WHAT IT MEANS TO BE THE VOICE OF IMMIGRANTS IN AMERICA
By Lauren Madrigal & Ariana Palomo
June 1, 2020
Michelle Saenz-Rodriguez is a criminal and immigration attorney who has changed the life of many immigrants in Dallas, Tx. She is the founder and managing partner at Saenz-Rodriguez & Associates P.C. as well as being a member of the American Immigration Lawyers Association. As an attorney who practices both criminal and immigration law, she takes on many crimmigration cases, specifically, representing immigrants with disabilities – a marginalized group in the justice system. In addition to her work in law, Michelle now serves as the Chair for the Board of Directors of The National Hispanic Institute.
The US has had a controversial relationship with immigration for many years, with countless laws that have been set in place against immigrants as early as the 1880s. Therefore, it is vital for individuals like yourself to step in in order to ensure fair measures are taken for those that are trying to enter the country. As I am sure you face many challenges with your work that people may not be aware of, what are some of those challenges and how do you overcome them?
The biggest challenge all immigration lawyers face today is this administration and the policies that are so anti-immigrant. There has been a quiet movement towards Nationalism – which leads to Nativism- which leads to bigotry. All of that is building an invisible wall making sure that less and less immigrants are allowed to enter our country or immigrate legally to the United States. There have been so many new cases where the immigration courts have watered down protections for people seeking asylum and fleeing violence from countries all over the world. They have quietly undone decades of case law that was established to protect the rights of those seeking refuge in the US. They have used the laws in ways to commit human rights abuses by caging children and separating them from their parents as a dis-incentive to try to escape their countries. They have forced people to wait outside the US in dangerous conditions through their Migrant Protocol Programs (MPP) without having access to counsel or a fair hearing. It will be remembered as one of the darkest times in the history of the US Immigration Policy. As a lawyer, who has been on the ground and seen innocent children as young as three years of age sitting in a jail cell that literally looks like a dog crate or in a courtroom when a young child has to defend themselves, I can tell you that the secondary trauma we suffer is probably the most difficult part of the job. As a mother, my heart breaks to see families separated and innocent children suffering because they think that their parents have abandoned them. These are people who will be affected for the rest of their lives as a result of the treatment they have received from our government. The feeling of not being able to do enough as a lawyer, is something that constantly weighs on me in doing this work day in and day out. I tell my colleagues that not only is my brain tired, but my soul is also very exhausted.
"They have quietly undone decades of case law that was established to protect the rights of those seeking refuge in the US. They have used the laws in ways to commit human rights abuses by caging children and separating them from their parents as a dis-incentive to try to escape their countries. They have forced people to wait outside the US in dangerous conditions through their Migrant Protocol Programs (MPP) without having access to counsel or a fair hearing. It will be remembered as one of the darkest times in the history of the US Immigration Policy."
Fortunately, recent statistics have shown that there has been an increase in female law school attendees in recent years. However, as of now, law is still a male dominated field. As a female, what kind of unique challenges have you been presented with throughout your career? And how have you overcome those?
I think as women, we are making strides, but there is still a long way to go. Our profession is steeped with generations of male dominated and patriarchal thinking. It’s going to take another generation of strong women to come in and continue to disarm that stereotype. It’s actually quite amusing to me when I walk into a courtroom and I still have to deal with differing attitudes between men and women. I know that whenever I am in court, I am prepared because 30 years in a male dominated field has taught me that I have to be more prepared than anyone would expect me to be so I never let myself be intimidated by an environment where I know that any reaction to acts of attempted intimidation would just allow them to win. Frankly, a lot of the older generation of men are oblivious to their own prejudices against women, so when they are called out or confronted, they truly have no idea that they have even acted in an inappropriate way.
"I know that whenever I am in court, I am prepared because 30 years in a male dominated field has taught me that I have to be more prepared than anyone would expect me to be so I never let myself be intimidated by an environment where I know that any reaction to acts of attempted intimidation would just allow them to win."
