I have updated the table of articles by Maya Kara and Bruce Mailman on immigration matters. Their first articles were published in the Marianas Variety and those links no longer work. I've left them on the list, though, in case you want to track down the articles in hard copy.
The later articles are in the Saipan Tribune and those links are now up-to-date.
There is a lot of good information here and I encourage readers interested in the immigration topic in the CNMI to read these articles. I don't always agree with the opinions of Maya and Bruce, but their information on the law is reliable.
Thursday, July 15, 2010
Friday, May 7, 2010
Managaha
We had our Marianas Office "Burnout" retreat on April 30, 2010 at Managaha.
This is a day we take to talk with each other in a formal way, but in a relaxed and beautiful setting away from the office, to discuss what we do as an office, our successes, what we could do better, our failures, and anything that touches on life at MLSC. We are so busy in our daily work that we seldom have time to take for this kind of reflection. The hope is that by doing this, we'll spot trends and find ways to do what we might not otherwise get around to. At the very least, we have a nice day where we get to know each other better and stave off burn-out by taking time to appreciate the beautiful place where we live.
Marianas staff on the day-long retreat included Maria P. Muna (who has been with MLSC since we opened in 1971), Polly Anne Sablan, Lolita Nazaire, Juanette Sablan, Dimitri Varmazis and Linda Wingenbach. And me (Jane Mack). This year Frank Rogopes from the Marianas Office didn't come, but Ben Tured and Ben Weber from Central Office did.
This was the view from our "front lawn." We opted for the northern shore of Managaha.
Lolita cracked firewood.
Linda made her cooking preferences known.
Maria, Lolita, and Dimitri stopped for a moment for the camera.
This is what our pala-pala (i.e. shelter) looked like from one side.
Here's another view of our pala-pala.
Another view from "our" beach.
The distance from the beach to our pala-pala.
Certain areas around our campsite were marked off to protect bird habitat.
Ben Tured (Polly Anne and Juanette in the background).
Maria and Lolita exploring a bit. (Or did they go to the concession stand for coffee?)
Another protected zone.
Dimitri in deep thought (or just sleepy).
Ben Weber, relaxing, and modeling his ocean-rescue-ready shorts.
Linda on the move.
Ben Tured with his betel nut.
Polly Anne and Juanette tending the barbecue. (Food was delicious!)
This is a day we take to talk with each other in a formal way, but in a relaxed and beautiful setting away from the office, to discuss what we do as an office, our successes, what we could do better, our failures, and anything that touches on life at MLSC. We are so busy in our daily work that we seldom have time to take for this kind of reflection. The hope is that by doing this, we'll spot trends and find ways to do what we might not otherwise get around to. At the very least, we have a nice day where we get to know each other better and stave off burn-out by taking time to appreciate the beautiful place where we live.
Marianas staff on the day-long retreat included Maria P. Muna (who has been with MLSC since we opened in 1971), Polly Anne Sablan, Lolita Nazaire, Juanette Sablan, Dimitri Varmazis and Linda Wingenbach. And me (Jane Mack). This year Frank Rogopes from the Marianas Office didn't come, but Ben Tured and Ben Weber from Central Office did.
This was the view from our "front lawn." We opted for the northern shore of Managaha.
Lolita cracked firewood.
Linda made her cooking preferences known.
Maria, Lolita, and Dimitri stopped for a moment for the camera.
This is what our pala-pala (i.e. shelter) looked like from one side.
Here's another view of our pala-pala.
Another view from "our" beach.
The distance from the beach to our pala-pala.
Certain areas around our campsite were marked off to protect bird habitat.
Ben Tured (Polly Anne and Juanette in the background).
Maria and Lolita exploring a bit. (Or did they go to the concession stand for coffee?)
Another protected zone.
Dimitri in deep thought (or just sleepy).
Ben Weber, relaxing, and modeling his ocean-rescue-ready shorts.
Linda on the move.
Ben Tured with his betel nut.
Polly Anne and Juanette tending the barbecue. (Food was delicious!)
Tuesday, April 13, 2010
Implicit Bias
The CNMI Bar Association has announced that Judge Mark W. Bennett will present a CLE presentation on implicit bias in jury selection at our Thursday bar meeting. The Bar Association also circulated his article, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: the Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, published in Harvard Law and Policy Review in February 2010.
I think most lawyers are aware of implicit bias--by themselves and their colleagues, from judges, clients, witnesses, and jurors. It's somewhat a human phenomenon to engage in racial, gender, language, and other stereotyping, even when we fight against it.
The article mentions the IAT, an online "test" to help measure your hidden tendencies. The Implicit Association Test may hold surprises for you, if you dare take it. It seems very simplistic in its premises, but I think it can be used as a personal tool for exploring one's own potential for implicit biases.
The most positive note in the article by Judge Bennett is the power of professionalism and training to reduce and eliminate the implicit-preference tendencies. This effect was seen in both emergency room professionals and police. As Judge Bennett mentions, it is imperative that we achieve similar results in the justice system/judiciary.
I think most lawyers are aware of implicit bias--by themselves and their colleagues, from judges, clients, witnesses, and jurors. It's somewhat a human phenomenon to engage in racial, gender, language, and other stereotyping, even when we fight against it.
The article mentions the IAT, an online "test" to help measure your hidden tendencies. The Implicit Association Test may hold surprises for you, if you dare take it. It seems very simplistic in its premises, but I think it can be used as a personal tool for exploring one's own potential for implicit biases.
The most positive note in the article by Judge Bennett is the power of professionalism and training to reduce and eliminate the implicit-preference tendencies. This effect was seen in both emergency room professionals and police. As Judge Bennett mentions, it is imperative that we achieve similar results in the justice system/judiciary.
