Monday, December 21, 2009

and a Joyous New Year!

Thanks also to Representative Gregorio (Kilili) Sablan for his support for MLSC during the U.S. Congressional budget process. Thanks to him, MLSC has received another $180,000 for three special needs.

Wishing you all peace on Earth.

Tuesday, December 15, 2009

Happy Holidays!

Thanks to the Saipan LauLau Development, Inc., d/b/a LaoLao Bay Golf & Resort, who has given us a $20,000 donation for the Marianas Office.




Maria Muna (MLSC Paralegal), Jane Mack (Marianas Directing Attorney), Omar Calimbas (MLSC Staff Attorney), Yun (Alex) Kim (President and CFO, Saipan LauLau Development, Inc.), Lucia Blanco-Maratita (MLSC Board of Directors member), Mary Lou Ada (Human Resources Manager, Saipan LauLau Development, Inc.), Dimitri Varmazis (MLSC Staff Attorney)

We are very grateful.

We wish everyone a happy and joyous holiday season.

Thursday, December 10, 2009

We Need A Staff Attorney!

Omar Calimbas will be leaving the Marianas Office after nearly 4 years of dedicated service. (He heads to The Asian Law Caucus in California.) So, once again we find ourselves in need of a staff attorney.

MLSC's Central Office is also seeking to hire an Assistant (Deputy) Director, which is the resurrection of an old position that has not been filled for about 2 decades.

Here's the "official" job vacancy announcement:



Job Titles: Assistant Director & Staff Attorney
Job Location: Saipan, CNMI
Job Type: Legal - Civil

Organization Information:
Micronesian Legal Services Corporation
1218 Capitol Hill Road
P.O. Box 500169
Saipan 96950

Position Description: Micronesian Legal Services Corporation [MLSC] seeks two dynamic attorneys to fill an assistant director position at MLSC's Central Office and a staff attorney position with its Marianas office. The positions are located in Saipan, Commonwealth of the Northern Mariana Islands [CNMI].

MLSC is an effective legal service program committed to achieving justice for the low-income client community throughout Micronesia by providing a full range of the highest quality civil legal services. The program is funded primarily through the U.S. Legal Services Corporation, with support from the various local governments. Besides the CNMI, MLSC's service area includes the Republic of the Marshall Islands, the Republic of Palau, and the Federated States of Micronesia.

Job responsibilities: for the assistant director, will include assisting the executive director in managing a program of eight (8) field offices and one central office; and for the staff attorney, will include direct and comprehensive legal services including advice, negotiation, motion practice and litigation in a broad range of civil matters on behalf of eligible clients.

Requirements: Applicants must have a passion for justice. For the assistant director position, preference is given to applicants with experience in managing legal services programs and serving non-English-speaking communities. And for the staff attorney position, a high degree of initiative and ability to independently manage a caseload is preferred, with strong skills in interpersonal communication and collaboration, excellent written and verbal advocacy skills, and experience representing low-income clients in areas of law such as domestic, employment, administrative, immigration, and consumer.

How To Apply: Please e-mail resume, statement of interest, 3 references, and a writing sample for the assistant director position to: Ben Tured, MLSC Executive Director, at co@mlscnet.org; and for the staff attorney position to: Jane Mack, Marianas Office Directing Attorney, at janemack@mlscnet.org

Note: MLSC is an equal opportunity employer.

Salary: Depends on experience and qualifications, with an excellent benefits package.

Submission Deadline: 01/31/2010

Wednesday, December 9, 2009

Alien Registration

The Federal Ombudsman's Office is conducting an "alien registration."

Why? The purpose of the registration is to get numbers and information about aliens here, so the U.S. Department of Interior can report to the U.S. Congress as required by P.L. 110-229 (the Consolidated Natural Resources Act).

Who counts? The registration counts all people who do not have a U.S. passport or a U.S. permanent residency card, and couldn't get one by applying--including citizens of the freely associated states--Palau, FSM, and the Marshall Islands.

How? There is a simple form.


All non-U.S. citizens fill one out, and turn it in to the Ombudsman's Office (Suite 203, Marina Heights II, Puerto Rico, Saipan). When you turn it in, you need photo identification (passport or other similar document).

When? NOW!!! Data is being gathered between December 14 and December 30, 2009. The time is short.

For more information, call the Ombudsman's Office at 322-8030.

If you want legal advice about your individual situation, talk to a lawyer.

Wednesday, December 2, 2009

MLSC Board Members

The MLSC Board of Directors met on November 30, 2009 in Saipan. CNMI Supreme Court Chief Justice Miguel S. Demapan gave welcoming remarks. Some of the local staff also greeted the Board members.


Front Row: Benjamin Tured-MLSC Executive Director, Chief Justice Miguel S. Demapan-CNMI Supreme Court, Robert Ruecho-At Large member; Lucia Blanco-Maratita-Marianas .

Back Row: Ruth Deleon-MLSC accountant, Jane Mack-Marianas Directing Attorney, Lolita Nazaire-Marianas secretary, Mayor Marcelo Peterson-Pohnpei, Senator Patterson Benjamin – Kosrae, Mike Gaan - Yap, Minister of Justice Brenson Wase- Marshall Islands, Omar Calimbas-Marianas attorney, Danny Ongelungel-Palau, Senator Arno Kony-Chuuk, Maria Muña-Marianas paralegal.

Thursday, November 12, 2009

Understanding Our Election Laws-"Votes Cast"

“Votes Cast”—a question of law, not politics.

The Commonwealth Election Commission has certified results from the election held November 7, 2009. It has included in its certification 1) a call for the run-off election between two governor/lieutenant governor teams; 2) a determination that none of the legislative initiatives to amend our CNMI Constitution passed; and 3) a determination that the popular initiative to change our statutory law did not pass.

Note that the newspapers immediately reported the need for a run-off election and initially reported that the legislative and popular initiatives all passed.

However, the CEC has certified results that none of the initiatives passed. Each of these three certifications depend in part on the CEC’s assessment of the number of “votes cast.”

You can see the raw numbers on the Saipan Tribune’s website: here

The Run-Off Election

There were 13,536 votes cast for governor/lieutenant governor candidates. These candidates run in teams, pursuant to our CNMI Constitution. It's very clear no candidate got more than 50% of the vote.

P.L. 16-43, codified at 1 CMC § 6509, became law in July 2009, to effectuate the House Legislative Initiative 15-16, S.D. It provides as follows:

“...a runoff election for governor and lieutenant governor is required if no candidate receives a majority of the votes cast and counted for that office.”


This language is very clear: it speaks of votes, it describes the votes as both cast and counted, and it limits the votes to those made for “that” office (meaning the offices of governor/lieutenant governor).

What are votes? When is a vote cast? When is it counted? These are the questions that seem basic and easy to answer.

A vote is generally described as an elector’s choice in an election. It is distinguished from the “ballot” which is the means or method for making the vote known. “Ballots” can be paper with ink or pencil or punch holes or they can be mechanical or electronic signals given from voting machines—and the purpose of the “ballot” is to signify or express the “vote,” which is the choice of the voter/elector.

The United States Supreme Court discussed the difference between votes and ballots in the case of Gutierrez v. Ada, 528 U.S. 25 (2000), which arose out of an election contest in Guam. The Court took the case to resolve the different interpretation that the 9th Circuit had given to the phrase “votes cast” , reading it to include the number of ballots cast in the general election, and not just the votes in the Governor/Lieutenant Governor race; the 3rd Circuit had interpreted the phrase as it applied to the Virgin Islands elections in Todman v. Boschulte, 694 F.2d 939 (3rd Cir. 1982) as limited to votes actually cast in the race, and not to the total number of ballots.

In Gutierrez v. Ada, the U.S. Supreme Court looked at the Guam Organic Act and its language calling for a runoff between the top two gubernatorial slates if one did not get a majority of the votes cast. The U.S. Supreme Court said that:
“It would be equally odd to think that after repeatedly using “votes” or “vote” to mean an expression of choice for the gubernatorial slate, Congress suddenly used “votes cast in any election” to mean “ballots cast.”


This case was decided before we passed our CNMI Constitutional initiative and the enactment of P.L. 16-43.