Franco v. Holder established the right to legal representation to all immigration detainees who are deemed to be incompetent due to severe mental disabilities. Before this class action lawsuit, immigrants with disabilities who could not afford counsel were expected to represent themselves. While this had an incredible impact on all immigrants who have no ability to represent themselves, it revealed how fraught situations are for immigrants. Gideon v. Wainwright established that counsel must be provided to indigent defendants in criminal cases. It wasn’t until 50 years later that immigrants with disabilities were entitled to the same. What do you believe is preventing the United States from granting rights to immigrants that have already been established for citizens? What changes and shifts do you believe need to occur in the justice system in order for proceedings to be truly just for immigrants? Do you believe that we will see this in the near future?
This is an important question and there are a couple of clarifications to be made- In Franco v. Holder, the court’s ruling only applied to those cases in the 9th Circuit and not the entire nation. The Immigration Courts decided as a matter of discretion, that they would establish guidelines for the entire nation, but these are only guidelines and carry very little legal power to force all courts to comply in a certain way. For example, the right to counsel is established, but is not not completely mandatory. So the court will call an organization to see if they can find a lawyer for someone who has mental health issues, but if they cannot find one, then they can proceed without one. They have been trying to establish a way to pay counsel to represent the immigrants who need representation, but the funding of that program has been an issue and finding lawyers who are qualified to represent this special class of immigrants is also very difficult. So while Franco was a step in the right direction, it has not been very effective outside of the 9th circuit. We really need an independent immigration court in order to provide the protections of due process that immigrants need to have a fair and unbiased case before the immigration court. Right now, the Department of Justice is both Judge and the ultimate jury and decider of immigration policy. That policy is dictated by the administration and their own policy on immigration. The DOJ dictates how the courts should be handling immigration cases and that takes the power out of the Immigration Judge’s hands. Most recently, the Association of Immigration Judges has been lobbying for an independent court system that would allow for a more efficient and just immigration court. There has also been a lot of congressional support of this proposal, but with the issue being so polarizing and this being an election year, nothing will be done to move that process forward under this administration.
"We really need an independent immigration court in order to provide the protections of due process that immigrants need to have a fair and unbiased case before the immigration court."
The process of obtaining representation as an immigrant with a disability is very challenging. Individuals are likely to not understand their rights or even understand the situation that they are in due to their mental state. When immigrants do receive representation, the attorney is faced with a case that differs greatly from other immigration cases. Factors such as the limited communication an attorney has with their client contribute to the complexity of these cases. What are the most significant differences between these cases and other immigration cases that you work with? What do you believe should be done to better prepare attorneys to handle these specialized cases?
It is extremely difficult to take on representation in these cases, there are many. Many times where the client just has no ability to help with their defense. They clearly do not understand the process and do not even understand that they are at risk of being sent out of the US. It takes a lot of training in order to handle these cases because it is not just about the case law that applies to these cases. It is about how to interact with someone who suffers from a mental impairment. That could mean that your client is paranoid, or gets aggressive if they are agitated or that they may try to hurt you as their lawyer even though you are trying to help them. Since these cases are pro bono, it is hard to find lawyers who are willing to deal with the additional stresses that come with this type of representation.
Immigrants with disabilities are not entitled to free representation and must rely on community based organizations, nonprofits, and pro bono attorneys. You have represented a significant number of these cases. What drives you to continue to represent immigrants in these cases? Was there a specific case(s) that you still think back to or had a significant impact on you?
I have been doing this work for almost 30 years. I feel an immense sense of responsibility to try and help out in these cases when I can. I know that if I don’t do it and serve as an example to others, then we will have a huge gap in representation of this class of immigrants. When you take just one of these cases and see the need, it’s hard to not be impacted by the injustices that are built into the system. In just about all of the cases that I have done with mental health cases, I have found that there is some sort of solution available. I am impacted by every “Franco'' type case that I take because behind the case itself, there is a human and a family and someone who desperately needs help. There have been cases where I have helped families reunite and the actual client has no idea what just happened, but I can see in their eyes that they are grateful because they get to be with their family again and for me that makes it all worthwhile.
Individuals with undiagnosed and untreated mental illnesses often cycle in and out of the justice system. In the case of immigrants, who don’t hold legal status, encounters with the justice system put them at risk for deportation. From medication to seeing a specialist, Even when mental illnesses are diagnosed treatment can be very expensive, and with undocumented status, affordable health care is out of reach. What would you say is the biggest challenge that immigrants with disabilities face in the criminal justice system?
