II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Fairness to Freedom Act of 2023’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 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. 


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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. 

1 TITLE I—GUARANTEEING THE 

2 RIGHT TO COUNSEL 

3 SEC. 101. GUARANTEEING AND EXPANDING THE RIGHT TO 

4 COUNSEL. 

5 Section 292 of the Immigration and Nationality Act 

6 (8 U.S.C. 1362) is amended to read as follows: 

7 ‘‘SEC. 292. RIGHT TO COUNSEL. 

8 ‘‘(a) IN GENERAL.—Any individual in any removal, 

9 exclusion, deportation, bond, or expedited removal pro10 ceeding under section 212(d)(5)(A), 235(b)(1)(B), 236, 

11 238, 240, or 241 or in any matter related to any such 

12 proceeding before U.S. Citizenship and Immigration Serv13 ices, any State court, or any court created under article 

14 III of the Constitution of the United States, any individual 

15 who is financially unable to obtain representation subject 

16 to such proceeding shall be entitled to legal representation 

17 at Government expense in accordance with this section. 


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1 ‘‘(b) MATTERS INCLUDED.—Proceedings and mat2 ters referred to in subsection (a) shall include— 

3 ‘‘(1) petitions for a writ of habeas corpus under 

4 section 2241 of title 28, United States Code, or any 

5 other similar proceeding; 

6 ‘‘(2) administrative and judicial proceedings for 

7 individuals who may be eligible for special immigrant 

8 juvenile status under section 101(a)(27)(J)(ii); 

9 ‘‘(3) applications before the U.S. Citizenship 

10 and Immigration Services related to relief from re11 moval, and post-conviction relief in criminal pro12 ceedings; 

13 ‘‘(4) post-conviction relief in criminal pro14 ceedings; and 

15 ‘‘(5) any other legal proceeding involving an in16 dividual described in subsection (a) that is related to 

17 such individual’s legal status in the United States. 

18 ‘‘(c) SCOPE OF COUNSEL.— 

19 ‘‘(1) ADVOCACY.—Consistent with Rule 1.3 of 

20 the American Bar Association’s Model Rules of Pro21 fessional conduct, attorneys and other persons pro22 viding representation to individuals in proceedings or 

23 matters described in subsection (a) shall— 

24 ‘‘(A) act with reasonable diligence, prompt25 ness, commitment, and dedication to the interVerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187

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1 ests of the client and with zeal in advocating on 

2 the client’s behalf; and 

3 ‘‘(B) hold the Government to its burden by 

4 presenting the fullest defense possible in each 

5 such proceeding or matter. 

6 ‘‘(2) SCOPE OF REPRESENTATION.—Represen7 tation under this section shall include— 

8 ‘‘(A) counsel and interpretation and trans9 lation services; and 

10 ‘‘(B) any other services that are necessary 

11 for effective representation, including the serv12 ices described in section 209 of the Fairness to 

13 Freedom Act of 2023. 

14 ‘‘(3) COMMENCEMENT OF REPRESENTATION.— 

15 ‘‘(A) IN GENERAL.—The right to counsel 

16 of a person detained in, or released from, the 

17 custody of the Department of Homeland Secu18 rity or the Department of Health and Human 

19 Services shall attach at the earlier of— 

20 ‘‘(i) the placement of the person in 

21 the custody of either department, regard22 less of whether the person has been for23 mally placed in a proceeding described in 

24 subsection (a); or 


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1 ‘‘(ii) the issuance to the person of a 

2 Notice to Appear or other document initi3 ating proceedings under section 235, 238, 

4 240, or 241. 

5 ‘‘(B) CLARIFICATION.—The appointment 

6 of counsel based on the issuance of a Notice to 

7 Appear shall occur regardless of whether the 

8 Notice to Appear has been filed with the immi9 gration court. The appointment of counsel for a 

10 detained person shall occur as soon as possible, 

11 but in no event later than 24 hours after such 

12 person is taken into the custody of the Depart13 ment of Homeland Security. 

14 ‘‘(4) CONTINUOUS REPRESENTATION.— 

15 ‘‘(A) IN GENERAL.—An individual for 

16 whom counsel is appointed under this section 

17 shall be represented continuously at every stage 

18 of proceedings beginning with the initial ap19 pearance before any official with adjudicatory 

20 authority and including any proceedings before 

21 the Immigration Courts, the Board of Immigra22 tion Appeals, Federal district courts, Federal 

23 courts of appeal, and the United States Su24 preme Court, including ancillary matters related 

25 to the proceedings described in subsection (a), 


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1 and ending when all such proceedings have con2 cluded. 

3 ‘‘(B) APPOINTMENT OF DIFFERENT COUN4 SEL.—If the nature of the representation need5 ed by a person in proceedings under this section 

6 requires the appointment of different represent7 atives for different stages of such proceedings, 

8 all such representatives shall comply with the 

9 minimum standards of representation described 

10 in paragraph (1). 

11 ‘‘(C) APPOINTMENT OF NEW COUNSEL

12 AFTER RELOCATION.—The Office of Immigra13 tion Representation established under section 

14 202 of the Fairness to Freedom Act of 2023 

15 shall ensure that each individual who is released 

16 from custody and moves to a State or munici17 pality other than the State or municipality in 

18 which he or she was in custody, or who is trans19 ferred to a detention facility in another State or 

20 municipality is provided with counsel in the new 

21 State or municipality in which the individual re22 sides or is detained. 

23 ‘‘(5) CONSTRUCTION.—This subsection shall be 

24 broadly construed to attach in any proceeding and 

25 related matter, including any petition for review or 


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1 appellate process, request for re-interview, request 

2 for reconsideration, and motion to reopen, arising 

3 from a proceeding or matter described in subsection 

4 (a). 

5 ‘‘(d) ELIGIBILITY AND COMMENCEMENT OF IMMI6 GRATION PROCEEDINGS.— 

7 ‘‘(1) NOTIFICATION.—A proceeding described in 

8 subsection (a) shall not commence until counsel has 

9 been appointed to represent the individual subject to 

10 such proceeding. If such a proceeding has already 

11 commenced without the appointment of counsel, 

12 such proceeding shall be paused until such counsel 

13 is appointed. Before commencing a proceeding de14 scribed in subsection (a), the adjudicatory official, 

15 who may be an official of U.S. Immigration and 

16 Customs Enforcement or of U.S. Customs and Bor17 der Protection, under a plan approved by the Office 

18 of Immigration Representation, shall notify the indi19 vidual subject to such proceeding that— 

20 ‘‘(A) such individual has the right to be 

21 represented by counsel; and 

22 ‘‘(B) counsel will be appointed to represent 

23 such individual before the commencement of 

24 such proceeding if the individual— 


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1 ‘‘(i) has not retained private counsel; 

2 and 

3 ‘‘(ii) is financially unable to obtain 

4 counsel. 

5 ‘‘(2) DETERMINATION OF FINANCIAL ABILITY

6 TO OBTAIN COUNSEL.— 

7 ‘‘(A) IN GENERAL.—An individual shall be 

8 deemed to be financially unable to obtain coun9 sel under paragraph (1)(B)(ii) if the individ10 ual’s net financial resources and income are in11 sufficient to obtain qualified counsel. 

12 ‘‘(B) ELIGIBILITY FOR COUNSEL.—An in13 dividual who makes a sworn statement to the 

14 adjudicatory official referred to in subsection 

15 (a) that he or she is a member of a family 

16 whose income is not more than 200 percent of 

17 the poverty line (as defined in section 673(2) of 

18 the Community Services Block Grant Act (42 

19 U.S.C. 9902(2))) is eligible for Government-ap20 pointed counsel under this section. 

21 ‘‘(3) ACCESS TO PERTINENT DOCUMENTS AND

22 INFORMATION.— 

23 ‘‘(A) IN GENERAL.—An individual de24 scribed in subsection (a) and his or her counsel 

25 shall automatically receive a complete copy of 


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1 all documents and information pertaining to 

2 such individual that are in the possession of the 

3 Department of Homeland Security or the De4 partment of Health and Human Services, in5 cluding documents obtained from other Govern6 ment agencies, unless the disclosure of any such 

7 document or information is barred by privilege 

8 or otherwise prohibited by law. 

9 ‘‘(B) RECORDS.—Not later than 7 days 

10 after counsel is appointed to represent an indi11 vidual under this Act, the Director of U.S. Citi12 zenship and Immigration Services shall— 

13 ‘‘(i) provide such individual and coun14 sel with a complete copy of the individual’s 

15 immigration file (commonly known as the 

16 ‘A-file’); and 

17 ‘‘(ii) facilitate the provision to such 

18 individual and counsel of a copy of any 

19 Record of Proceeding that is in the posses20 sion of the Department of Homeland Secu21 rity, the Department of Health and 

22 Human Services, or the Department of 

23 Justice (other than documents protected 

24 from disclosure under section 552(b) of 

25 title 5, United States Code). 