Monday, April 5, 2010
Open for Domestic Intake
The Marianas Office is open this week (April 5-9, 2010) for intake of domestic cases. These typically include divorce, paternity and child support, adoption, and guardianship.
Intake hours are from 8 AM to noon and 1 PM to 4 PM Monday through Thursday; and 8 AM to 9 AM Friday.
Intake hours are from 8 AM to noon and 1 PM to 4 PM Monday through Thursday; and 8 AM to 9 AM Friday.
Thursday, April 1, 2010
New Case, New Duty
The U.S. Supreme Court issued a decision dated March 31, 2010 that recognizes for the first time a constitutional duty of criminal defense counsel to advise their clients of possible immigration consequences of plea agreements. Padilla v. Kentucky involved a situation where the attorney misinformed the criminal defendant, advising him not to worry about immigration consequences of a plea agreement because he had been in the US for a long time (40 years).
The majority opinion (Justices Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor) places on criminal defense counsel a duty to not only refrain from giving misinformation, but to actively provide a warning that is accurate about the possible immigration consequences of a guilty plea (or conviction). The majority held that
In reaching the decision, the majority found that informed consideration of possible deportation can be helpful to both prosecution and defense, as it will give leverage to the prosecution to convince a defendant to avoid the risk of deportation by pleading guilty to non-deportable crimes, and aid the defense counsel by giving them the opportunity to provide a real benefit to their clients if they can come up with a deal that avoids deportation.
The concurring opinion (Justices Alito and Roberts) enumerates some of the very real difficulties counsel will have in living up to such obligation. It also notes how this is a "dramatic departure from precedent" and cites a Cornell Law Review article by Chin and Holmes that found that "virtually all jurisdictions--including eleven federal circuits, more than thirty states, and the District of Columbia--hold that defense counsel need not discuss with their clients the collateral consequences of a conviction, including deportation."
The CNMI Supreme Court was one such court that had considered the issue in the case CNMI v. Shaunglan Chen and ruled against the alien defendant who sought to withdraw her guilty plea for ineffective assistance of counsel when counsel had not provided information about the deportation consequences of her plea agreement.
Obviously, this case will mean some changes by criminal defense counsel are necessary when representing alien defendants. Because the CNMI is under US immigration now, (although in the transition stage), the consequences for aliens pleading guilty or being found guilty of crimes here will be the same as for aliens in the rest of the US. No doubt there will be useful resources (like books, magazine articles, and online articles) to aid criminal lawyers with their duty.
Keeping up-to-date will be the real challenge.
And just to be complete, there was a dissent (Justices Scalia and Thomas).
The majority opinion (Justices Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor) places on criminal defense counsel a duty to not only refrain from giving misinformation, but to actively provide a warning that is accurate about the possible immigration consequences of a guilty plea (or conviction). The majority held that
"counsel must advise her client regarding the risk of deportation...
We too have previously recognized that "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence."
In reaching the decision, the majority found that informed consideration of possible deportation can be helpful to both prosecution and defense, as it will give leverage to the prosecution to convince a defendant to avoid the risk of deportation by pleading guilty to non-deportable crimes, and aid the defense counsel by giving them the opportunity to provide a real benefit to their clients if they can come up with a deal that avoids deportation.
The concurring opinion (Justices Alito and Roberts) enumerates some of the very real difficulties counsel will have in living up to such obligation. It also notes how this is a "dramatic departure from precedent" and cites a Cornell Law Review article by Chin and Holmes that found that "virtually all jurisdictions--including eleven federal circuits, more than thirty states, and the District of Columbia--hold that defense counsel need not discuss with their clients the collateral consequences of a conviction, including deportation."
The CNMI Supreme Court was one such court that had considered the issue in the case CNMI v. Shaunglan Chen and ruled against the alien defendant who sought to withdraw her guilty plea for ineffective assistance of counsel when counsel had not provided information about the deportation consequences of her plea agreement.
Obviously, this case will mean some changes by criminal defense counsel are necessary when representing alien defendants. Because the CNMI is under US immigration now, (although in the transition stage), the consequences for aliens pleading guilty or being found guilty of crimes here will be the same as for aliens in the rest of the US. No doubt there will be useful resources (like books, magazine articles, and online articles) to aid criminal lawyers with their duty.
Keeping up-to-date will be the real challenge.
And just to be complete, there was a dissent (Justices Scalia and Thomas).
Tuesday, March 16, 2010
The Power Struggle over Alien Labor
The CNMI has been struggling to hold on to power throughout the transition to U.S. control of immigration.
A BIT OF HISTORY
For years the CNMI has opposed federal immigration and clung to its own control of immigration through many tactics. The most notorious action included hiring the lobbyist Jack Abramoff.
It opposed all attempts to extend U.S. immigration control to the CNMI for decades, but it finally lost the battle when the U.S. Congress passed the Consolidated Natural Resources Act of 2008. This became P.L. 110-229. Title VII of this act addresses "immigration, security and labor" in the Northern Mariana Islands.
THE CNRA
The CNRA extends U.S. immigration to the CNMI, but it first provides for a transition period. This started on November 28, 2009.
The CNRA provides for the federal immigration authorities to take over CNMI immigration on the effective date of the transition period (11/28/2009). It also provides for the end of CNMI immigration on that date.
During the first two years of the transition period, aliens who had lawful status on the effective date of the transition period under the CNMI immigration laws are not subject to deportation for violation of INA sec. 212 (a)(6)(A), 8 USC 1182 (a)(6)(A); that protection lasts until "completion of the period of the alien's admission under the immigration laws of the Commonwealth", or 11/27/2011, whichever is first.
