Tahmina Watson

Feb 20, 2021

5 min read

An Immigration Counsel Fund and Right to Counsel: Provisions from President Biden’s Immigration Bill

When the US Citizenship Act 2021 summary reached my hands, I was especially excited to read about a new Immigration Counsel Fund. After the work of the last four years mobilizing immigration lawyers to airports, legal clinics, detention centers and immigration court (read my book Legal Heroes in the Trump Era, if you have not already), ‘right to counsel’ is at the top of my wish list as is a national legal defense fund that I had written about in 2018.

The Right to Counsel provisions in the bill as they stand are creative and bold. For the last few years, I have been thinking about where such a fund could be housed. Should it be DHS or DOJ? I wasn’t sure. The bill proposes an Immigration Counsel Fund in an Immigration Counsel Account which will be housed under the general fund of the Treasury. The Treasury will collect $25.00 from each immigration filing fee.

It is a perfectly fine place to house the funds, I say. Much kudos to the leadership for this creative thinking.

The purpose of the fund will be to provide access to counsel to the following category of people:

· Noncitizens who are financially unable to afford a lawyer;

· Children;

· Vulnerable individuals:

o People with disabilities;

o Victims of abuse, torture or violence; and

o Pregnant or lactating women

A lawyer will be provided or appointed to such people at the cost of the government. The bill does specifically state that such a lawyer must be ‘authorized to practice in such proceedings (removal defense in immigration court).

If multiple cases are consolidated (such as those in one family, for example), the same counsel should be appointed for all the cases as consolidated unless there is a conflict.

Whether this bill passes or not in its current form, I am delighted that these provisions are included in the USCA21. This language can be lifted into a smaller bill and built upon if piecemeal legislation is considered at a later time.

I have so many thoughts on this particular issue. Please read the various articles I link above. I will write more soon on this issue soon.

And if these issues are important to you, then please do sign up to our blog at www.watsonimmigrationlaw.com/blog, follow us on twitter @tahminawatson and LinkedIn @tahminawatson.

Bill-text for easy reference:

1 ‘‘SEC. 292. RIGHT TO COUNSEL.

2 ‘‘(a) IN GENERAL. — In any proceeding conducted

3 under section 235, 236, 238, 240, 241, or any other sec-

4 tion of this Act, and in any appeal proceedings before the

5 Attorney General from any such proceedings, the noncit-

6 izen concerned shall have the privilege of being rep-

7 resented by such counsel authorized to practice in such

8 proceedings, as the noncitizen shall choose.

9 ‘‘(b) ACCESS TO COUNSEL. —

10 ‘‘(1) IN GENERAL. — The Attorney General may

11 appoint or provide counsel to a noncitizen in any

12 proceeding conducted under section 235, 236, 238,

13 240, or 241 or any other section of this Act.

14 ‘‘(2) DETENTION AND BORDER FACILITIES. —

15 The Secretary of Homeland Security shall ensure

16 that noncitizens have access to counsel inside all im-

17 migration detention and border facilities.

18 ‘‘© CHILDREN AND VULNERABLE INDIVIDUALS. —

19 Notwithstanding subsection (b), at the beginning of pro-

20 ceedings or as expeditiously as possible, the Attorney Gen-

21 eral shall appoint, at the expense of the Government,

22 counsel to represent any noncitizen financially unable to

1 obtain adequate representation in such proceedings, in-

2 cluding any noncitizen who has been determined by the

3 Secretary of Homeland Security or the Attorney General

4 to be —

5 ‘‘(1) a child;

6 ‘‘(2) a particularly vulnerable individual, includ-

7 ing —

8 ‘‘(A) a person with a disability;

9 ‘‘(B) a victim of abuse, torture, or violence;

10 and

11 ‘‘© a pregnant or lactating woman; or

12 ‘‘(3) the parent of a United States citizen

13 minor.

14 ‘‘(d) EXTENSION TO CONSOLIDATED CASES. — If the

15 Attorney General has consolidated the case of any noncit-

16 izen for whom counsel was appointed under subsection ©

17 with that of any other noncitizen, and such other noncit-

18 izen does not have counsel, the counsel appointed under

19 subsection © shall be appointed to represent such other

20 noncitizen unless there is a demonstrated conflict of inter-

21 est.’’.

22 (2) RULEMAKING. — Not later than 180 days

23 after the date of enactment of this Act, the Attorney

24 General shall promulgate regulations to implement

1 subsection © of section 292 of the Immigration and

2 Nationality Act, as added by paragraph (1).

3 © IMMIGRATION COUNSEL FUND. —

4 (1) IN GENERAL. — Chapter 9 of title II of the

5 Immigration and Nationality Act (8 U.S.C. 1351 et

6 seq.) is amended by adding at the end the following:

7 ‘‘SEC. 295. IMMIGRATION COUNSEL FUND.

8 ‘‘(a) IN GENERAL. — There is established in the gen-

9 eral fund of the Treasury a separate account to be known

10 as the ‘Immigration Counsel Fund’.

11 ‘‘(b) DEPOSITS. — Notwithstanding any other provi-

12 sion of this Act, there shall be deposited as offsetting re-

13 ceipts into the Immigration Counsel Account all sur-

14 charges collected under subsection © for the purpose of

15 providing access to counsel as required or authorized

16 under this Act, to remain available until expended.

17 ‘‘© SURCHARGE. — In any case in which a fee is

18 charged pursuant to the immigration laws, a surcharge of

19 $25 shall be imposed and collected.

20 ‘‘(d) REPORT. — Not later than 2 years after the date

21 of the enactment of this section, and biennially thereafter,

22 the Secretary of Homeland Security shall submit to Con-

23 gress a report on the status of the Immigration Counsel

24 Account, including —

1 ‘‘(1) the balance in the Immigration Counsel

2 Account; and

3 ‘‘(2) any recommendation with respect to modi-

4 fications to the surcharge under subsection © nec-

5 essary to ensure that the receipts collected for the

6 subsequent 2 years equal, as closely as possible, the

7 cost of providing access to counsel as required or au-

8 thorized under this Act.’’.

9 (2) TABLE OF CONTENTS. — The table of con-

10 tents for the Immigration and Nationality Act (8

11 U.S.C. 1101 et seq.) is amended by inserting after

12 the item relating to section 294 the following:

‘‘Sec. 295. Immigration Counsel Account.’’.

13 (d) MOTIONS TO REOPEN. — Section 240(c)(7)© of

14 the Immigration and Nationality Act (8 U.S.C.

15 1229a(c)(7)©) is amended by adding at the end the fol-

16 lowing:

17 ‘‘(v) SPECIAL RULE FOR CHILDREN

18 AND OTHER VULNERABLE NONCITIZENS. —

19 If the Attorney General fails to appoint

20 counsel for a noncitizen in violation of sec-

21 tion 292(c) —

22 ‘‘(I) no limitation under this

23 paragraph with respect to the filing of

24 any motion to reopen shall apply to

25 the noncitizen; and

1 ‘‘(II) the filing of a motion to re-

2 open by the noncitizen shall stay the

3 removal of the noncitizen.’’.