[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1187 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 1187
To establish the right to counsel, at Government expense for those who
cannot afford counsel, for people facing removal.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 18, 2023
Mrs. Gillibrand (for herself, Mr. Booker, Mr. Padilla, Mr. Markey, Mr.
Sanders, Ms. Warren, and Mr. Merkley) introduced the following bill;
which was read twice and 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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Fairness to
Freedom Act of 2023''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
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 counsel expenses.
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 RIGHT TO COUNSEL
SEC. 101. GUARANTEEING AND EXPANDING THE RIGHT TO COUNSEL.
Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362)
is amended to read as follows:
``SEC. 292. RIGHT TO COUNSEL.
``(a) In General.--Any individual in any removal, exclusion,
deportation, bond, or expedited removal proceeding under section
212(d)(5)(A), 235(b)(1)(B), 236, 238, 240, or 241 or in any matter
related to any such proceeding before U.S. Citizenship and Immigration
Services, any State court, or any court created under article III of
the Constitution of the United States, any individual who is
financially unable to obtain representation subject to such proceeding
shall be entitled to legal representation at Government expense in
accordance with this section.
``(b) Matters Included.--Proceedings and matters referred to in
subsection (a) shall include--
``(1) petitions for a writ of habeas corpus under section
2241 of title 28, United States Code, or any other similar
proceeding;
``(2) administrative and judicial proceedings for
individuals who may be eligible for special immigrant juvenile
status under section 101(a)(27)(J)(ii);
``(3) applications before the U.S. Citizenship and
Immigration Services related to relief from removal, and post-
conviction relief in criminal proceedings;
``(4) post-conviction relief in criminal proceedings; and
``(5) any other legal proceeding involving an individual
described in subsection (a) that is related to such
individual's legal status in the United States.
``(c) Scope of Counsel.--
``(1) Advocacy.--Consistent with Rule 1.3 of the American
Bar Association's Model Rules of Professional conduct,
attorneys and other persons providing representation to
individuals in proceedings or matters described in subsection
(a) shall--
``(A) act with reasonable diligence, promptness,
commitment, and dedication to the interests of the
client and with zeal in advocating on the client's
behalf; and
``(B) hold the Government to its burden by
presenting the fullest defense possible in each such
proceeding or matter.
``(2) Scope of representation.--Representation under this
section shall include--
``(A) counsel and interpretation and translation
services; and
``(B) any other services that are necessary for
effective representation, including the services
described in section 209 of the Fairness to Freedom Act
of 2023.
``(3) Commencement of representation.--
``(A) In general.--The right to counsel of a person
detained in, or released from, the custody of the
Department of Homeland Security or the Department of
Health and Human Services shall attach at the earlier
of--
``(i) the placement of the person in the
custody of either department, regardless of
whether the person has been formally placed in
a proceeding described in subsection (a); or
``(ii) the issuance to the person of a
Notice to Appear or other document initiating
proceedings under section 235, 238, 240, or
241.
``(B) Clarification.--The appointment of counsel
based on the issuance of a Notice to Appear shall occur
regardless of whether the Notice to Appear has been
filed with the immigration court. The appointment of
counsel for a detained person shall occur as soon as
possible, but in no event later than 24 hours after
such person is taken into the custody of the Department
of Homeland Security.
``(4) Continuous representation.--
``(A) In general.--An individual for whom counsel
is appointed under this section shall be represented
continuously at every stage of proceedings beginning
with the initial appearance before any official with
adjudicatory authority and including any proceedings
before the Immigration Courts, the Board of Immigration
Appeals, Federal district courts, Federal courts of
appeal, and the United States Supreme Court, including
ancillary matters related to the proceedings described
in subsection (a), and ending when all such proceedings
have concluded.
``(B) Appointment of different counsel.--If the
nature of the representation needed by a person in
proceedings under this section requires the appointment
of different representatives for different stages of
such proceedings, all such representatives shall comply
with the minimum standards of representation described
in paragraph (1).
``(C) Appointment of new counsel after
relocation.--The Office of Immigration Representation
established under section 202 of the Fairness to
Freedom Act of 2023 shall ensure that each individual
who is released from custody and moves to a State or
municipality other than the State or municipality in
which he or she was in custody, or who is transferred
to a detention facility in another State or
municipality is provided with counsel in the new State
or municipality in which the individual resides or is
detained.
``(5) Construction.--This subsection shall be broadly
construed to attach in any proceeding and related matter,
including any petition for review or appellate process, request
for re-interview, request for reconsideration, and motion to
reopen, arising from a proceeding or matter described in
subsection (a).
``(d) Eligibility and Commencement of Immigration Proceedings.--
``(1) Notification.--A proceeding described in subsection
(a) shall not commence until counsel has been appointed to
represent the individual subject to such proceeding. If such a
proceeding has already commenced without the appointment of
counsel, such proceeding shall be paused until such counsel is
appointed. Before commencing a proceeding described in
subsection (a), the adjudicatory official, who may be an
official of U.S. Immigration and Customs Enforcement or of U.S.
Customs and Border Protection, under a plan approved by the
Office of Immigration Representation, shall notify the
individual subject to such proceeding that--
``(A) such individual has the right to be
represented by counsel; and
``(B) counsel will be appointed to represent such
individual before the commencement of such proceeding
if the individual--
``(i) has not retained private counsel; and
``(ii) is financially unable to obtain
counsel.
``(2) Determination of financial ability to obtain
counsel.--
``(A) In general.--An individual shall be deemed to
be financially unable to obtain counsel under paragraph
(1)(B)(ii) if the individual's net financial resources
and income are insufficient to obtain qualified
counsel.
``(B) Eligibility for counsel.--An individual who
makes a sworn statement to the adjudicatory official
referred to in subsection (a) that he or she is a
member of a family whose income is not more than 200
percent of the poverty line (as defined in section
673(2) of the Community Services Block Grant Act (42
U.S.C. 9902(2))) is eligible for Government-appointed
counsel under this section.
``(3) Access to pertinent documents and information.--
``(A) In general.--An individual described in
subsection (a) and his or her counsel shall
automatically receive a complete copy of all documents
and information pertaining to such individual that are
in the possession of the Department of Homeland
Security or the Department of Health and Human
Services, including documents obtained from other
Government agencies, unless the disclosure of any such
document or information is barred by privilege or
otherwise prohibited by law.
``(B) Records.--Not later than 7 days after counsel
is appointed to represent an individual under this Act,
the Director of U.S. Citizenship and Immigration
Services shall--
``(i) provide such individual and counsel
with a complete copy of the individual's
immigration file (commonly known as the `A-
file'); and
``(ii) facilitate the provision to such
individual and counsel of a copy of any Record
of Proceeding that is in the possession of the
Department of Homeland Security, the Department
of Health and Human Services, or the Department
of Justice (other than documents protected from
disclosure under section 552(b) of title 5,
United States Code).