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1 ‘‘(4) RESTRICTION.—A proceeding described in 

2 subsection (a) may not commence before the date 

3 that is 10 days after the date on which the indi4 vidual, or the individual’s counsel, has received all of 

5 the documents described in paragraph (3), in order 

6 to review and assess such documents, unless the in7 dividual or his or her counsel knowingly and volun8 tarily waives such restriction. 

9 ‘‘(e) APPOINTMENT OF COUNSEL.— 

10 ‘‘(1) NOTIFICATION REQUIREMENT.—If an indi11 vidual who is entitled to representation under this 

12 section is not represented by counsel, the adjudica13 tory official shall— 

14 ‘‘(A) notify the Local Administrator ap15 pointed pursuant to section 206(k)(3) of the 

16 Fairness to Freedom Act of 2023 (or the des17 ignee of the Local Administrator) that such in18 dividual is not represented by counsel; and 

19 ‘‘(B) advise such individual— 

20 ‘‘(i) of his or her right to be rep21 resented by counsel; and 

22 ‘‘(ii) that such counsel will be ap23 pointed if such person is financially unable 

24 to obtain counsel. 


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1 ‘‘(2) WAIVER.—An individual’s right to be rep2 resented by appointed counsel may only be waived by 

3 the individual— 

4 ‘‘(A) in the physical presence of appointed 

5 counsel; 

6 ‘‘(B) if such waiver is knowing and vol7 untary; and 

8 ‘‘(C) if the individual demonstrates that he 

9 or she— 

10 ‘‘(i) understands the nature of any 

11 charges and the possible defenses and out12 comes; and 

13 ‘‘(ii) possesses the knowledge and in14 telligence necessary to conduct his or her 

15 own defense. 

16 ‘‘(3) APPEAL OF WAIVER; RETROACTIVE AP17 POINTMENT.—Counsel may appeal any putative 

18 waiver to the Office of Immigration Representation 

19 established under section 202 of the Fairness to 

20 Freedom Act of 2023 if counsel reasonably believes 

21 that such waiver did not meet the requirements 

22 under paragraph (2). If the Office of Immigration 

23 Representation concurs with counsel’s assessment, 

24 the Office may retroactively appoint counsel in order 


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1 to include any representation furnished pursuant to 

2 the plan before such appointment. 

3 ‘‘(4) APPOINTMENT OF COUNSEL.—Unless an 

4 individual waives representation by counsel pursuant 

5 to paragraph (2), the Local Administrator, upon no6 tification that an individual may meet the criteria 

7 for appointed counsel, shall appoint counsel for such 

8 individual in accordance with the Local Plan devel9 oped pursuant to section 206(k)(1) of the Fairness 

10 to Freedom Act of 2023 if the Local Administrator 

11 determines, after appropriate inquiry, that such indi12 vidual is financially unable to obtain counsel. An ap13 pointment under this paragraph may be made retro14 active to include any representation furnished to 

15 such individual by such counsel before such appoint16 ment. 

17 ‘‘(5) APPOINTMENT OF SEPARATE COUNSEL.— 

18 The Local Administrator shall appoint separate 

19 counsel for individuals who are subjected to the 

20 same proceeding or related proceedings if— 

21 ‘‘(A) the interests of such individuals can22 not, consistent with ethical responsibilities and 

23 manageable workloads, be properly be rep24 resented by a single counsel; or 


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1 ‘‘(B) the Local Administrator dem2 onstrates another good cause for appointing 

3 separate counsel. 

4 ‘‘(6) CONSOLIDATED CASES.— 

5 ‘‘(A) IN GENERAL.—Subject to paragraph 

6 (5) and except as provided in subparagraph 

7 (B), if the Attorney General consolidates the 

8 case of an individual for whom counsel was ap9 pointed pursuant to subsection (a) with the case 

10 of another individual without counsel, the coun11 sel appointed pursuant to subsection (a) shall 

12 be appointed to represent such other individual 

13 unless a conflict of interest would prevent joint 

14 representation. 

15 ‘‘(B) CONFLICT OF INTEREST.—If a con16 flict of interest prevents joint representation 

17 under subparagraph (A), the Local Adminis18 trator shall appoint separate counsel for the in19 dividuals referred to in such subparagraph un20 less the Local Administrator demonstrates that 

21 there is a good cause for not appointing sepa22 rate counsel. 

23 ‘‘(7) CHANGE OF FINANCIAL CIRCUMSTANCES

24 DURING PROCEEDINGS.—If an individual who has 

25 retained counsel becomes financially unable to pay 


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1 such counsel and is eligible for appointed counsel 

2 under this section, the Local Administrator may ap3 point counsel for such individual in accordance with 

4 this section. 

5 ‘‘(8) SUBSTITUTION OF COUNSEL.—The Local 

6 Administrator, in the interests of justice, upon a 

7 showing of good cause, and consistent with ethical 

8 requirements applicable to attorneys practicing in 

9 the region, substitute an appointed counsel for an10 other appointed counsel at any stage of a proceeding 

11 referred to in subsection (a). 

12 ‘‘(f) ACCESS TO COUNSEL.— 

13 ‘‘(1) IN GENERAL.—If an individual is subject 

14 to proceedings described in subsection (a) or to de15 tention or inspection at a port of entry, U.S. Cus16 toms and Border Protection, U.S. Immigration and 

17 Customs Enforcement, or the Office of Refugee Re18 settlement, as appropriate, shall— 

19 ‘‘(A) facilitate access for such individual to 

20 counsel; and 

21 ‘‘(B) ensure that counsel appointed under 

22 this section is permitted to meet in person with 

23 such individual in a confidential, private setting 

24 when requested during the first 12 hours the 


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1 individual is detained and as soon as practicable 

2 after subsequent meeting requests. 

3 ‘‘(2) ALTERNATIVE MEETING OPTIONS.—If 

4 counsel appointed pursuant to this section cannot 

5 personally meet with an individual described in para6 graph (1) to whom such counsel was appointed to 

7 represent, U.S. Customs and Border Protection, 

8 U.S. Immigration and Customs Enforcement, or the 

9 Office of Refugee Resettlement, as appropriate, at 

10 the request of such individual or the counsel of the 

11 individual, shall provide alternative options through 

12 which counsel may communicate with such indi13 vidual remotely in a confidential, private manner 

14 during the first 12 hours such individual is detained 

15 and as soon as practicable after subsequent meeting 

16 requests. 

17 ‘‘(3) EFFECT OF FAILURE TO PROVIDE TIMELY

18 ACCESS TO COUNSEL.—If U.S. Customs and Border 

19 Protection, U.S. Immigration and Customs Enforce20 ment, or the Office of Refugee Resettlement, as ap21 plicable, fails to timely provide an individual with ac22 cess to counsel in accordance with paragraph (1) or 

23 (2), no statement made by the individual before such 

24 access has been made available may be introduced 

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1 tion by the appointed counsel, who shall be entitled 

2 to a continuance in the proceedings giving rise to the 

3 appointment of such counsel. 

4 ‘‘(4) LIMITATION.—An individual held or de5 tained at a port of entry may not submit a valid 

6 Record of Abandonment of Lawful Permanent Resi7 dent Status or Withdrawal of Application for Admis8 sion if U.S. Customs and Border Protection or U.S. 

9 Immigration and Customs Enforcement has failed to 

10 provide such individual with access to counsel in ac11 cordance with this section. 

12 ‘‘(5) INSTITUTIONAL HEARING PROGRAM.—In13 dividuals held in Federal, State, or local criminal 

14 custody who are placed in any proceeding described 

15 in subsection (a) shall be ensured access to counsel 

16 consistent with the requirements of this section. No 

17 statement made by the respondent before such ac18 cess has been made available may be introduced into 

19 evidence against the respondent except on appointed 

20 counsel’s own motion. Counsel shall be entitled to a 

21 continuance in the proceedings giving rise to his or 

22 her appointment. 

23 ‘‘(6) TERMINATION OF PROCEEDINGS.—If the 

24 Local Administrator fails to provide counsel to an 

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1 retary of Homeland Security or the Attorney Gen2 eral, as appropriate, shall terminate any proceedings 

3 involving such individual with prejudice.’’. 

