Friday, December 17, 2010

2010 Immigration Conference

Micronesian Legal Services Corporation once again hosted a training conference, providing 13 hours of CLE to attorneys in the CNMI. The Conference, which was held on December 8 and 9, 2010, focused on immigration matters, the impact of crimes on admissibility and removal. There were also brief sessions on VAWA, T Visas and U Visas, and the most popular session on ethics.


Joe Hill signs in while Polly Anne and Lolita man the registration table.

Our trainers were Evangeline Abriel from Santa Clara University Law School and Lauren Gilbert from Saint Thomas University Law School. They did an amazing job!


Vangie talks about aggravated felonies.




USCIS Honolulu District Director David Gulick attended some sessions and gave a lunchtime presentation on the 8th.


Lauren walked us through some basics before getting to the more difficult stuff.


We also made available the materials that Vangie and Lauren provided--copies of their power point presentations and sample problems.

Additionally, Vangie brought flashdrives loaded with 2 CLINIC manuals on crimes and removal proceedings and these were distributed to the conference participants. These were a donation! Thanks to CLINIC who allowed the materials to be copied. Thanks to Karen Bernosky at Santa Clara University who arranged the donation. And thanks to Steve Rebliagati, Manuel Valerio and James Chavez of Fry's Electronic's for making this happen. All we can say is THANKS! What great resources these nifty little flashdrives are!





Keen attention!


MLSC staff attorney Dimitri Varmazis.


MLSLC staff attorney Linda (in pink).


In the back--MLSC Deputy Director Ben Weber and support staff.


After the conference--Dimitri, Linda, Vangie, Lauren and Juanette.

Tuesday, November 16, 2010

New Schedule for Rota and Tinian Visits

Dimitri Varmazis will be on Rota on
Thursday, November 18, 2010
Wednesday, December 1, 2010
Thursday, December 16, 2010 and
Thursday, December 23, 2010.


Linda Wingenbach will be at the MLSC office at the PM Building in Tinian on
Friday, November 19, 2010
Thursday, December 2, 2010 and
Friday, December 17, 2010.


Those living in Rota and Tinian who want MLSC help may call our Saipan office (670-234-6243) for an appointment or walk-in and be served on a first-come/first-served basis on the dates of our visits.

Monday, October 18, 2010

Rota and Tinian Outreach Project

The Marianas Office of Micronesian Legal Services has started a one-year project of increased service to Rota and Tinian. “We’re happy to announce that we will be visiting Rota and Tinian much more frequently,” said Jane Mack, Directing Attorney. MLSC provides free legal services in civil cases to low-income people in the CNMI. The outreach project was made possible by federal earmark funding obtained for MLSC by Congressman Gregorio (Kilili) Sablan.


New office space in Tinian: photo by Janet King

“We have always provided service to Rota and Tinian,” Mack said. “We take telephone intakes and exchange documents by fax and e-mail, but our on-island visits have been limited to once a month.” With the new federal earmark, MLSC will increase visits to 3 or 4 times each month during the one-year project term.

It was a long process to get this special funding for MLSC. “The work to obtain this funding began in April 2009 when I submitted a proposal on behalf of Micronesian Legal Services Corporation to the Approriations Subcommittee on Commerce, Justice, Science, and Related Agencies,” Congressman Sablan said in a letter to MLSC. “There are literally tens of thousands of these requests from the 441 members of the House of Representatives, so it was a very competitive process.”

The Marianas Office receives most of its funding from the federal government through the Legal Services Corporation, and it has also received some local government support. “We’ve been fortunate that the local CNMI government has helped us,” Mack said. “Even in the years when the CNMI local government has not been able to provide us direct funding, it has allowed us the use of office space convenient to the people in our community.” When this one year project ends, the Marianas Office will continue to provide legal representation to the residents of Rota and Tinian in the usual way with its LSC funding and local support.

Under the outreach project, MLSC attorney Dimitri Varmazis will provide service to Rota, while attorney Linda Wingenbach visits Tinian. Paralegal Polly Anne Sablan will visit both islands to work on US citizenship and immigration status issues.

Mr. Varmazis has scheduled visits to Rota at the Courthouse for Friday October 22; Friday, November 5 (with Polly Anne); Tuesday, November 9; and Thursday, November 18. “We’ll be looking for office space in Rota to make our services conveniently available to everyone,” Varmazis said.

The Marianas Office has already obtained office space in Tinian at the first floor of the PM Building (about halfway between JC Café and the courthouse). Ms. Wingenbach has scheduled visits to Tinian for Wednesday, October 20 (with Polly Anne); Thursday, October 28; Wednesday, November 3; Wednesday, November 10; and Friday, November 19, 2010. “It’s fantastic that the people of Tinian can now have increased access to justice,” said Wingenbach.