``(4) Restriction.--A proceeding described in subsection
(a) may not commence before the date that is 10 days after the
date on which the individual, or the individual's counsel, has
received all of the documents described in paragraph (3), in
order to review and assess such documents, unless the
individual or his or her counsel knowingly and voluntarily
waives such restriction.
``(e) Appointment of Counsel.--
``(1) Notification requirement.--If an individual who is
entitled to representation under this section is not
represented by counsel, the adjudicatory official shall--
``(A) notify the Local Administrator appointed
pursuant to section 206(k)(3) of the Fairness to
Freedom Act of 2023 (or the designee of the Local
Administrator) that such individual is not represented
by counsel; and
``(B) advise such individual--
``(i) of his or her right to be represented
by counsel; and
``(ii) that such counsel will be appointed
if such person is financially unable to obtain
counsel.
``(2) Waiver.--An individual's right to be represented by
appointed counsel may only be waived by the individual--
``(A) in the physical presence of appointed
counsel;
``(B) if such waiver is knowing and voluntary; and
``(C) if the individual demonstrates that he or
she--
``(i) understands the nature of any charges
and the possible defenses and outcomes; and
``(ii) possesses the knowledge and
intelligence necessary to conduct his or her
own defense.
``(3) Appeal of waiver; retroactive appointment.--Counsel
may appeal any putative waiver to the Office of Immigration
Representation established under section 202 of the Fairness to
Freedom Act of 2023 if counsel reasonably believes that such
waiver did not meet the requirements under paragraph (2). If
the Office of Immigration Representation concurs with counsel's
assessment, the Office may retroactively appoint counsel in
order to include any representation furnished pursuant to the
plan before such appointment.
``(4) Appointment of counsel.--Unless an individual waives
representation by counsel pursuant to paragraph (2), the Local
Administrator, upon notification that an individual may meet
the criteria for appointed counsel, shall appoint counsel for
such individual in accordance with the Local Plan developed
pursuant to section 206(k)(1) of the Fairness to Freedom Act of
2023 if the Local Administrator determines, after appropriate
inquiry, that such individual is financially unable to obtain
counsel. An appointment under this paragraph may be made
retroactive to include any representation furnished to such
individual by such counsel before such appointment.
``(5) Appointment of separate counsel.--The Local
Administrator shall appoint separate counsel for individuals
who are subjected to the same proceeding or related proceedings
if--
``(A) the interests of such individuals cannot,
consistent with ethical responsibilities and manageable
workloads, be properly be represented by a single
counsel; or
``(B) the Local Administrator demonstrates another
good cause for appointing separate counsel.
``(6) Consolidated cases.--
``(A) In general.--Subject to paragraph (5) and
except as provided in subparagraph (B), if the Attorney
General consolidates the case of an individual for whom
counsel was appointed pursuant to subsection (a) with
the case of another individual without counsel, the
counsel appointed pursuant to subsection (a) shall be
appointed to represent such other individual unless a
conflict of interest would prevent joint
representation.
``(B) Conflict of interest.--If a conflict of
interest prevents joint representation under
subparagraph (A), the Local Administrator shall appoint
separate counsel for the individuals referred to in
such subparagraph unless the Local Administrator
demonstrates that there is a good cause for not
appointing separate counsel.
``(7) Change of financial circumstances during
proceedings.--If an individual who has retained counsel becomes
financially unable to pay such counsel and is eligible for
appointed counsel under this section, the Local Administrator
may appoint counsel for such individual in accordance with this
section.
``(8) Substitution of counsel.--The Local Administrator, in
the interests of justice, upon a showing of good cause, and
consistent with ethical requirements applicable to attorneys
practicing in the region, substitute an appointed counsel for
another appointed counsel at any stage of a proceeding referred
to in subsection (a).
``(f) Access to Counsel.--
``(1) In general.--If an individual is subject to
proceedings described in subsection (a) or to detention or
inspection at a port of entry, U.S. Customs and Border
Protection, U.S. Immigration and Customs Enforcement, or the
Office of Refugee Resettlement, as appropriate, shall--
``(A) facilitate access for such individual to
counsel; and
``(B) ensure that counsel appointed under this
section is permitted to meet in person with such
individual in a confidential, private setting when
requested during the first 12 hours the individual is
detained and as soon as practicable after subsequent
meeting requests.
``(2) Alternative meeting options.--If counsel appointed
pursuant to this section cannot personally meet with an
individual described in paragraph (1) to whom such counsel was
appointed to represent, U.S. Customs and Border Protection,
U.S. Immigration and Customs Enforcement, or the Office of
Refugee Resettlement, as appropriate, at the request of such
individual or the counsel of the individual, shall provide
alternative options through which counsel may communicate with
such individual remotely in a confidential, private manner
during the first 12 hours such individual is detained and as
soon as practicable after subsequent meeting requests.
``(3) Effect of failure to provide timely access to
counsel.--If U.S. Customs and Border Protection, U.S.
Immigration and Customs Enforcement, or the Office of Refugee
Resettlement, as applicable, fails to timely provide an
individual with access to counsel in accordance with paragraph
(1) or (2), no statement made by the individual before such
access has been made available may be introduced into evidence
against the respondent except on a motion by the appointed
counsel, who shall be entitled to a continuance in the
proceedings giving rise to the appointment of such counsel.
``(4) Limitation.--An individual held or detained at a port
of entry may not submit a valid Record of Abandonment of Lawful
Permanent Resident Status or Withdrawal of Application for
Admission if U.S. Customs and Border Protection or U.S.
Immigration and Customs Enforcement has failed to provide such
individual with access to counsel in accordance with this
section.
``(5) Institutional hearing program.--Individuals held in
Federal, State, or local criminal custody who are placed in any
proceeding described in subsection (a) shall be ensured access
to counsel consistent with the requirements of this section. No
statement made by the respondent before such access has been
made available may be introduced into evidence against the
respondent except on appointed counsel's own motion. Counsel
shall be entitled to a continuance in the proceedings giving
rise to his or her appointment.
``(6) Termination of proceedings.--If the Local
Administrator fails to provide counsel to an individual in
accordance with this section, the Secretary of Homeland
Security or the Attorney General, as appropriate, shall
terminate any proceedings involving such individual with
prejudice.''.
SEC. 102. PUBLIC CHARGE.