4 SEC. 102. PUBLIC CHARGE. 

5 Seeking or receiving appointed counsel under section 

6 292 of the Immigration and Nationality Act, as amended 

7 by section 101, may not be serve as the basis for any de8 termination that the individual seeking or receiving such 

9 services is likely to become a public charge for the pur10 poses of determining the admissibility, removability, ex11 cludability, or deportability of such individual under such 

12 Act, or in any other proceeding in which such individual’s 

13 likelihood of becoming a public charge is at issue for immi14 gration purposes. 

15 TITLE II—OFFICE OF IMMIGRA16 TION REPRESENTATION 

17 SEC. 201. DEFINITIONS. 

18 In this title: 

19 (1) BOARD.—The term ‘‘Board’’ means the 

20 Board of Directors of the Office. 

21 (2) DIRECTOR.—The term ‘‘Director’’ means 

22 the Director of the Office of Immigration Represen23 tation appointed pursuant to section 206(k)(1). 

24 (3) IMMIGRATION PUBLIC DEFENDER ORGANI25 ZATION.—The term ‘‘Immigration Public Defender 


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1 Organization’’ means an organization established by 

2 a Local Board pursuant to section 207(a)(1). 

3 (4) LOCAL BOARD.—The term ‘‘Local Board’’ 

4 means a local immigration representation board es5 tablished within a region pursuant to section 206(a). 

6 (5) OFFICE.—The term ‘‘Office’’ means the Of7 fice of Immigration Representation established 

8 under section 202(a). 

9 (6) PANEL ATTORNEY.—The term ‘‘Panel At10 torney’’ means a private attorney appointed by a 

11 State or local Office of Public Defender to provide 

12 legal services to an individual who cannot afford 

13 legal representation. 

14 SEC. 202. ESTABLISHMENT; PURPOSE; INDEPENDENCE. 

15 (a) ESTABLISHMENT.—There is established in the 

16 District of Columbia a private nonprofit corporation, 

17 which shall be known as the Office of Immigration Rep18 resentation. 

19 (b) PURPOSE.—The purpose of the Office shall be to 

20 ensure high-quality legal representation and related serv21 ices to all individuals described in section 292(a) of the 

22 Immigration and Nationality Act, as amended by section 

23 101, who cannot afford representation. 

24 (c) INDEPENDENCE.—Except as otherwise provided 

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1 pendently of any Government official, agency, or depart2 ment, including the Department of Justice, the Depart3 ment of Homeland Security, and the Department of 

4 Health and Human Services. 

5 SEC. 203. BOARD OF DIRECTORS. 

6 (a) NUMBER AND APPOINTMENT.— 

7 (1) IN GENERAL.—The Office shall be governed 

8 by a Board of Directors, consisting of 24 members 

9 who shall be appointed not later than 1 year after 

10 the date of the enactment of this Act, in accordance 

11 with paragraph (2). 

12 (2) INITIAL JUDICIAL APPOINTMENTS.— 

13 (A) IN GENERAL.—Subject to subpara14 graphs (B) and (C), the chief judge of each 

15 United States Court of Appeals (except for the 

16 chief judge for the Federal Circuit) shall ap17 point 2 individuals to the Board who meet the 

18 requirements set forth in subsection (b). 

19 (B) STAGGERED TERMS OF SERVICE.—The 

20 terms of service of the members of the Board 

21 appointed pursuant to subparagraph (A) shall 

22 be staggered so that— 

23 (i) 6 members serve an initial term of 

24 1 year; 


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1 (ii) 6 members serve an initial term of 

2 2 years; 

3 (iii) 6 members serve an initial term 

4 of 3 years; and 

5 (iv) 6 members serve an initial term 

6 of 4 years. 

7 (C) CIRCUITS.— 

8 (i) EASTERN CIRCUITS.—The chief 

9 judge of the 1st, 2nd, 3rd, 4th, 11th, and 

10 DC Circuit Courts of Appeals shall appoint 

11 1 individual to serve an initial term of 1 

12 year and 1 individual to serve an initial 

13 term of 4 years. 

14 (ii) REMAINING CIRCUITS.—The chief 

15 judge of the 5th, 6th, 7th, 8th, 9th, and 

16 10th Circuit Courts of Appeals shall ap17 point 1 individual to serve an initial term 

18 of 2 years and 1 individual to serve an ini19 tial term of 3 years. 

20 (3) IMMIGRATION REPRESENTATION ADVISORY

21 BOARD APPOINTMENTS.— 

22 (A) INITIAL APPOINTMENTS.—Upon the 

23 expiration of the initial term of the 6 members 

24 of the Board who were appointed to 1-year 

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1 migration Representation Advisory Board es2 tablished under section 210 shall appoint to 4- 

3 year terms— 

4 (i) 6 members of the Board; 

5 (ii) an Immigration Public Defender, 

6 who shall serve as a nonvoting, ex-officio 

7 member of the Board; and 

8 (iii) a Panel Attorney, who shall serve 

9 as a nonvoting, ex-officio member of the 

10 Board. 

11 (B) SUBSEQUENT APPOINTMENTS.—Upon 

12 the expiration of the initial term of the 6 mem13 bers of the Board who were appointed to 2-year 

14 terms pursuant to paragraph (2)(B)(ii), the Im15 migration Representation Advisory Board es16 tablished under section 210 shall appoint 6 

17 members of the Board to 4-year terms. The Im18 migration Representation Advisory Board shall 

19 also appoint individuals to replace any member 

20 of the Board who had been appointed by the 

21 Advisory Board, upon the expiration of such 

22 member’s term. 

23 (4) SUBSEQUENT JUDICIAL APPOINTMENTS.— 

24 (A) IN GENERAL.—Upon the expiration of 

25 the term of any member of the Board appointed 


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1 by a chief judge to a 3-year or 4-year term, 

2 such chief judge shall appoint an individual to 

3 the Board from a list of 5 qualified individuals 

4 nominated, by majority vote, by a committee 

5 consisting of— 

6 (i) the head of each Immigration Pub7 lic Defender Organization that is 

8 headquartered within the corresponding 

9 circuit; 

10 (ii) the head of each Community De11 fender Office that is headquartered within 

12 the corresponding circuit; and 

13 (iii) panel attorney representatives 

14 within the corresponding circuit. 

15 (B) FAILURE TO PRODUCE LIST.—If a 

16 committee described in subparagraph (A) from 

17 a circuit does not provide a list of 5 Board 

18 nominees to the chief judge of the cor19 responding circuit before the date that is 30 

20 days after the expiration of the term of service 

21 of a member of the Board representing such 

22 circuit, the chief judge of such circuit may ap23 point an individual to replace such member of 

24 the Board without regard to nominations. 

25 (b) RESTRICTIONS ON MEMBERSHIP.— 


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1 (1) QUALIFICATIONS.—Each individual ap2 pointed to the Board pursuant to subsection (a)— 

3 (A) shall be nonpartisan; 

4 (B) shall have significant experience rep5 resenting persons in proceedings described in 

6 section 292(a) of the Immigration and Nation7 ality Act, as amended by section 101 of this 

8 Act; and 

9 (C) shall have demonstrated a strong com10 mitment to representation in indigent defense 

11 matters. 

12 (2) DIVERSITY.—In making appointments to 

13 the Board under subsection (a), chief judges and the 

14 Immigration Representation Advisory Board shall 

15 seek to appoint individuals, in the aggregate, who re16 flect the characteristics of the population rep17 resented by counsel appointed pursuant section 292 

18 of the Immigration and Nationality Act, including 

19 the characteristics of race, gender identity, sexual 

20 orientation, immigration experience, and socio21 economic background. 

22 (3) DISQUALIFYING CHARACTERISTICS.—A 

23 member of the Board, while serving in such capac24 ity, may not be— 


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1 (A) an employee of the Office, a member 

2 of a Local Board, an Immigration Public De3 fender Organization, or a community defender 

4 office. or a Panel Attorney, unless he or she is 

5 serving as an ex-officio member of the Board; 

6 (B) a judge or employee of any Federal or 

7 State court, any immigration court, or the 

8 Board of Immigration Appeals; or 

9 (C) a prosecutor or law enforcement offi10 cer, an employee of a prosecutor’s office or law 

11 enforcement agency, or any person who has 

12 held any such position during the 3-year period 

13 immediately preceding his or her appointment 

14 to the Board. 

15 (c) TERM OF MEMBERSHIP.— 

16 (1) MAXIMUM LENGTH OF SERVICE.—No mem17 ber of the Board may serve more than 2 terms, ex18 cept that a person who was appointed to serve a 1- 

19 year term may be appointed to 2 additional 4-year 

20 terms. 

21 (2) REPLACEMENT MEMBERS.—A person who 

22 is appointed to replace a member who resigned or 

23 was removed— 

24 (A) shall serve the remainder of the term 

25 of such member; and 


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1 (B) may be appointed to serve up to 2 ad2 ditional 4-year terms. 