It helps us understand our law, which includes not only the same phrase “votes cast” but adds the specific language “and counted for that office.” It is clear that in the CNMI, for our run-off election, our law only includes the votes cast in the governor/lieutenant governor election; that votes that are not counted –because they are over-votes or the voter is disqualified, for example—are not part of the equation in determining whether a candidate has reached the 50% mark. For those who do not select any candidate in the race, their under-vote is not added into the equation either, as not being a “vote,” or not being a “vote cast,” or not being a “vote cast and counted.” It doesn’t really matter for this law, which particular reason keeps their vote out of the exchange.


Constitutional amendment by Legislative Initiative

The Saipan Tribune election results show that
9,412 votes were counted on the House Legislative Initiative 15-3, of which 5353 were YES.

9,708 votes were counted on the House Legislative Initiative 16-11, of which 5644 were YES.

9748 votes were counted on Senate Legislative Initiative 16-11, of which 5476 were YES.

Article XVIII, section 3 of the CNMI Constitution provides the means for changing the CNMI Constitution by Legislative Initiative.

“The legislature by the affirmative vote of three-fourths of the members of each house present and voting may propose amendments to this Constitution. ..."


After the Legislature passes a proposed constitutional change, the people vote on it. Article XVIII, section 5.

“a) A proposed amendment to this Constitution shall be submitted to the voters for ratification at the next regular general election or at a special election established by law.
b) An amendment proposed by legislative initiative shall become effective if approved by a majority of the votes cast...”


This has been part of our CNMI Constitution since it was ratified in 1978, and the language pre-dates the U.S. Supreme Court decision of Gutierrez v. Ada.

These provisions use the term “votes cast” but do not have the added clarifying language of the P.L. 16-43, specifying that the votes must be countable and in the election in question.

So the analysis starts with what is a vote.

The CEC seems to be saying that our CNMI Constitution, using the phrase a “vote cast” in the context of the legislative initiative is synonymous with a ballot cast in any of the races, contests, issues of the election held.

The CEC cites no authority for its opinion. Although there are some old cases from other jurisdictions that have held similarly, those cases are based on the unique situations of those jurisdictions. They are old. And they were considered unpersuasive by the U.S. Supreme Court in the Gutierrez v. Ada case.

In a follow-up case in Guam, the Guam Supreme Court decided that over-votes were no more an expression of a vote cast than absent votes. Underwood v. Aguon, 2006 Guam 17, 2006 Guam LEXIS 18. This case also cites Bush v. Gore, 121 S. Ct. 525 (2000), where the U.S. Supreme Court considered what constituted a “vote” under federal election law.

“In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.”


The CNMI uses one ballot with all the election contests and races and issues on it. The CEC informed me prior to the election in response to a question I had posed that it is its policy to count votes on each ballot as much as possible. If a voter over-votes in one race, the CEC will not count those votes, but will read and count the remainder of the votes on the ballot in the other races. If a voter under-votes in a race, the CEC will count the under-vote and the votes in the other races/contest/issues correctly made on the ballot. If a voter does not vote at all in a race, the CEC will count the remainder of the votes in the races, contests, issues where votes are cast.

In other words, the CEC generally is counting votes, not ballots.

So a “vote” should mean a clear expression of an opinion on an issue or candidate; and to be “cast” it needs to be clear, legible, and submitted to the CEC during the election process.

It seems that legally, a ballot is not a “vote cast” but is rather just a ballot—a means for getting the vote cast and transmitting that information to the election officers.

The inclusion by the CEC of all ballots in the equation is the same as the CEC casting a “no” vote for every voter who did not indicate a choice on the ballot on the initiative.


Popular initiative to change the statutory law

9644 votes were counted on the Popular Initiative on the Open Government Act, of which 6597 were YES.

The CNMI Constitution Article IX provides a means for people to change the statutory law. Section 1 (d) reads:

“An initiative petition that proposes a general law for the Commonwealth shall become law if approved by two-thirds of the votes cast by persons qualified to vote in the Commonwealth.”


This provision looks a lot like both the run-off provision and the constitutional amendment by initiative provision, except it is worded slightly differently again. This time, the “votes cast” is modified by the phrase “by persons qualified to vote in the Commonwealth.” This phrase makes it clear that votes of those disqualified are not put in the equation for determining the 2/3rd passage. But it doesn’t answer the basic question of what are “votes cast.”

The same analysis used above applies, I think.

Votes cast must be votes submitted in the election. The phrase “votes cast” also helps us understand that it doesn’t mean votes not cast, so that votes by those who choose not to vote, but may be registered voters, are not part of the equation.

But still the question is what is a vote? The cases cited above strongly suggest that a vote is not a ballot; a vote is an expression of choice on the candidates, race, contest, issue in question. Votes must be actual votes, and not ballots.

There is room for disagreement about the CEC's decision to include all ballots in the numeric count when deciding whether the initiatives got a majority of the "votes cast."

Ultimately this issue is a legal issue, not a political issue and should be decided by the CNMI courts.

Thursday, November 5, 2009

Some information for voters in the CNMI

There will be 4 initiatives on the ballot this election, which is set for Saturday, November 7, 2009.

To help you figure out how you want to vote, I offer this information and analysis.

House Legislative Initiative 15-3. Introduced by Justo S. Quitugua. Passed in the house on 5/16/2007; in the Senate on 8/16/2007.

This changes Article XV of the CNMI Constitution as follows:
1. adds the language "high school" before student as a defining criteria for one of the non-voting ex-officio members to the BOE.

The effect of this change is to exclude NMC students from the position. Without the language, any public school student, including a high school student or an NMC student, could be appointed. With it--only a high school student can be appointed.

2. deletes the language to select a teacher member from "an exclusive bargaining representative" within the "Department of Education" to just selecting one teacher from PSS; and adds that the selection process shall be established by law.

The effect of this change is only to the selection process, changing it from one in which teachers have a say about their representative to a political choice.

If the reason for having a teacher on the advisory board is to hear their perspective, it makes more sense to let teachers have a voice in selecting that representative. It makes no sense to make it a political choice. (If you disagree with having a teacher representative at all, neither the existing constitutional provision nor the proposed amendment will give you what you want.)

3. adds term limits to the elected board members. This means that no BOE board member may hold office for more than two terms. It's not clear if this means only 2 consecutive terms or two terms all together.

The effect of this change is to require new blood on the BOE; it also means that the voters have less choice because we can't vote for someone who has experience and is doing a good job if they've already served 2 terms.

4. adds that the budget shall be made "through an annual appropriation."

At present, the budget is made through an annual appropriation, or if no budget is passed, by continuing resolution. This seems to eliminate the continuing resolution as an option. (If the initiative for a balanced budget passes, this option is also eliminated.)


What about the PROS and CONS listed on the Commonwealth Election Site? It's quite obvious to me that neither the pros nor the cons actually address the CHANGES being proposed or deal with them in a deep, meaningful, or analytical way.

The pros?
The first pro-about guaranteeing 15 % is irrelevant--that's already part of the Constitution and nothing in the Legislative Initiative changes it or adds to it.

Term limits as a means to encourage new ideas and public involvement? The Commonwealth Election Commission has provided no information on whether this reasoning has any validity.

Giving responsibility to youth and getting their perspective? That's already possible; as noted above, the actual language forecloses choosing a college student, whose views may be equally valuable and needed.

The pros say the HLI ensures that one member is a public school teacher, but that's already assured. What is actually changed is the selection method.

The cons?
15% might not be enough? The Constitution as written provides for at least 15%, but does not prevent more. Nothing in this initiative changes the Constitution in this regard. (Therefore the initiative is neither a pro nor a con on this point.)

Limiting terms limits choices: agreed.

Requiring the DOE rep to be a teacher may not take into considerations administrator issues. The existing Constitution calls for a teacher rep; and so does the change. The only difference is in the selection process. Neither voting for nor against the initiative will have any effect on this consideration.

The change leaves the selection process undefined. agreed.


House Legislative Initiative 16-11 (H.L.I. 16-11) Amends Article III, section 9 (a) of the CNMI Constitution. Introduced by Diego T. Benavente, Joseph P. Deleon Guerrero, Ed Salas and Ray Yumul.

