Bill Text: NY S04075 | 2017-2018 | General Assembly | Amended
Bill Title: Relates to providing access to services, law enforcement and counsel in certain immigration related matters.
Spectrum: Partisan Bill (Democrat 18-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO FINANCE [S04075 Detail]
Download: New_York-2017-S04075-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4075--A 2017-2018 Regular Sessions IN SENATE February 2, 2017 ___________ Introduced by Sens. SERRANO, HOYLMAN -- 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 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09294-07-7S. 4075--A 2 1 governmental or proprietary function for the state or any one or more 2 municipalities thereof. 3 2. "Agent" shall mean any officer, official, employee or volunteer 4 working for, employed by or providing assistance to an agency. 5 3. "Civil immigration detainer" shall mean an administrative request 6 issued pursuant to 8 C.F.R. § 287.7 or any similar request issued by an 7 agency or agent of the United States for the detention of a person 8 suspected of violating the immigration law of the United States. 9 4. "Family or household member" shall mean a family or household 10 member, as defined in subdivision two of section four hundred fifty- 11 nine-a of the social services law. 12 5. "Federal immigration authority" shall mean any officer, employee 13 or person otherwise paid by or acting as an agent of the United States 14 immigration and customs enforcement or any division thereof or any other 15 officer, employee or person otherwise paid by or acting as an agent of 16 the United States department of homeland security or any other federal 17 entity who is charged with enforcement of the provisions of any federal 18 immigration law. 19 6. "Federal law" shall mean a provision of the Constitution of the 20 United States, or a statute or similar provision approved by the 21 Congress of the United States that has been enacted and taken effect. 22 7. "Immigration status" or "immigration status information" shall mean 23 immigration status, lawful or unlawful, of an individual under the laws 24 and regulations of the United States of America. 25 8. "Judicial warrant" shall mean a warrant based on probable cause and 26 issued by a judge serving pursuant to article three of the United States 27 constitution or a federal magistrate judge serving by appointment pursu- 28 ant to 28 U.S.C. § 631, that authorizes a federal immigration authority 29 to take into custody a person who is the subject of such warrant. 30 9. "Law enforcement agency" shall mean any agency that is empowered by 31 law to conduct an investigation or make an arrest for a crime or 32 offense, or any agency that is authorized by law to prosecute or partic- 33 ipate in the prosecution of a crime or offense, or any agency authorized 34 by law to jail, detain or imprison a person under color of law, or any 35 agency employing a police officer, as defined in subdivision thirty-four 36 of section 1.20 of the criminal procedure law or peace officer, as 37 defined in subdivision thirty-three of section 1.20 of the criminal 38 procedure law. 39 10. "Terrorist screening database" shall mean the United States 40 terrorist watch list database lawfully maintained by the terrorist 41 screening center of the government of the United States. 42 § 319-a. Access to services, assistance and eligible benefits. 1. 43 Except where explicitly required by state or federal law for the purpose 44 of verifying eligibility, continued eligibility, or upon recertif- 45 ication, no state or local agency, or agent thereof, may make any 46 inquiry or record any information concerning the immigration status or 47 place of birth of a person who is seeking public assistance and care, as 48 such phrase is defined in subdivision eighteen of section two of the 49 social services law, or seeking any other benefit, assistance or service 50 for himself, herself, or on behalf of a family or household member or 51 any other potential beneficiary. Provided, further, that such informa- 52 tion shall not be used or disclosed to any state or federal agency for 53 any purpose other than verifying eligibility, continued eligibility, or 54 upon recertification. 55 2. Notwithstanding the provisions of subdivision one of this section, 56 limited inquiry of such information concerning the relevant person mayS. 4075--A 3 1 be made when such information is requested for the benefit of the person 2 by the office for new Americans established pursuant to section ninety- 3 four-b of this chapter or any other similar agency that is assisting 4 such person in matters related to such person's immigration status, 5 provided that the status of such person shall not be disclosed for any 6 purpose. 7 3. In addition to any other right to the assistance of interpretation 8 or translation services, any foreign-born person, or person not profi- 9 cient in the English language, to whom inquiry is made pursuant to this 10 section shall be entitled to the assistance of a neutral and qualified 11 interpreter or translator, as the case may be, with respect to such 12 inquiry, provided at no cost or expense to such person. 13 § 319-b. Federal agencies to investigate and enforce federal immi- 14 gration laws. 1. No state or local law enforcement agency, or agent 15 thereof, shall stop, question, interrogate, investigate or arrest a 16 person for any of the following: 17 (a) suspected United States immigration or citizenship status 18 violation; 19 (b) suspected violation of the United States immigration law or 20 authorized regulations; or 21 (c) a civil immigration detainer. 22 2. No state or local law enforcement agency, nor any agent thereof, 23 shall make any inquiry or record any information concerning the immi- 24 gration status or place of birth of a person who: (a) contacts, 25 approaches or asks for or is in need of assistance of a law enforcement 26 agency or (b) is stopped, questioned, interrogated, investigated or 27 arrested; except where such immigration status or place of birth infor- 28 mation is an element of a criminal offense in a specific, ongoing law 29 enforcement investigation engaged in by such state or local law enforce- 30 ment agency, or agent thereof, or where such inquiry or recording of 31 such information is otherwise authorized by this article. 