Wednesday, May 14, 2008

18. Some questions about P.L. 110-229.

There are many unanswered questions about how P.L. 110-229 will affect various people in the CNMI.

Here are some that may apply to MLSC clients:

What will happen to alien spouses?
The CNMI IR card will provide legal status only until its renewal date. The U.S. citizen spouse will likely have to apply for U.S. green card /immediate relative status for the alien spouse.

The fees for these applications are stiff, including costs for health certifications, etc. The U.S. citizen spouse will need to promise to financially support the alien spouse for 10 years or until the alien becomes a U.S. citizen (which first occurs). If the U.S. citizen spouse does not have sufficient income to be a financial guarantor, another additional sponsor for financial support will be needed.

What will happen to an alien spouse getting divorced from her/his U.S. citizen spouse?

The CNMI immigration does not require U.S. citizen spouses to get U.S. green cards for their alien spouses. So alien spouses in the CNMI have not had any way to gain permanent residency when their U.S. citizen spouses did not get them green cards. Sometimes they haven't gotten green cards because the U.S. citizen spouse intentionally wanted to use the lack of permanent status as a means for control over the alien spouse. But sometimes, the married couple just couldn't afford the cost of the green card processing.

So now, in the CNMI, under current CNMI law, divorce means you lose your local "immediate relative" status.

This can be especially difficult for those who have been married for a long time and who have U.S. citizen children. A U.S. citizen spouse in the U.S. will almost always get a green card for his or her alien spouse because the alien spouse needs some legal status to reside in the U.S. In the CNMI, that "legal status" has been the less permanent, no-road-to-citizenship local immediate relative status for alien spouses.

So once the divorce is finalized, an alien spouse here will lose "local IR" status and be deportable. We are seeing spouses, after many years of marriage and children, in the process of divorce at this moment who appear to be unprotected by anything in P.L. 110-229.

What about widows and widowers here who were married to U.S. citizens?

At present, widows and widowers who were married to U.S. citizen spouses have been granted by the Commonwealth Superior Court recognition that they have a right to remain in the CNMI, that the death of the U.S. spouse does not extinguish their "immediate relative" status under CNMI law. The CNMI Supreme Court has never ruled on the issue.

So on June 1, 2009, when U.S. immigration takes over, these widows and widowers will probably be considered legal, but their CNMI legal status will be extinguished on the transition date, and they will have no corresponding legal status under U.S. law. There is no clear category that they'll fit into under the new U.S. immigration system.

If they had been living in the U.S. during their marriage, the U.S. citizen-spouse would likely have applied for a green card for the alien spouse, as a means of providing legal residence in the U.S. And upon the U.S. citizen-spouse's death, the alien might have been entitled to continued permanent residence and eventual citizenship. Widows and widowers here were locked out of that protection by the CNMI IR status that did not provide for permanency. The Superior court decision tried to provide for what was lacking in the CNMI IR set-up, but there is nothing in the new federal law to address the issue.

What will happen to those with CNMI Permanent Residency?

In the late 1970's and early 1980's, the CNMI had a "permanent residency" law that allowed aliens to become permanent residents of the CNMI. Something like 200+ permits were issued under this law. When the law was repealed, these "permanent residents" retained their status.

On June 1, 2009, when U.S. immigration takes over, these "CNMI permanent residents" will be legal. It is unclear whether their status is extinguished by the U.S. law, or whether they are entitled to some more due process. At the very most, their situation will be problematic and they will have uncertain protection under U.S. law, and no clear category that they'll fit into under the new immigration system.

What protection will U.S. citizen minor children have for their alien parents?
Right now these U.S. citizen children are in jeopardy. They have a right to be here in the CNMI. But their parents don't, unless the parents have separate status. As the economy continues to plummet downward, these parents are not only losing the economic security of having a job, but with job loss these parents face deportation as no longer having a legal status. It's the kids who will suffer. They will either be left here with others to care for them--breaking up the family, or they'll move with their parents back to the parents' home country--suffering disruption and other problems.

Under U.S. law, which will apply as of June 1, 2009, they may be able, in some special hardship cases, to have the U.S. withhold deportation of their parents. This may be most helpful to children who are disabled and handicapped. [See, INA sec. 240 (A)(b)(1)(D)] In the meantime, there seems little protection under current CNMI law.

Note, once children reach the age of 21, they can petition their alien parents in for immediate relative/green card status, even now.

What protection will be given to alien workers who have lived and worked a long time in the CNMI?
We have a lot of aliens who have lived in the CNMI for five, ten, twenty, and more years. For those who have decades of employment behind them, but now find themselves without jobs in our dwindling economy, they're just missing the boat by a fraction of an inch. It seems unfair. If anyone should get status, it should be those who have worked and contributed to the CNMI for the longest time period, even if they've lost their most recent job in the economy.

Nothing in P.L. 110-229 addresses this concern immediately. It does provide for study of the possibility of providing permanent legal status to some.

What will happen to alien spouses of citizens from the Freely Associate States-FSM, Palau, Republic of the Marshall Islands?
Years ago, Judge Munson ruled in a case filed by V.K. Sawhney that the CNMI couldn't just start re-classifying these alien spouses as "aliens" when they are married to people who were former TT citizens with a full right to live here (especially for those who had legal status as spouses when the Covenant went into effect). So the CNMI continued to give them IR status.

Now they will face the same challenge as we transition from CNMI immigration to U.S. immigration, only against U.S. law.. They have marriages, children, lives in the CNMI. But they're married to FAS citizens who have the right to live here by virtue of the Compact of Free Association, but no known legal means for providing status to alien spouses.

Other gaps from the transition? Solutions?
From this short list of potential problems, it appears that we need additional U.S. laws to protect these vulnerable people from falling between the cracks of the two systems-the out-going CNMI immigration system, and the in-coming U.S. immigration system. We also need some sympathetic local action that does not push people out to create slots for others, but tries to help as many aliens currently in the CNMI as possible.

Undoubtedly there are other aliens with tricky situations. If you have a specific problem, feel free to post about it in the comments section. It may be useful to those who are working on these issues.


Saipan Writer said...

I forgot to mention one of the groups of people who may fall into the gaps--abandoned & orphaned children.

We've seen several of these alien children, adopted by U.S. citizens, but never provided with green card status.

When the U.S. citizen dies or abandons the child, the CNMI still recognizes IR status until the child reaches the age of 21. There is no provision in the U.S. law that will go into effect at the transition start for these kids; and no provision in either the CNMI law or the U.S. law for them once they are over age 21, even for the alien who has lived here nearly all of his or her life.

pacingisko said...

There were children born during Trust Territory government, before 1976, that are without immigration status. However, these individuals were allowed to register and vote in the CNMI elections. They did not qualify for US citizenship like the so-called Stateless Children. Therefore, this a concern and problem for them when Federalization is fully implemented. I am not sure whether their US citizen siblings can petition them like their parents as lawful permanent resident.