It makes the following changes:
1. deletes the language that provides for budget allocation at the same level as the previous year when no balanced budget is approved before the first day of the fiscal year.

2. provides that no money shall be drawn for government operations without a budget;

3. makes an exception to the no money rule for "certain government services and employees ...as provided by law... essential to the health safety, and welfare of the people... and to protect against damage to and destruction of property."

4. mandates that the Governor submit a balanced budget proposal to the Legislature by 4/1; and suspends his salary if he doesn't and until he does'

5. suspends the legislature's salary if they don't pass a balanced budget by 10/1 until they do pass one.


According to the information provided in the initiative, 23 states have similar balanced budget provisions. That must mean that 27 states don't. No idea about the other territories and insular areas under the American flag.

Balanced budget provisions seem to be popular in times of fiscal uncertainty and difficulty. While they are used by state and local governments, they are not used by the federal government.

You can find the pros and cons for this H.L.I. 16-11 in the CEC's Voters Manual, at page 3. I don't have any additional facts to add.


Public Initiative to extend the Open Government Act (OGA) to apply to the Legislature. This is the initiative spearheaded by Rep. Tina Sablan.

It changes the law as follows:
1. deletes the exception for the Legislature in the OGA, and adds expess language to make the OGA applicable to the Legislature
2. that means, the Legislature will have to prepare agendas, give notice 72 hours in advance of sessions, allow public comment, and respond within 10 days to requests for public records;
3. there is an exception to the 72 hour notice requirement for emergencies, provided the reasons for calling the session emergency are stated in writing, 2/3 of the members agree it is an emergency, and there is an emergency agenda that eventually gets filed in the public record.

The purpose is to provide for a more transparent government and greater ability for the public to participate in our democracy.

The OGA originally applied to the Legislature, but the exception to its applicaton was carved out in a subsequent Legislative term.

The CEC brochure on the OGA initiative lists some cons that I'll address.

* The 72 hour notice would require new notice if discussion is continued over to another day.
I don't know the source for this objection or opinion; I don't know of any legal opinion that supports this interpretation. In courts of law, when notice is required, if it's given and the matter is conintued, no new notice is generally required.

* If the Legislature mistakenly fails to give proper notice the act is null and void.
Yes. This is not a con--that is the objective of the proposal. The initiative wants all of our Legislators to have the full opportunity to participate in the legislative process, and have time to prepare; it is designed for the public to know about legislation before enacted. It is designed to stop secrecy and lies and quick deals behind closed doors that do not face public scrutiny.

* The 2/3rds rule may be hard to obtain in times of emergency.
I think this could be true, but I also think that this rule is designed to prevent false "emergency" declarations--like we're seeing all the time from the executive branch. To me, this is not so much a "con" to the amendment as a reason for the Legislature to do some planning. I think the Legislature can and should prepare some contingency plans for dealing with emergencies, having participation by cell phone, etc.

* Requiring notice will decrease the likelihood that legislators will meet outside of committee members to discuss matters.
The rule applies to official meetings--not informal discussions between legislators.

* The legislators and their assistants will have bigger workloads.
Paper or electronic notice is not significantly difficult; and the potential input from legislators who are prepared because they got notice, and from the public, means that the public will have a better chance to have good laws that won't need amending every few months.


Senate Legislative Initiative 16-11 (S.L.I. 16-11) has the same number as H.L.I. but is entirely separate and different. Not to be confused by the 16-11--be sure to check out the pre-fix.

S.L.I. 16-11 amends Article VIII, section 1 of the CNMI Constitution.

It makes the following changes:

1. It changes the day of elections in the CNMI from Saturdays to Tuesdays.
2. It sets all elections in only even-numbered years.
3. It adjusts terms of elected public officials to make sure the respective positions are filled until the next election in an even-numbered year. It does this by adding a year to terms, where necessary.
4. The next regular general election would be in 2012. The next governor's election would be 2014.

As noted in the CEC pamphlet on pros and cons, this means the governor we elect in this election, will have a 5 year term, the legislators will have 3 year terms, senators will have 5 year terms, and mayors will have 5 year terms.

It also means that we will not be having elections every year; will save money on the cost of elections; will not be hearing election "music" every year; and will have our CNMI election at the same time as the election of our U.S. delegate.

Tuesday, October 13, 2009

Debt Collection Job Search Orders: A Survey of Jurisdictions

The Marianas Office of Micronesian Legal Services conducted a survey to see if orders to find work in ordinary debt cases (especially consumer debt cases) exist outside of the CNMI.

We sent an e-mail in July and August, 2009 to 163 Legal Services Corporation (LSC) providers nationwide and in Micronesia with a simple poll. LSC's 2008 annual report, indicates that LSC providers nationwide handled 85,605 debt collection and debt relief cases, which accounted for approximately 9.6% of all 2008 LSC cases. Responses from these organizations would be helpful in assessing the existence of job search orders in consumer cases.


Here is the questionnaire we used:
Micronesian Legal Services Corporation (MLSC) is conducting a brief and informal survey of LSC offices and their experience, if any, with court orders to seek employment for the enforcement of judgments on consumer debts. This effort is in response to a recent Commonwealth of the Northern Mariana Islands (CNMI, USA) Supreme Court decision legitimating such orders (2009 MP 7).
MLSC is seeking your assistance in forwarding this e-mail to local LSC service providers and staff in order to answer the following three questions:
1. Has your office handled cases involving orders to seek employment to satisfy a consumer debt? If so, in what context? For example, is it in a bankruptcy case?

2. If no, why not? For example, is there a constitutional prohibition? Any case law? Or is it because creditors find it cost prohibitive to collect from judgment proof debtors?

3. If yes, please describe. Is it pursuant to statute? How frequently are these orders to seek employment issued? Do they tend to be successful for creditors? Can you forward a copy of a sample order?


Below is a summary of the responses we received.


SUMMARY OF RESPONSES
red=responded
All LSC providers who have responded say they have no experience with orders to find work pursuant to their judgment enforcement statutes to satisfy a consumer debt. Only 2 jurisdictions have seen such orders in contempt proceedings.

• To date (October 15, 2009), a total of 51 responses have been received from 37 jurisdictions as follows:

33 states: Alaska, Arkansas, Arizona, California, Connecticut, Florida, Georgia, Hawaii, Iowa, Indiana, Illinois, Kansas, Kentucky, Massachusetts, Maryland, Michigan, Minnesota, Missouri, Mississippi, Nebraska, New York, North Dakota, New Jersey, New Mexico, Nevada, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia.

1 U.S. territory: Guam.

3 Micronesian political entities: Palau, Kosrae, Yap.

• 15 LSC providers commented on how their jurisdiction does not provide for such authority. 7 out of those 15 providers commented that their state law only allows for either a garnishment or attachment.
• 11 LSC providers commented that orders to find work are found in domestic support enforcement proceedings.
• 8 LSC providers commented on how orders to find work would not pass constitutional muster.

(From Ohio:

"Both the United States and the State of Ohio have constitutional prohibitions against involuntary servitude, which is basically what you are describing. Ohio law prescribes the rights and remedies of creditors. Creditors are limited to garnishing wages or bank accounts, or seizing property or other assets in their efforts to collect debts.")



• According to 2 LSC providers in Illinois, orders to find work are rare since the decision Business Service Bureau v. Martin, 715 N.E. 2d 764, 767 (Ill. App. Ct. 1999) was rendered. Occasionally, they see these from vindictive judges in contempt proceedings, where a judgment debtor fails to pay after becoming unemployed.

Guam Legal Services commented that it has only observed small claims courts using their contempt authority to require judgment debtors to seek employment, but the success of these actions, in all practicality, has been contingent on the debtor’s willingness to become employed.

• South Carolina Legal Services commented that it is one of only a few states that prohibits wage garnishment.


Conclusions: It appears from this empirical data that in fact, the opinion of Professor Vern Countryman, given in testimony before the House Judiciary Committee in 1975, is indeed true.
Compulsory wage earner plans would be inconsistent with the policy and traditions of a country which has abolished involuntary servitude by the Thirteenth Amendment to its Federal Constitution, has abolished peonage, or debt slavery by federal statute...and has abolished all but a few vestiges of imprisonment for debt by state constitutions and statutes.

