SB3618 101ST GENERAL ASSEMBLY

LRB101 19893 LNS 69413 b

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.

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning courts.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Access to Legal Services Act.

Section 5. Definitions. As used in this Act:

"Committee" means the Advisory Committee for Access to Legal Services.

"Covered individual" means any income-eligible individual subject to removal under 8 U.S.C. 1229a or 8 U.S.C. 1225, or a final order of removal under 8 CFR 1241.1, regardless of age, in a covered proceeding who is:

(1) a domiciliary of this State who is a non-United States citizen;

(2) a domiciliary of this State who is a United States citizen or whose United States citizenship is in dispute; or

(3) an individual who is not a domiciliary of this State if his or her nondomiciliary and the proceedings have a significant nexus to this State that he or she should be provided relief under this Act, as determined by the Office on a case-by-case basis.

"Covered proceeding" means any proceeding in a covered venue in which a covered individual is seeking an avenue of relief from removal from the United States, or is challenging his or her arrest or detention under the Immigration and Nationality Act. "Covered proceeding" includes: (i) a proceeding or hearing in immigration court; (ii) a proceeding in family court for purposes of obtaining a special findings order; (iii) a habeas corpus petition in a federal district court located in this State challenging detention under the Immigration and Nationality Act; (iv) a motion to reopen or reconsider challenging detention under the Immigration and Nationality Act; (v) a petition for review under 8 U.S.C. 1252; (vi) a remand to a federal district court in this State from the United States Circuit Court of Appeals for fact-finding purposes; and (vii) any appeal related to any of the foregoing to the Board of Immigration Appeals, the United States Circuit Court of Appeals, or the United States Supreme Court.

"Covered venue" means: (i) any tribunal located within this State, including family court, immigration court, and federal district court; (ii) any location within this State where expedited removals are processed; (iii) the Board of Immigration Appeals; (iv) the United States Circuit Court of Appeals; and (v) the United States Supreme Court.

"Domicile" means a fixed, permanent, and principal home to which an individual, wherever temporarily located, always intends to return.

"Domiciliary" means an individual that has established a domicile with respect to a particular jurisdiction.

"Immigration court" means a tribunal of the Executive Office for Immigration Review, or a successor entity, tasked with deciding the inadmissibility or deportability of a noncitizen of the United States that is presided over by an immigration judge as defined by 8 U.S.C. 1101(b)(4).

"Income-eligible individual" means an individual who is deemed eligible for legal services in a covered proceeding based on preset income-related criteria adopted by the Office, but shall, at a minimum, include any individual whose annual gross household income is not in excess of 200% of the federal poverty guidelines as set forth in the Federal Register by the United States Department of Health and Human Services.

"Legal services" means individualized legal assistance in a single consultation or ongoing legal representation provided by a legal services provider to a covered individual, and all legal advice, advocacy, and assistance associated with the service.

"Legal services provider" means an individual, organization, or association that has the authority to provide legal services and is designated by the Office to provide legal services.

"Office" means the Governor's Office of New Americans.

Section 10. Right to counsel in immigration proceedings.

(a) A covered individual has the right to legal services:

(1) in a covered proceeding in an immigration court in this State; or

(2) who is facing a covered proceeding in a covered venue other than an immigration court in this State and is found by a legal services provider, after consultation with the 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.

(b) The right to legal services under subsection (a) applies in:

(1) Proceedings for removal under 8 U.S.C. 1229a, upon receipt of a Notice to Appear, as defined in 8 U.S.C. 1229. The obligations under this paragraph are satisfied if legal services are provided to a covered individual no later than his or her first appearance in a covered proceeding, or as soon thereafter as is practicable.

(2) Removal proceedings under 8 U.S.C. 1225, upon the commencement of the proceedings, or as soon thereafter as is practicable.

(3) A referral to an immigration judge for a hearing under 8 U.S.C. 1231(b)(3) or 8 U.S.C. 1158, upon receipt of a Notice of Referral to Immigration Judge, or as soon thereafter as is practicable.

(4) A reinstatement of a final order of removal, upon the reinstatement, or as soon as is practicable.

(5) All other cases, as soon as is practicable.