3 (d) VACANCIES.— 

4 (1) MEMBERS SELECTED BY A CHIEF JUDGE.— 

5 Not later than 90 days after the creation of a va6 cancy arising from a Board member position selected 

7 by a chief judge, the committee described in sub8 section (a)(2)(A) from the corresponding circuit 

9 shall submit a list of 5 qualified nominees to such 

10 chief judge, who shall appoint 1 of such nominees as 

11 the new member of the Board. 

12 (2) FAILURE TO PRODUCE LIST.—If the com13 mittee fails to submit the list required under para14 graph (1) before the deadline, the chief judge may 

15 make a selection without regard to nominations. 

16 (3) MEMBERS SELECTED BY THE IMMIGRATION

17 REPRESENTATION ADVISORY BOARD.—Not later 

18 than 90 days after the creation of a vacancy arising 

19 from a Board member position selected by the Immi20 gration Representation Advisory Board, the Immi21 gration Representation Advisory Board shall appoint 

22 a new member of the Board to fill such vacancy. 

23 (e) RATES OF PAY; TRAVEL EXPENSES.— 

24 (1) RATES OF PAY.—Members shall be paid for 

25 their services on the Board at a rate not to exceed 


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1 the daily rate at which judges of the United States 

2 courts of appeals are compensated. No member may 

3 be paid for more than 90 days in any calendar year. 

4 (2) TRAVEL EXPENSES.—Each member shall 

5 receive travel expenses, including per diem in lieu of 

6 subsistence, in accordance with applicable provisions 

7 under subchapter I of chapter 57 of title 5, United 

8 States Code. 

9 (f) CHAIRPERSON.—The Chairperson of the Board 

10 shall be elected by the members and shall serve for a 2- 

11 year term, which may be renewed once by the Board for 

12 an additional 2-year term. 

13 (g) REMOVAL OF MEMBERS.—The members of the 

14 Board, by a vote of 13 members, may remove a member 

15 from the Board for— 

16 (1) malfeasance in office; 

17 (2) persistent neglect of, or inability to dis18 charge, Board duties; or 

19 (3) conduct unbecoming of a member of the 

20 Board. 

21 (h) QUORUM.—A quorum for purposes of conducting 

22 Board business shall be a majority of the members of the 

23 Board presently serving. 

24 (i) VOTING.—All members of the Board are entitled 

25 to vote on any matters coming before the Board unless 


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1 otherwise provided by rules adopted by the Board con2 cerning voting on matters in which a member has, or ap3 pears to have, a financial or other personal interest. 

4 (j) BYLAWS.—The Board shall adopt bylaws gov5 erning the operation of the Board, which may include pro6 visions authorizing other officers of the Board and gov7 erning proxy voting, telephonic and video meetings, and 

8 the appointment of committees. 

9 (k) DUTIES OF THE BOARD.—The Board shall— 

10 (1) appoint a Director of the Office not later 

11 than 2 months after the establishment of the 

12 Board— 

13 (A) who shall be selected on the basis of 

14 training, experience, and other relevant quali15 fications; and 

16 (B) who shall serve at the pleasure of the 

17 Board; 

18 (2) convene a meeting not later than 4 months 

19 after the establishment of the Board, and not less 

20 frequently than quarterly thereafter; 

21 (3) submit appropriations requests to Congress 

22 for the provision of legal services to individuals rep23 resented by counsel in proceedings described in sec24 tion 292(a) of the Immigration and Nationality Act, 

25 as amended by section 101(a); 


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1 (4) submit an annual report to Congress and 

2 the President that— 

3 (A) describes the operation of the Office 

4 and the delivery of services required under sec5 tion 292 of the Immigration and Nationality 

6 Act; and 

7 (B) includes— 

8 (i) the number of people who were 

9 provided legal services during the reporting 

10 period pursuant to such section 292 and 

11 the types of proceedings in which such peo12 ple were represented; 

13 (ii) the custodial status of the people 

14 who were represented; 

15 (iii) aggregate case outcomes for the 

16 people who were represented; and 

17 (iv) the status of appointments and 

18 vacancies on the Board and Local Boards; 

19 (5) complete and submit to Congress and to the 

20 President every 7 years a comprehensive review and 

21 evaluation of the implementation of this Act, includ22 ing the identification of the resources needed to 

23 carry out the requirements under this Act and the 

24 amendments made by this Act for the foreseeable fu25 ture; 


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1 (6) make the reports described in paragraphs 

2 (4) and (5) publicly available at the time they are 

3 submitted to Congress and to the President; 

4 (7) establish and maintain standards for the 

5 provision of representation that are consistent with 

6 appointed counsel’s duty to provide representation 

7 under section 292 of the Immigration and Nation8 ality Act, including— 

9 (A) the minimum experience, skill, per10 formance, and other qualifications for participa11 tion as appointed counsel; 

12 (B) ongoing training, professional develop13 ment, and mentorship and supervision required 

14 to remain eligible to serve as appointed counsel 

15 under such section 292; 

16 (C) reasonable, manageable, and sustain17 able appointed counsel caseloads that are con18 sistent with appointed counsel’s primary duty to 

19 provide representation to individuals described 

20 in such section 292; 

21 (D) the elements to be evaluated during 

22 performance reviews of appointed counsel to de23 termine whether they complied with their duty 

24 to provide representation under such section 

25 292; 


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1 (E) how to provide adequate representation 

2 of clients whose cases present conflicts of inter3 est; and 

4 (F) ensuring continued representation in 

5 circumstances in which clients move or are 

6 transferred, or where cases are transferred or 

7 change venue; 

8 (8) evaluate plans submitted by Local Boards 

9 for the provision of representation of individuals be10 fore U.S. Citizenship and Immigration Services in 

11 matters described in section 292 of the Immigration 

12 and Nationality Act, after taking into account the 

13 ability of such plans to provide such representation, 

14 and approve such plans if they meet applicable legal 

15 requirements of law and are consistent with the poli16 cies of the Office; 

17 (9) review the implementation of plans ap18 proved by the Board not less frequently than once 

19 every 4 years to ensure that each Local Board com20 plies with the plan approved by the Board; 

21 (10) establish policies and procedures with re22 spect to compensation rates and reimbursement of 

23 reasonable expenses for appointed counsel under 

24 such section 292 and others providing services re25 lated to such representation; 


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1 (11) establish procedures to obtain investiga2 tors, experts, interpreters, and other providers of de3 fense services necessary for effective representation 

4 of individuals who are entitled to counsel under sec5 tion 292 of the Immigration and Nationality Act; 

6 (12) establish procedures for the reimbursement 

7 of reasonable expenses of attorneys, investigators, 

8 experts, interpreters, and other persons providing 

9 representation and related services under such sec10 tion 292; 

11 (13) approve staffing levels and budgets for Im12 migration Public Defender Organizations; 

13 (14) approve staffing levels and budgets for the 

14 Office; and 

15 (15) establish a mechanism for the submission, 

16 review, resolution, and reporting of complaints from 

17 individuals entitled to counsel under section 292 of 

18 the Immigration and Nationality Act regarding such 

19 representation. 

20 (l) POWERS OF THE BOARD.—The Board is author21 ized— 

22 (1) to delegate any of its duties, in whole or in 

23 part, to the Director, except for the duties described 

24 in paragraphs (1), (7), (13) and (14) of subsection 

25 (k); 


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1 (2) to alter or revoke any such delegation to the 

2 Director; 

3 (3) to provide to Congress information regard4 ing the immigration system that the Board considers 

5 relevant to the purpose of the Office; 

6 (4) to authorize studies or reports that relate to 

7 the purpose of the Office; 

8 (5) to combine Local Boards or divide an area 

9 served by a Local Board if the Board determines 

10 that such action is necessary to carry out the pur11 poses of this section; 

12 (6) to remove, by a vote of at least 13 mem13 bers, a member or members of a Local Board for 

14 malfeasance in office, persistent neglect of or inabil15 ity to discharge duties, or conduct unbecoming of a 

16 member of the Local Board; 

17 (7) to seek, accept, and use public grants, pri18 vate contributions, and voluntary and uncompen19 sated (gratuitous services) to assist the Board in 

20 carrying out the purposes of this Act and other serv21 ices related to such purposes; and 

22 (8) to take any other action that is reasonably 

23 necessary and not inconsistent with the Act to carry 

24 out the purposes of this Act. 


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1 SEC. 204. DIRECTOR. 