Bankruptcy Act Revision: Hearings on H.R. 31 and H.R. 32 before the Subcomm. on Civil And Constitutional Rights of the H. Comm. on the Judiciary, 94th Cong. 347 (1975).


The only two jurisdictions (besides the CNMI) that seem to have ventured into job search orders in consumer debt cases are Illinois and Guam; and both have issued written court decisions determining that such practices are not authorized by law. See, Business Service Bureau, Inc. vs. Martin, supra, and Zurich Insurance (Guam,)Inc., v. Santos, 2007 Guam 23, 2007 Guam LEXIS 21.


I will keep these results updated. No responses have been received since 9/12/09.

Friday, October 9, 2009

Orders to Seek Employment


Our office is challenging a commonly-used debt collection practice in the CNMI. Here, a creditor with a court judgment routinely has the court issue an order requiring an unemployed debtor to find work and periodically produce 10 job applications as proof. Our Supreme Court seems to say that it’s okay. See Bank of Guam v. Ruben, 2008 MP 22, reh’g den., 2009 MP 7.

However, there has been plenty of case law, academic discussion and federal legislative history that uniformly frown upon forcing debtors to work. Although the issue has only come up in the context of bankruptcy, the disfavor is one in the same. Coercing a debtor to toil for the benefit of creditors is a form of involuntary servitude which is prohibited by the 13th Amendment.


In fact, you would be hard-pressed to find job search orders outside the CNMI. We recently conducted a survey of other legal services providers nationwide and throughout Micronesia to see if their jurisdictions entertain such orders. To date, we’ve received 51 responses from 37 jurisdictions. None of the LSC providers have had to deal with orders to find work to pay back consumer debts. Illinois and Guam have seen them on rare occasion, and only in circumstances when a debtor had been in contempt of court. Interestingly, though, Guam's Supreme Court in 2007 held that job search orders are not authorized there (outside of child support cases), and it cited an Illinois case for the same proposition. See Zurich Insurance, Inc. v. Santos, 2007 Guam 23. (My next post will publish the current results of the survey.)

Why do these coercive orders still exist in the CNMI? I'm not sure. They are not expressly authorized by our statutes. Once a judgment is entered, a supplemental hearing may be initiated to determine if there are any assets or income beyond what is needed to cover the reasonable living requirements for debtors and their dependents. If so, they can be forfeited to the creditor. If not, then the inquiry ends. Judgment recovery practices elsewhere are in essence no different. Creditors for the most part are allowed to garnish earnings or attach assets. Debtors are allowed to claim exemptions for basic necessities calculated according to various formulas.

Creditors in the CNMI are given an extraordinary additional tool. They can force debtors to find jobs.

Has this type of coercion existed before? Yes. Compulsory employment to satisfy a debt is a vestige of a bygone era when debtor prisons existed. However, President Jackson outlawed them in 1883 and states eventually followed suit.

The 14th Amendment’s protection of our liberty interests should also be kept in mind. Our evolving modern sensibilities recognize a free and open market for labor and preserve the value of choice in deciding our own livelihood.

Of course, there are no absolute freedoms. There are a multitude of considerations – like family responsibilities or an economic downturn - that force us into one line of work over another. But those pressures are different from legal coercion.

There is one exception: when a parent needs to pay child support. Domestic obligations are given special consideration over consumer debt. The government should be able to step in more aggressively to protect a child’s rights. There is case law on this, and the Bankruptcy Code also reflects this value.


There is no reason why creditors in the CNMI should be given preferences. I’m not aware of any cultural, social or economic relativity argument that would justify ignoring the constitutional prohibition against involuntary servitude. Even from a utilitarian perspective, federal legislative history on bankruptcy points to the futility and impracticality of compelling work to pay back creditors.

An equilibrium between creditor and debtor, lender and borrower, business and consumer, needs to be re-established in order to safeguard 13th and 14th Amendment protections that the low-income stratum of society deserve as much here as anywhere else in the U.S.

(For a more general discussion on debtor rights in the CNMI, see our blog post here.)

Monday, September 28, 2009

Opening for Intake in Domestic Cases

The Marianas Office will be accepting applications for help in domestic cases from October 5 through October 8, 2009.

What is a domestic case? Any family-type issue, including claims and defenses about divorce, paternity, child support, child custody, adoption, guardianship, name change, and marital property.



If you have a family legal issue and need advice or representation, now is the time to call our office and make an appointment for intake during the week of October 5-October 8, 2009. Our telephone number is 234-6243 or 234-7729.

Monday, September 21, 2009

Foreign Students in CNMI Schools

Recently, I have been hearing from various people who report a campaign of misinformation relating to the rights of foreign students in the public schools.

I have no idea whether there are rumors floating about or whether the concern is justified. However, it's always a good idea to know what the law is and what rights people have.

So this blog post is about the rights of foreign students to attend the CNMI public schools.


A mix of foreign and citizen students and teachers from the CNMI.

The basic rule is fairly simple: States (and territories, including the CNMI) cannot discriminate on the basis of immigration status in providing free, appropriate, public education for children. Basically, children have a right to such education. As applied here, any and all children (ages 6 to 16) in the CNMI are entitled to attend public schools.

The leading court case on the subject comes from the United States Supreme Court. Plyler vs. Doe, 457 U.S. 202 (1982) held that even undocumented alien children were entitled to attend public schools and a Texas law that allowed otherwise was unconstitutional.

Justice Powell, in his concurring opinion, summarized the basic logic of the decision:

"...the interests relied upon by the State would seem to be insubstantial in view of the consequences to the State itself of wholly uneducated persons living indefinitely within its borders. By contrast, access to the public schools is made available to the children of lawful residents without regard to the temporary [457 U.S. 202, 240] nature of their residency in the particular Texas school district. The Court of Appeals and the District Courts that addressed these cases concluded that the classification could not satisfy even the bare requirements of rationality. "


The decision held the day with a slim majority of five to four. But it has not been overturned. It is still the law.

Public schools do not police immigration. Immigration is a matter for concern for the U.S. Department of Homeland Security (U.S. Citizenship and Immigration Service), not for the CNMI Public School System.

Nor will public schools be reporting the immigration status of its students to the federal authorities. Student records are, for nearly all purposes, confidential. In most instances, the PSS should not even have the information about a student's immigration status.

Plyler vs. Doe created issues that are still being discussed, as shown in this 2007 University of Berkeley seminar. Issues about what happens to undocumented students after graduation; issues about English-proficiency classes; and continuing debate about the use of resources for non-citizens.

One interesting aspect of the debate is a finding that the percentage of illegal alien children in public schools today is about the same as it was when Plyler vs. Doe was decided. Another is the finding that the majority of teachers and administrators do not want to be concerned about a student's immigration status. Both of these findings (from the Berkeley seminar) support the continuing viability of Plyler vs. Doe.

And the courts continue to uphold the impact of Plyler vs. Doe. See, e.g. League of United Latin American Citizens vs. Wilson, 908 F. Supp. 755, 774, 785-786 (C.D. Cal. 1997).

Plyler vs. Doe was determined on the basis of the U.S. equal protection clause. That law applies in the CNMI. So foreign students, whether temporarily present with legal status, or residing indefinitely/permanently here with or without documented status, are entitled to free, appropriate, public education in the CNMI elementary, middle/junior, and high schools.

Undoubtedly as the U.S. continues to consider issues of immigration reform, the on-going vitality of Plyler vs. Doe will be considered; it highlights some of the core issues around immigration.

The change of CNMI's immigration from CNMI control to U.S. control does not change the equal protection clause of the U.S. Constitution; it does not change the rights of a foreign child to a free public education.

