H.R. 3127 — Fairness to Freedom Act of 2025

This section revises Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) to guarantee government-funded legal representation for any financially unable individual in removal, exclusion, deportation, bond, or expedited removal proceedings under INA §§212(d)(5)(A), 235(b)(1)(B), 236, 238, 240, or 241, or in related matters before U.S. Citizenship and Immigration Services (USCIS), state courts, or Article III courts. Covered matters include (1) habeas corpus petitions under 28 U.S.C. §2241 or similar proceedings; (2) administrative and judicial proceedings for special immigrant juvenile status eligibility; (3) USCIS applications for relief from removal and post-conviction relief in criminal proceedings; (4) post-conviction relief in criminal proceedings; and (5) any other proceeding related to the individual's U.S. legal status. Representation requires reasonable diligence and zeal in advocacy (per ABA Model Rule 1.3); includes counsel, interpretation, translation, and other necessary services; attaches at Department of Homeland Security or Health and Human Services custody (within 24 hours for detained persons) or issuance of a Notice to Appear (regardless of filing); and continues through all stages, including Immigration Courts, Board of Immigration Appeals, federal district and appellate courts, and Supreme Court, with new counsel provided after relocation or transfer. Proceedings may not commence until counsel is appointed, and any ongoing proceeding without counsel is paused until appointment.

This section prohibits considering the seeking or receipt of appointed counsel under section 292 of the Immigration and Nationality Act (INA), as amended by section 101, as a basis for determining that an individual is likely to become a public charge for purposes of admissibility, removability, excludability, or deportability under the INA, or in any other immigration proceeding involving public charge considerations.

This section defines terms used in this title, including "Board" (Board of Directors of the Office), "Director" (Director of the Office of Immigration Representation), "Immigration public defender organization" (organization established by a Local Board), "Local Board" (local immigration representation board established within a region), and "Office" (Office of Immigration Representation).

This section establishes the Office of Immigration Representation, a private nonprofit corporation in the District of Columbia, to provide high-quality legal representation and related services to indigent individuals entitled to counsel under INA §292(a), as amended by section 101. The Office operates independently of any federal government official, agency, or department, including the Department of Justice, the Department of Homeland Security, and the Department of Health and Human Services.

This section establishes a 24-member Board of Directors to govern the Office, with initial appointments by the chief judges of the 12 regional U.S. Courts of Appeals (excluding the Federal Circuit), 2 members per circuit not later than 1 year after enactment, and staggered initial terms (6 members each for 1, 2, 3, or 4 years) allocated across specified circuit groups. Upon expiration of the 1-year terms, the Immigration Representation Advisory Board (under section 210) appoints 6 voting members to 4-year terms, plus an Immigration Public Defender and a Panel Attorney as nonvoting ex-officio members; it makes similar 4-year appointments upon 2-year term expirations and to replace its prior appointees. Subsequent appointments by chief judges (for 3- or 4-year initial term seats) and vacancy fillings occur from lists of 5 nominees by committees of Immigration Public Defender Organization heads, Community Defender Office heads, and panel attorney representatives within the circuit; chief judges may appoint without lists if not provided timely (within 30 days for subsequent appointments, 90 days for vacancies). Board members must be nonpartisan with significant experience representing persons in immigration proceedings under INA §292(a) (as amended by section 101)—which authorizes court-appointed counsel for indigent noncitizens in removal, bond, and related proceedings—and demonstrated commitment to indigent defense; appointments prioritize diversity reflecting client demographics (e.g., race, gender identity, immigration experience); disqualifications include current/ recent employment in the Office, local boards/organizations, courts/immigration courts/Board of Immigration Appeals, or as prosecutors/law enforcement. No member may serve more than 2 terms (up to three 4-year terms if initial term was 1 year); replacements serve out unexpired terms and up to 2 additional 4-year terms.