Seeking or receiving appointed counsel under section 292 of the
Immigration and Nationality Act, as amended by section 101, may not be
serve as the basis for any determination that the individual seeking or
receiving such services is likely to become a public charge for the
purposes of determining the admissibility, removability, excludability,
or deportability of such individual under such Act, or in any other
proceeding in which such individual's likelihood of becoming a public
charge is at issue for immigration purposes.
TITLE II--OFFICE OF IMMIGRATION REPRESENTATION
SEC. 201. DEFINITIONS.
In this title:
(1) Board.--The term ``Board'' means the Board of Directors
of the Office.
(2) Director.--The term ``Director'' means the Director of
the Office of Immigration Representation appointed pursuant to
section 206(k)(1).
(3) Immigration public defender organization.--The term
``Immigration Public Defender Organization'' means an
organization established by a Local Board pursuant to section
207(a)(1).
(4) Local board.--The term ``Local Board'' means a local
immigration representation board established within a region
pursuant to section 206(a).
(5) Office.--The term ``Office'' means the Office of
Immigration Representation established under section 202(a).
(6) Panel attorney.--The term ``Panel Attorney'' means a
private attorney appointed by a State or local Office of Public
Defender to provide legal services to an individual who cannot
afford legal representation.
SEC. 202. ESTABLISHMENT; PURPOSE; INDEPENDENCE.
(a) Establishment.--There is established in the District of
Columbia a private nonprofit corporation, which shall be known as the
Office of Immigration Representation.
(b) Purpose.--The purpose of the Office shall be to ensure high-
quality legal representation and related services to all individuals
described in section 292(a) of the Immigration and Nationality Act, as
amended by section 101, who cannot afford representation.
(c) Independence.--Except as otherwise provided in this Act, the
Office shall exercise its authority independently of any Government
official, agency, or department, including the Department of Justice,
the Department of Homeland Security, and the Department of Health and
Human Services.
SEC. 203. BOARD OF DIRECTORS.
(a) Number and Appointment.--
(1) In general.--The Office shall be governed by a Board of
Directors, consisting of 24 members who shall be appointed not
later than 1 year after the date of the enactment of this Act,
in accordance with paragraph (2).
(2) Initial judicial appointments.--
(A) In general.--Subject to subparagraphs (B) and
(C), the chief judge of each United States Court of
Appeals (except for the chief judge for the Federal
Circuit) shall appoint 2 individuals to the Board who
meet the requirements set forth in subsection (b).
(B) Staggered terms of service.--The terms of
service of the members of the Board appointed pursuant
to subparagraph (A) shall be staggered so that--
(i) 6 members serve an initial term of 1
year;
(ii) 6 members serve an initial term of 2
years;
(iii) 6 members serve an initial term of 3
years; and
(iv) 6 members serve an initial term of 4
years.
(C) Circuits.--
(i) Eastern circuits.--The chief judge of
the 1st, 2nd, 3rd, 4th, 11th, and DC Circuit
Courts of Appeals shall appoint 1 individual to
serve an initial term of 1 year and 1
individual to serve an initial term of 4 years.
(ii) Remaining circuits.--The chief judge
of the 5th, 6th, 7th, 8th, 9th, and 10th
Circuit Courts of Appeals shall appoint 1
individual to serve an initial term of 2 years
and 1 individual to serve an initial term of 3
years.
(3) Immigration representation advisory board
appointments.--
(A) Initial appointments.--Upon the expiration of
the initial term of the 6 members of the Board who were
appointed to 1-year terms pursuant to paragraph
(2)(B)(i), the Immigration Representation Advisory
Board established under section 210 shall appoint to 4-
year terms--
(i) 6 members of the Board;
(ii) an Immigration Public Defender, who
shall serve as a nonvoting, ex-officio member
of the Board; and
(iii) a Panel Attorney, who shall serve as
a nonvoting, ex-officio member of the Board.
(B) Subsequent appointments.--Upon the expiration
of the initial term of the 6 members of the Board who
were appointed to 2-year terms pursuant to paragraph
(2)(B)(ii), the Immigration Representation Advisory
Board established under section 210 shall appoint 6
members of the Board to 4-year terms. The Immigration
Representation Advisory Board shall also appoint
individuals to replace any member of the Board who had
been appointed by the Advisory Board, upon the
expiration of such member's term.
(4) Subsequent judicial appointments.--
(A) In general.--Upon the expiration of the term of
any member of the Board appointed by a chief judge to a
3-year or 4-year term, such chief judge shall appoint
an individual to the Board from a list of 5 qualified
individuals nominated, by majority vote, by a committee
consisting of--
(i) the head of each Immigration Public
Defender Organization that is headquartered
within the corresponding circuit;
(ii) the head of each Community Defender
Office that is headquartered within the
corresponding circuit; and
(iii) panel attorney representatives within
the corresponding circuit.
(B) Failure to produce list.--If a committee
described in subparagraph (A) from a circuit does not
provide a list of 5 Board nominees to the chief judge
of the corresponding circuit before the date that is 30
days after the expiration of the term of service of a
member of the Board representing such circuit, the
chief judge of such circuit may appoint an individual
to replace such member of the Board without regard to
nominations.
(b) Restrictions on Membership.--
(1) Qualifications.--Each individual appointed to the Board
pursuant to subsection (a)--
(A) shall be nonpartisan;
(B) shall have significant experience representing
persons in proceedings described in section 292(a) of
the Immigration and Nationality Act, as amended by
section 101 of this Act; and
(C) shall have demonstrated a strong commitment to
representation in indigent defense matters.
(2) Diversity.--In making appointments to the Board under
subsection (a), chief judges and the Immigration Representation
Advisory Board shall seek to appoint individuals, in the
aggregate, who reflect the characteristics of the population
represented by counsel appointed pursuant section 292 of the
Immigration and Nationality Act, including the characteristics
of race, gender identity, sexual orientation, immigration
experience, and socioeconomic background.
(3) Disqualifying characteristics.--A member of the Board,
while serving in such capacity, may not be--
(A) an employee of the Office, a member of a Local
Board, an Immigration Public Defender Organization, or
a community defender office. or a Panel Attorney,
unless he or she is serving as an ex-officio member of
the Board;
(B) a judge or employee of any Federal or State
court, any immigration court, or the Board of
Immigration Appeals; or
(C) a prosecutor or law enforcement officer, an
employee of a prosecutor's office or law enforcement
agency, or any person who has held any such position
during the 3-year period immediately preceding his or
her appointment to the Board.
(c) Term of Membership.--
(1) Maximum length of service.--No member of the Board may
serve more than 2 terms, except that a person who was appointed
to serve a 1-year term may be appointed to 2 additional 4-year
terms.
(2) Replacement members.--A person who is appointed to
replace a member who resigned or was removed--
(A) shall serve the remainder of the term of such
member; and
(B) may be appointed to serve up to 2 additional 4-
year terms.
