, section or 37 part thereof directly involved in the controversy in which such judgment 38 shall have been rendered. 39 § 4. This act shall take effect immediately.