This section establishes requirements for the Director of the Office, including that the Director be a licensed attorney in good standing in any U.S. jurisdiction at appointment and throughout service, have experience representing individuals in immigration proceedings under INA §292 (as amended by section 101), and not be a Board member. The section specifies duties of the Director, including (1) appointing and compensating employees under a merit-based personnel system exempt from competitive service appointment rules (5 U.S.C. ch. 33 subch. I) and General Schedule classification and pay rates (5 U.S.C. ch. 51 and ch. 53 subch. III), subject to Board staffing and budget approval; (2) providing annual and periodic reports to the Board; (3) allocating and disbursing appropriated funds for legal representation and related services pursuant to Board rules; (4) entering contracts for services; (5) appointing regional Local Administrators to approve payments for Panel Attorneys, investigators, experts, and other representation expenses; (6) assisting the Board in developing service delivery rules and standards; (7) coordinating with federal, state, local, and private legal assistance programs; (8) consulting professional bodies on representation administration; and (9) performing other Board-assigned duties.

This section provides that employees of the Office are treated as federal employees solely for purposes of (1) workers' compensation under subchapter I of 5 U.S.C. chapter 81; (2) Civil Service Retirement System benefits under 5 U.S.C. chapter 83; (3) Federal Employees' Retirement System (FERS) benefits under 5 U.S.C. chapter 84; (4) life insurance under 5 U.S.C. chapter 87; and (5) health insurance under 5 U.S.C. chapter 89. The section further requires the Office to make employer contributions for these benefits at the same rates as other federal agencies and allows Office employees to elect participation in the Thrift Savings Plan under 5 U.S.C. §§8351 or 8432.

This section establishes local immigration representation boards in administrative regions delineated by the Office not later than 6 months after the Board's establishment. Each board consists of 5 to 15 members, with at least 50% being licensed attorneys experienced in removal defense or employees of community-based organizations serving immigrants; initial members are selected by the Board after stakeholder consultation, and subsequent members are selected by the board per approved bylaws. Board members must have significant experience defending cases under INA §292 (as amended by section 101, providing appointed counsel for indigent respondents in certain immigration proceedings), demonstrate commitment to indigent defense, reflect population diversity (including race, gender identity, sexual orientation, immigration experience, and socioeconomic background), and meet restrictions barring current or recent (within 3 years) employment by Immigration Public Defender or Community Defender Organizations, attorney panels under §207(d), or as prosecutors, law enforcement, or judicial officials. Members serve 4-year staggered terms (maximum 9 years total), with replacements serving the remainder; they are compensated at the daily rate for U.S. courts of appeals judges (up to 90 days per year) plus travel expenses; a chair is elected for a 2-year term (renewable once); and members may be removed by majority vote for malfeasance, neglect, or unbecoming conduct, with a majority quorum required and bylaws governing operations. The Board may dissolve a local board by two-thirds vote for good cause, requiring a new board within 90 days selected by Immigration Public Defenders, panel attorneys, and the Director. Each local board must develop and submit a local plan to the Office within 120 days of establishment (and implement it upon approval, with modifications subject to Office approval), providing for timely counsel appointments, developed in consultation with USCIS to cover relevant proceedings, and considering state, county, or local representation programs.

This section authorizes each Local Board to establish Immigration Public Defender Organizations, contract with Community Defender Organizations, or implement a Panel Attorney system to ensure representation for eligible persons in immigration proceedings specified in section 292 of the Immigration and Nationality Act (as amended by section 101). For Immigration Public Defender Organizations, the section requires supervision by a full-time Immigration Public Defender appointed by the Local Board (approved by the Office), who serves at the Board's pleasure (removable by the Director only for malfeasance, neglect, or unbecoming conduct), receives compensation comparable to the nearest U.S. Immigration and Customs Enforcement Principal Legal Advisor, and may appoint additional full-time attorneys and personnel (with comparable compensation approved by the Office); treats such employees as federal employees for work injury compensation, retirement, life insurance, and health benefits; prohibits private practice of law; provides limited liability insurance; and requires periodic reports to the Local Board. Community Defender Organizations must be nonprofits authorized under the Local Plan and submit annual reports on activities, caseload, and expenses. Each Local Plan must provide for Panel Attorneys by appointing qualified private attorneys per Office standards, limiting panel size to ensure familiarity with immigration law, and enabling early entry of counsel.