Wednesday, September 16, 2009

CNMI Investor Permit

This has little to do with our usual MLSC clients, but it is the latest news in the federalization of our CNMI immigration, so I'm posting this communique from USCIS:




USCIS Update Sept. 11, 2009

USCIS PROPOSES INVESTOR PROGRAM FOR THE CNMI
Proposal Provides Status for Eligible Long-Term Investors in the CNMI During Transition Period

WASHINGTON – The U.S. Department of Homeland Security’s (DHS) U.S. Citizenship and Immigration Services (USCIS) will publish a proposed rule in the Sept. 14, 2009 Federal Register that would recognize a Commonwealth of the Northern Mariana Islands (CNMI) specific nonimmigrant investor visa classification. This “E-2 CNMI Investor” status is one of several CNMI specific provisions contained in the Consolidated Natural Resources Act of 2008 (CNRA), which extends most provisions of federal U.S. immigration law to the CNMI.

These temporary provisions are proposed to provide for an orderly transition from the current CNMI permit system to the immigration laws of the U.S., to lessen potential effects on the CNMI economy, and to give foreign long-term investors time to identify and obtain appropriate U.S. immigrant or nonimmigrant status. The transition period will begin Nov. 28, 2009 and end on Dec. 31, 2014.

This proposed special status of E-2 investors would allow eligible CNMI investors to remain in the CNMI for the duration of the transition period under E-2 CNMI Investor status, and to exit and enter the CNMI with valid E-2 CNMI Investor visas. It is proposed that the E-2 CNMI Investor Visa be issued for two years and be renewable. Derivative visas would be available for spouses and children of the primary applicant.

In line with CNRA, this proposed classification includes “long-term investors”—so only those CNMI investor permits that mandated a fixed minimum threshold amount of investment and are renewable over a period of multiple years would be considered to be “long-term investor” statuses: the Long-Term Business Investor, the Foreign Investor, and the Retiree Investor. Other CNMI investor permits, including the 2-year non-renewable retiree investor program for Japanese and those with short- or regular-term business entry permits, may be eligible to apply for existing nonimmigrant classifications under the INA, such as B-1/B-2 visas.

USCIS proposes that, to be eligible, investors must have been admitted to the CNMI in long-term investor status under CNMI immigration law before the transition program effective date; have continuously maintained residence in the CNMI under long-term investor status; currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and are otherwise admissible to the United States under the INA.

USCIS proposes using existing Form I-129 (Petitioner for a Nonimmigrant Worker) with Supplement E, for requesting E-2 CNMI Investor status. The current processing fee is $320 plus an $80 biometrics fee.

USCIS encourages the public to submit comments on this proposal by Oct. 14, 2009. All submissions must include “USCIS” and “DHS Docket No. USCIS-2008-0035” and can be submitted in one of the following ways:
• Internet - at the Federal e-Rulemaking Portal: regulations.gov;
• E-mail to USCIS at rfs.regs@dhs.gov and include “DHS Docket No. USCIS- 2008-0035” in subject line; or
• Mail/Hand Delivery/Courier - Paper, disk, or CD-ROM submissions to: Chief, Regulatory Management Division, DHS-USCIS, 111 Massachusetts Avenue, NW, Suite 3008, Washington, D.C. 20529. Reference “DHS Docket No. USCIS-2008-0035” on the correspondence. Contact telephone number is (202) 272-8377.
-USCIS-

Saturday, September 5, 2009

MLSC's Back To School Project



Each year the Marianas Office of MLSC sponsors a "Back To School Project." We collect donations in cash and in-kind from local attorneys (and anyone else who wants to donate) and then distribute school supplies to needy children in grades one through 12.



This year our list of donors includes:
Lillian T. Ada
Ed Buckingham
Kelly Butcher
Omar Calimbas
Ian Catlett
Thomas E. Clifford
Committee to Elect Eric Atalig
Gloria Deltang
Estelle Hofschneider
James Holman
Rex Kosak
Jane Mack
Richard Pierce
Saipan Community School
Robert T. Torres
Vicente T. Salas
Esther M. San Nicolas
Randy Schmidt
Marcia K. Schultz




These generous contributors made it possible for the Marianas Office to distribute so far:
82 book bags, each containing basic supplies (binder, filler paper, folder, notebook, composition book, pencil case, pens & pencils; and grade-appropriate add-ons like ruler, glue and crayons; or protractor/compass set and graph paper; or white paper and highlighter)

6 bookbags with some bulk supplies to share (These went to one family with many kids in school.)

and

37 small supply kits (notebook, composition book, pens and pencils, extras if available)


We selected recipients from our database of clients, choosing families with the lowest income. We also took call-in requests and referrals from social service agencies. We sent some bags to Rota and Tinian for identified needy kids there. Obviously, there are many more kids we did not reach. But we're happy that we reached more than 100 kids in our community, with supplies to motivate and excite them about their return to school.



Thanks to everyone who made this project a success.

(We'll continue through this first week of school, if there are any others who want to make last-minute donations.)

Friday, May 22, 2009

Fees & Costs Updated: Family-Based Green Cards





I published a post almost a year ago regarding family-based green card fees and costs in the CNMI. A few things have happened since then, and so I’ve decided to slightly update the numbers.










GREEN CARD FEES & COSTS
FormRequired with FormFee/Cost
I-130Petition for Alien Relative• Evidence of relationship (e.g., marriage certificate, joint account information, etc.)
• If previously married, evidence of termination of marriage
• 1 passport photo
• G-325A biographical info
$355
I-485Adjustment to Permanent Status Application• G-325A biographical info
• Copy of passport
• Copy of CNMI immigration permit
• Birth certificate
• 2 passport photos
• Police clearance or, if criminal history, provide evidence
• I-693 Medical report
• fingerprinting fee
$930








$80
I-864Affidavit of Support for Immediate Relative• Most recent tax filing (w/ W2 form)--
Total USCIS Fees$1,365
Costs
Medical exam for
I-693 report
Estimate only. Prices range based on what tests are needed for the applicant.$600
AttorneyEstimate only. Fees vary.$1,000
Total Est. Costs$1,600
GRANT TOTAL (USCIS FEES & COSTS)$2,965

A major change is the removal of airfare (for two) to Guam. Family-based green card applicants can now have their interviews conducted in Saipan at the recently-opened Application Support Center in the TSL Plaza, Beach Road in Garapan. USCIS has already scheduled numerous appointments, and I have already attended two green card interviews for my clients.

More attorneys are gearing up for the increase in immigration clients. See the previous post on the recent immigration workshop. While I kept the estimated attorney fees the same at $1,000, there seems to be a wider range of prices, and those too seem to be constantly changing.

I have heard medical exam fees decreasing a bit, which is why I lowered the estimated costs. You can run a search of authorized health care providers on the USCIS website here, by zip code. Here is the current list that is generated when typing 96950 for the CNMI:

Dr. Ahmad Al-Alou, Pacific Medical Center
P.O. Box 501908 CK, Saipan, MP 96950
(670) 233-8100
Dr. Anthony R. Stearns, Marianas Medical Center
PO Box 506 CHRB, Saipan, MP 96950
(670) 234-3925
Dr. Christine Brown, Island Medical Center
P.O. Box 504669, Saipan, MP 96950
(670) 235-8880
Dr. Richard Brostrom, Commonwealth Health Center
P.O. Box 409 CK, Saipan, MP 96950
(670) 234-8950
Dr. Tiffany L. Willis, Marianas Medical Center
P.O. Box 5006, CHRB, Saipan, MP 96950
(670) 234-3925


Top image entitled “Liberty for immigrants' rights” by philocrites and published under an Attribution NonCommercial Creative Commons license.

Wednesday, May 6, 2009

Family-Based Immigration Workshop

Karidat and MLSC co-sponsored a two-day workshop May 5 and May 6, 2009 about US immigration, focusing on "family-based" issues.

Lauri Ogumoro of Karidat, and Juanette Sablan and Polly Anne Sablan of MLSC man the registration table.

Evangeline Abriel from Santa Clara University School of Law and Peggy Gleason from the Catholic Legal Immigration Network presented detailed information on US immigration law about immigrant and non-immigrant admissions for immediate relatives and other other family members, including immediate relative petitions, petitions under the preference/quota system, self-petitioning for victims of domestic violence, and visa procedures for victims of crime and human trafficking.
Peggy Gleason and Evangeline Abriel.