2 (a) REQUIREMENTS.—The Director of the Office— 

3 (1) shall be a licensed attorney in good standing 

4 in any United States jurisdiction at the time of his 

5 or her appointment and at all times during his or 

6 her service as the Director; 

7 (2) shall be experienced in representing people 

8 in proceedings described in section 292 of the Immi9 gration and Nationality Act, as amended by section 

10 101 of this Act; and 

11 (3) may not be a member of the Board. 

12 (b) DUTIES.—The Director shall— 

13 (1) appoint and fix the compensation of employ14 ees of the Office; 

15 (2) establish a personnel management system 

16 for the Office that provides for the appointment, 

17 pay, promotion, and assignment of all employees on 

18 the basis of merit, but without regard to the provi19 sions of subchapter I of chapter 33 of title 5, United 

20 States, Code (relating to appointments in the com21 petitive service) or the provisions of chapter 51 and 

22 subchapter III of chapter 53 of such title (relating 

23 to classification and General Schedule pay rates); 

24 (3) employ such personnel as may be necessary 

25 to advance the purposes of the Office, subject to 

26 staffing and budget approval of the Board; 


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1 (4) provide an annual report to the Board re2 garding the activities of the Office; 

3 (5) provide such periodic reports and work 

4 product to the Board sufficient for the Board to ful5 fill its duties under section 203(k); 

6 (6) allocate and disburse funds appropriated for 

7 legal representation and related services in cases 

8 subject to this Act pursuant to rules and procedures 

9 established by the Board; 

10 (7) enter into contracts to provide or receive 

11 services with any public or private agency, group, or 

12 individual; 

13 (8) appoint a Local Administrator for each re14 gion to administer and approve, subject to the poli15 cies established by the Board, the payment of funds 

16 necessary for Panel Attorney representation, includ17 ing Panel Attorney compensation, investigators, ex18 perts, and other providers of representation services, 

19 and any other necessary expenses for effective rep20 resentation; 

21 (9) assist the Board in developing rules and 

22 standards for the delivery of services under this Act; 

23 (10) coordinate the services funded by the Of24 fice with any Federal, state, county, local, or private 

25 programs established to provide legal assistance to 


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1 persons in cases subject to this Act who are unable 

2 to afford representation; 

3 (11) consult with professional bodies concerning 

4 improving the administration of legal representation 

5 for persons in proceedings described in section 292 

6 of the Immigration and Nationality Act, as amended 

7 by section 101 of this Act; and 

8 (12) perform such other duties as may be as9 signed by the Board. 

10 SEC. 205. EMPLOYEES. 

11 (a) IN GENERAL.—Employees of the Office shall be 

12 treated as employees of the Federal Government solely for 

13 purposes of— 

14 (1) subchapter 1 of chapter 81 of title 5, 

15 United States Code (relating to compensation for 

16 work injuries); 

17 (2) chapter 83 of such title 5 (relating to retire18 ment); 

19 (3) chapter 84 of such title 5 (relating to the 

20 Federal Employees’ Retirement System); 

21 (4) chapter 87 of such title 5 (relating to life 

22 insurance); and 

23 (5) chapter 89 of such title 5 (relating to health 

24 insurance). 


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1 (b) EMPLOYER CONTRIBUTIONS.—The Office shall 

2 make contributions on behalf of employees of the Office 

3 under the provisions referred to in subsection (a) at the 

4 same rates applicable to employees of agencies of the Fed5 eral Government. 

6 (c) THRIFT SAVINGS PLAN.—Employees of the Office 

7 may make an election under section 8351 or 8432 of title 

8 5, United States Code, to participate in the Thrift Savings 

9 Plan for Federal employees. 

10 SEC. 206. LOCAL IMMIGRATION REPRESENTATION BOARDS. 

11 (a) ESTABLISHMENT.—Not later than 6 months after 

12 the date on which the Board is established pursuant to 

13 section 203(a), the Office shall delineate administrative re14 gions throughout the United States and establish a local 

15 immigration representation board for each region. 

16 (b) COMPOSITION OF LOCAL BOARDS.— 

17 (1) IN GENERAL.—Subject to subsection (c), 

18 each Local Board shall consist of not fewer than 5 

19 member and not greater than 15 members, who 

20 shall initially be selected by the Board after con21 sultation with stakeholders in the Local Board’s re22 gion, including immigration legal service providers, 

23 community-based organizations, and people who are 

24 or have been subject to proceedings described in secVerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187

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1 tion 292 of the Immigration and Nationality Act, as 

2 amended by section 101. 

3 (2) ATTORNEYS.—Not fewer than 50 percent of 

4 the members of a Local Board selected pursuant to 

5 paragraph (1) shall be— 

6 (A) licensed attorneys with experience in 

7 the practice of removal defense; or 

8 (B) employees of community-based organi9 zations providing services to immigrants. 

10 (3) SUBSEQUENT MEMBERS.—After the initial 

11 members are selected pursuant to paragraph (1), 

12 each Local Board shall select its own members in 

13 accordance with bylaws that have been approved by 

14 the Office. 

15 (c) QUALIFICATION OF MEMBERS.— 

16 (1) EXPERIENCE; COMMITMENT.—Members of 

17 a Local Board shall have— 

18 (A) significant experience defending cases 

19 described in section 292 of the Immigration and 

20 Nationality Act, as amended by section 101; 

21 and 

22 (B) demonstrated a strong commitment to 

23 representation in indigent defense matters. 

24 (2) DIVERSITY.—The composition of each Local 

25 Boards shall reflect the diversity of the population 


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1 that counsel appointed pursuant to such section 292 

2 are responsible for representing, including diversity 

3 of race, gender identity, sexual orientation, immigra4 tion experience, and socioeconomic background. 

5 (3) RESTRICTIONS.—A member of a Local 

6 Board may not— 

7 (A) be an employee of an Immigration 

8 Public Defender Organization or Community 

9 Defender Organization with a contract to pro10 vide representation under such section 292; 

11 (B) be a member of an Attorney Panel re12 ferred to in section 207(d); 

13 (C) be a judicial officer of the United 

14 States or of a State, territory, district, posses15 sion, or commonwealth of the United States; 

16 (D) be employed as a prosecutor, a law en17 forcement official, or a judicial official, or by a 

18 prosecutorial or law enforcement agency; or 

19 (E) have held a position described in sub20 paragraph (D) during the 3-year period imme21 diately preceding his or her appointment to the 

22 Board. 

23 (d) TERM OF MEMBERS OF A LOCAL BOARD.— 

24 (1) IN GENERAL.—Members of a Local Board 

25 shall serve 4-year terms, except that the terms of 


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•S 1187 IS

1 the initial members shall be staggered so that the 

2 term of not more than 50 percent of the members 

3 expire during any calendar year. 

4 (2) MAXIMUM LENGTH OF SERVICE.—A person 

5 may not serve for more than 9 years on a Local 

6 Board. 

7 (3) REPLACEMENT MEMBERS.—A person who 

8 is appointed to replace a member who has resigned 

9 or was removed shall serve the remainder of the 

10 term of such departing person. 

11 (e) COMPENSATION OF MEMBERS OF A LOCAL

12 BOARD.— 

13 (1) IN GENERAL.—Members of any Local 

14 Board shall be paid for their service at the daily rate 

15 at which judges of the United States courts of ap16 peals are compensated, but may not be paid for 

17 more than 90 days of such service in any calendar 

18 year. 

19 (2) TRAVEL EXPENSES.—Members of any Local 

20 Board shall receive travel expenses, including per 

21 diem in lieu of subsistence, in accordance with appli22 cable provisions under subchapter I of chapter 57 of 

23 title 5, United States Code. 

24 (f) CHAIR OF LOCAL BOARD.—Each Local Board 

25 shall elect a member of the Local Board to serve as chair 


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1 for 2 years, which term shall begin on the date of election. 

2 Such chair may be reelected to extend such service for an 

3 additional 2-year term. 

4 (g) REMOVAL OF MEMBER OF LOCAL BOARD.—Each 

5 Local Board, by a majority vote of the full membership, 

6 may remove a member from the Local Board for— 

7 (1) malfeasance in office; 

8 (2) persistent neglect of, or inability to dis9 charge, Local Board duties; or 

10 (3) conduct unbecoming of a member of the 

11 Local Board. 

12 (h) QUORUM OF LOCAL BOARD.—A majority of the 

13 full membership of the Local Board shall constitute a 

14 quorum for the purpose of conducting business. 