(c) Except as provided in subsection (d), the right to legal services under subsection (a) shall terminate:

(1) upon the termination or dismissal of removal proceedings, or any related appellate matter concerning a covered individual, by the immigration court or other competent tribunal or authority;

(2) upon the issuance of a final order or judgment in respect to a covered individual's removal proceedings from which there remains no opportunity for appeal or other avenue for relief, including, but not limited to, motions to reopen, motions to reconsider, and petitions for review; however, the legal services provider is not required to pursue appeals or other avenues for relief that are speculative or frivolous;

(3) if a covered individual ceases to be a domiciliary of this State and establishes domicile in a jurisdiction outside of this State;

(4) if it is discovered that the initial determination that an individual was an income-eligible individual was erroneous at the time that the determination was made, as soon as the discovery occurs; however, that individual will continue to be provided with legal services under this Act for a reasonable amount of time to enable the individual to obtain alternative legal services so as not to materially prejudice the individual's chance of success in any covered proceeding;

(5) if a covered individual knowingly and voluntarily waives the right to legal services on the record in the presence of the legal services provider; or

(6) upon a determination by a legal services provider after consultation under paragraph (2) of subsection (a) that a covered individual facing a covered proceeding in a covered venue other than an immigration court in this State has no viable application for appeal, challenge to a court order, nor other form of relief from removal from the United States.

(d) Notwithstanding the requirements under subsection (c), the right to legal services established under subsection (a) shall not terminate if:

(1) an immigration judge declines to allow a legal services provider to withdraw from providing legal services to a covered individual; or

(2) a legal services provider is prohibited from ceasing to provide legal services under the Illinois Rules of Professional Conduct or the Executive Office for Immigration Review's Practice Manual.

Section 15. Powers and duties of the Office. The Office is charged with implementing the requirements of this Act no later than January 1, 2021, and may adopt any rules, policies, and procedures necessary to implement this Act. The Office shall:

(1) ensure that each covered individual is advised of his or her right to legal services under subsection (a) of Section 10;

(2) ensure independent, competent, and zealous legal representation of a covered individual receiving legal services;

(3) examine, evaluate, and monitor legal services provided under this Act;

(4) collect and receive information and data regarding the provision of legal services that is not protected by attorney-client privilege, work-product privilege, or any other applicable privilege or that can be disclosed by a legal service provider without violating the Illinois Rules of Professional Conduct, including, but not limited to:

(i) the type and combination of legal services being used across this State;

(ii) the salary and other compensation paid to an individual administrator, attorney, and staff member in connection with the provision of legal services;

(iii) the caseload of a legal services provider providing legal services in connection with the provision of those legal services;

(iv) the type, nature, and timing of a disposition of a case handled by a legal service provider providing legal services;

(v) the actual expenditures currently being made in connection with the provision of legal services; and

(vi) the time, funds, and resources currently being spent on providing the legal services and the amount being spent on ancillary services, such as support staff and expert witnesses;

(5) analyze and evaluate collected data, and undertake any necessary research and studies, in order to consider and recommend measures to enhance the provision of effective legal services and to ensure that a recipient of legal services is provided with quality legal services from a fiscally responsible legal services provider, which shall include, but not be limited to, standards, criteria, and a process for qualifying and requalifying a legal service provider to provide legal services under this Act;

(6) establish measures of performance, which programs shall regularly report to the Office to assist the Office in monitoring the quality of legal services;

(7) establish the standards and criteria used in programs to determine whether an individual legal services provider is qualified to provide legal services;

(8) establish the criteria and procedures used to determine whether an individual is eligible to receive legal services, including requirements related to income and domicile, and to track the number of individuals considered for and applicants denied legal services, the reasons for a denial, and the results of any review of a denial;

(9) establish standards and criteria for the provision of legal services in cases involving a conflict of interest;

(10) develop recommendations to improve the delivery of legal services;

(11) target grants in support of innovative and cost-effective solutions that enhance the provision of legal services, including collaborative efforts serving multiple jurisdictions within this State;

(12) investigate and monitor any other matter relevant to the provision of legal services that the Office deems important;

(13) request and receive, from any department, division, board, bureau, commission, or other agency of this State, any political subdivision of this State, or any public authority assistance, information, and data to enable the Office to properly carry out its functions, powers, and duties, subject to limitations on the disclosure of information provided on a privileged basis to a legal services provider, as well as limitations on the disclosure of information by a legal service provider under the Illinois Rules of Professional Conduct;

(14) apply for and accept any grant or other source of funding for purposes of carrying out the requirements of this Act;

(15) develop, publish, and implement a written plan, and monitor and periodically report on the implementation and compliance with the plan, that establishes numerical caseload or workload standards for a legal services provider, with the plan to be completed and published within 180 days after the effective date of this Act;

(16) develop and implement a written plan, and monitor and periodically report on the implementation of and compliance with the plan, to improve the quality of legal services provided to a covered individual, and to ensure that a legal services provider providing the legal services receives effective supervision and training, has access to and appropriately uses interpreters and expert witnesses on behalf of clients, communicates effectively with his or her clients, and has the necessary qualifications and experience; and

(17) beginning September 15, 2022, and every September 15 of each year thereafter, submit a report to the Governor, the Speaker of the House, and the President of the Senate describing compliance with the requirements of this Act, including, but not limited to:

(i) the criteria used to determine whether an individual is eligible for legal services;

(ii) the procedures used to determine whether an individual is eligible to receive legal services;

(iii) the number of individuals deemed eligible and ineligible for legal services;

(iv) the number of cases started and completed and the outcomes of those cases; and

(v) qualitative review of the legal services provided.