During the first two years of the transition period, aliens who were permitted to work on the effective date of the transition period under the CNMI laws are deemed to have US authority to work during their protected period of presence in the CNMI.
Although the CNRA states that its purpose is to provide a phase-out of the "nonresident contract worker program of the Commonwealth" and a phase-in of US immigration, the law actually cuts off CNMI authority over immigration on the transition effective date (11/28/2009) and puts the entire management of the transition program regarding alien admission and labor under the U.S. authorities. The CNRA phase-out relates only to presence and ability to work of aliens admitted under the prior CNMI laws. The US transition program also, in some ways, mimics the CNMI alien worker program, and so it, too, is an element of the phase-out of a nonresident contract worker program, even though it is a new and separate program.
THE FITIAL LAWSUIT
The CNMI administration, led by Governor Fitial, challenged the CNRA law in federal court. It claimed that the law would ruin the CNMI by depriving the CNMI of foreign labor needed for the economy. It also claimed that the CNMI administration strongly wanted to stabilize the labor market in the CNMI, and had authority over labor; and that the US authority was limited to immigration.
The federal court finally determined that there was no basis for the challenge and dismissed the CNMI's complaint as to the CNRA. CNMI v. U.S., #08-1572 (U.S. Dist. Ct. D.C., 2009). (Opinion available here.)
The only portion of the CNMI lawsuit that garnered success was the challenge to the late "adoption" of regulations for the US-administered transitional worker program. This had the effect of derailing the availability of new transitional workers being admitted. Until final regs are adopted, no new workers under a transitional CW permit can be hired.
UMBRELLA PERMITS
However, there remain in the CNMI many alien workers who actually have jobs or who had authority to seek transfers to new employers under the CNMI regime. In the final days of CNMI control of immigration, the CNMI issued "umbrella permits" which were a last-ditch measure, ostensibly to stabilize the labor force and provide the maximum allowable time under the CNRA to alien workers here. These were handed out in a mad rush, while aliens lined up for hours, day and night. The "umbrella permits" provided the maximum allowable time for admission to the CNMI under CNRA law--through 11/27/2011.
But the permits also had "revocation" dates stamped on them.
It was clear even at the time that the CNMI government was issuing the "umbrella permits" that it had an ulterior motive. It wanted to extend its control over alien labor through the two year period.
THE MOST RECENT POWER STRUGGLE
And so the struggle for power over alien labor continues in the CNMI.
After 11/28/2009, the CNMI Department of Labor started scheduling appointments for , charging fees about, and "revoking" some of the newly issued umbrella permits.
The U.S. Ombudsman, Pam Brown, went on record saying that the USCIS would honor all umbrella permits as authority to stay until 11/27/2011 and would not honor any "revocation."
The CNMI DOL, through Jacinta Kaipat, lambasted Pam Brown, calling her reckless and accusing her of creating confusion, and insisting that she did not speak for the U.S. government. Kaipat told the CNMI Legislature that CNMI DOL can maintain control over umbrella permits. She had the backing of the CNMI AG, Ed Buckingham.
The Assistant Secretary for the Interior, Tony Babauta then joined the fray, supporting Pam Brown's position as that of the U.S.
On March 15, 2010, according to the CNMI newspapers, the USCIS released information on umbrella permits and other alien labor matters in a question and answer format. This official US government information fully corroborated the information provided by the Ombudsman--that the US will honor umbrella permits as permission to stay and to work and that it will not recognize CNMI revocations done after 11/27/2009.
And on March 16, 2010, the newspapers carried Governor Fitial's very different answers to the questions, re-asserting the CNMI's power to revoke umbrella permits (and significantly, charge fees in connection with their non-revocation). The CNMI Attorney General issued an opinion that the CNMI retained legal authority and could revoke alien labor permits.
You can read much more detail about the entire history of the struggle at Unheard No More. You can read the CNMI Department of Labor's press releases at their blog, CNMI Labor Forum.
THE BASIC AREA OF CONTENTION
It is clear that the U.S. and the CNMI government authorities do not agree on the meaning of the CNRA. They do not agree on the scope of authority to the US and the limitations of authority on the CNMI.
I am not sure, but it appears that this disagreement may be limited to the transition period issues. For example, it seems beyond debate that after the transition, the CNMI will have the same limitations on its immigration/labor powers as every state does. It will have the same powers as every state, too.
It is not clear whether the disagreement about control and authority will extend beyond the first two years of transition. At present, the debate centers around the umbrella permit, which at best ends 11/27/2011.
The transition presents unique questions because it has not occurred before, so there is no guidance from any state or federal authority on how to interpret the CNMI's role under the CNRA for now.
SOME LEGAL ANALYSIS
Nothing in the CNRA can be read as authority for the CNMI's continued enforcement of its former alien labor program.
The umbrella permits are immigration permits to be present in the CNMI on the effective date of the transition. They expressly state that they are effective until 11/27/2011. The USCIS is recognizing them for that period of time.
This recognition by the USCIS provides the stability of an alien labor pool that the CNMI claimed to want. Aliens holding umbrella permits have the CNRA protections-they can't be deported for violation of INA sec. 212 (a)(6)(A), 8 USC 1182 (a)(6)(A) until the completion of the period of their admission or 11/27/2011, whichever is first. They can work during that time period.
The US reads the CNRA as authority that the CNMI can't retroactively effect the period of admission. And that seems most consistent with the text and the purpose of the CNRA law.
The CNMI tries to bootstrap its way into a two-year extension of its labor policies and programs. The CNMI's struggle seems more about getting fees and making alien workers jump through hoops, keeping them hostage, than it does about providing a stable pool of labor.
THE CNRA AGAIN
At present, we have only the language of the CNRA to consider when it comes to the issue of foreign workers in the CNMI. None of the federal agencies tasked with its enforcement have issued final regulations regarding its implementation.