On top of all of the challenges that I described, with the erosion of due process and the rule of law, the people who are in the system and suffer from mental health conditions are in the worst of positions in the system. There is nowhere near adequate resources available in any criminal justice system for those who suffer from mental illness. There are millions of people who are processed in our system and are not even treated for the conditions that may be directly related to the conduct they are being punished for in the criminal justice system. In the context of immigrants who are suffering from mental health issues, the problem is ten times worse because immigration law violations are considered to be civil violations and therefore, many of the due process protections in the criminal system do not exist in the civil court /immigration court context. There is no treatment and very little support for those who cannot even understand what is happening to them.
In addition to your career as an attorney, you are also heavily involved with the National Hispanic Institute. Becoming a part of NHI as a young adult and now being the chair of the board of directors for NHI, you play a vital role in the impact of the organization. How would you describe your journey from when you first entered the organization to where you are now? And what steps have you taken to obtain such a high position with the organization so fast?
NHI has been a part of my life’s journey since I was 15 years old. If you had told me back then that I was going to end up being Chair Woman of the Board of Directors, I would have dismissed the idea completely. NHI is something that has impacted the way I live my life and that started from day 1. When I figured out that I had a voice, that it was okay to be a smart girl and that there were others just like me, I was able to explore and decide who I was going to be as I became a college student, a law school graduate, a lawyer, a business owner, a wife and then a mother. It’s a life-long process and I think that NHI will continue to be a part of how I live my life forever. It’s always evolving and because things are constantly changing, one has to learn to adapt to those changes and figure out how to move forward – you know “ Adapt and Execute” – fundamental #12.
"It’s always evolving and because things are constantly changing, one has to learn to adapt to those changes and figure out how to move forward"
As to your second question about steps I take to obtain such a high position, it’s an interesting way to ask the question. I’m an ambitious person by nature. I always want to work hard and be the best that I can be in all the things that I do in my life. However, I have never “sought” out a high position of responsibility. It’s a weird dichotomy of thought, but in doing my very best and being an active participant in NHI, or anything that I participate in, somehow my work has an impact on others and through that impact, my level of responsibility seems to increase which eventually leads to a high position within the organization. I was asked to be the Board Chair after our previous chair had been there for several years, who was the President of a major University in Chicago decided it was time for a leadership change and a new more progressive look at NHI. Ernesto asked me to consider the position. I had been a Board member for about 3-5 years already, but I did not feel anywhere near qualified or ready to take on the job. I spoke to all of the prior Board Chairs, all men, about the role and sought their honest opinion and counsel. They felt it was time that the organization be led by one of its own and since I was in the very first LDZ class, I had the historical knowledge to do the work. So that is what happened and like everything else that I do, I have taken on the role with a great sense of responsibility to the organization and to the people we serve students.
Many lawyers often spend a copious amount of time in school, with the average graduating age being 26-27 years old. Having graduated at the early age of 23, when most people would start law school, what are some unique insights you have in relation to how you managed to graduate so early and what motivated you to be so successful in your academic career?
I think looking back, I should not have rushed as much to get through college and law school. I was in a big hurry to get to what I thought was “real life”, my ambition was about trying to change the world and I was motivated to get there as soon as possible. Looking back now, 30 years later, I missed out on a lot of the social part of college life. I was a nerd focused on school and academics and the social part of it did not interest me very much. I probably would have had the opportunity to meet different types of people and gotten a sense of what it was like to “chill out” which I am still not very good at.
"My ambition was about trying to change the world and I was motivated to get there as soon as possible."
As an active leader of NHI, and a practicing attorney, it is inevitable that your schedule is very busy. How would you say your position with NHI and your day to day life as an attorney is different or possibly not so different from one another?
I think that everyone is busy with the lives that they live. It’s just a matter of what you spend your time doing and where your priorities are with what you do. I love my work with NHI and I love the work that I do as a lawyer. When I do either of those things, while it keeps me very busy, it also brings me joy and validation in my life. You will never catch me on a “girls trip” away from my family. I don’t spend a lot of time doing things for myself or having “alone” time. Both my work with NHI and my work as a law firm owner are things that I can do and still be part of my kids’ lives. So for me, as long as I can still be a good mother and a good lawyer and a good NHI Board Chair- life is good!