The workshop, hosted at PIC's Napu Room, included an e-file of information and a hard-copy folder with sample problems and a copy of the power point presentation.

Approximately 70 people attended, including attorneys, social workers, legislators, law enforcement officers, and interested members from the business and professional community.



On Tuesday, David Gulick from DHS also gave a short presentation specifically related to federalization of the CNMI's immigration.

David Gulick, DHS


The Marianas Variety gave two reports on the training--one referencing the promise of DHS to promulgate two regulations under the CNRA related to federalizing CNMI's immigration, and one focusing more on the impact of change on families in the CNMI.

The level of attendance at the conference, the diversity of the participants, and the press coverage are all good indicators that there is great interest about the up-coming transition to federal immigration here.

Attorneys Rob Torres and Mark Hanson goof off.

Friday, May 1, 2009

Green Cards: Financial Eligibility Requirements



Our office is seeing an increasing number of people seeking immigration assistance, mostly with applying for family-based green cards. The common dilemma all of them face is the inability to satisfy the financial support qualifications for the U.S. citizen or LPR (lawful permanent resident) sponsor. One of the reasons is the depressed level of wages that prevails in the private sector here, contributed in large part by the CNMI guest worker policy and local minimum wage law, which left a substantial portion of the labor force earning $3.05/hr. for the past decade. (Note: Pres. Bush supplanted CNMI min. wage law by setting 50-cent annual increases beginning in 2007 to eventually reach the federal level of $7.25/hr. The current CNMI min. wage is $4.05/hr. and will increase to $4.55/hr. later this month on May 26.)

Public Charge
U.S. immigration law includes a longstanding policy to prefer immigrants who can contribute productively and meaningfully to society. This policy is embodied in the public charge doctrine. A public charge is someone who has become or is likely to become dependent on the government for basic needs. A public charge can be removed from the U.S., denied entry, or denied a green card. Who is to be considered a public charge has been and continues to be a hotly-debated topic among lawmakers. More details on the public charge policy can be found in a USCIS fact sheet.

125% Rule
The I-864 Affidavit of Support is one of the ways to prove that the green card applicant will not be a public charge. The general rule is that the sponsor must prove income of at least 125% above the mandated poverty line. You can review the current poverty guidelines here. The levels are based on the number of dependents that the sponsor has. I’m not aware of any USCIS guidance on what regional guideline to use, but it would seem reasonable to choose the one that includes Guam.

Income from the sponsor's relatives who live with the sponsor can also be included, but only if they agree to be financially responsible for the alien. The alien’s income can also be counted if 1) the alien is the sponsor’s spouse or another relative living with the sponsor and 2) the alien’s income source will continue after the green card is issued.

Joint Sponsors and Current Assets
If the income is too low, then there are two options: 1) finding a joint sponsor or 2) proving that there are assets available for use in supporting the alien. A joint sponsor can be any U.S. citizen or green card holder over 18 years of age and residing in the U.S. or its territories or possessions (incl. the CNMI). The joint sponsor must independently meet the 125% rule. In other words, you can't add the incomes of the sponsor and joint sponsor together to satisfy the rule. Also, a joint sponsor must be willing to be legally responsible for the alien’s financial welfare until the alien becomes a U.S. citizen or qualifies for Social Security disability insurance.

You can also prove that there are assets available to make up for the difference between the sponsor's income and the poverty guideline. The assets must be something that can be converted into cash within one year without considerable hardship. You can include the alien's assets as well as the assets of a relative household member. The value of the assets must be at least 5 times the difference between the income and applicable poverty guideline. Documentary proof of ownership and value will need to be included with the Affidavit of Support.

The rules regarding financial eligibility can get quite complicated. What I consider the best explanation of the details can be found in the actual Instructions to the Affidavit of Support.

Top image: "Looking Backward," by Joseph Keppler, Jan. 11, 1893, Puck magazine.

Wednesday, April 22, 2009

Guardianship of a Minor.



Extended family relationships define much of society and life in the CNMI. This is primarily an aspect of Micronesian culture, but the situation commonly arises whenever a parent needs to travel off-island for a significant period of time, whether it be for work or medical treatment, for example. One of the ongoing services that our office provides is drafting legal documents to allow an individual to care for another’s children (or handle another person’s financial matters.) This document is called a power of attorney, and it can be effective. However, many government agencies and financial institutions may not acknowledge a power of attorney. In such cases, it may be necessary to file a petition with the court in order to be appointed legal guardian of the child.

A guardian is someone appointed by a court to take care of another individual (the ward). The appointment gives the guardian the legal right and duty to manage the ward’s affairs. The information provided here only covers guardianship of a minor, which is an individual under the age of 18.

What is a guardianship for?

How is a guardianship different from an adoption?

How is a guardianship different from a power of attorney?

Who can be a guardian?

How do you get a guardianship?

When does a guardianship end?



What is a guardianship for?

Generally, a guardian has the legal right and duty to take care of a minor's personal needs, including shelter, education, and health care. If the minor owns significant property or money (called the minor’s estate), a guardian may also have the right and duty to properly manage the estate. Guardianship is often necessary in the following common situations:

• making medical decisions and getting copies of medical records;

• making school-related decisions and getting educational records; and

• accessing certain public benefits, such as public housing.
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How is a guardianship different from an adoption?

Guardianship allows the guardian to make decisions that a parent can make for the minor child. It does not end the parents’ legal relationship with the child. In contrast, an adoption permanently ends the legal relationship between the parents and the child. The birth parents no longer have the right to custody or visitation. They also are no longer responsible for child support. Also, in an adoption, the child no longer has a right to inherit from the birth parents.     back to top


How is a guardianship different from a power of attorney?

The main difference between a power of attorney and a guardianship is the involvement of the court. A power of attorney is a document that authorizes one person to act on behalf of another person. In other words, with a power of attorney, you give someone the legal authority to manage any of your own affairs, such as your property or your medical care. The power of attorney can be drafted and put into legal effect without court approval. On the other hand, a guardianship is established and supervised in a court action.

Another main difference is that third parties, such as government agencies or financial institutions, do not always and in all circumstances acknowledge the power of attorney. Some concerns a third party might have are whether the power of attorney was revoked or fraudulently altered. Again, these concerns come from the fact that there is no judicial oversight when it comes to the issuance of a power of attorney.
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Who can be a guardian?

A guardian usually is a family member. While the law prefers this, it is not required. Sometimes a guardian can be a family friend or other unrelated adult who cares about the well being of the minor. Guardians must be able to assure the court that they can provide for the basic needs of a minor, such as food, clothes, shelter, medical care, safety).     back to top


How do you get a guardianship?

You must start a court action. This is done by filing a petition with the court. The petition serves as your request to the court to be appointed guardian and should include the following information:

1. Name, birthdate, and residence of the minor;
2. The name, age, and relationship of the proposed guardian;
3. The reason why a guardianship is needed;
4. The minor's estate, if any;
5. Who has current custody of the minor;
6. The names and addresses of parents, adult siblings and grandparents;
7. Proposed conduct of the guardianship including what the proposed guardian intends to do with the assets of the minor; and
8. Such other information as will assist the court in making its determination.

Once the case is started, a court hearing will be scheduled. You will be required to publish the hearing notice in a newspaper of general circulation (for example, the Saipan Tribune or Marianas Variety), post the hearing notice at the courthouse for at least 10 days, and personally serve or mail the notice (certified, return receipt requested) to all living parents, grandparents and adult siblings of the minor as well as anyone who has custody of the minor.

At the hearing, the judge will review the case and allow for anyone who has an interest in the case to be heard. These people include the minor’s parents and relatives. The main guiding principle in a guardianship case is the best interests of the minor. Then the judge will make a decision.

Because guardianship law can get complicated, it might be worthwhile to obtain the assistance of an attorney when starting a guardianship court case.
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When does a guardianship end?

A guardianship usually ends when one of the following happens:

• the ward reaches 18 yrs. of age (and is no longer a minor);

• the guardianship expires under the terms of the court order; or

• there is a future determination by the judge that the guardianship is no longer necessary.
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Wednesday, April 1, 2009

Federalization Delayed.