This is significant. If the USCIS were to issue regulations, the CNMI may recognize their pre-emptive authority. The AG's opinion at footnote 2, acknowledges the pre-emptive power of regulations, citing Fidelity Federal Sav. and Loan Ass'n v. de la Cuesta, 485 U.S. 141, 153 (1982). However the footnote also gives some clue that the CNMI would likely argue that any regs that differed significantly from its own interpretation of the CNRA would be challenged as an impermissible construction of the statute.
The central issue between the US and the CNMI seems to focus on the effect of the CNMI status for aliens who remain for the two year period. The CNMI reads the CNRA as impliedly giving it authority to continue to effectuate its alien labor laws as long as there are aliens in the CNMI who were admitted pursuant to those laws.
The footnote to this claim says that the power extends to "Commonwealth immigration status of aliens legally present on November 28, 2009 ...including compliance with the express provisions set forth in the permits issued by the Commonwealth."
This interpretation takes several huge leaps in logic. It also blurs the distinction between immigration and labor.
The CNRA explicitly pre-empted admissibility and removal of aliens from the CNMI. Thus, there is no longer any "Commonwealth immigration status of aliens."
The Attorney General's opinion states that the CNRA expressly provides that the Commonwealth immigration status may continue during the transition period, but that statement is inaccurate. The CNRA provides protection from removal and authority to work, but it does not "continue" the CNMI alien status. No such status now exists. There can be no CNMI administration of such status.
The CNRA protects those who had such status on the transition effective date from removal for the period of time for which they were granted lawful admission by the CNMI prior to the effective date of the CNRA. If they were authorized to work on the transition effective date, they shall be considered authorized "by the Secretary of Homeland Security" to be employed until "the expiration of the alien's employment authorization under the immigration laws of the Commonwealth" or 11/27/2011, whichever is earlier. Everything is determined at the transition effective date. No where in the CNRA does it say that the CNMI can retroactively change the period of time for which aliens were granted admission or authorized to work.
The CNMI argues that aliens with umbrella permits might not have been able to stay for the full two years if they didn't comply with certain CNMI labor requirements; so the CNMI should continue to be allowed to enforce those requirements.
The CNRA does not say this. It does not suggest this. The clarity of the "transition effective date" as the date upon which rights and privileges are determined contradicts this interpretation. Furthermore, the CNRA expressly gives the US control over the transitional worker program, making it clear that it is the US that is to administer labor and immigration issues during the transition, not the CNMI. It would conflict with the CNRA's transitional worker program administered by the US to allow the CNMI to continue to administer its own alien worker program during the transition. Even more clearly, the CNRA expressly states that the Secretary of Homeland Security is deemed to have authorized employement for those present and authorized by the CNMI on the transition program effective date; how can the CNMI now revoke the Secretary of Homeland Security's authorization to work?
PRE-EMPTION
The CNMI Attorney General's Opinion does a good job of laying out the basics of pre-emption. Quoting from the opinion, in part...
All of this is accurate and helpful.
It also helps clarify why the CNMI's interpretation of the CNRA is twisted and illogical.
The CNRA deals with immigration. The US federal court, in the challenge by the Fitial administration, clearly recognized that the alien labor portions of the CNRA are immigration matters. Employment authorization is a condition of admission and working without it may lead to removal; these are directly within the zone of the statute's pre-emption--admission and removal.
This law preempts the CNMI's attempt to regulate alien labor, both by field pre-emption and conflict pre-emption.
The CNMI wants to do something different than what the US is doing in the very field that the CNRA deals with--alien labor. The US transition program for alien labor clearly puts this power with the US government. The Secretary of Homeland Security is deemed to have authorized the employment of aliens as of the effective date of the transition period (11/28/2009). The CNMI can't reovke the Secretary of Homeland Security's authorization for employment. It can't pass laws now that effect status of any alien or add burdens not contemplated by Congress.
The real shame in all of this is the harm caused by the CNMI's unwillingness to be fair and rational in the transition to US immigration. Its refusal to turn over data, the verbal attacks on US officials, the waste of limited CNMI resources by litigating and continuing to press untenable positions is all very seriously harmful. And for alien workers and employers caught in the midst of this kerfuffle, the harm is not just lost wages and lost profits, but also stress and worry and uncertainty.
EDIT: For another take on this power struggle, see the Saipan Tribune column by Maya Kara and Bruce Mailman.
A BIT OF HISTORY
For years the CNMI has opposed federal immigration and clung to its own control of immigration through many tactics. The most notorious action included hiring the lobbyist Jack Abramoff.
It opposed all attempts to extend U.S. immigration control to the CNMI for decades, but it finally lost the battle when the U.S. Congress passed the Consolidated Natural Resources Act of 2008. This became P.L. 110-229. Title VII of this act addresses "immigration, security and labor" in the Northern Mariana Islands.
THE CNRA
The CNRA extends U.S. immigration to the CNMI, but it first provides for a transition period. This started on November 28, 2009.
The CNRA provides for the federal immigration authorities to take over CNMI immigration on the effective date of the transition period (11/28/2009). It also provides for the end of CNMI immigration on that date.
During the first two years of the transition period, aliens who had lawful status on the effective date of the transition period under the CNMI immigration laws are not subject to deportation for violation of INA sec. 212 (a)(6)(A), 8 USC 1182 (a)(6)(A); that protection lasts until "completion of the period of the alien's admission under the immigration laws of the Commonwealth", or 11/27/2011, whichever is first.
During the first two years of the transition period, aliens who were permitted to work on the effective date of the transition period under the CNMI laws are deemed to have US authority to work during their protected period of presence in the CNMI.
