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: 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 1101(a)(27)(J)(ii) of title 8, United States Code; (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 309 of the Fairness to Freedom Act of 2025. (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 2025 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 2025 (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 2025 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 2025 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..