Interview with Wendy Wayne

Wendy Wayne, Commission on Immigration Chair 2019-2020

Wendy Wayne, Commission on Immigration Chair 2019-2020

About Wendy Wayne, Commission on Immigration Chair

Wendy Wayne is the Director of the Immigration Impact Unit at the Committee for Public Counsel Services (CPCS). She has been an immigration law specialist for CPCS since 2003, where she trains, advises and provides litigation support to court-appointed attorneys throughout Massachusetts on the immigration consequences of criminal and civil cases. She argued Commonwealth v. Sylvain, 466 Mass. 422 (2013), in which the Supreme Judicial Court held that Padilla v. Kentucky is retroactive under Massachusetts common law. She served in 2011 on the Homeland Security Advisory Council Task Force on Secure Communities. In 2004, she received the Political Asylum and Immigration Representation (PAIR) Project’s Detention Attorney Award. Prior to becoming an immigration expert, Attorney Wayne was a trial attorney representing individuals charged with serious felonies. She previously served on the Board of Directors of the Massachusetts Association of Criminal Defense Lawyers, and she currently sits on the American Bar Association Commission on Immigration and the Massachusetts Access to Justice Commission.

At what point in your life did you know that you wanted to dedicate your career to public service?

I think I have always known. From a very young age, my parents instilled in me a strong belief that you must appreciate the privileges you have and help those in need. I have always worked with indigent individuals, both before law school as a mental health therapist in a state funded hospital, working with those suffering from mental illnesses and drug addiction to after law school as a public defender. My belief that every individual has a right to be heard and to be treated fairly has always driven my career choices.

What were the major influences on your choices and career path? 

While working in the mental health field prior to law school, I considered various graduate programs that would allow me to grow in that career. After realizing that I was interested more in policy and wanted to be able to effectuate change on a broader scale, I decided to apply to law school. I attended Northeastern University School of Law because of its focus on social justice and public interest law. I didn’t think that I was interested in trial work, however, until my last internship when I worked at the public defender office where I remain today (albeit in a different position than when I began).

What drew you to the different practice settings/ sectors in which you have worked, and how did you manage the career transitions?

I began my legal career as a trial attorney, representing indigent individuals charged with serious felonies. I quickly realized that I was representing the same population of individuals as those I had treated as a mental health/drug detox therapist. This is because so many people are involved in the criminal justice system due to drug addiction and mental health issues. In fact, within the first few months of becoming a public defender, I represented a woman charged with prostitution who was a heroin addict and had been my patient prior to law school.

After working as a criminal defense trial attorney for over 10 years, I began to burn out due to the intensity of representing people in court every day. I loved working closely with clients but also wanted to do more training, policy and impact litigation. My organization happened to be hiring an immigration specialist at that time to advise and train public defenders on the immigration consequences of criminal conduct. I had no prior immigration law experience, but after a local law professor offered to mentor me and no one else in my agency applied for the job, I became the agency’s sole immigration specialist for approximately 3,000 court-appointed criminal defense attorneys in Massachusetts. It was a very steep learning curve for at least the first six months, but I loved learning a new, complex area of law that had such significant impact on the lives of our noncitizen clients. There are still not that many attorneys who truly specialize in this area of law, but in 2003 there were even fewer – those experts helped me tremendously in my first few years of doing this work, and they continue to provide support and expertise to me and the other two attorneys in my unit today.

What is your greatest satisfaction in your current position?

The greatest satisfaction is in being able to provide expertise in a complex area of law that is of utmost importance to noncitizens charged with crimes. Not many attorneys specialize in the interplay between immigration and criminal law, yet this expertise is vital for immigrants, many of whom may have lived in the U.S. for most of their lives and, if convicted without proper advice about the immigration consequences, may unwittingly plead to convictions that will result in permanent exile to countries they don’t know or even where they may face death. Many public defenders around the country do not have access to this type of expertise, even though it is now required in order to provide effective assistance of counsel under the 6th Amendment. I am grateful that I work for a statewide public defender agency that appreciates the importance of providing court-appointed counsel with this expertise for our immigrant clients.

What do you view as your greatest professional challenges?

Because my work focuses on noncitizens charged with crimes or with criminal histories, my clients are the least popular in our society. Immigration laws in place since 1996 carry disproportionately draconian consequences for those with criminal convictions and allow for virtually no discretion. A long-term green card holder convicted many years ago of shoplifting and given a one-year suspended sentence, thus never incarcerated, faces permanent exile from the U.S.— the same consequences facing someone convicted of the most serious violent offenses. However, there is little political will in any political party to advocate for changes to these laws, because of whom they impact. Moreover, although there may be viable defenses to removal (deportation) for some of these individuals, there is no right to government-funded counsel, so the majority of those facing removal, especially those in immigration detention, are forced to fight removal without legal assistance.

In your view, what seem to be the most acute challenges facing immigration advocates today?

The rhetoric that increasingly dominates discussions about immigration makes it more difficult to rationally discuss sound immigration laws and policy today. In addition to the rhetoric and vitriol, immigration policies have rapidly become more hostile and aggressive toward noncitizens. Immigration advocates are working harder and longer hours to combat these negative policies and enforcement practices. However, it is important for those working in this field to maintain balance between their work and personal lives, and this has become more challenging in the last year.

To what extent has ABA involvement helped in your career and goals?

My job focuses primarily on noncitizens involved in the Massachusetts judicial system. As a member of the ABA Commission on Immigration, however, I have been able to work on policies, resolutions, briefs, and other projects that have more impact nationally. For example, last summer, the Commission co-sponsored two resolutions passed by the ABA House of Delegates concerning issues important not only to my work in Massachusetts but also to noncitizens around the country. One resolution calls for government funded counsel for indigent individuals in removal proceedings, and the other calls for courthouses to be considered
“sensitive locations,” thereby limiting immigration arrests in and around courthouses absent exigent circumstances. My involvement with the Commission also has allowed me to work on issues regarding other aspects of immigration law than the area in which I focus in my job.

What advice would you give law students and young lawyers considering a career in public interest law and public service?

Public interest work is incredibly rewarding if you pursue it for the right reasons. Know that it may require financial sacrifices because the pay often is lower than other types of legal work. Also, many organizations are underfunded, so there often is too much work for the number of staff. However, if you want to remain in public interest law and not burn out, it is essential to set appropriate limits on the amount of work you can undertake and to maintain a healthy balance between work and personal life.

Do you have advice for lawyers seeking to change course mid-career or in a late/senior career phase?

Do pro bono work in an area of public interest law that you want to learn. This is the best way to gain experience. There is much need for pro bono work in areas in which there is no government-funded counsel. However, don’t just dabble in different areas of law. Focus on one area that interests you and learn as much as you can about it. You will then develop the expertise to become a viable candidate for paying positions in the future.

What would you like readers to remember most about immigration advocacy?

Immigration law often is compared to tax law in complexity. It requires analysis of complex statutes, regulations, and case law. For noncitizens convicted of criminal offenses, it also involves analysis of the interplay between federal statutes, regulations, case law, and state criminal statutes and case law. Yet the majority of indigent individuals facing removal from the U.S. are forced to defend themselves within this legal labyrinth. Many have viable defenses to removal but are unable to articulate them without legal assistance. Fundamental fairness and due process — two pillars on which this country is founded and guaranteed to all who face legal process within the U.S. — requires that no one should be subjected to deportation without legal representation.