15 (i) LOCAL BOARD GOVERNANCE.—Each Local Board 

16 shall adopt bylaws governing the operation of the Local 

17 Board, which may include provisions authorizing other of18 ficers of the Local Board and proxy voting. 

19 (j) DISSOLUTION OF LOCAL BOARDS.—The Board, 

upon a 2 20 ⁄3 vote, may dissolve a Local Board for good 

21 cause. Upon dissolution, the Office shall ensure that a new 

22 Local Board is established not later than 90 days of dis23 solution. The new members of the Local Board shall be 

24 selected by the majority votes of the Immigration Public 


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•S 1187 IS

1 Defenders and the Panel Attorney representatives of the 

2 district or districts to be served and the Director. 

3 (k) DUTIES OF LOCAL BOARDS.— 

4 (1) LOCAL PLANS.— 

5 (A) IN GENERAL.—Each Local Board— 

6 (i) not later than 120 days after the 

7 Local Board is established, shall develop 

8 and submit to the Office for approval a 

9 Local Plan for the provision of representa10 tion services for the region served by the 

11 Local Board; 

12 (ii) shall implement the Local Plan 

13 after it has been approved by the Office; 

14 (iii) may modify the Local Plan at 

15 any time, subject to the approval of the 

16 Office; and 

17 (iv) shall modify the Local Plan if so 

18 directed by the Office. 

19 (B) COMPONENTS; DEVELOPMENT.—Each 

20 Local Plan developed pursuant to subparagraph 

21 (A)— 

22 (i) shall provide for the appointment 

23 of counsel in a timely manner in accord24 ance with this Act; 


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•S 1187 IS

1 (ii) shall be developed in consultation 

2 with U.S. Citizenship and Immigration 

3 Services to ensure that it adequately en4 compasses proceedings described in section 

5 292 of the Immigration and Nationality 

6 Act that are within the jurisdiction of U.S. 

7 Citizenship and Immigration Services; 

8 (iii) shall consider the existence of any 

9 State, county, or locally funded programs 

10 providing representation to people in pro11 ceedings described in such section 292; 

12 (iv) may provide grants or reimburse13 ments to jurisdictions with programs de14 scribed in clause (iii) that provide rep15 resentation that furthers the purposes of 

16 this Act; 

17 (v) shall prioritize such grants or re18 imbursements for State, county, and lo19 cally funded programs that provide rep20 resentation to people involved in a pro21 ceeding described in such section 292 with22 out regard to any past interaction with the 

23 immigration or criminal legal systems; 

24 (vi) may, in accordance with section 

25 207— 


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1 (I) establish 1 or more Immigra2 tion Public Defender Organizations; 

3 and 

4 (II) contract with 1 or more 

5 Community Defender Organizations; 

6 (vii) shall provide for the establish7 ment of a panel of private attorneys to 

8 provide representation under such section 

9 292, in accordance with section 207 of this 

10 Act; and 

11 (viii) shall provide a plan for holding 

12 community engagement meetings that are 

13 open to the public not less frequently than 

14 twice during each fiscal year. 

15 (C) LOCAL PLANS WITH BORDER-BASED

16 COMPONENTS.— 

17 (i) IN GENERAL.—The Local Plan for 

18 each region that is adjacent to the inter19 national border between the United States 

20 and Mexico border shall provide for rep21 resentation to all people subject to a pro22 ceeding described in section 292 of the Im23 migration and Nationality Act, as amended 

24 by section 101 of this Act. 


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1 (ii) IDENTIFYING COUNSEL.—The 

2 Local Board of each region described in 

3 clause (i) may utilize the entities specified 

4 in section 207 and Attorney of the Day, 

5 attorney fellowship, and other models— 

6 (I) to provide limited representa7 tion to people in proceedings at the 

8 border; and 

9 (II) to coordinate case transfers 

10 and referrals for legal representation 

11 for people who are subsequently re12 leased from, or transferred within, the 

13 custody of the Department of Home14 land Security or the Office of Refugee 

15 Resettlement. 

16 (2) APPOINTMENTS TO IMMIGRATION REP17 RESENTATION ADVISORY BOARD.—If a Local Plan 

18 does not provide for the establishment of an Immi19 gration Public Defender Organization or contracting 

20 with a Community Defender Organization in the re21 gion, the Local Board shall appoint representatives 

22 to the Immigration Representation Advisory Board 

23 established under section 210(a). 

24 (3) LOCAL ADMINISTRATOR.—Each Local 

25 Board shall appoint, subject to the approval of the 


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•S 1187 IS

1 Office, a Local Administrator and such staff as may 

2 be necessary to assist the Local Board in admin3 istering the selection and appointment of Panel At4 torneys. 

5 (4) IMMIGRATION PUBLIC DEFENDER.—If a 

6 Local Plan includes the establishment of 1 or more 

7 Immigration Public Defender Organizations, the 

8 Local Board shall— 

9 (A) select 1 or more Immigration Public 

10 Defenders, who shall serve in accordance with 

11 section 207(b), for the region or a portion of 

12 the region that will be served by the Local 

13 Board; 

14 (B) periodically evaluate the performance 

15 of the Immigration Public Defender; and 

16 (C) submit the results of the evaluations 

17 required under subparagraph (B), as directed 

18 by the Office. 

19 (5) DUTIES OF LOCAL ADMINISTRATOR.—Each 

20 Local Administrator shall— 

21 (A) review, and certify for payment, all 

22 vouchers received from Panel Attorneys to com23 pensate them for— 

24 (i) their time spent representing cli25 ents appointed to them pursuant to section 


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1 292 of the Immigration and Nationality 

2 Act, as amended by section 101 of this 

3 Act; and 

4 (ii) the costs of investigators, experts, 

5 interpreters, and other providers of defense 

6 services for work performed on behalf of 

7 the Panel Attorneys and their clients; 

8 (B) authorize reasonable expenditures for 

9 transcripts and the services of paralegals and 

10 other legal support personnel, to the extent nec11 essary; 

12 (C) prepare, at the direction of the Office, 

13 an annual budget for the provision of represen14 tation services under such section 292, except 

15 for representation services provided by an Im16 migration Public Defender Office; 

17 (D) implement procedures established by 

18 the Office, permitting a Panel Attorney or other 

19 representative appointed under such section 

20 292 to appeal a decision of the Local Adminis21 trator concerning compensation or reimburse22 ment; and 

23 (E) perform other duties related to the au24 thorization, payment, and budgeting of exVerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187

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1 penses related to Panel Attorneys, as assigned 

2 by the Director. 

3 (6) REPRESENTATION OF FINANCIALLY ELIGI4 BLE PERSONS.—The Local Board shall establish 

5 procedures for the appointment of counsel for any 

6 person who— 

7 (A) is subject to a proceeding described in 

8 section 292 of the Immigration and Nationality 

9 Act, as amended by section 101; and 

10 (B) is financially unable to obtain high11 quality representation. 

12 SEC. 207. TYPES OF IMMIGRATION DEFENDERS. 

13 (a) IN GENERAL.—To ensure representation of all el14 igible persons in proceedings described in section 292 of 

15 the Immigration and Nationality Act, as amended by sec16 tion 101, the Local Board may— 

17 (1) establish 1 or more Immigration Public De18 fender Organizations in the region comprising the 

19 Local Board’s jurisdiction; 

20 (2) contract with existing Community Defender 

21 Organizations; and 

22 (3) establish a Panel Attorney system. 

23 (b) IMMIGRATION PUBLIC DEFENDER.— 

24 (1) IN GENERAL.—An Immigration Public De25 fender Organization shall consist of 1or more fullVerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187

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1 time salaried attorneys. Each Immigration Public 

2 Defender Organization shall be supervised by an Im3 migration Public Defender appointed by the Local 

4 Board that established the organization, subject to 

5 the approval of the Office and without regard to the 

6 provisions of title 5, United States Code, governing 

7 appointments in the competitive service. 

8 (2) REMOVAL.— 

9 (A) IN GENERAL.—The Immigration Pub10 lic Defender shall serve at the pleasure of the 

11 Local Board, but may be removed by the Direc12 tor for— 

13 (i) malfeasance in office; 

14 (ii) persistent neglect or inability to 

15 discharge the duties of an Immigration 

16 Public Defender; or 

17 (iii) conduct unbecoming of a rep18 resentative of the Office. 

19 (B) NONFACTORS FOR JUSTIFYING RE20 MOVAL.—The efforts and advocacy of an Immi21 gration Public Defender to ensure that the Of22 fice carries out its responsibilities under this 

23 Act, including ensuring parity of resources, pro24 tecting counsel’s duty to provide representation, 

25 and ensuring manageable caseloads consistent 


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1 with that duty, may not serve as a basis for re2 moval or for initiating proceedings for removal 

3 against the Immigration Public Defender. 

