101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB3618

 

Introduced 2/14/2020, by Sen. Celina Villanueva

 

SYNOPSIS AS INTRODUCED:
 
New Act
30 ILCS 105/5.930 new

    Creates the Access to Legal Services Act. Provides that a covered individual has the right to legal services: in a covered proceeding in an immigration court in the State; or who is facing a covered proceeding in a covered venue other than an immigration court in the State and is found by a 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. Provides for circumstances in which the right to legal services is applicable. Provides for the termination of the right to legal services, and exceptions to termination. Charges the Governor's Office of New Americans with implementing the requirements of the Act no later than January 1, 2021. Provides for the Office's power and responsibility under the Act. Creates the Access to Legal Services Fund. Provides that all money in the Fund shall be used by the Office to enable it to carry out the requirements of the Act. Creates the Advisory Committee for Access to Legal Services. Provides for: duties; appointment; term limits; compensation; meetings; and reporting requirements. Provides that nothing in the Act shall be construed to create a private right of action on the part of any individual or entity against the State or any agency, instrumentality, official, or employee of the State. Contains other provisions. Makes a corresponding change in the State Finances Act. Limits home rule. Effective immediately.


LRB101 19893 LNS 69413 b

FISCAL NOTE ACT MAY APPLY
HOME RULE NOTE ACT MAY APPLY

 

 

A BILL FOR

 

SB3618LRB101 19893 LNS 69413 b

1    AN ACT concerning courts.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 1. Short title. This Act may be cited as the Access
5to Legal Services Act.
 
6    Section 5. Definitions. As used in this Act:
7    "Committee" means the Advisory Committee for Access to
8Legal Services.
9    "Covered individual" means any income-eligible individual
10subject to removal under 8 U.S.C. 1229a or 8 U.S.C. 1225, or a
11final order of removal under 8 CFR 1241.1, regardless of age,
12in a covered proceeding who is:
13        (1) a domiciliary of this State who is a non-United
14    States citizen;
15        (2) a domiciliary of this State who is a United States
16    citizen or whose United States citizenship is in dispute;
17    or
18        (3) an individual who is not a domiciliary of this
19    State if his or her nondomiciliary and the proceedings have
20    a significant nexus to this State that he or she should be
21    provided relief under this Act, as determined by the Office
22    on a case-by-case basis.
23    "Covered proceeding" means any proceeding in a covered

 

 

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1venue in which a covered individual is seeking an avenue of
2relief from removal from the United States, or is challenging
3his or her arrest or detention under the Immigration and
4Nationality Act. "Covered proceeding" includes: (i) a
5proceeding or hearing in immigration court; (ii) a proceeding
6in family court for purposes of obtaining a special findings
7order; (iii) a habeas corpus petition in a federal district
8court located in this State challenging detention under the
9Immigration and Nationality Act; (iv) a motion to reopen or
10reconsider challenging detention under the Immigration and
11Nationality Act; (v) a petition for review under 8 U.S.C. 1252;
12(vi) a remand to a federal district court in this State from
13the United States Circuit Court of Appeals for fact-finding
14purposes; and (vii) any appeal related to any of the foregoing
15to the Board of Immigration Appeals, the United States Circuit
16Court of Appeals, or the United States Supreme Court.
17    "Covered venue" means: (i) any tribunal located within this
18State, including family court, immigration court, and federal
19district court; (ii) any location within this State where
20expedited removals are processed; (iii) the Board of
21Immigration Appeals; (iv) the United States Circuit Court of
22Appeals; and (v) the United States Supreme Court.
23    "Domicile" means a fixed, permanent, and principal home to
24which an individual, wherever temporarily located, always
25intends to return.
26    "Domiciliary" means an individual that has established a

 

 

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1domicile with respect to a particular jurisdiction.
2    "Immigration court" means a tribunal of the Executive
3Office for Immigration Review, or a successor entity, tasked
4with deciding the inadmissibility or deportability of a
5noncitizen of the United States that is presided over by an
6immigration judge as defined by 8 U.S.C. 1101(b)(4).
7    "Income-eligible individual" means an individual who is
8deemed eligible for legal services in a covered proceeding
9based on preset income-related criteria adopted by the Office,
10but shall, at a minimum, include any individual whose annual
11gross household income is not in excess of 200% of the federal
12poverty guidelines as set forth in the Federal Register by the
13United States Department of Health and Human Services.
14    "Legal services" means individualized legal assistance in
15a single consultation or ongoing legal representation provided
16by a legal services provider to a covered individual, and all
17legal advice, advocacy, and assistance associated with the
18service.
19    "Legal services provider" means an individual,
20organization, or association that has the authority to provide
21legal services and is designated by the Office to provide legal
22services.
23    "Office" means the Governor's Office of New Americans.
 