Although the CNRA states that its purpose is to provide a phase-out of the "nonresident contract worker program of the Commonwealth" and a phase-in of US immigration, the law actually cuts off CNMI authority over immigration on the transition effective date (11/28/2009) and puts the entire management of the transition program regarding alien admission and labor under the U.S. authorities. The CNRA phase-out relates only to presence and ability to work of aliens admitted under the prior CNMI laws. The US transition program also, in some ways, mimics the CNMI alien worker program, and so it, too, is an element of the phase-out of a nonresident contract worker program, even though it is a new and separate program.
THE FITIAL LAWSUIT
The CNMI administration, led by Governor Fitial, challenged the CNRA law in federal court. It claimed that the law would ruin the CNMI by depriving the CNMI of foreign labor needed for the economy. It also claimed that the CNMI administration strongly wanted to stabilize the labor market in the CNMI, and had authority over labor; and that the US authority was limited to immigration.
The federal court finally determined that there was no basis for the challenge and dismissed the CNMI's complaint as to the CNRA. CNMI v. U.S., #08-1572 (U.S. Dist. Ct. D.C., 2009). (Opinion available here.)
The only portion of the CNMI lawsuit that garnered success was the challenge to the late "adoption" of regulations for the US-administered transitional worker program. This had the effect of derailing the availability of new transitional workers being admitted. Until final regs are adopted, no new workers under a transitional CW permit can be hired.
UMBRELLA PERMITS
However, there remain in the CNMI many alien workers who actually have jobs or who had authority to seek transfers to new employers under the CNMI regime. In the final days of CNMI control of immigration, the CNMI issued "umbrella permits" which were a last-ditch measure, ostensibly to stabilize the labor force and provide the maximum allowable time under the CNRA to alien workers here. These were handed out in a mad rush, while aliens lined up for hours, day and night. The "umbrella permits" provided the maximum allowable time for admission to the CNMI under CNRA law--through 11/27/2011.
But the permits also had "revocation" dates stamped on them.
It was clear even at the time that the CNMI government was issuing the "umbrella permits" that it had an ulterior motive. It wanted to extend its control over alien labor through the two year period.
THE MOST RECENT POWER STRUGGLE
And so the struggle for power over alien labor continues in the CNMI.
After 11/28/2009, the CNMI Department of Labor started scheduling appointments for , charging fees about, and "revoking" some of the newly issued umbrella permits.
The U.S. Ombudsman, Pam Brown, went on record saying that the USCIS would honor all umbrella permits as authority to stay until 11/27/2011 and would not honor any "revocation."
The CNMI DOL, through Jacinta Kaipat, lambasted Pam Brown, calling her reckless and accusing her of creating confusion, and insisting that she did not speak for the U.S. government. Kaipat told the CNMI Legislature that CNMI DOL can maintain control over umbrella permits. She had the backing of the CNMI AG, Ed Buckingham.
The Assistant Secretary for the Interior, Tony Babauta then joined the fray, supporting Pam Brown's position as that of the U.S.
On March 15, 2010, according to the CNMI newspapers, the USCIS released information on umbrella permits and other alien labor matters in a question and answer format. This official US government information fully corroborated the information provided by the Ombudsman--that the US will honor umbrella permits as permission to stay and to work and that it will not recognize CNMI revocations done after 11/27/2009.
And on March 16, 2010, the newspapers carried Governor Fitial's very different answers to the questions, re-asserting the CNMI's power to revoke umbrella permits (and significantly, charge fees in connection with their non-revocation). The CNMI Attorney General issued an opinion that the CNMI retained legal authority and could revoke alien labor permits.
You can read much more detail about the entire history of the struggle at Unheard No More. You can read the CNMI Department of Labor's press releases at their blog, CNMI Labor Forum.
THE BASIC AREA OF CONTENTION
It is clear that the U.S. and the CNMI government authorities do not agree on the meaning of the CNRA. They do not agree on the scope of authority to the US and the limitations of authority on the CNMI.
I am not sure, but it appears that this disagreement may be limited to the transition period issues. For example, it seems beyond debate that after the transition, the CNMI will have the same limitations on its immigration/labor powers as every state does. It will have the same powers as every state, too.
It is not clear whether the disagreement about control and authority will extend beyond the first two years of transition. At present, the debate centers around the umbrella permit, which at best ends 11/27/2011.
The transition presents unique questions because it has not occurred before, so there is no guidance from any state or federal authority on how to interpret the CNMI's role under the CNRA for now.
SOME LEGAL ANALYSIS
Nothing in the CNRA can be read as authority for the CNMI's continued enforcement of its former alien labor program.
The umbrella permits are immigration permits to be present in the CNMI on the effective date of the transition. They expressly state that they are effective until 11/27/2011. The USCIS is recognizing them for that period of time.
This recognition by the USCIS provides the stability of an alien labor pool that the CNMI claimed to want. Aliens holding umbrella permits have the CNRA protections-they can't be deported for violation of INA sec. 212 (a)(6)(A), 8 USC 1182 (a)(6)(A) until the completion of the period of their admission or 11/27/2011, whichever is first. They can work during that time period.
The US reads the CNRA as authority that the CNMI can't retroactively effect the period of admission. And that seems most consistent with the text and the purpose of the CNRA law.
The CNMI tries to bootstrap its way into a two-year extension of its labor policies and programs. The CNMI's struggle seems more about getting fees and making alien workers jump through hoops, keeping them hostage, than it does about providing a stable pool of labor.
THE CNRA AGAIN
At present, we have only the language of the CNRA to consider when it comes to the issue of foreign workers in the CNMI. None of the federal agencies tasked with its enforcement have issued final regulations regarding its implementation.