4 (3) CONTINUED SERVICE UNTIL APPOINTMENT

5 OF SUCCESSOR.—Upon the expiration of the term of 

6 service for which he or she was appointed, an Immi7 gration Public Defender may continue to perform 

8 the duties of such office, in accordance with rules es9 tablished by the Local Board, until the earlier of— 

10 (A) the date on which a successor is ap11 pointed; or 

12 (B) the date that is 1 year after the expi13 ration of such term. 

14 (4) COMPENSATION.—The compensation of 

15 each Immigration Public Defender shall be fixed by 

16 the Local Board at a rate that is comparable to— 

17 (A) the rate of compensation received by 

18 the Principal Legal Advisor of U.S. Immigra19 tion and Customs Enforcement who is prac20 ticing in the nearest court where representation 

21 is furnished; or 

22 (B) if more than 1 court is involved, the 

23 rate of compensation that is paid to the higher 

24 paid Principal Legal Advisor in such courts. 

25 (5) ADDITIONAL PERSONNEL.— 


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1 (A) APPOINTMENTS.—The Immigration 

2 Public Defender may appoint, without regard to 

3 the provisions of title 5, United States Code, 

4 governing appointments in the competitive serv5 ice, full-time attorneys in such number as may 

6 be approved by the Office and other personnel 

7 in such number as may be approved. 

8 (B) COMPENSATION.—Compensation paid 

9 to the attorneys and other personnel approved 

10 by the Office pursuant to subparagraph (A) 

11 shall be fixed by the Immigration Public De12 fender at a rate that is comparable to— 

13 (i) the rate of compensation that is 

14 paid to attorneys and other personnel of 

15 similar qualifications and experience in the 

16 Office of the Principal Legal Advisor in 

17 the nearest court where representation is 

18 furnished; or 

19 (ii) if more than 1 court is involved, 

20 the rate of compensation that is paid to 

21 the higher paid person of similar qualifica22 tions and experience in such courts. 

23 (6) TREATMENT AS FEDERAL GOVERNMENT

24 EMPLOYEES.—Employees of an Immigration Public 


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1 Defender Organization shall be treated as employees 

2 of the Federal Government solely for purposes of— 

3 (A) subchapter 1 of chapter 81 of title 5, 

4 United States Code (relating to compensation 

5 for work injuries); 

6 (B) chapter 83 of such title 5 (relating to 

7 retirement); 

8 (C) chapter 84 of such title 5 (relating to 

9 the Federal Employees’ Retirement System); 

10 (D) chapter 87 of such title 5 (relating to 

11 life insurance); and 

12 (E) chapter 89 of such title 5 (relating to 

13 health insurance). 

14 (7) RESTRICTION.—An Immigration Public De15 fender and any attorney appointed to serve in an 

16 Immigration Public Defender Organization is pro17 hibited from engaging in the private practice of law. 

18 (8) LIMITED LIABILITY.—The Office, to the ex19 tent the Director considers appropriate, shall provide 

20 representation for and hold harmless, or provide li21 ability insurance for, any person who is an officer or 

22 employee of an Immigration Public Defender Orga23 nization. 

24 (9) REPORTS.—Each Immigration Public De25 fender Organization shall submit periodic reports of 


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1 its activities and financial positions and its proposed 

2 budget to the Local Board at the times and in the 

3 form prescribed by the Local Board. 

4 (c) COMMUNITY DEFENDER ORGANIZATIONS.— 

5 (1) IN GENERAL.—A Community Defender Or6 ganization shall be a nonprofit legal representation 

7 service established and administered by any group 

8 authorized by the Local Plan to provide representa9 tion to individuals subject to proceedings described 

10 in section 292 of the Immigration and Nationality 

11 Act, as amended by section 101. 

12 (2) ANNUAL REPORT.—Each Community De13 fender Organization shall submit an annual report 

14 to the Local Board that sets forth its activities dur15 ing the previous fiscal year and the anticipated case16 load and expenses for the upcoming fiscal year. 

17 (d) ATTORNEY PANEL.—Each Local Plan developed 

18 pursuant to section 206(k)(1) shall provide for— 

19 (1) the appointment of qualified private attor20 neys from an Attorney Panel within the region; 

21 (2) the implementation of standards established 

22 by the Office setting forth the minimum qualifica23 tions for Panel Attorneys; and 

24 (3) the establishment of a system to ensure 

25 that— 


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1 (A) the number of attorneys on each Attor2 ney Panel is limited to provide each attorney 

3 with sufficient appointments to maintain con4 tinuing familiarity with immigration law and 

5 procedure; 

6 (B) there is early entry of counsel, includ7 ing representation as soon as possible in all 

8 proceedings described in section 292 of the Im9 migration and Nationality Act, as amended by 

10 section 101; 

11 (C) there are adequate support services, 

12 including training and technical support, for 

13 members of each Attorney Panel for every area 

14 in the region; 

15 (D) conflicts of interests are avoided; and 

16 (E) there is equal employment opportunity 

17 for the employees of Immigration Public De18 fender Organizations and Panel Attorneys. 

19 SEC. 208. COMPENSATION AND REIMBURSEMENT OF COUN20 SEL EXPENSES. 

21 (a) IN GENERAL.—The Office shall establish the ap22 propriate hourly rates and salaries to be paid to counsel 

23 appointed under each Local Plan, which— 

24 (1) shall be established at levels that will ensure 

25 the provision of high-quality legal representation for 


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1 all people represented in proceedings described in 

2 section 292 of the Immigration and Nationality Act, 

3 as amended by section 101; and 

4 (2) shall be calculated to provide appointed 

5 counsel with compensation that is comparable to the 

6 compensation paid to— 

7 (A) attorneys who are employed by the Of8 fice of the Principal Legal Advisor of U.S. Im9 migration and Customs Enforcement nearest to 

10 the forum in which such counsel is providing 

11 representation; 

12 (B) attorneys employed by the cor13 responding Federal prosecutor’s office; or 

14 (C) any other attorney representing the 

15 Government in connection with proceedings that 

16 are comparable to proceedings described in such 

17 section 292. 

18 (b) USE OF BILLING CAPS.—If the Office places caps 

19 on total billing for legal representation, the Office shall 

20 establish policies and procedures for counsel to request au21 thorization to exceed such caps to the extent required to 

22 ensure effective representation. 

23 (c) FEES; ADDITIONAL COMPENSATION.—The Office 

24 shall establish— 


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1 (1) distinct fees to apply to counsel providing 

2 services in proceedings that fall within the geo3 graphic jurisdiction of each of the United States 

4 courts of appeal within each region delineated by the 

5 Office pursuant to section 206(a), after taking into 

6 account the prevailing wage rates for qualified attor7 neys within the geographic area in which representa8 tion will be provided under section 292 of the Immi9 gration and Nationality Act, as amended by section 

10 101; and 

11 (2) additional compensation to be paid to coun12 sel who provide representation under such section 

13 292 to individuals in remote and underserved areas, 

14 after taking into account the distance from the place 

15 of business of such counsel to— 

16 (A) the immigration courts; 

17 (B) Department of Homeland Security and 

18 Department of Health and Human Services fa19 cilities; and 

20 (C) other relevant sites where such rep21 resentation is expected to be provided. 

22 (d) REIMBURSEMENT FOR EXPENSES; SALARY IN23 CREASES.— 

24 (1) REIMBURSEMENTS.—Counsel providing rep25 resentation under section 292 of the Immigration 


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1 and Nationality Act, as amended by section 101, 

2 shall be reimbursed by the Department of Homeland 

3 Security for expenses reasonably incurred in the 

4 course of such representation, including the costs of 

5 transcripts, but may not be reimbursed by the Fed6 eral Government for expenses related to defending 

7 against malpractice claims. 

8 (2) SALARY INCREASES.—The Office shall es9 tablish policies and procedures governing increases 

10 in hourly rates, salaries, and fees initially deter11 mined under subsection (a) or (c). 

12 (e) PAYMENTS IN EXCESS OF ESTABLISHED FEES.— 

13 The Office shall establish policies and procedures for re14 questing and approving payments in excess of the fees es15 tablished under subsection (c) for extended or complex 

16 representation if such excess payments are necessary to 

17 provide fair compensation for the counsel providing such 

18 representation. 

19 SEC. 209. SERVICES OTHER THAN COUNSEL. 

20 (a) SERVICES TO BE PREAPPROVED BY THE LOCAL

21 BOARD.— 

22 (1) IN GENERAL.—Counsel appointed to rep23 resent individuals in proceedings described in section 

24 292 of the Immigration and Nationality Act, as 

25 amended by section 101, may request approval from 


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1 the Local Board for investigative, expert, or other 

2 services necessary for such representation pursuant 

3 to procedures established by the Board, including 

4 services necessary to develop release plans and pro5 vide post-release services for people in the custody of 

6 the Department of Homeland Security or the Office 

7 of Refugee Resettlement. 