(d) Vacancies.--
(1) Members selected by a chief judge.--Not later than 90
days after the creation of a vacancy arising from a Board
member position selected by a chief judge, the committee
described in subsection (a)(2)(A) from the corresponding
circuit shall submit a list of 5 qualified nominees to such
chief judge, who shall appoint 1 of such nominees as the new
member of the Board.
(2) Failure to produce list.--If the committee fails to
submit the list required under paragraph (1) before the
deadline, the chief judge may make a selection without regard
to nominations.
(3) Members selected by the immigration representation
advisory board.--Not later than 90 days after the creation of a
vacancy arising from a Board member position selected by the
Immigration Representation Advisory Board, the Immigration
Representation Advisory Board shall appoint a new member of the
Board to fill such vacancy.
(e) Rates of Pay; Travel Expenses.--
(1) Rates of pay.--Members shall be paid for their services
on the Board at a rate not to exceed the daily rate at which
judges of the United States courts of appeals are compensated.
No member may be paid for more than 90 days in any calendar
year.
(2) Travel expenses.--Each member shall receive travel
expenses, including per diem in lieu of subsistence, in
accordance with applicable provisions under subchapter I of
chapter 57 of title 5, United States Code.
(f) Chairperson.--The Chairperson of the Board shall be elected by
the members and shall serve for a 2-year term, which may be renewed
once by the Board for an additional 2-year term.
(g) Removal of Members.--The members of the Board, by a vote of 13
members, may remove a member from the Board for--
(1) malfeasance in office;
(2) persistent neglect of, or inability to discharge, Board
duties; or
(3) conduct unbecoming of a member of the Board.
(h) Quorum.--A quorum for purposes of conducting Board business
shall be a majority of the members of the Board presently serving.
(i) Voting.--All members of the Board are entitled to vote on any
matters coming before the Board unless otherwise provided by rules
adopted by the Board concerning voting on matters in which a member
has, or appears to have, a financial or other personal interest.
(j) Bylaws.--The Board shall adopt bylaws governing the operation
of the Board, which may include provisions authorizing other officers
of the Board and governing proxy voting, telephonic and video meetings,
and the appointment of committees.
(k) Duties of the Board.--The Board shall--
(1) appoint a Director of the Office not later than 2
months after the establishment of the Board--
(A) who shall be selected on the basis of training,
experience, and other relevant qualifications; and
(B) who shall serve at the pleasure of the Board;
(2) convene a meeting not later than 4 months after the
establishment of the Board, and not less frequently than
quarterly thereafter;
(3) submit appropriations requests to Congress for the
provision of legal services to individuals represented by
counsel in proceedings described in section 292(a) of the
Immigration and Nationality Act, as amended by section 101(a);
(4) submit an annual report to Congress and the President
that--
(A) describes the operation of the Office and the
delivery of services required under section 292 of the
Immigration and Nationality Act; and
(B) includes--
(i) the number of people who were provided
legal services during the reporting period
pursuant to such section 292 and the types of
proceedings in which such people were
represented;
(ii) the custodial status of the people who
were represented;
(iii) aggregate case outcomes for the
people who were represented; and
(iv) the status of appointments and
vacancies on the Board and Local Boards;
(5) complete and submit to Congress and to the President
every 7 years a comprehensive review and evaluation of the
implementation of this Act, including the identification of the
resources needed to carry out the requirements under this Act
and the amendments made by this Act for the foreseeable future;
(6) make the reports described in paragraphs (4) and (5)
publicly available at the time they are submitted to Congress
and to the President;
(7) establish and maintain standards for the provision of
representation that are consistent with appointed counsel's
duty to provide representation under section 292 of the
Immigration and Nationality Act, including--
(A) the minimum experience, skill, performance, and
other qualifications for participation as appointed
counsel;
(B) ongoing training, professional development, and
mentorship and supervision required to remain eligible
to serve as appointed counsel under such section 292;
(C) reasonable, manageable, and sustainable
appointed counsel caseloads that are consistent with
appointed counsel's primary duty to provide
representation to individuals described in such section
292;
(D) the elements to be evaluated during performance
reviews of appointed counsel to determine whether they
complied with their duty to provide representation
under such section 292;
(E) how to provide adequate representation of
clients whose cases present conflicts of interest; and
(F) ensuring continued representation in
circumstances in which clients move or are transferred,
or where cases are transferred or change venue;
(8) evaluate plans submitted by Local Boards for the
provision of representation of individuals before U.S.
Citizenship and Immigration Services in matters described in
section 292 of the Immigration and Nationality Act, after
taking into account the ability of such plans to provide such
representation, and approve such plans if they meet applicable
legal requirements of law and are consistent with the policies
of the Office;
(9) review the implementation of plans approved by the
Board not less frequently than once every 4 years to ensure
that each Local Board complies with the plan approved by the
Board;
(10) establish policies and procedures with respect to
compensation rates and reimbursement of reasonable expenses for
appointed counsel under such section 292 and others providing
services related to such representation;
(11) establish procedures to obtain investigators, experts,
interpreters, and other providers of defense services necessary
for effective representation of individuals who are entitled to
counsel under section 292 of the Immigration and Nationality
Act;
(12) establish procedures for the reimbursement of
reasonable expenses of attorneys, investigators, experts,
interpreters, and other persons providing representation and
related services under such section 292;
(13) approve staffing levels and budgets for Immigration
Public Defender Organizations;
(14) approve staffing levels and budgets for the Office;
and
(15) establish a mechanism for the submission, review,
resolution, and reporting of complaints from individuals
entitled to counsel under section 292 of the Immigration and
Nationality Act regarding such representation.
(l) Powers of the Board.--The Board is authorized--
(1) to delegate any of its duties, in whole or in part, to
the Director, except for the duties described in paragraphs
(1), (7), (13) and (14) of subsection (k);
(2) to alter or revoke any such delegation to the Director;
(3) to provide to Congress information regarding the
immigration system that the Board considers relevant to the
purpose of the Office;
(4) to authorize studies or reports that relate to the
purpose of the Office;
(5) to combine Local Boards or divide an area served by a
Local Board if the Board determines that such action is
necessary to carry out the purposes of this section;
(6) to remove, by a vote of at least 13 members, a member
or members of a Local Board for malfeasance in office,
persistent neglect of or inability to discharge duties, or
conduct unbecoming of a member of the Local Board;
(7) to seek, accept, and use public grants, private
contributions, and voluntary and uncompensated (gratuitous
services) to assist the Board in carrying out the purposes of
this Act and other services related to such purposes; and
(8) to take any other action that is reasonably necessary
and not inconsistent with the Act to carry out the purposes of
this Act.