This is significant. If the USCIS were to issue regulations, the CNMI may recognize their pre-emptive authority. The AG's opinion at footnote 2, acknowledges the pre-emptive power of regulations, citing Fidelity Federal Sav. and Loan Ass'n v. de la Cuesta, 485 U.S. 141, 153 (1982). However the footnote also gives some clue that the CNMI would likely argue that any regs that differed significantly from its own interpretation of the CNRA would be challenged as an impermissible construction of the statute.
The central issue between the US and the CNMI seems to focus on the effect of the CNMI status for aliens who remain for the two year period. The CNMI reads the CNRA as impliedly giving it authority to continue to effectuate its alien labor laws as long as there are aliens in the CNMI who were admitted pursuant to those laws.
"The Commonwealth retains authority over certain immigration status issues regarding aliens lawfully in the Commonwealth as of the CNRA's effective date, November 28, 2009. This is because the CNRA provides a two-year transition period, during which Commonwealth immigration status must be respected and, by implication, the Commonwealth maintains jurisdiction to administer, and in a proper case, revoke that status."
The footnote to this claim says that the power extends to "Commonwealth immigration status of aliens legally present on November 28, 2009 ...including compliance with the express provisions set forth in the permits issued by the Commonwealth."
This interpretation takes several huge leaps in logic. It also blurs the distinction between immigration and labor.
The CNRA explicitly pre-empted admissibility and removal of aliens from the CNMI. Thus, there is no longer any "Commonwealth immigration status of aliens."
The Attorney General's opinion states that the CNRA expressly provides that the Commonwealth immigration status may continue during the transition period, but that statement is inaccurate. The CNRA provides protection from removal and authority to work, but it does not "continue" the CNMI alien status. No such status now exists. There can be no CNMI administration of such status.
The CNRA protects those who had such status on the transition effective date from removal for the period of time for which they were granted lawful admission by the CNMI prior to the effective date of the CNRA. If they were authorized to work on the transition effective date, they shall be considered authorized "by the Secretary of Homeland Security" to be employed until "the expiration of the alien's employment authorization under the immigration laws of the Commonwealth" or 11/27/2011, whichever is earlier. Everything is determined at the transition effective date. No where in the CNRA does it say that the CNMI can retroactively change the period of time for which aliens were granted admission or authorized to work.
The CNMI argues that aliens with umbrella permits might not have been able to stay for the full two years if they didn't comply with certain CNMI labor requirements; so the CNMI should continue to be allowed to enforce those requirements.
The CNRA does not say this. It does not suggest this. The clarity of the "transition effective date" as the date upon which rights and privileges are determined contradicts this interpretation. Furthermore, the CNRA expressly gives the US control over the transitional worker program, making it clear that it is the US that is to administer labor and immigration issues during the transition, not the CNMI. It would conflict with the CNRA's transitional worker program administered by the US to allow the CNMI to continue to administer its own alien worker program during the transition. Even more clearly, the CNRA expressly states that the Secretary of Homeland Security is deemed to have authorized employement for those present and authorized by the CNMI on the transition program effective date; how can the CNMI now revoke the Secretary of Homeland Security's authorization to work?
PRE-EMPTION
The CNMI Attorney General's Opinion does a good job of laying out the basics of pre-emption. Quoting from the opinion, in part...
" "Where a state statue conflicts with, or frustrates, federal law, the former must give way." U.S. Const. Art. VI, cl.2; Maryland v. Louisiana, 451 u.s. 726, 746 ...(1981). ... Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue...
"A federal statute's express preemption clause indicates Congress' purpose....However, "[t]he fact that an express definition of the pre-emptive reach of a statue "implies-i.e. supports a reasonable inference-that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption."
...Implied preemption may occur via field preemption of conflict preemption.
Field prempetion may be found when states regulate a subject area that federal law also regulates...
Conflict preemption may be found when state statutes conflict with federal statutes.
State statutes regulating aliens may be constitutionally permissible. "Power to regulate immigration is unquestionably exclusively a federal power. But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised."...
All of this is accurate and helpful.
It also helps clarify why the CNMI's interpretation of the CNRA is twisted and illogical.
The CNRA deals with immigration. The US federal court, in the challenge by the Fitial administration, clearly recognized that the alien labor portions of the CNRA are immigration matters. Employment authorization is a condition of admission and working without it may lead to removal; these are directly within the zone of the statute's pre-emption--admission and removal.
This law preempts the CNMI's attempt to regulate alien labor, both by field pre-emption and conflict pre-emption.
The CNMI wants to do something different than what the US is doing in the very field that the CNRA deals with--alien labor. The US transition program for alien labor clearly puts this power with the US government. The Secretary of Homeland Security is deemed to have authorized the employment of aliens as of the effective date of the transition period (11/28/2009). The CNMI can't reovke the Secretary of Homeland Security's authorization for employment. It can't pass laws now that effect status of any alien or add burdens not contemplated by Congress.
The real shame in all of this is the harm caused by the CNMI's unwillingness to be fair and rational in the transition to US immigration. Its refusal to turn over data, the verbal attacks on US officials, the waste of limited CNMI resources by litigating and continuing to press untenable positions is all very seriously harmful. And for alien workers and employers caught in the midst of this kerfuffle, the harm is not just lost wages and lost profits, but also stress and worry and uncertainty.
EDIT: For another take on this power struggle, see the Saipan Tribune column by Maya Kara and Bruce Mailman.
