New York Lawmakers Push Permanent “Right” to Taxpayer-Funded Deportation Legal Defense

FAIR Take | January 2023

Open-borders advocates and their allies in the New York state legislature are pushing to give illegal aliens a permanent “right” to legal counsel in immigration proceedings at taxpayer expense.  But even in New York, there is a good chance this effort could be stopped.

In Gideon v. Wainwright, the U.S. 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.  Based on these rulings, illegal aliens are not entitled to legal counsel at taxpayer expense in deportation proceedings.

Moreover, 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. It would be unfair to provide this benefit to illegal aliens which is unavailable to American citizens.

However, Senate Bill (SB) 999, sponsored by Sen. Brad Hoylman (D-Manhattan), and Assembly Bill (AB) 160, sponsored by Assemblywoman Catalina Cruz (D-Queens), would create a statutory right to taxpayer-funded deportation legal defense for every individual in New York who is unable to pay for an immigration lawyer.  Murad Awawdeh, executive director of the New York Immigration Coalition (NYIC), claims the legislation is needed to guarantee “no one must defend themselves against a trained-government lawyer alone to protect themselves and their families from deportation.”

Republicans in the legislature appear united in their opposition to providing taxpayer-funded legal counsel to illegal aliens. Assembly Minority Leader Will Barclay (R-Pulaski) says “Democrats’ complete failure on border security and immigration shouldn’t result in a $300 million tax on New Yorkers. … Last year, New York City’s radical Democrats wanted non-citizens to vote in local elections … Now they expect the public to spend hundreds of millions to provide free deportation lawyers. Their political statements do not need to be contained in the state spending plan.”

Democrats in the legislature appear divided.  Senator James Skoufis (D-Newburgh), who represents a competitive district in the Mid-Hudson Valley, has already criticized the bills, saying, “[m]any of the deportations that occur in New York State are because an undocumented individual commits an underlying crime unrelated to their immigration and is subsequently flagged by ICE. … It is particularly concerning that this bill extends public funds to these situations that would potentially keep dangerous people in New York State.”  Sen. Simcha Felder (D-Brooklyn) added “New York State and New York City are in a budget crisis. If the federal government wants to pay for it, then fine.” Notably, both Democrat senators also voted against giving driver’s licenses to illegal aliens when New York passed its “Green Light Law” in 2019.

If the legislature does pass legislation to create a right to legal counsel for illegal aliens, it is not guaranteed to become law. While Governor Kathy Hochul (D) supports the current level of state spending on deportation defense, she has not endorsed the idea of creating a legal right to counsel.  Likewise, she has been silent on whether she would support legislation that is estimated to cost taxpayers an additional $300 million or more a year.  The bills’ price tag in conjunction with the massive costs now being imposed on New York taxpayers by the Biden Administration’s border crisis may push Hochul to oppose the bills.

If Hochul vetoes this legislation, it is unlikely there will be enough votes in the legislature for an override.  Democrats could only afford to lose three votes in the Assembly and none at all in the Senate to successfully override Hochul’s veto.  Because an override requires the support of two-thirds of each chamber, historically they have been rare in New York.