24    Section 10. Right to counsel in immigration proceedings.
25    (a) A covered individual has the right to legal services:

 

 

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1        (1) in a covered proceeding in an immigration court in
2    this State; or
3        (2) who is facing a covered proceeding in a covered
4    venue other than an immigration court in this State and is
5    found by a legal services provider, after consultation with
6    the legal services provider, to have a viable application
7    for appeal, challenge to a court order, or other form of
8    relief from removal from the United States.
9    (b) The right to legal services under subsection (a)
10applies in:
11        (1) Proceedings for removal under 8 U.S.C. 1229a, upon
12    receipt of a Notice to Appear, as defined in 8 U.S.C. 1229.
13    The obligations under this paragraph are satisfied if legal
14    services are provided to a covered individual no later than
15    his or her first appearance in a covered proceeding, or as
16    soon thereafter as is practicable.
17        (2) Removal proceedings under 8 U.S.C. 1225, upon the
18    commencement of the proceedings, or as soon thereafter as
19    is practicable.
20        (3) A referral to an immigration judge for a hearing
21    under 8 U.S.C. 1231(b)(3) or 8 U.S.C. 1158, upon receipt of
22    a Notice of Referral to Immigration Judge, or as soon
23    thereafter as is practicable.
24        (4) A reinstatement of a final order of removal, upon
25    the reinstatement, or as soon as is practicable.
26        (5) All other cases, as soon as is practicable.

 

 

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1    (c) Except as provided in subsection (d), the right to
2legal services under subsection (a) shall terminate:
3        (1) upon the termination or dismissal of removal
4    proceedings, or any related appellate matter concerning a
5    covered individual, by the immigration court or other
6    competent tribunal or authority;
7        (2) upon the issuance of a final order or judgment in
8    respect to a covered individual's removal proceedings from
9    which there remains no opportunity for appeal or other
10    avenue for relief, including, but not limited to, motions
11    to reopen, motions to reconsider, and petitions for review;
12    however, the legal services provider is not required to
13    pursue appeals or other avenues for relief that are
14    speculative or frivolous;
15        (3) if a covered individual ceases to be a domiciliary
16    of this State and establishes domicile in a jurisdiction
17    outside of this State;
18        (4) if it is discovered that the initial determination
19    that an individual was an income-eligible individual was
20    erroneous at the time that the determination was made, as
21    soon as the discovery occurs; however, that individual will
22    continue to be provided with legal services under this Act
23    for a reasonable amount of time to enable the individual to
24    obtain alternative legal services so as not to materially
25    prejudice the individual's chance of success in any covered
26    proceeding;

 

 

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1        (5) if a covered individual knowingly and voluntarily
2    waives the right to legal services on the record in the
3    presence of the legal services provider; or
4        (6) upon a determination by a legal services provider
5    after consultation under paragraph (2) of subsection (a)
6    that a covered individual facing a covered proceeding in a
7    covered venue other than an immigration court in this State
8    has no viable application for appeal, challenge to a court
9    order, nor other form of relief from removal from the
10    United States.
11    (d) Notwithstanding the requirements under subsection (c),
12the right to legal services established under subsection (a)
13shall not terminate if:
14        (1) an immigration judge declines to allow a legal
15    services provider to withdraw from providing legal
16    services to a covered individual; or
17        (2) a legal services provider is prohibited from
18    ceasing to provide legal services under the Illinois Rules
19    of Professional Conduct or the Executive Office for
20    Immigration Review's Practice Manual.
 
21    Section 15. Powers and duties of the Office. The Office is
22charged with implementing the requirements of this Act no later
23than January 1, 2021, and may adopt any rules, policies, and
24procedures necessary to implement this Act. The Office shall:
25        (1) ensure that each covered individual is advised of

 

 

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1    his or her right to legal services under subsection (a) of
2    Section 10;
3        (2) ensure independent, competent, and zealous legal
4    representation of a covered individual receiving legal
5    services;
6        (3) examine, evaluate, and monitor legal services
7    provided under this Act;
8        (4) collect and receive information and data regarding
9    the provision of legal services that is not protected by
10    attorney-client privilege, work-product privilege, or any
11    other applicable privilege or that can be disclosed by a
12    legal service provider without violating the Illinois
13    Rules of Professional Conduct, including, but not limited
14    to:
15            (i) the type and combination of legal services
16        being used across this State;
17            (ii) the salary and other compensation paid to an
18        individual administrator, attorney, and staff member
19        in connection with the provision of legal services;
20            (iii) the caseload of a legal services provider
21        providing legal services in connection with the
22        provision of those legal services;
23            (iv) the type, nature, and timing of a disposition
24        of a case handled by a legal service provider providing
25        legal services;
26            (v) the actual expenditures currently being made