It’s official. Here is the 3/31/09 USCIS press release:

DHS DELAYS THE transition to full application of U.S. IMMIGRATION LAWS IN THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS

WASHINGTON – The U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano today announced the delayed transition to full application of the U.S. immigration provisions of Title VII of the Consolidated Natural Resources Act of 2008 (CNRA) until November 28, 2009. Title VII extends U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI) which currently administers its own immigration system.

Under the CNRA, the Secretary of DHS has the sole authority to delay the June 1, 2009, transition date to U.S. immigration law up to 180 days, after consultation with the secretaries of Labor, Interior and State, the attorney general, and the governor of the CNMI. The Secretary has determined based upon those consultations that it is advisable to exercise that authority fully.

As a result of the Secretary’s decision the existing CNMI immigration laws will continue to apply until November 28, 2009. Additionally, the implementation of Customs and Border Protection’s (CBP) interim final rule establishing a joint Guam-CNMI Visa Waiver Program (VWP), that was scheduled to begin on June 1, 2009, also will be delayed until November 28, 2009 and the existing Guam VWP will continue to operate until that date. To effectuate this change CBP plans to issue a technical amendment to the Guam-CNMI interim final rule published on January 16, 2009.

This decision also delays the implementation of the exemption from the current statutorily imposed caps on the number of nonimmigrant H-1B and H-2B petitions granted yearly for employers filing H worker petitions in Guam.

Monday, March 23, 2009

USCIS to Conduct “Green Card” Interviews in Saipan.

Green card applicants may now have their interviews handled in the CNMI at the new Application Support Center in Saipan. Before, an applicant would need to fly to Guam for the interview. Now, both the interview and biometrics (fingerprinting and other ID gathering) can be done here. This will save many aliens the expense of two roundtrip tickets to Guam (one for the visa applicant and the other for the sponsor/petitioner). The savings are crucial, given the high filing fees and other expenses, such as the medical exam.

Some of our clients who have had green card applications pending for quite a while are now having their interviews rescheduled from Guam to Saipan. I have not tried to schedule an appointment online yet, but apparently this is possible. Here is the official press release from USCIS for more details:

USCIS to Conduct “Green Card” Interviews in Saipan
CNMI Customers Will Save Time and Money

SAIPAN, CNMI —U.S. Citizenship and Immigration Services (USCIS) announced today it will begin conducting "green card" interviews on March 23 at its new Application Support Center (ASC) in the Commonwealth of the Northern Marianas Islands (CNMI) .

Applicants from Tinian, Rota and Saipan seeking U.S. Lawful Permanent Residence or "green cards" will be now be scheduled for interviews at USCIS' new facility in Garapan.

“We are very pleased that legal counsel gave us the go-ahead to provide this essential service to our CNMI customers,” said USCIS District Director David Gulick, who is based in Honolulu. "It makes sense for us to do as much as we can to serve the community through this local office. Now customers will save the time, effort and expense of traveling to Guam for their interviews.”

In addition to the traditional ASC biometric services such as fingerprinting, the Saipan office already offers expanded services including general immigration information and naturalization interviews. Now “green card” interviews will be added to those services.

Customers interested in speaking to an Immigration Services Officer should make an “InfoPass” appointment online at www.uscis.gov. Customers with appointments will receive priority.

People can call the toll-free USCIS customer service line at (800) 375-5283. In addition, the most current information about federal immigration in relation to the CNMI can be accessed via the USCIS Press Room at www.uscis.gov.

USCIS is the agency within the U.S. Department of Homeland Security (DHS) that provides immigration benefits.

Currently U.S. immigration law only applies to immediate relatives of U.S. Citizens as defined within the Immigration and Nationality Act (INA). U.S. immigration law in general will be applied to the CNMI, with the Transition Period currently scheduled to begin on June 1, 2009.

Monday, March 2, 2009

32. Creditor and Debtor Issues in the CNMI

The Marianas Office continues to handle a large number of cases for debtors who face collection efforts from creditors. The statutory law regarding debt collection in the CNMI has had little change since the inception of the Commonwealth when it carried over much of the old law from the Trust Territory of the Pacific Islands.

Unfortunately, much of this law is outmoded and archaic, and provides the thinnest of protections to debtors. While it isn't particularly helpful to creditors, it is very deleterious to poor people who owe money.

Prohibition on Imprisonment for Debt
More than 75% of the states in the US have written constitutional prohibitions on imprisonment for debt. This protection arose out of the 19th century abuses that imprisoned poor people when they couldn't pay the money they owed.

States that have this kind of provision generally do not allow civil contempt to be used as an enforcement mechanism for payment of debts. Civil contempt allows the court to jail those who willfully violate court orders; but a constitutional prohibition on imprisonment for debt has usually been read as making civil contempt an unavailable remedy to enforce debts.

The CNMI does NOT have any such constitutional prohibition. Our statutory law specifically allows the use of civil contempt for enforcement of debts.

Recently our CNMI Supreme Court recognized the right of indigents to court-appointed counsel before facing possible incarceration on civil contempt charges. (PFC vs. Muna, 2008 MP 21). This means the Superior Court will now have to use its limited resources to pay the price of attorneys when creditors try to enforce their judgments using civil contempt.

What the states use instead of civil contempt are better and more efficient creditor remedies that may in fact cost less to the state than the older remedy that involves putting poor people in jail to wring money from them (that they don't have) to pay their debts.


GARNISHMENT
States allow creditors to garnish wages to pay debts. Garnishment is a method by which money is taken directly from the employer before the wages are paid to the employee and redirected to the creditor--like voluntary allotments which are seen here, but involuntarily created by court order. Federal law has established a formula for determining the maximum amounts of garnishments so that debtors still have some protection of their wages so they can support their families. If an employer fails to pay over wages that were to be garnished, the employer becomes liable for the payment. And if a debtor-employee leaves employment (because he quits, is terminated, dies, gets sick, etc.) , typically the employer must notify the creditor.

In the CNMI, we do not have any garnishment statute for ordinary creditors. We finally have a wage-withholding statute that allows garnishment for child and spousal support. However, consumer and commercial creditors have no easy way to get paid directly.

What the CNMI uses instead to enforce payment on judgment debts is an "order in aid of judgment" (OIA) where the Court orders the turn-over by the judgment debtor to the creditor of payments, usually in installments that coincide with payday. The problems with this system are multiple--creditors must rely on debtors to actually turn over the payment, which they sometimes don't do. When a debtor owes a lot of money, the cumulative amount of child support and OIA payments can get excessive, taking a bigger chunk of salary than might be allowable under federal limits--and it usually takes a debtor's attorney to figure this out. When payments are missed, the creditor loses out completely and must return to court to enforce the order by way of contempt. There is often a lag time between non-compliance and the creditor's awareness--which hurts both creditor who must wait for the payment and debtor whose judgment accrues interest at the exorbitant rate of 9% per annum.


SECURED TRANSACTIONS
The CNMI, like the states, has adopted the Uniform Commercial Code. Creditors can take security interests in purchase-money goods that they then repossess if payment is not made. We see this here in the automobile sales industry, and of course, in homes and land subject to mortgages, and in bank transactions like loans, but not very often elsewhere.

In the states, secured transactions are also used most often in bank transactions--car sales, home mortgage contracts, loans, also--but occasionally in other large purchases. The difference I see here is how often poor people are willingly allowed to buy cars (especially by Triple J Motors) or get loans (Wells Fargo), when the buyers are so clearly non credit worthy.


CREDIT CHECKS
What we see here in the CNMI everywhere is the willingness of creditors to extend credit to anyone, without security, without establishing credit-worthiness.

This seems to have become something of a problem in the states as well recently, with the free and easy extension of credit through VISA and Mastercard accounts, for example, and some "creative" home-mortgage financing. But those instances often seem to be at a distance, through faceless encounters, while here, it is mom-and-pop stores extending credit to people in the neighborhood. Or local merchants taking personal checks without determining if the account is able to cover the amount.

When I last visited the states, I went into Amish country, where the people live without power in their homes. They are savvy businessmen, however--and although they often accepted my checks, they first got verification of funds on hand. This is not impossible.