32 3. No state or local law enforcement agency, or agent thereof, shall 33 perform the function of or be cross-designated as a federal immigration 34 officer or otherwise engage or significantly assist in the enforcement 35 of federal immigration law, pursuant to 8 U.S.C. § 1357 (g) or any other 36 federal law, regulation or policy. Nothing in this subdivision shall 37 prevent detention of a person in accordance with and to the extent 38 permitted by section three hundred nineteen-e of this article. 39 4. In addition to any other right to the assistance of interpretation 40 or translation services, any foreign-born person, or person not profi- 41 cient in the English language, to whom inquiry is made pursuant to 42 subdivision one or two of this section shall be entitled to the assist- 43 ance of a neutral and qualified interpreter or translator, as the case 44 may be, with respect to such inquiry, provided at no cost or expense to 45 such person. 46 § 319-c. Confidentiality of information. Unless disclosure is required 47 by a lawful court order, no state or local agency, or agent thereof, or 48 state or local law enforcement agency, or agent thereof, shall provide 49 to a federal immigration authority any information collected or obtained 50 with respect to a person in accordance with this article or otherwise, 51 including but not limited to home, work or school address, except that: 52 1. providing immigration status information shall not be prohibited if 53 requested by such federal immigration authority and required to be 54 provided to it in accordance with 8 U.S.C. § 1373 or another federal 55 law;S. 4075--A 4 1 2. the division of criminal justice services or a qualified agency, as 2 defined in subdivision nine of section eight hundred thirty-five of this 3 chapter, may provide criminal history information, as defined in para- 4 graph (c) of subdivision one of section eight hundred forty-five-b of 5 this chapter, when lawfully requested about a specific person and such 6 disclosure is permitted by state law; and 7 3. a state or local agency, or agent thereof, or state or local law 8 enforcement agency, or agent thereof, may provide such information, 9 other than the information described in subdivision one of this section, 10 concerning a person, including but not limited to status as a victim of 11 or witness to suspected criminal activity, home address and/or work 12 address, only with informed written consent of the person and, if 13 represented by counsel, written authorization by such attorney. 14 § 319-d. Custody of certain persons: bail and related pre-trial 15 issues. 1. Except as provided in section three hundred nineteen-e of 16 this article, no state or local law enforcement agency, or agent there- 17 of, or court shall delay or deny release of a person on recognizance or 18 bail, pursuant to article five hundred thirty of the criminal procedure 19 law or otherwise, on the basis of the person's immigration status, a 20 civil immigration detainer, or a federal immigration authority's request 21 for notification about, transfer of, detention of, or interview or 22 interrogation of such person. 23 2. Upon receipt from a federal immigration authority of a civil immi- 24 gration detainer, or a request for transfer, notification, interview, 25 interrogation or other request, a state or local law enforcement agency, 26 or agent thereof, shall promptly notify the person who is the subject of 27 such detainer or request and such person's counsel, provide a copy of 28 such detainer or request, as the case may be, to such person and coun- 29 sel, inform such person of the right to counsel pursuant to the 30 provisions of section three hundred nineteen-g of this article, and 31 inform such person and counsel, reasonably in advance of responding to 32 the federal immigration authority, as to whether or not such agency 33 intends to comply with such detainer or request. 34 3. A person in the custody of a state or local law enforcement agency, 35 or agent thereof, shall be subject to booking, processing, right to 36 counsel, release and transfer procedures, policies and practices of that 37 agency that are at least as protective of individual rights as other 38 persons in such agency's custody, regardless of the person's actual or 39 suspected immigration status. 40 § 319-e. Civil immigration detainers. 1. A state or local law enforce- 41 ment agency, or agent thereof, lawfully holding a person in its custody, 42 may thereafter detain such person solely on the basis of a civil immi- 43 gration detainer, for a single period not exceeding forty-eight hours 44 excluding weekends and holidays, beyond the time when such person would 45 otherwise have been released from such agency's custody, only if: 46 (a) an authorized federal immigration agency presents such state or 47 local law enforcement agency with a judicial warrant for the detention 48 of the person who is the subject of such civil immigration detainer at 49 the time such civil immigration detainer is presented; or 50 (b) notice has been received from a court or any other governmental 51 entity, documenting that the person illegally reentered the United 52 States after a previous removal or return as defined in 8 U.S.C. § 53 1326, and the person stands convicted of a violent felony offense as 54 defined in subdivision one of section 70.02 of the penal law, or a class 55 A felony offense defined in the penal law, or an offense in any otherS. 4075--A 5 1 jurisdiction that has the same essential elements of any such violent 2 felony offense or class A felony offense; or 3 (c) such person is identified by such state or local law enforcement 4 agency as a likely match with a person listed in the terrorist screening 5 database. 