Monday, March 15, 2010
The "Local Preference" in Hiring
On March 10, 2010, the Marianas Variety printed an article with the title “Labor Wants Floating Benchmark to Prioritize Hiring of Locals”. According to this news, Deputy Labor Secretary Jacinta M. Kaipat encourages the CNMI Legislature to replace the local law that sets a quota for employers to hire 20% (and increasing to 30%) local/U.S. citizen labor with floating benchmarks. These benchmarks would be tied to population statistics about the labor force and set a priority for hiring local/U.S. citizen employees.
This blog post discusses some of the legal issues presented in this matter.
Control of foreign labor
When the CNMI controlled its own immigration, it could set terms and conditions for employment of foreign workers; and by extension, it could set terms and conditions for quotas of local/resident work force before employers could utilize alien labor. But the CNMI no longer has that authority. U.S. law governs not only entry and exit of aliens, but also their employment.
Judge Friedman, in the case brought by the CNMI to challenge federalization of immigration, CNMI v. U.S., #08-1572 (U.S. Dist. Court, D.C., 11/25/2009)said:
It is clear that the CNMI lost control of immigration, and with that, control of alien labor to the extent it is any different than local labor. The CNMI cannot now set conditions on hiring foreign workers or establish preferences for hiring local labor, with the exception of bona fide requirements. The present CNMI quota law embodies preferences that now create unlawful discrimination.
Ombudsman Pam Brown, in response to a question I posed to her on this subject, said:
Unlawful discrimination
Under US law, it is illegal to discriminate in hiring, firing, and some other matters based on citizenship.
1) Title VII prohibits discrimination based on “national origin.” This includes not only intentional discrimination tied directly to national origin but also practices that have an adverse impact relative to national origin. Adding a citizenship requirement to hiring decisions in the CNMI would adversely impact many specific groups based on national origin—including citizens of the FSM, Palau and the Marshall Islands, and US permanent residents and others who are present and lawfully eligible to work from the Philippines, China, Korea, Japan, Bangladesh and other countries. Such a “citizenship’ requirement imposed by employers would be illegal discrimination unless it was tied to actual bona fide job needs (such as meeting security classifications for some federal jobs in transportation, etc.). The EEOC enforces these provisions.
The EEOC website says
Implicit in the word “also” is that such practices violate Title VII, absent bona fide job qualifications.
Can the CNMI, by passing legislation that sets residency or citizenship requirements, create bona fide job qualifications? It would seem that the CNMI would need a compelling state interest to engage in such discrimination. A preference for US citizens would be the province of the US government, and federal law would likely pre-empt CNMI law on the subject. U.S. law has already set a balance.
2) The Immigration Reform and Control Act (IRCA), §274B, 8 U.S.C. §1324b, specifically prohibits citizenship or immigration status discrimination with respect to hiring, firing, recruitment or referral for a fee by employers with four or more employees. The Office of Special Counsel enforces the anti-discrimination provision. Their website says:
In essence, anyone who is lawfully present and permitted to work as a matter of federal law is entitled to an equal chance at employment, regardless of whether they are a U.S. citizen or hold some other immigration status. Employers in the CNMI must comply with this law through the I-9 process.
There are some lawful considerations that might disfavor hiring foreign workers in the CNMI. Employers are not required to sponsor alien workers for H1 categories; nor are they prohibited from considering the length of time a worker (say, under an umbrella permit) may be available for the job. Questions in the hiring process about citizenship or specific immigration status beyond eligilibity to work, however, could give rise to an inference of discrimination.
Floating benchmarks/Hiring goals
The call for change is from the quota system to “floating benchmarks” which are described as similar to “hiring goals.” The idea, I think, is to have targets (benchmarks) for how many U.S. citizens should be employed by any employer, based on the percentage of citizens in the general labor force here.
I found some guidance about what “hiring goals” are on the Berkeley Lab human resources website. The following series of questions and answers provides insight into what hiring goals really are.
From these questions and answers, it is clear that the thrust of “hiring goals” is affirmative action and equal employment opportunity. They aren’t traditionally used to promote hiring of the dominant segment of U.S. citizens in preference to other eligible foreign workers. They are not a way to lawfully “discriminate” or give “preference” to any one. They are, in contrast to discrimination and preferences, utilized by removing barriers to employment and using broad advertising of job openings, outreach, and equal opportunity at every stage of the process.
Final analysis
If the goal of the recommendation by the CNMI DOL is to favor local residents or even U.S. citizens, the proposed legislation is likely illegal and unconstitutional. U.S. federal law pre-empts the CNMI’s right to pass laws about foreign labor that are significantly different in purpose and effect than the U.S. laws. No state or local government can evade the equal protection of the law that is extended to all people present in the jurisdiction.
If the goal is to do a better job of making sure all qualified candidates know about jobs and apply for them, then it is permissible. There just can’t be any “prioritization” of hiring locals under cover of citizenship.
This blog post discusses some of the legal issues presented in this matter.
Control of foreign labor
When the CNMI controlled its own immigration, it could set terms and conditions for employment of foreign workers; and by extension, it could set terms and conditions for quotas of local/resident work force before employers could utilize alien labor. But the CNMI no longer has that authority. U.S. law governs not only entry and exit of aliens, but also their employment.
Judge Friedman, in the case brought by the CNMI to challenge federalization of immigration, CNMI v. U.S., #08-1572 (U.S. Dist. Court, D.C., 11/25/2009)said:
“[P]laintiff (CNMI) is just plain wrong when it asserts that nothing in federal immigration and naturalization law permits an “employer-by-employer, worker-by-worker local labor permitting scheme.” ... As defendants point out with ample support... precisely such schemes are at the heart of federal immigration law. ... Finally, and for similar reasons, the fact that the application of federal immigration laws to the CNMI through the CNRA (P.L. 110-229) may have a dramatic impact upon the CNMI’s labor force does not convert an immigration law into a labor law. It has long been recognized that the immigration laws necessarily have a significant impact on labor markets and practices.... There is thus no question that the relevant portions of the CNRA are immigration laws explicitly authorized by the Covenant.”