8 (2) EXAMPLES OF SERVICES.—Services subject 

9 to preapproval under paragraph (1) may include— 

10 (A) the retention of specialized counsel in 

11 connection with ancillary matters appropriate to 

12 such proceedings; 

13 (B) services and support related to mental 

14 health, housing, addiction, food, travel, and ac15 companiment to immigration court proceedings; 

16 (C) copying or obtaining discovery mate17 rials that are in the possession, custody, or con18 trol of the Government; or 

19 (D) any other services required to ensure 

20 effective representation or the interests of jus21 tice. 

22 (b) SERVICES TO BE APPROVED BY THE LOCAL

23 BOARD AFTER THE FACT.— 

24 (1) IN GENERAL.—Counsel appointed to rep25 resent individuals in proceedings described in section 


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1 292 of the Immigration and Nationality Act, as 

2 amended by section 101, may obtain, without prior 

3 authorization, but subject to later review by the 

4 Local Board, investigative, expert, and other services 

5 if necessary for representation. 

6 (2) PAYMENT.—In the interests of justice and 

7 upon a determination by the Local Board that time8 ly procurement of certain necessary services could 

9 not await prior authorization, payment for such 

10 services may be approved by the Local Board after 

11 they have been obtained. 

12 (c) AMOUNT OF COMPENSATION.—In determining 

13 the appropriate compensation for services other than 

14 counsel, the Office shall ensure that such compensation 

15 is comparable to the compensation paid to the Government 

16 for substantially similar services. 

17 (d) POLICIES AND PROCEDURES.—The Office shall 

18 establish policies and procedures that— 

19 (1) identify the circumstances under which— 

20 (A) payment shall be made for services 

21 other than counsel; and 

22 (B) prior authorization for certain nec23 essary services is not required; and 

24 (2) permit counsel appointed to represent indi25 viduals in proceedings described in section 292 of 


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1 the Immigration and Nationality Act, as amended by 

2 section 101, to seek increases in funding for such 

3 services if counsel reasonably believes that the com4 pensation established by the Office pursuant to sub5 section (c) does not meet the parity requirement 

6 under such subsection. 

7 (e) FINANCIAL ELIGIBILITY DETERMINATIONS.— 

8 (1) IN GENERAL.—Private counsel for any per9 son who is financially unable to obtain services other 

10 than counsel necessary for representation, including 

11 services described in subsections (a) and (b), may re12 quest that the Local Administrator make a deter13 mination of the financial eligibility for such person 

14 to receive Government funding for such services. 

15 (2) PAYMENT.—If the Local Administrator de16 termines that a person described in paragraph (1) is 

17 financially unable to obtain necessary services other 

18 than counsel, the Local Administrator shall author19 ize payment for such services pursuant to procedures 

20 established by the Office. 

21 SEC. 210. IMMIGRATION REPRESENTATION ADVISORY 

22 BOARD. 

23 (a) ESTABLISHMENT.— 


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1 (1) IN GENERAL.—Subject to paragraph (2), 

2 there is established the Immigration Representation 

3 Advisory Board, which shall consist of— 

4 (A) 1 Immigration Public Defender rep5 resentative from each region delineated pursu6 ant to section 206(a), who shall be selected by 

7 the Immigration Public Defenders within each 

8 such region; 

9 (B) 1 Community Defender Organization 

10 representative from each region delineated pur11 suant to section 206(a), who shall be selected 

12 by the Community Defender Organizations 

13 within each such region; and 

14 (C) 1 Panel Attorney representative from 

15 within the jurisdiction of each Federal circuit 

16 court of appeals, who shall be selected by the 

17 Panel Attorneys within each such circuit. 

18 (2) ALTERNATIVE SELECTION PROCESS.— 

19 (A) NO IMMIGRATION PUBLIC DEFENDER

20 OFFICE.—If a Local Plan does not provide for 

21 the establishment of an Immigration Public De22 fender Office, the relevant Local Board shall 

23 appoint 2 Community Defender Organization 

24 representatives to serve on the Immigration 

25 Representation Advisory Board. 


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1 (B) NO COMMUNITY DEFENDER ORGANIZA2 TION.—If a Local Plan does not provide for a 

3 contract with a Community Defender Organiza4 tion, the relevant Local Board shall appoint 2 

5 Immigration Public Defender Representatives 

6 to serve on the Immigration Representation Ad7 visory Board. 

8 (b) TERM OF SERVICE.— 

9 (1) IN GENERAL.—Members of the Immigration 

10 Representation Advisory Board shall serve 2-year 

11 terms, except that the terms of 50 percent of the ini12 tial members appointed pursuant to subsection (a) 

13 shall be 1 year. 

14 (2) MAXIMUM CONSECUTIVE SERVICE.—No 

15 member may serve on the Immigration Representa16 tion Advisory Board for more than 6 consecutive 

17 years. 

18 (3) PARTIAL TERM APPOINTMENTS.—If a mem19 ber of the Immigration Representation Advisory 

20 Board does not serve until the end of his or her 

21 term due to resignation or removal, the person ap22 pointed to replace such member shall serve for the 

23 remainder of such term. 

24 (c) COMPENSATION.—Members of the Immigration 

25 Representation Advisory Board shall serve without comVerDate Sep 11 2014 21:31 Apr 20, 2023 Jkt 039200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\S1187.IS S1187

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1 pensation, but shall be reimbursed for all actual and nec2 essary expenses reasonably incurred in the performance of 

3 their duties as members of the Immigration Representa4 tion Advisory Board. 

5 (d) GOVERNANCE; MEETINGS.—The Immigration 

6 Representation Advisory Board shall— 

7 (1) establish bylaws; 

8 (2) select a chairperson from among its mem9 bers; 

10 (3) appoint other such officers as it deems nec11 essary; and 

12 (4) meet not less frequently than once each 

13 year. 

14 TITLE III—AUTHORIZATION OF 

15 APPROPRIATIONS 

16 SEC. 301. AUTHORIZATION OF APPROPRIATIONS. 

17 (a) IN GENERAL.—There are authorized to be appro18 priated to the Office of Immigration Representation, out 

19 of any money in the Treasury that is not otherwise appro20 priated, such sums as may be necessary to carry out this 

21 Act, and the amendments made by this Act, including— 

22 (1) establishing and operating the Office; and 

23 (2) providing continuing education and training 

24 of counsel providing representation under section 


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1 292 of the Immigration and Nationality Act, as 

2 amended by section 101. 

3 (b) AVAILABILITY OF FUNDS.—If so specified in ap4 propriation Acts, amounts appropriated pursuant to sub5 section (a) shall remain available until expended. Pay6 ments from such appropriations shall be made under the 

7 supervision of the Director of the Office of Immigration 

8 Representation. 

9 SEC. 302. MINIMUM FUNDING FOR THE OFFICE OF IMMI10 GRATION REPRESENTATION. 

11 (a) IN GENERAL.—The amount appropriated to the 

12 Office of Immigration Representation for each fiscal year 

13 shall be not less than the amount equal to the sum of 

14 the combined amount appropriated for Federal immigra15 tion enforcement and prosecution agencies and the Office, 

16 multiplied by the ‘‘prosecution-defense’’ ratio calculated 

17 pursuant to subsection (b). 

18 (b) CALCULATION OF PROSECUTION-DEFENSE

19 RATIO.— 

20 (1) IN GENERAL.—Except as provided in para21 graph (2), the Office of Management and Budget 

22 shall calculate the prosecution-defense ratio, for pur23 poses of subsection (a), by dividing the sum appro24 priated to the Office of Immigration Representation 

25 account for the most recently concluded fiscal year 


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1 by the combined amount appropriated for such fiscal 

2 year for Federal immigration enforcement and pros3 ecution agencies, including amounts appropriated 

4 for— 

5 (A) U.S. Immigration and Customs En6 forcement; 

7 (B) U.S. Customs and Border Protection; 

8 and 

9 (C) the Office of Immigration Litigation of 

10 the Department of Justice. 

11 (2) EFFECT OF SHIFTING PROSECUTORIAL

12 FUNCTIONS.—If the law enforcement or prosecu13 torial functions of the agencies or offices referred to 

14 in subparagraphs (A) through (C) of paragraph (1) 

15 on the date of the enactment of this Act are per16 formed by different agencies or offices in a future 

17 fiscal year, the Office of Management and Budget 

18 shall use the amount appropriated for those func19 tions in calculating the prosecution-defense ratio 

20 under paragraph (1). 

Æ 


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