SEC. 204. DIRECTOR.
(a) Requirements.--The Director of the Office--
(1) shall be a licensed attorney in good standing in any
United States jurisdiction at the time of his or her
appointment and at all times during his or her service as the
Director;
(2) shall be experienced in representing people in
proceedings described in section 292 of the Immigration and
Nationality Act, as amended by section 101 of this Act; and
(3) may not be a member of the Board.
(b) Duties.--The Director shall--
(1) appoint and fix the compensation of employees of the
Office;
(2) establish a personnel management system for the Office
that provides for the appointment, pay, promotion, and
assignment of all employees on the basis of merit, but without
regard to the provisions of subchapter I of chapter 33 of title
5, United States, Code (relating to appointments in the
competitive service) or the provisions of chapter 51 and
subchapter III of chapter 53 of such title (relating to
classification and General Schedule pay rates);
(3) employ such personnel as may be necessary to advance
the purposes of the Office, subject to staffing and budget
approval of the Board;
(4) provide an annual report to the Board regarding the
activities of the Office;
(5) provide such periodic reports and work product to the
Board sufficient for the Board to fulfill its duties under
section 203(k);
(6) allocate and disburse funds appropriated for legal
representation and related services in cases subject to this
Act pursuant to rules and procedures established by the Board;
(7) enter into contracts to provide or receive services
with any public or private agency, group, or individual;
(8) appoint a Local Administrator for each region to
administer and approve, subject to the policies established by
the Board, the payment of funds necessary for Panel Attorney
representation, including Panel Attorney compensation,
investigators, experts, and other providers of representation
services, and any other necessary expenses for effective
representation;
(9) assist the Board in developing rules and standards for
the delivery of services under this Act;
(10) coordinate the services funded by the Office with any
Federal, state, county, local, or private programs established
to provide legal assistance to persons in cases subject to this
Act who are unable to afford representation;
(11) consult with professional bodies concerning improving
the administration of legal representation for persons in
proceedings described in section 292 of the Immigration and
Nationality Act, as amended by section 101 of this Act; and
(12) perform such other duties as may be assigned by the
Board.
SEC. 205. EMPLOYEES.
(a) In General.--Employees of the Office shall be treated as
employees of the Federal Government solely for purposes of--
(1) subchapter 1 of chapter 81 of title 5, United States
Code (relating to compensation for work injuries);
(2) chapter 83 of such title 5 (relating to retirement);
(3) chapter 84 of such title 5 (relating to the Federal
Employees' Retirement System);
(4) chapter 87 of such title 5 (relating to life
insurance); and
(5) chapter 89 of such title 5 (relating to health
insurance).
(b) Employer Contributions.--The Office shall make contributions on
behalf of employees of the Office under the provisions referred to in
subsection (a) at the same rates applicable to employees of agencies of
the Federal Government.
(c) Thrift Savings Plan.--Employees of the Office may make an
election under section 8351 or 8432 of title 5, United States Code, to
participate in the Thrift Savings Plan for Federal employees.
SEC. 206. LOCAL IMMIGRATION REPRESENTATION BOARDS.
(a) Establishment.--Not later than 6 months after the date on which
the Board is established pursuant to section 203(a), the Office shall
delineate administrative regions throughout the United States and
establish a local immigration representation board for each region.
(b) Composition of Local Boards.--
(1) In general.--Subject to subsection (c), each Local
Board shall consist of not fewer than 5 member and not greater
than 15 members, who shall initially be selected by the Board
after consultation with stakeholders in the Local Board's
region, including immigration legal service providers,
community-based organizations, and people who are or have been
subject to proceedings described in section 292 of the
Immigration and Nationality Act, as amended by section 101.
(2) Attorneys.--Not fewer than 50 percent of the members of
a Local Board selected pursuant to paragraph (1) shall be--
(A) licensed attorneys with experience in the
practice of removal defense; or
(B) employees of community-based organizations
providing services to immigrants.
(3) Subsequent members.--After the initial members are
selected pursuant to paragraph (1), each Local Board shall
select its own members in accordance with bylaws that have been
approved by the Office.
(c) Qualification of Members.--
(1) Experience; commitment.--Members of a Local Board shall
have--
(A) significant experience defending cases
described in section 292 of the Immigration and
Nationality Act, as amended by section 101; and
(B) demonstrated a strong commitment to
representation in indigent defense matters.
(2) Diversity.--The composition of each Local Boards shall
reflect the diversity of the population that counsel appointed
pursuant to such section 292 are responsible for representing,
including diversity of race, gender identity, sexual
orientation, immigration experience, and socioeconomic
background.
(3) Restrictions.--A member of a Local Board may not--
(A) be an employee of an Immigration Public
Defender Organization or Community Defender
Organization with a contract to provide representation
under such section 292;
(B) be a member of an Attorney Panel referred to in
section 207(d);
(C) be a judicial officer of the United States or
of a State, territory, district, possession, or
commonwealth of the United States;
(D) be employed as a prosecutor, a law enforcement
official, or a judicial official, or by a prosecutorial
or law enforcement agency; or
(E) have held a position described in subparagraph
(D) during the 3-year period immediately preceding his
or her appointment to the Board.
(d) Term of Members of a Local Board.--
(1) In general.--Members of a Local Board shall serve 4-
year terms, except that the terms of the initial members shall
be staggered so that the term of not more than 50 percent of
the members expire during any calendar year.
(2) Maximum length of service.--A person may not serve for
more than 9 years on a Local Board.
(3) Replacement members.--A person who is appointed to
replace a member who has resigned or was removed shall serve
the remainder of the term of such departing person.
(e) Compensation of Members of a Local Board.--
(1) In general.--Members of any Local Board shall be paid
for their service at the daily rate at which judges of the
United States courts of appeals are compensated, but may not be
paid for more than 90 days of such service in any calendar
year.
(2) Travel expenses.--Members of any Local Board shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with applicable provisions under
subchapter I of chapter 57 of title 5, United States Code.
(f) Chair of Local Board.--Each Local Board shall elect a member of
the Local Board to serve as chair for 2 years, which term shall begin
on the date of election. Such chair may be reelected to extend such
service for an additional 2-year term.
(g) Removal of Member of Local Board.--Each Local Board, by a
majority vote of the full membership, may remove a member from the
Local Board for--
(1) malfeasance in office;
(2) persistent neglect of, or inability to discharge, Local
Board duties; or
(3) conduct unbecoming of a member of the Local Board.
(h) Quorum of Local Board.--A majority of the full membership of
the Local Board shall constitute a quorum for the purpose of conducting
business.