The report shall also include the report of the Advisory Committee for Access to Legal Services required under subsection (f) of Section 25.

Section 20. Funding.

(a) The Access to Legal Services Fund is created as a special fund in the State treasury. All money in the Fund shall be used by the Office to enable it to carry out the requirements of this Act. The General Assembly shall appropriate money to the Fund as it deems necessary for the Office to carry out the requirements of this Act.

(b) The Office is charged with ensuring that appropriated funds are timely distributed to a legal service provider for the provision of legal services.

(c) Notwithstanding the requirements of subsections (a) and (b), funds appropriated to carry out the requirements of this Act shall be used to supplement and not supplant any State, local, or private funding that is, or is anticipated to be, expended for the provision of legal services to a covered individual, and the General Assembly is not required to appropriate any funds for legal services to the extent that obligations associated with the provision of legal services are otherwise fully satisfied by funds received from State, local, or private sources, or by the United States government in satisfaction of any legal obligation.

Section 25. Advisory Committee for Access to Legal Services.

(a) The Advisory Committee for Access to Legal Services is created. The Committee shall work, as necessary and in collaboration with the Office, to develop programs, policies, training, and procedures necessary to effectuate the requirements of this Act. The matters the Committee shall consider include, but are not limited to:

(1) the rates of compensation for legal services;

(2) community engagement efforts;

(3) the sufficiency of access to legal services in a covered venue;

(4) the sufficiency of space available for a designated legal service provider in a covered venue;

(5) ensuring an individual with limited English proficiency has access to appropriate translation services; and

(6) other efforts by other states to support individuals facing deportation.

(b) The Committee shall be comprised of the following members, appointed as follows:

(1) the Governor shall appoint 5 members that offer legal services to an individual in a covered proceeding, including at least one representative of a private bar and 2 representatives of a designated legal services provider and 2 representatives of a community-based organization;

(2) the Speaker of the House shall appoint 2 members;

(3) the President of the Senate shall appoint 2 members; and

(4) the Office shall appoint one member to serve ex officio.

The Governor shall designate one member to serve as Chair of the Committee.

(c) Each member, other than the member serving in an ex officio capacity, shall serve for a term of 2 years with initial terms for each seat commencing on January 1, 2021 and expiring on December 31, 2022. Initial appointments shall be made within 20 days of the effective date of this Act. Any vacancies shall be filled promptly and in the same manner as the original appointment, and the appointee filling the vacancy shall serve for the unexpired portion of the term of the succeeded member. Any member may be reappointed for additional terms. A member shall continue in the position upon the expiration of his or her term and until the time as he or she is reappointed or his or her successor is appointed.

(d) Members shall serve without compensation, but shall be reimbursed by the Office for their reasonable and necessary expenses incurred in the performance of their functions under this Section.

(e) The Committee's initial meeting shall take place within 30 days of the appointment of all required members, or within 60 days of the effective date of this Act, whichever is sooner. The Committee shall meet at least 4 times per year. The Committee may establish its own procedures with respect to the conduct of its meetings and its other affairs, except that all actions taken by the Committee shall be done by the affirmative vote of a majority of the members.

(f) Membership on the Committee shall not constitute the holding of an office. The Committee shall not have the power to exercise any portion of the sovereign power of this State. Notwithstanding the provisions of any other law, no member of the Committee shall be disqualified from holding any public office or employment, nor shall he or she forfeit any public office or employment by reason of his or her appointment to the Committee.

(g) Beginning in 2022, the Committee shall produce a report concerning its duties under this Act and any related recommendations, and the report shall be included in the report submitted under paragraph (17) of Section 15.

Section 30. No private right of action. Nothing in this Act shall be construed to create a private right of action on the part of any individual or entity against this State or any agency, instrumentality, official, or employee of this State.

Section 35. Other law or policy.

(a) Any legal services performed by a legal services provider under this Act shall not supplant, replace, or satisfy any obligations or responsibilities of the legal services provider pursuant to any other program, agreement, or contract.

(b) Nothing in this Act shall be interpreted or applied to create any power, duty, or obligation prohibited by federal law.

(c) Except to the extent that the provisions of a State or local law, rule, policy, procedure, or practice may provide any additional or greater right or protection, the provisions of this Act supersede conflicting State or local laws, rules, policies, procedures, and practices. This Section is a limitation under subsection (i) of Section 6 of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 100. The State Finance Act is amended by adding Section 5.930 as follows:

(30 ILCS 105/5.930 new)

Sec. 5.930. The Access to Legal Services Fund.

Section 999. Effective date. This Act takes effect upon becoming law.