And yet at the Marianas Office we continue to see people who are obviously poor, on food stamps, and unlikely to have any spare change, getting credit and bouncing checks for everything from utilities and telephone services, to food and drink, to appliances and more.

In other words, we see the improvident extension of credit all the time.

LOPSIDED LAWS
In enforcement proceedings, the Court nearly always acts as if the only person to blame for the non-payment is the debtor, and rarely takes a look at creditors who have been irresponsible in taking foolish risks in the name of business.

These cases take up a lot of court time, and a lot of MLSC's time.

Creditors get judgments that they enforce through contempt, and while that situation isn't very efficient it allows them to continue to pursue payment for decades from people who are very poor. It also allows them to add on interest at 9% per annum and fees for court costs and attorneys--all adding up against the poor debtor. In contrast to a 9% fixed post-judgment interest rate, states and federal courts often use a variable interest rate tied to the prime lending rate or some other federal consumer index, to set post-judgment interest.

Orders to seek and obtain work are another thing we see here in the CNMI as an enforcement mechanism for ordinary debt. No state uses this as a means to enforce payment on ordinary debts. It seems rather foolish that the Court would be ordering people to seek work in our current labor market--or lack thereof, and holding the threat of jail over the heads of debtors who give up in the face of our economy. But that is what is happening here. MLSC continues to argue in legal proceedings that these work orders violate the CNMI statutory law (OIA's that allow "method of payment"), the CNMI and US Constitutional protection of liberty; and the federal statutory and constitutional protection from involuntary servitude.



BANKRUPTCY
Debtors in the CNMI continue to have one quiver in their arsenal that helps protect them -- federal bankruptcy laws. The same laws that apply to the states apply here. The same hurdles must be met--creditor counseling, lots of schedules, detailed filings...

Bankruptcy is supposed to be a means of last resort to deal with mounting debt. People who are unemployed and have no assets or income to protect aren't the targeted audience for bankruptcy protection.

Unfortunately in the CNMI, they have little else that stands between them and a lifetime of creditor harassment and extremely punitive judgment enforcement.







Thursday, February 12, 2009

About Impeachment

There have been reports in the Saipan newspapers about a call to impeach the Lieutenant Governor. In today's newspaper, there is a letter claiming that such action would be unconstitutional.

Here's the real deal.

Representative Tina Sablan, as a member of the CNMI Congress, is fully empowered and completely within her CNMI Constitutional duties and rights to call for impeachment of the Lieutenant Governor. The CNMI Legislature is fully empowered to consider and move on impeachment of the Lieutenant Governor.

The pertinent parts of the CNMI Constitution read as follows:

CNMI Constitution, Article III, Section 19: Impeachment. The governor and lieutenant governor are subject to impeachment as provided in article II, section 8, of this Constitution for treason, commission of a felony, corruption or neglect of duty.

CNMI Constitution, Article II, Section 8: Impeachment. The legislature may impeach those executive and judicial officers of the Commonwealth subject to impeachment under this Constitution. The house of representatives may initiate impeachment proceedings by the affirmative vote of two-thirds of its members and the senate may convict after hearing by the affirmative vote of two-thirds of its members.
Source: Original provision, unaltered (ratified 1977, effective 1978).


There is NOTHING in the CNMI Constitution or the U.S. Constitution that protects an elected official from facing impeachment proceedings and criminal charges simultaneously.

Unfortunately, the letter writer, Cristy Sablan of San Antonio, misinforms the public both as to "facts" and conclusions about the law.

The Illinois Governor, Rod Blagojevich, was arrested on federal criminal charges for corruption. The Illinois Legislature panel that recommended impeachment did so based on the criminal charges, as well as other allegations of misconduct.

This is not an isolated example, either. In 2004, Oklahoma lawmakers voted on impeachment of the state Insurance Commissioner while he faced two trials on five felony charges.

As explained in this news article by journalist Patrick Butler:

While federal criminal charges are pending, one need not be guilty of a criminal offense to be impeached. Unfitness for office and ignoring the legislature in major decisions may be reason enough.


The CNMI letter-writer confuses the presumption of innocence that is part of our criminal jurisprudence with the power of the Legislature to decide issues of job tenure. Being presumed innocent of criminal charges does not mean that you cannot face impeachment proceedings.

Certainly, if the CNMI Legislature decided to impeach the Lieutenant Governor, he would retain constitutional rights, including his 5th amendment right against self-incrimination and could not be made to testify or produce evidence against himself. But the CNMI Legislature does not need evidence beyond a reasonable doubt proving guilt of the specific felony charges presently pending. They can consider all evidence related to any of the categories upon which impeachment is founded.

The typical procedure used for impeachment: the House would appoint a panel to investigate and recommend--like a House sub-committee--on the impeachment; then the House votes on the recommendation--when they vote "for impeachment" they are really voting for a trial of the charges for impeachment to be held in the Senate; and if the House vote is for impeachment by 2/3rd majority, the matter goes to the Senate for the trial and vote on whether to "convict" on the impeachment--not on the criminal charges.

The effect of impeachment is to oust an elected official from his or her job. There are no jail terms or other criminal effects. There is no "lynch mob" or hanging of the Lieutenant Governor "from the highest tree."


So there is no problem "letting the judicial process run its course" and conducting impeachment proceedings at the same time. Ms. Cristy Sablan is wrong.

Friday, January 30, 2009

What's Happening Again? Federalization and Aliens Living in the CNMI.

Part II

This year, the Immigration and Nationality Act (INA) will be replacing all CNMI laws and regulations that govern the admission and removal of aliens (except for local laws governing asylum protection, which will last through the transition period). As of now, the switchover is slated for June 1 but can be delayed for up to 180 days.

For aliens living in the CNMI solely based on a CNMI immigration permit, such status will end on the switchover date. Enforcement of the INA in the CNMI will be exclusively handled by the Department of Homeland Security (DHS).

In my last post, I used a recently-issued CNMI Immigration public service announcement as a departure point to outline the near-term effects of the switchover on aliens living here. I’ll now flesh out the outline a bit further, again based on the provisions under Pub. L. 110-229, Title VII, Sections 701 and 702.

Prohibition Against Removal from the CNMI
Aliens lawfully present in the CNMI solely on account of their CNMI status will be considered undocumented aliens beginning June 1 because, technically speaking, they have never been properly admitted into the U.S. This would seem a bit strange and unfair, as if the rug were being pulled from under their feet. Congress perhaps felt that way too and so expressly prohibited DHS from deporting them for the time being. In effect, DHS will honor valid CNMI permits for those aliens present here, at least until the permit expires or after 2 years passes from the effective date of the law, whichever happens first. This does not seem like much time but, at the very least, aliens who were legally present prior to the switchover date will not face an immediate threat of deportation. The window of protection may also provide additional time for these aliens to segue to the CNMI-only worker transition program or apply for the usual federal immigration opportunities (e.g., H visas) if they are eligible.

The Necessary Bureaucracy
The law provides for a registration system for aliens who formerly had CNMI status. This bureaucracy has not been set up yet. Presumably, the system will come with its own set of protocols, policies, forms, permits, procedures, etc., that will be used to track alien presence and provide some form of proof of lawful presence.

Segueing to the Segue
We’re all waiting with bated breath for the regulations that will define the transition program, especially with respect to who may qualify as a nonimmigrant worker under the program. Some aspects of the program are spelled out in the law. The transition period lasts through 2014 but may be extended indefinitely by the U.S. Dept. of Labor in increments of up to 5 years. Unlike the CNMI guest worker program, workers under the transition program will not have their status tied to one employer. The program, however, does not provide for admission to the rest of the United States.

The purpose of the program is also clear: to wean the CNMI from its guest worker program in a way that minimizes the inevitable economic disruption. Foreign workers not otherwise eligible for a federal visa or green card are expressly targeted under Pub. L. 110-229 for the transition program.

It does not take much thought to see that the primary candidates to assist in addressing the CNMI’s near-term labor needs are those already legally present here. At the same time, the federalization law is a solid reproach against the CNMI's self-imposed dependence on aliens from developing countries for its labor supply. We will see, hopefully very soon, how DHS will attempt to balance these concerns.