(i) Local Board Governance.--Each Local Board shall adopt bylaws
governing the operation of the Local Board, which may include
provisions authorizing other officers of the Local Board and proxy
voting.
(j) Dissolution of Local Boards.--The Board, upon a \2/3\ vote, may
dissolve a Local Board for good cause. Upon dissolution, the Office
shall ensure that a new Local Board is established not later than 90
days of dissolution. The new members of the Local Board shall be
selected by the majority votes of the Immigration Public Defenders and
the Panel Attorney representatives of the district or districts to be
served and the Director.
(k) Duties of Local Boards.--
(1) Local plans.--
(A) In general.--Each Local Board--
(i) not later than 120 days after the Local
Board is established, shall develop and submit
to the Office for approval a Local Plan for the
provision of representation services for the
region served by the Local Board;
(ii) shall implement the Local Plan after
it has been approved by the Office;
(iii) may modify the Local Plan at any
time, subject to the approval of the Office;
and
(iv) shall modify the Local Plan if so
directed by the Office.
(B) Components; development.--Each Local Plan
developed pursuant to subparagraph (A)--
(i) shall provide for the appointment of
counsel in a timely manner in accordance with
this Act;
(ii) shall be developed in consultation
with U.S. Citizenship and Immigration Services
to ensure that it adequately encompasses
proceedings described in section 292 of the
Immigration and Nationality Act that are within
the jurisdiction of U.S. Citizenship and
Immigration Services;
(iii) shall consider the existence of any
State, county, or locally funded programs
providing representation to people in
proceedings described in such section 292;
(iv) may provide grants or reimbursements
to jurisdictions with programs described in
clause (iii) that provide representation that
furthers the purposes of this Act;
(v) shall prioritize such grants or
reimbursements for State, county, and locally
funded programs that provide representation to
people involved in a proceeding described in
such section 292 without regard to any past
interaction with the immigration or criminal
legal systems;
(vi) may, in accordance with section 207--
(I) establish 1 or more Immigration
Public Defender Organizations; and
(II) contract with 1 or more
Community Defender Organizations;
(vii) shall provide for the establishment
of a panel of private attorneys to provide
representation under such section 292, in
accordance with section 207 of this Act; and
(viii) shall provide a plan for holding
community engagement meetings that are open to
the public not less frequently than twice
during each fiscal year.
(C) Local plans with border-based components.--
(i) In general.--The Local Plan for each
region that is adjacent to the international
border between the United States and Mexico
border shall provide for representation to all
people subject to a proceeding described in
section 292 of the Immigration and Nationality
Act, as amended by section 101 of this Act.
(ii) Identifying counsel.--The Local Board
of each region described in clause (i) may
utilize the entities specified in section 207
and Attorney of the Day, attorney fellowship,
and other models--
(I) to provide limited
representation to people in proceedings
at the border; and
(II) to coordinate case transfers
and referrals for legal representation
for people who are subsequently
released from, or transferred within,
the custody of the Department of
Homeland Security or the Office of
Refugee Resettlement.
(2) Appointments to immigration representation advisory
board.--If a Local Plan does not provide for the establishment
of an Immigration Public Defender Organization or contracting
with a Community Defender Organization in the region, the Local
Board shall appoint representatives to the Immigration
Representation Advisory Board established under section 210(a).
(3) Local administrator.--Each Local Board shall appoint,
subject to the approval of the Office, a Local Administrator
and such staff as may be necessary to assist the Local Board in
administering the selection and appointment of Panel Attorneys.
(4) Immigration public defender.--If a Local Plan includes
the establishment of 1 or more Immigration Public Defender
Organizations, the Local Board shall--
(A) select 1 or more Immigration Public Defenders,
who shall serve in accordance with section 207(b), for
the region or a portion of the region that will be
served by the Local Board;
(B) periodically evaluate the performance of the
Immigration Public Defender; and
(C) submit the results of the evaluations required
under subparagraph (B), as directed by the Office.
(5) Duties of local administrator.--Each Local
Administrator shall--
(A) review, and certify for payment, all vouchers
received from Panel Attorneys to compensate them for--
(i) their time spent representing clients
appointed to them pursuant to section 292 of
the Immigration and Nationality Act, as amended
by section 101 of this Act; and
(ii) the costs of investigators, experts,
interpreters, and other providers of defense
services for work performed on behalf of the
Panel Attorneys and their clients;
(B) authorize reasonable expenditures for
transcripts and the services of paralegals and other
legal support personnel, to the extent necessary;
(C) prepare, at the direction of the Office, an
annual budget for the provision of representation
services under such section 292, except for
representation services provided by an Immigration
Public Defender Office;
(D) implement procedures established by the Office,
permitting a Panel Attorney or other representative
appointed under such section 292 to appeal a decision
of the Local Administrator concerning compensation or
reimbursement; and
(E) perform other duties related to the
authorization, payment, and budgeting of expenses
related to Panel Attorneys, as assigned by the
Director.
(6) Representation of financially eligible persons.--The
Local Board shall establish procedures for the appointment of
counsel for any person who--
(A) is subject to a proceeding described in section
292 of the Immigration and Nationality Act, as amended
by section 101; and
(B) is financially unable to obtain high-quality
representation.
SEC. 207. TYPES OF IMMIGRATION DEFENDERS.
(a) In General.--To ensure representation of all eligible persons
in proceedings described in section 292 of the Immigration and
Nationality Act, as amended by section 101, the Local Board may--
(1) establish 1 or more Immigration Public Defender
Organizations in the region comprising the Local Board's
jurisdiction;
(2) contract with existing Community Defender
Organizations; and
(3) establish a Panel Attorney system.
(b) Immigration Public Defender.--
(1) In general.--An Immigration Public Defender
Organization shall consist of 1or more full-time salaried
attorneys. Each Immigration Public Defender Organization shall
be supervised by an Immigration Public Defender appointed by
the Local Board that established the organization, subject to
the approval of the Office and without regard to the provisions
of title 5, United States Code, governing appointments in the
competitive service.
(2) Removal.--
(A) In general.--The Immigration Public Defender
shall serve at the pleasure of the Local Board, but may
be removed by the Director for--
(i) malfeasance in office;
(ii) persistent neglect or inability to
discharge the duties of an Immigration Public
Defender; or
(iii) conduct unbecoming of a
representative of the Office.
(B) Nonfactors for justifying removal.--The efforts
and advocacy of an Immigration Public Defender to
ensure that the Office carries out its responsibilities
under this Act, including ensuring parity of resources,
protecting counsel's duty to provide representation,
and ensuring manageable caseloads consistent with that
duty, may not serve as a basis for removal or for
initiating proceedings for removal against the
Immigration Public Defender.