6 2. Except to the extent that disclosure is required by federal law, no 7 state or local law enforcement agency, or agent thereof, shall provide 8 to a federal immigration authority, or another agency, entity or person 9 on behalf of a federal immigration authority, any information obtained 10 concerning a person who is in or formerly was in the custody of such 11 state or local law enforcement agency, or agent thereof, including but 12 not limited to the person's release date, court appearance date or 13 dates, home, work or school address. 14 3. Nothing in this section shall be construed to confer any authority 15 on an entity to detain a person based on a civil immigration detainer 16 beyond the authority, if any, to do so that existed prior to the enact- 17 ment of this section. 18 § 319-f. Limitation on use of certain facilities. 1. No state or local 19 law enforcement agency, or agent thereof, shall provide a federal immi- 20 gration agency, or agent thereof, with access to an individual in such 21 law enforcement agency's custody or control. 22 2. Notwithstanding the provisions of subdivision one of this section, 23 a person in the custody of a state or local law enforcement agency may 24 request to be interviewed by a federal law enforcement agency or an 25 agent thereof only with knowing and voluntary written consent of the 26 individual and, if represented by counsel, written authorization by such 27 counsel, provided that if such individual is not represented and is 28 entitled to counsel assigned pursuant to section three hundred nine- 29 teen-g of this article or article eighteen-B of the county law, he or 30 she shall be notified of such right and provided a reasonable opportu- 31 nity to obtain such counsel before any such interview. 32 3. In addition to any other right to the assistance of interpretation 33 or translation services, any foreign-born person, or person not profi- 34 cient in the English language, to whom inquiry is made pursuant to this 35 section shall be entitled to the assistance of a neutral and qualified 36 interpreter or translator, as the case may be, with respect to such 37 inquiry, provided at no cost or expense to such person. 38 4. Except as provided in subdivision two of this section, federal 39 immigration authorities shall not be permitted to use or maintain, for 40 the purpose of interviewing any person or witness or investigating or 41 adjudicating any alleged violation of federal immigration law, any 42 office or quarters in any building or facility or any land owned, leased 43 or operated by a state or local law enforcement agency; provided, howev- 44 er that the federal Executive Office for Immigration Review, pursuant to 45 an otherwise lawful agreement with the state department of corrections 46 and community supervision, may make use of offices in one or more build- 47 ings or facilities operated as state correctional facilities in this 48 state for the purpose of conducting adjudicatory hearings involving 49 alleged violation of federal immigration law. 50 § 319-g. Legal representation. 1. A person unable to afford counsel 51 against whom a removal proceeding may be or has been commenced, shall be 52 entitled to representation by assigned counsel and related assistance, 53 pursuant to subdivision one of section thirty-five of the judiciary law, 54 when the person: 55 (a) was present in this state when questioned, taken into custody, 56 charged, summoned or presented with the allegations of the removalS. 4075--A 6 1 proceedings, and the person resides or is detained in either this state 2 or an adjoining state; or 3 (b) resided in this state when questioned, taken into custody, 4 charged, summoned or presented with the allegations of the removal 5 proceedings, and the person continues to reside in this state or an 6 adjoining state, or if detained, continues to be detained in either this 7 state or an adjoining state. 8 2. Representation and related assistance provided in accordance with 9 subdivision one of this section shall be a state charge, pursuant to 10 subdivision one of section thirty-five of the judiciary law. 11 § 319-h. Effect on other laws. This article shall supersede conflict- 12 ing local laws, rules, policies, procedures and practices, except to the 13 extent that the provisions of any such local law, rule, policy or any 14 such procedure or practice may provide any additional or greater right 15 or protection. Nothing in this article shall prohibit any entity from 16 cooperating with a federal immigration authority to the extent required 17 by federal law. Nothing in this article shall be interpreted or applied 18 so as to create any power, duty or obligation in conflict with federal 19 law. 20 § 2. The opening paragraph of paragraph a of subdivision 1 of section 21 35 of the judiciary law is designated as subparagraph (i) and a new 22 subparagraph (ii) is added to read as follows: 23 (ii) Persons providing assigned counsel and related assistance in 24 immigration-related matters pursuant to section three hundred nineteen-g 25 of the executive law shall be compensated in accordance with this 26 section. In any case where a person entitled to assigned representation 27 pursuant to section three hundred nineteen-g of the executive law 28 petitions the criminal court of the city of New York, the county court 29 or district court, with jurisdiction where the person is to be ques- 30 tioned or detained, or is detained, or was charged in such immigration- 31 related matter, or most recently resided, the court shall assign coun- 32 sel, with appropriate expertise and experience in immigration-related 33 matters, in accordance with this section. 34 § 3. Severability. If any clause, sentence, subdivision, paragraph, 35 section or other part of this act shall be adjudged by any court of 36 competent jurisdiction to be invalid, such judgment shall not affect, 37 impair or invalidate the remainder thereof, but shall be confined in its 38 operation to the clause, sentence, subdivision, paragraph, section or 39 part thereof directly involved in the controversy in which such judgment 40 shall have been rendered. 41 § 4. This act shall take effect immediately.