 

 

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1        in connection with the provision of legal services; and
2            (vi) the time, funds, and resources currently
3        being spent on providing the legal services and the
4        amount being spent on ancillary services, such as
5        support staff and expert witnesses;
6        (5) analyze and evaluate collected data, and undertake
7    any necessary research and studies, in order to consider
8    and recommend measures to enhance the provision of
9    effective legal services and to ensure that a recipient of
10    legal services is provided with quality legal services from
11    a fiscally responsible legal services provider, which
12    shall include, but not be limited to, standards, criteria,
13    and a process for qualifying and requalifying a legal
14    service provider to provide legal services under this Act;
15        (6) establish measures of performance, which programs
16    shall regularly report to the Office to assist the Office
17    in monitoring the quality of legal services;
18        (7) establish the standards and criteria used in
19    programs to determine whether an individual legal services
20    provider is qualified to provide legal services;
21        (8) establish the criteria and procedures used to
22    determine whether an individual is eligible to receive
23    legal services, including requirements related to income
24    and domicile, and to track the number of individuals
25    considered for and applicants denied legal services, the
26    reasons for a denial, and the results of any review of a

 

 

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1    denial;
2        (9) establish standards and criteria for the provision
3    of legal services in cases involving a conflict of
4    interest;
5        (10) develop recommendations to improve the delivery
6    of legal services;
7        (11) target grants in support of innovative and
8    cost-effective solutions that enhance the provision of
9    legal services, including collaborative efforts serving
10    multiple jurisdictions within this State;
11        (12) investigate and monitor any other matter relevant
12    to the provision of legal services that the Office deems
13    important;
14        (13) request and receive, from any department,
15    division, board, bureau, commission, or other agency of
16    this State, any political subdivision of this State, or any
17    public authority assistance, information, and data to
18    enable the Office to properly carry out its functions,
19    powers, and duties, subject to limitations on the
20    disclosure of information provided on a privileged basis to
21    a legal services provider, as well as limitations on the
22    disclosure of information by a legal service provider under
23    the Illinois Rules of Professional Conduct;
24        (14) apply for and accept any grant or other source of
25    funding for purposes of carrying out the requirements of
26    this Act;

 

 

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1        (15) develop, publish, and implement a written plan,
2    and monitor and periodically report on the implementation
3    and compliance with the plan, that establishes numerical
4    caseload or workload standards for a legal services
5    provider, with the plan to be completed and published
6    within 180 days after the effective date of this Act;
7        (16) develop and implement a written plan, and monitor
8    and periodically report on the implementation of and
9    compliance with the plan, to improve the quality of legal
10    services provided to a covered individual, and to ensure
11    that a legal services provider providing the legal services
12    receives effective supervision and training, has access to
13    and appropriately uses interpreters and expert witnesses
14    on behalf of clients, communicates effectively with his or
15    her clients, and has the necessary qualifications and
16    experience; and
17        (17) beginning September 15, 2022, and every September
18    15 of each year thereafter, submit a report to the
19    Governor, the Speaker of the House, and the President of
20    the Senate describing compliance with the requirements of
21    this Act, including, but not limited to:
22            (i) the criteria used to determine whether an
23        individual is eligible for legal services;
24            (ii) the procedures used to determine whether an
25        individual is eligible to receive legal services;
26            (iii) the number of individuals deemed eligible

 

 

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1        and ineligible for legal services;
2            (iv) the number of cases started and completed and
3        the outcomes of those cases; and
4            (v) qualitative review of the legal services
5        provided.
6        The report shall also include the report of the
7    Advisory Committee for Access to Legal Services required
8    under subsection (f) of Section 25.
 
9    Section 20. Funding.
10    (a) The Access to Legal Services Fund is created as a
11special fund in the State treasury. All money in the Fund shall
12be used by the Office to enable it to carry out the
13requirements of this Act. The General Assembly shall
14appropriate money to the Fund as it deems necessary for the
15Office to carry out the requirements of this Act.
16    (b) The Office is charged with ensuring that appropriated
17funds are timely distributed to a legal service provider for
18the provision of legal services.
19    (c) Notwithstanding the requirements of subsections (a)
20and (b), funds appropriated to carry out the requirements of
21this Act shall be used to supplement and not supplant any
22State, local, or private funding that is, or is anticipated to
23be, expended for the provision of legal services to a covered
24individual, and the General Assembly is not required to
25appropriate any funds for legal services to the extent that

 

 

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1obligations associated with the provision of legal services are
2otherwise fully satisfied by funds received from State, local,
3or private sources, or by the United States government in
4satisfaction of any legal obligation.
 