(3) Continued service until appointment of successor.--Upon
the expiration of the term of service for which he or she was
appointed, an Immigration Public Defender may continue to
perform the duties of such office, in accordance with rules
established by the Local Board, until the earlier of--
(A) the date on which a successor is appointed; or
(B) the date that is 1 year after the expiration of
such term.
(4) Compensation.--The compensation of each Immigration
Public Defender shall be fixed by the Local Board at a rate
that is comparable to--
(A) the rate of compensation received by the
Principal Legal Advisor of U.S. Immigration and Customs
Enforcement who is practicing in the nearest court
where representation is furnished; or
(B) if more than 1 court is involved, the rate of
compensation that is paid to the higher paid Principal
Legal Advisor in such courts.
(5) Additional personnel.--
(A) Appointments.--The Immigration Public Defender
may appoint, without regard to the provisions of title
5, United States Code, governing appointments in the
competitive service, full-time attorneys in such number
as may be approved by the Office and other personnel in
such number as may be approved.
(B) Compensation.--Compensation paid to the
attorneys and other personnel approved by the Office
pursuant to subparagraph (A) shall be fixed by the
Immigration Public Defender at a rate that is
comparable to--
(i) the rate of compensation that is paid
to attorneys and other personnel of similar
qualifications and experience in the Office of
the Principal Legal Advisor in the nearest
court where representation is furnished; or
(ii) if more than 1 court is involved, the
rate of compensation that is paid to the higher
paid person of similar qualifications and
experience in such courts.
(6) Treatment as federal government employees.--Employees
of an Immigration Public Defender Organization shall be treated
as employees of the Federal Government solely for purposes of--
(A) subchapter 1 of chapter 81 of title 5, United
States Code (relating to compensation for work
injuries);
(B) chapter 83 of such title 5 (relating to
retirement);
(C) chapter 84 of such title 5 (relating to the
Federal Employees' Retirement System);
(D) chapter 87 of such title 5 (relating to life
insurance); and
(E) chapter 89 of such title 5 (relating to health
insurance).
(7) Restriction.--An Immigration Public Defender and any
attorney appointed to serve in an Immigration Public Defender
Organization is prohibited from engaging in the private
practice of law.
(8) Limited liability.--The Office, to the extent the
Director considers appropriate, shall provide representation
for and hold harmless, or provide liability insurance for, any
person who is an officer or employee of an Immigration Public
Defender Organization.
(9) Reports.--Each Immigration Public Defender Organization
shall submit periodic reports of its activities and financial
positions and its proposed budget to the Local Board at the
times and in the form prescribed by the Local Board.
(c) Community Defender Organizations.--
(1) In general.--A Community Defender Organization shall be
a nonprofit legal representation service established and
administered by any group authorized by the Local Plan to
provide representation to individuals subject to proceedings
described in section 292 of the Immigration and Nationality
Act, as amended by section 101.
(2) Annual report.--Each Community Defender Organization
shall submit an annual report to the Local Board that sets
forth its activities during the previous fiscal year and the
anticipated caseload and expenses for the upcoming fiscal year.
(d) Attorney Panel.--Each Local Plan developed pursuant to section
206(k)(1) shall provide for--
(1) the appointment of qualified private attorneys from an
Attorney Panel within the region;
(2) the implementation of standards established by the
Office setting forth the minimum qualifications for Panel
Attorneys; and
(3) the establishment of a system to ensure that--
(A) the number of attorneys on each Attorney Panel
is limited to provide each attorney with sufficient
appointments to maintain continuing familiarity with
immigration law and procedure;
(B) there is early entry of counsel, including
representation as soon as possible in all proceedings
described in section 292 of the Immigration and
Nationality Act, as amended by section 101;
(C) there are adequate support services, including
training and technical support, for members of each
Attorney Panel for every area in the region;
(D) conflicts of interests are avoided; and
(E) there is equal employment opportunity for the
employees of Immigration Public Defender Organizations
and Panel Attorneys.
SEC. 208. COMPENSATION AND REIMBURSEMENT OF COUNSEL EXPENSES.
(a) In General.--The Office shall establish the appropriate hourly
rates and salaries to be paid to counsel appointed under each Local
Plan, which--
(1) shall be established at levels that will ensure the
provision of high-quality legal representation for all people
represented in proceedings described in section 292 of the
Immigration and Nationality Act, as amended by section 101; and
(2) shall be calculated to provide appointed counsel with
compensation that is comparable to the compensation paid to--
(A) attorneys who are employed by the Office of the
Principal Legal Advisor of U.S. Immigration and Customs
Enforcement nearest to the forum in which such counsel
is providing representation;
(B) attorneys employed by the corresponding Federal
prosecutor's office; or
(C) any other attorney representing the Government
in connection with proceedings that are comparable to
proceedings described in such section 292.
(b) Use of Billing Caps.--If the Office places caps on total
billing for legal representation, the Office shall establish policies
and procedures for counsel to request authorization to exceed such caps
to the extent required to ensure effective representation.
(c) Fees; Additional Compensation.--The Office shall establish--
(1) distinct fees to apply to counsel providing services in
proceedings that fall within the geographic jurisdiction of
each of the United States courts of appeal within each region
delineated by the Office pursuant to section 206(a), after
taking into account the prevailing wage rates for qualified
attorneys within the geographic area in which representation
will be provided under section 292 of the Immigration and
Nationality Act, as amended by section 101; and
(2) additional compensation to be paid to counsel who
provide representation under such section 292 to individuals in
remote and underserved areas, after taking into account the
distance from the place of business of such counsel to--
(A) the immigration courts;
(B) Department of Homeland Security and Department
of Health and Human Services facilities; and
(C) other relevant sites where such representation
is expected to be provided.
(d) Reimbursement for Expenses; Salary Increases.--
(1) Reimbursements.--Counsel providing representation under
section 292 of the Immigration and Nationality Act, as amended
by section 101, shall be reimbursed by the Department of
Homeland Security for expenses reasonably incurred in the
course of such representation, including the costs of
transcripts, but may not be reimbursed by the Federal
Government for expenses related to defending against
malpractice claims.
(2) Salary increases.--The Office shall establish policies
and procedures governing increases in hourly rates, salaries,
and fees initially determined under subsection (a) or (c).
(e) Payments in Excess of Established Fees.--The Office shall
establish policies and procedures for requesting and approving payments
in excess of the fees established under subsection (c) for extended or
complex representation if such excess payments are necessary to provide
fair compensation for the counsel providing such representation.
SEC. 209. SERVICES OTHER THAN COUNSEL.