This section directs the Office to establish hourly rates and salaries for counsel appointed under each Local Plan to represent individuals in immigration proceedings under INA §292 (as amended by section 101 of this division), at levels ensuring high-quality representation and comparable to compensation for attorneys in the Office of the Principal Legal Advisor of U.S. Immigration and Customs Enforcement, federal prosecutors, or other government attorneys in similar proceedings. It further requires the Office to (1) establish procedures allowing appointed counsel to exceed any billing caps when necessary for effective representation; (2) set distinct fees by U.S. court of appeals region based on prevailing attorney wages, plus additional compensation for service in remote or underserved areas accounting for distance to immigration courts, DHS and HHS facilities, and other relevant sites; (3) provide for DHS reimbursement of counsel's reasonable expenses (e.g., transcripts) except those related to malpractice defense claims, and policies for increases in rates, salaries, and fees; and (4) create procedures for approving payments exceeding standard fees in extended or complex cases.

This section establishes procedures for Local Boards to preapprove or approve after the fact investigative, expert, and other services (other than counsel) necessary for appointed counsel to represent individuals in proceedings under section 292 of the Immigration and Nationality Act, as amended by section 101 of this division (i.e., immigration removal, bond, and custody proceedings involving unaccompanied alien children and certain others in DHS or ORR custody). Such preapproved services include developing release plans, post-release support, mental health and housing assistance, travel, and obtaining government discovery materials; after-the-fact approval is permitted if timely procurement could not await prior authorization. The section further directs the Office to (1) set compensation for these services comparable to government rates for similar services, (2) establish policies identifying payment circumstances and exceptions to prior authorization and permitting appointed counsel to seek funding increases to ensure parity, and (3) authorize Local Administrators to determine financial eligibility for government payment of such services for those unable to afford them.

This section establishes the Immigration Representation Advisory Board, consisting of (1) one Immigration Public Defender representative from each region delineated pursuant to section 206(a), selected by such defenders in the region; (2) one Community Defender Organization representative from each such region, selected by such organizations; and (3) one Panel Attorney representative from each federal circuit court of appeals jurisdiction, selected by such attorneys. If a Local Plan lacks an Immigration Public Defender Office, the relevant Local Board appoints two Community Defender Organization representatives for that region; if it lacks a Community Defender Organization contract, the Local Board appoints two Immigration Public Defender representatives. Board members serve two-year terms, except that 50% of initial members serve one-year terms, with no more than six consecutive years of service and replacements serving the remainder of the unexpired term. Members serve without compensation but receive reimbursement for actual and necessary expenses. The board establishes bylaws, selects a chairperson and other officers, and meets at least annually.

This section authorizes appropriations to the Office of Immigration Representation, from any money in the Treasury not otherwise appropriated, such sums as may be necessary to carry out this Act and its amendments, including (1) establishing and operating the office and (2) providing continuing education and training for counsel providing representation under section 292 of the Immigration and Nationality Act, as amended by section 101. Amounts so appropriated remain available until expended if specified in appropriations acts and are disbursed under the supervision of the office director.

This section establishes a minimum funding requirement for the Office of Immigration Representation (the Office) for each fiscal year equal to the sum of appropriations for the Office and specified federal immigration enforcement and prosecution agencies (i.e., U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, and the Department of Justice's Office of Immigration Litigation), multiplied by the prosecution-defense ratio for the prior fiscal year. The Office of Management and Budget calculates that ratio by dividing the prior year's appropriation for the Office by the prior year's combined appropriations for those agencies (or successor entities performing equivalent functions).