New York Bills Would Make Taxpayer-Funded Deportation Defense a Legal Right

FAIR Take | October 2022

Legislators in New York recently renewed efforts to provide taxpayer-funded lawyers to protect illegal aliens from deportation a legal right.  While several states and localities have provided public funds for this purpose in recent years, this funding has been discretionary and it must typically be appropriated each year as part of the budget process.

In the 1963 Gideon v. Wainwright case, the Supreme Court held that anyone charged with a crime is entitled to defense counsel paid for at public expense if they are unable to afford a lawyer.  However, the Court has also repeatedly ruled that immigration proceedings are civil, not criminal in nature, and that deportation is not punishment but merely a way to remove individuals from the country who have no legal right to be here. American citizens do not have a right to legal representation paid for by taxpayers in civil court, such as for family law proceedings or personal injury cases nor are they entitled to legal representation in civil or administrative enforcement proceedings such as tax, zoning or licensing/permitting matters. Therefore, it is unfair to them to provide this benefit to illegal aliens.

However, Senate Bill (SB) 81 and Assembly Bill (AB) 1961 would permanently enshrine taxpayer-funded deportation legal defense into law as a statutory right for every foreign national in New York who is unable to pay for an immigration lawyer.  SB 81 is sponsored by Sen. Brad Hoylman (D-Manhattan) and has 26 cosponsors while AB 1961 is sponsored by Assemblywoman Catalina Cruz (D-Queens) and has 46 cosponsors.

These bills were introduced in 2021 at the beginning of the legislative session and were amended in committee but did not pass their respective chambers before the legislature adjourned on June 4.  While Governor Kathy Hochul (D) could call a special session which provides an opportunity for the bills to pass, it is unlikely.

Despite the unlikelihood their bills will move at this juncture, the sponsors have been in the media in the past few weeks to highlight them. Hoylman has been aggressively condemning the “shameless actions of border state governors” in bussing illegal aliens to sanctuary cities as an excuse for why his bill is supposedly suddenly necessary, while Cruz claims that “countless immigrants in the state would benefit from her bill.”

Based on the sponsors’ efforts to spotlight these bills, is likely they will be reintroduced during the next legislative session. The November elections could determine whether New Yorkers will provide tax-payer-funded legal counsel to those in the country illegally.  If the legal counsel bill passes during the next session and Gov. Hochul wins re-election, she will likely sign it.  By contrast, if Congressman Lee Zeldin (R-Suffolk) wins the governorship, he will almost certainly veto it.  Zeldin has repeatedly criticized Hochul, former Gov. Andrew Cuomo (D) and other New York elected officials for supporting policies that encourage illegal immigration.

If the composition of the legislature remains the same after the November election, a Zeldin veto would likely be overridden by the legislature since the Democrats have a two-thirds supermajority in both chambers — they control the Assembly 107-43 and the Senate 43-20.  However, it is possible in November for Republicans to regain a majority in the Senate, or in a more likely scenario, gain two seats which would allow them to sustain the veto.