(a) Services To Be Preapproved by the Local Board.--
(1) In general.--Counsel appointed to represent individuals
in proceedings described in section 292 of the Immigration and
Nationality Act, as amended by section 101, may request
approval from the Local Board for investigative, expert, or
other services necessary for such representation pursuant to
procedures established by the Board, including services
necessary to develop release plans and provide post-release
services for people in the custody of the Department of
Homeland Security or the Office of Refugee Resettlement.
(2) Examples of services.--Services subject to preapproval
under paragraph (1) may include--
(A) the retention of specialized counsel in
connection with ancillary matters appropriate to such
proceedings;
(B) services and support related to mental health,
housing, addiction, food, travel, and accompaniment to
immigration court proceedings;
(C) copying or obtaining discovery materials that
are in the possession, custody, or control of the
Government; or
(D) any other services required to ensure effective
representation or the interests of justice.
(b) Services To Be Approved by the Local Board After the Fact.--
(1) In general.--Counsel appointed to represent individuals
in proceedings described in section 292 of the Immigration and
Nationality Act, as amended by section 101, may obtain, without
prior authorization, but subject to later review by the Local
Board, investigative, expert, and other services if necessary
for representation.
(2) Payment.--In the interests of justice and upon a
determination by the Local Board that timely procurement of
certain necessary services could not await prior authorization,
payment for such services may be approved by the Local Board
after they have been obtained.
(c) Amount of Compensation.--In determining the appropriate
compensation for services other than counsel, the Office shall ensure
that such compensation is comparable to the compensation paid to the
Government for substantially similar services.
(d) Policies and Procedures.--The Office shall establish policies
and procedures that--
(1) identify the circumstances under which--
(A) payment shall be made for services other than
counsel; and
(B) prior authorization for certain necessary
services is not required; and
(2) permit counsel appointed to represent individuals in
proceedings described in section 292 of the Immigration and
Nationality Act, as amended by section 101, to seek increases
in funding for such services if counsel reasonably believes
that the compensation established by the Office pursuant to
subsection (c) does not meet the parity requirement under such
subsection.
(e) Financial Eligibility Determinations.--
(1) In general.--Private counsel for any person who is
financially unable to obtain services other than counsel
necessary for representation, including services described in
subsections (a) and (b), may request that the Local
Administrator make a determination of the financial eligibility
for such person to receive Government funding for such
services.
(2) Payment.--If the Local Administrator determines that a
person described in paragraph (1) is financially unable to
obtain necessary services other than counsel, the Local
Administrator shall authorize payment for such services
pursuant to procedures established by the Office.
SEC. 210. IMMIGRATION REPRESENTATION ADVISORY BOARD.
(a) Establishment.--
(1) In general.--Subject to paragraph (2), there is
established the Immigration Representation Advisory Board,
which shall consist of--
(A) 1 Immigration Public Defender representative
from each region delineated pursuant to section 206(a),
who shall be selected by the Immigration Public
Defenders within each such region;
(B) 1 Community Defender Organization
representative from each region delineated pursuant to
section 206(a), who shall be selected by the Community
Defender Organizations within each such region; and
(C) 1 Panel Attorney representative from within the
jurisdiction of each Federal circuit court of appeals,
who shall be selected by the Panel Attorneys within
each such circuit.
(2) Alternative selection process.--
(A) No immigration public defender office.--If a
Local Plan does not provide for the establishment of an
Immigration Public Defender Office, the relevant Local
Board shall appoint 2 Community Defender Organization
representatives to serve on the Immigration
Representation Advisory Board.
(B) No community defender organization.--If a Local
Plan does not provide for a contract with a Community
Defender Organization, the relevant Local Board shall
appoint 2 Immigration Public Defender Representatives
to serve on the Immigration Representation Advisory
Board.
(b) Term of Service.--
(1) In general.--Members of the Immigration Representation
Advisory Board shall serve 2-year terms, except that the terms
of 50 percent of the initial members appointed pursuant to
subsection (a) shall be 1 year.
(2) Maximum consecutive service.--No member may serve on
the Immigration Representation Advisory Board for more than 6
consecutive years.
(3) Partial term appointments.--If a member of the
Immigration Representation Advisory Board does not serve until
the end of his or her term due to resignation or removal, the
person appointed to replace such member shall serve for the
remainder of such term.
(c) Compensation.--Members of the Immigration Representation
Advisory Board shall serve without compensation, but shall be
reimbursed for all actual and necessary expenses reasonably incurred in
the performance of their duties as members of the Immigration
Representation Advisory Board.
(d) Governance; Meetings.--The Immigration Representation Advisory
Board shall--
(1) establish bylaws;
(2) select a chairperson from among its members;
(3) appoint other such officers as it deems necessary; and
(4) meet not less frequently than once each year.
TITLE III--AUTHORIZATION OF APPROPRIATIONS
SEC. 301. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated to the
Office of Immigration Representation, out of any money in the Treasury
that is not otherwise appropriated, such sums as may be necessary to
carry out this Act, and the amendments made by this Act, including--
(1) establishing and operating the Office; and
(2) providing continuing education and training of counsel
providing representation under section 292 of the Immigration
and Nationality Act, as amended by section 101.
(b) Availability of Funds.--If so specified in appropriation Acts,
amounts appropriated pursuant to subsection (a) shall remain available
until expended. Payments from such appropriations shall be made under
the supervision of the Director of the Office of Immigration
Representation.
SEC. 302. MINIMUM FUNDING FOR THE OFFICE OF IMMIGRATION REPRESENTATION.
(a) In General.--The amount appropriated to the Office of
Immigration Representation for each fiscal year shall be not less than
the amount equal to the sum of the combined amount appropriated for
Federal immigration enforcement and prosecution agencies and the
Office, multiplied by the ``prosecution-defense'' ratio calculated
pursuant to subsection (b).
(b) Calculation of Prosecution-Defense Ratio.--
(1) In general.--Except as provided in paragraph (2), the
Office of Management and Budget shall calculate the
prosecution-defense ratio, for purposes of subsection (a), by
dividing the sum appropriated to the Office of Immigration
Representation account for the most recently concluded fiscal
year by the combined amount appropriated for such fiscal year
for Federal immigration enforcement and prosecution agencies,
including amounts appropriated for--
(A) U.S. Immigration and Customs Enforcement;
(B) U.S. Customs and Border Protection; and
(C) the Office of Immigration Litigation of the
Department of Justice.
(2) Effect of shifting prosecutorial functions.--If the law
enforcement or prosecutorial functions of the agencies or
offices referred to in subparagraphs (A) through (C) of
paragraph (1) on the date of the enactment of this Act are
performed by different agencies or offices in a future fiscal
year, the Office of Management and Budget shall use the amount
appropriated for those functions in calculating the
prosecution-defense ratio under paragraph (1).
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