It is clear that the CNMI lost control of immigration, and with that, control of alien labor to the extent it is any different than local labor. The CNMI cannot now set conditions on hiring foreign workers or establish preferences for hiring local labor, with the exception of bona fide requirements. The present CNMI quota law embodies preferences that now create unlawful discrimination.
Ombudsman Pam Brown, in response to a question I posed to her on this subject, said:
“The conditions for employment of aliens contained in the Non-Resident Workers Act and P.L. 15-108 were tied to immigration control and thus, were not restricted by Title VII or IRCA. Once the CNMI lost control of immigration under P.L. 110-229, it also lost the authority to condition employment of aliens in violation of federal law and constitutional protections.”
Unlawful discrimination
Under US law, it is illegal to discriminate in hiring, firing, and some other matters based on citizenship.
1) Title VII prohibits discrimination based on “national origin.” This includes not only intentional discrimination tied directly to national origin but also practices that have an adverse impact relative to national origin. Adding a citizenship requirement to hiring decisions in the CNMI would adversely impact many specific groups based on national origin—including citizens of the FSM, Palau and the Marshall Islands, and US permanent residents and others who are present and lawfully eligible to work from the Philippines, China, Korea, Japan, Bangladesh and other countries. Such a “citizenship’ requirement imposed by employers would be illegal discrimination unless it was tied to actual bona fide job needs (such as meeting security classifications for some federal jobs in transportation, etc.). The EEOC enforces these provisions.
The EEOC website says
“Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.”
Implicit in the word “also” is that such practices violate Title VII, absent bona fide job qualifications.
Can the CNMI, by passing legislation that sets residency or citizenship requirements, create bona fide job qualifications? It would seem that the CNMI would need a compelling state interest to engage in such discrimination. A preference for US citizens would be the province of the US government, and federal law would likely pre-empt CNMI law on the subject. U.S. law has already set a balance.
2) The Immigration Reform and Control Act (IRCA), §274B, 8 U.S.C. §1324b, specifically prohibits citizenship or immigration status discrimination with respect to hiring, firing, recruitment or referral for a fee by employers with four or more employees. The Office of Special Counsel enforces the anti-discrimination provision. Their website says:
“Employers may not treat individuals differently because they are, or are not, U.S. citizens.”
In essence, anyone who is lawfully present and permitted to work as a matter of federal law is entitled to an equal chance at employment, regardless of whether they are a U.S. citizen or hold some other immigration status. Employers in the CNMI must comply with this law through the I-9 process.
There are some lawful considerations that might disfavor hiring foreign workers in the CNMI. Employers are not required to sponsor alien workers for H1 categories; nor are they prohibited from considering the length of time a worker (say, under an umbrella permit) may be available for the job. Questions in the hiring process about citizenship or specific immigration status beyond eligilibity to work, however, could give rise to an inference of discrimination.
Floating benchmarks/Hiring goals
The call for change is from the quota system to “floating benchmarks” which are described as similar to “hiring goals.” The idea, I think, is to have targets (benchmarks) for how many U.S. citizens should be employed by any employer, based on the percentage of citizens in the general labor force here.
I found some guidance about what “hiring goals” are on the Berkeley Lab human resources website. The following series of questions and answers provides insight into what hiring goals really are.
“Q: What is the difference between quotas and placement goals?
A: Quotas are either a ceiling or a floor for the employment of minorities or women. Placement goals are reasonably attainable objectives or targets that are used to measure progress toward achieving equal employment opportunity.
Q: What does the Laboratory do to meet its placement goals?
A: The Laboratory makes good faith efforts to remove identified barriers, expand employment opportunities, and produce measurable results.
Good faith efforts include broad advertising of job openings; supplemental inclusive outreach efforts to ensure that all qualified candidates, including minorities and women, are represented in applicant pools; and careful monitoring of outreach, recruitment, search and selection practices to ensure that equal opportunity is provided at every stage of these processes.
Q: Do good faith efforts include extending preferences in hiring minorities and women when trying to meet placement goals?
A: No. According to the Federal regulations, placement goals do not provide a justification to extend a preference to any individual on the basis of that person’s race, ethnicity, or sex.
Q: Will setting placement goals lead to preferences in hiring?
A: No. According to the Federal regulations, placement goals do not create job set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.
Q: Can the Laboratory hire less qualified individuals in order to meet its placement goals?
A: No. Placement goals may not be used to supersede merit selection principles or as a justification for hiring a less qualified individual in preference to a more qualified individual. The Laboratory’s policy is to select the individual who possesses the qualifications to perform the duties of the position most effectively.”
From these questions and answers, it is clear that the thrust of “hiring goals” is affirmative action and equal employment opportunity. They aren’t traditionally used to promote hiring of the dominant segment of U.S. citizens in preference to other eligible foreign workers. They are not a way to lawfully “discriminate” or give “preference” to any one. They are, in contrast to discrimination and preferences, utilized by removing barriers to employment and using broad advertising of job openings, outreach, and equal opportunity at every stage of the process.
Final analysis
If the goal of the recommendation by the CNMI DOL is to favor local residents or even U.S. citizens, the proposed legislation is likely illegal and unconstitutional. U.S. federal law pre-empts the CNMI’s right to pass laws about foreign labor that are significantly different in purpose and effect than the U.S. laws. No state or local government can evade the equal protection of the law that is extended to all people present in the jurisdiction.
If the goal is to do a better job of making sure all qualified candidates know about jobs and apply for them, then it is permissible. There just can’t be any “prioritization” of hiring locals under cover of citizenship.
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