5    Section 25. Advisory Committee for Access to Legal
6Services.
7    (a) The Advisory Committee for Access to Legal Services is
8created. The Committee shall work, as necessary and in
9collaboration with the Office, to develop programs, policies,
10training, and procedures necessary to effectuate the
11requirements of this Act. The matters the Committee shall
12consider include, but are not limited to:
13        (1) the rates of compensation for legal services;
14        (2) community engagement efforts;
15        (3) the sufficiency of access to legal services in a
16    covered venue;
17        (4) the sufficiency of space available for a designated
18    legal service provider in a covered venue;
19        (5) ensuring an individual with limited English
20    proficiency has access to appropriate translation
21    services; and
22        (6) other efforts by other states to support
23    individuals facing deportation.
24    (b) The Committee shall be comprised of the following
25members, appointed as follows:

 

 

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1        (1) the Governor shall appoint 5 members that offer
2    legal services to an individual in a covered proceeding,
3    including at least one representative of a private bar and
4    2 representatives of a designated legal services provider
5    and 2 representatives of a community-based organization;
6        (2) the Speaker of the House shall appoint 2 members;
7        (3) the President of the Senate shall appoint 2
8    members; and
9        (4) the Office shall appoint one member to serve ex
10    officio.
11    The Governor shall designate one member to serve as Chair
12of the Committee.
13    (c) Each member, other than the member serving in an ex
14officio capacity, shall serve for a term of 2 years with
15initial terms for each seat commencing on January 1, 2021 and
16expiring on December 31, 2022. Initial appointments shall be
17made within 20 days of the effective date of this Act. Any
18vacancies shall be filled promptly and in the same manner as
19the original appointment, and the appointee filling the vacancy
20shall serve for the unexpired portion of the term of the
21succeeded member. Any member may be reappointed for additional
22terms. A member shall continue in the position upon the
23expiration of his or her term and until the time as he or she is
24reappointed or his or her successor is appointed.
25    (d) Members shall serve without compensation, but shall be
26reimbursed by the Office for their reasonable and necessary

 

 

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1expenses incurred in the performance of their functions under
2this Section.
3    (e) The Committee's initial meeting shall take place within
430 days of the appointment of all required members, or within
560 days of the effective date of this Act, whichever is sooner.
6The Committee shall meet at least 4 times per year. The
7Committee may establish its own procedures with respect to the
8conduct of its meetings and its other affairs, except that all
9actions taken by the Committee shall be done by the affirmative
10vote of a majority of the members.
11    (f) Membership on the Committee shall not constitute the
12holding of an office. The Committee shall not have the power to
13exercise any portion of the sovereign power of this State.
14Notwithstanding the provisions of any other law, no member of
15the Committee shall be disqualified from holding any public
16office or employment, nor shall he or she forfeit any public
17office or employment by reason of his or her appointment to the
18Committee.
19    (g) Beginning in 2022, the Committee shall produce a report
20concerning its duties under this Act and any related
21recommendations, and the report shall be included in the report
22submitted under paragraph (17) of Section 15.
 
23    Section 30. No private right of action. Nothing in this Act
24shall be construed to create a private right of action on the
25part of any individual or entity against this State or any

 

 

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1agency, instrumentality, official, or employee of this State.
 
2    Section 35. Other law or policy.
3    (a) Any legal services performed by a legal services
4provider under this Act shall not supplant, replace, or satisfy
5any obligations or responsibilities of the legal services
6provider pursuant to any other program, agreement, or contract.
7    (b) Nothing in this Act shall be interpreted or applied to
8create any power, duty, or obligation prohibited by federal
9law.
10    (c) Except to the extent that the provisions of a State or
11local law, rule, policy, procedure, or practice may provide any
12additional or greater right or protection, the provisions of
13this Act supersede conflicting State or local laws, rules,
14policies, procedures, and practices. This Section is a
15limitation under subsection (i) of Section 6 of the Illinois
16Constitution on the concurrent exercise by home rule units of
17powers and functions exercised by the State.
 
18    Section 97. Severability. The provisions of this Act are
19severable under Section 1.31 of the Statute on Statutes.
 
20    Section 100. The State Finance Act is amended by adding
21Section 5.930 as follows:
 
22    (30 ILCS 105/5.930 new)

 

 

SB3618- 16 -LRB101 19893 LNS 69413 b

1    Sec. 5.930. The Access to Legal Services Fund.
 
2    Section 999. Effective date. This Act takes effect upon
3becoming law.