Linda Wingenbach at her desk in Tinian: photo by Janet King.

Clients and applicants can set appointments for Rota or Tinian by calling the Marianas Office in Saipan. Walk-in clients and applicants are also permitted, although people may have to wait if they don’t have an appointment.

Thursday, October 14, 2010

Tinian Schedule

Thanks to the federal earmarked funds we received through our US Congressman's efforts, we will be traveling to Tinian and Rota more frequently to provide legal help in these under-served areas.

Our Tinian calendar right now looks like this:

Friday, October 15
Wednesday, October 20 (with Polly Anne)
Thursday, October 28
Wednesday, November 3
Wednesday, November 10
Friday, November 19


Attorney Linda Wingenbach will be there and available to meet new applicants and talk with clients at our new office space at the first floor of the PM Building (about halfway between JC Café and the courthouse). Appointments can be made by calling our Saipan office. People may also walk-in, but may have to wait.

Tuesday, October 5, 2010

New CNMI Divorce Law--P.L. 17-20

The CNMI has a new divorce law.

CHANGES:
It provides for 3 major changes to our current code.

1. It changes the jurisdictional residency requirement (8 CMC sec. 1332(a)) from two years to 90 days.

2. It changes one of the grounds for divorce (8 CMC sec. 1331 (g))--deleting "leprosy" and replacing it with "irreconcilable differences."

3. It makes dissolution available (8 CMC sec. 1331 (b)) upon 2 conditions: *) 7 days residency of one of the parties and **) signed and notarized consent of both parties. [Note the consent must be acknowledged before a US consular officer if signed outside of the US.]

Effective date: 10/3/2010.

IMPACT:
These changes are welcomed. The previous law's 2-years-residency requirement was a difficult hurdle to meet at times, especially for those who left and returned, or who were relatively new to the island and saw their marriages collapse.

Irreconcilable differences are described as
"persistent and unresolvable disagreements between spouses that result in the breakdown of the marriage."

And more importantly:
"Irreconcilable differences may be cited generally without citation of specific differences as grounds for dissolution of the marriage."


This will be a great help; we will no longer have to show that the other spouse is guilty of cruel treatment. If one party feels the marriage is beyond repair, that should be enough proof of irreconcilable differences!

HEARINGS:
Although the statute is silent on its effect on the need for hearings, the Court might analyze the need for hearings like this:

*As in the past, all divorces based on "grounds" (including irreconcilable differences) require a hearing and proof of the grounds.

*The dissolutions, based on mutual consent, may be obtained without a hearing upon sufficient pleadings.

We will be encouraging this procedure. And it is likely that for those divorces in the pipeline, where disputes about grounds have been raised, we will seek to amend and plead "irreconcilable differences."

A good change, all in all.

Friday, October 1, 2010

Family-based Green Cards Filing Fees Update

MLSC published a blog post on May 22, 2009 regarding family-based green card fees and costs in the CNMI. Fees will increase this November 2010, and so here is an update to the numbers. (You can still file with the lower fees through November 22, 2010.)



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
$420
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
$985







$80
I-864Affidavit of Support for Immediate Relative• Most recent tax filing (w/ W2 form)--
Total USCIS Fees$1,485
Costs
Medical exam for
I-693 report

Estimate only. Prices range based on what tests are needed for the applicant.

$350-$500
AttorneyEstimate only. Fees vary.$1,000
Total Est. Costs$1,500
GRANT TOTAL (USCIS FEES & COSTS)$2,985


Continuing in effect: family-based green card applicants can have their interviews conducted in Saipan at the recently-opened Application Support Center in the TSL Plaza, Beach Road in Garapan.

We hope to get a better sense of what private attorneys are charging when we host an immigration training in December 2010.

Medical exams may depend on your age, and for children whether vaccinations are up-to-date. You can run a search of authorized health care providers on the USCIS website's by searching "Find civil surgeons" and entering the 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 5006 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, Department of Public Health, Commonwealth Health Center, P.O. Box 409 CK, Saipan, MP 96950 (670) 234-8950


Note that although Dr. Brostrom at CHC is still listed, he has left the CNMI.

We hope you find this helpful. As always, please feel free to leave a comment or advise us if any information we provide is inaccurate or out-of-date.

Wednesday, September 29, 2010

Diversity Lottery

The United Stated Department of State sponsors a "diversity lottery" where it gives away US green cards to certain qualifying aliens in a random lottery process. It will OPEN applications for the 2012 lottery on October 5, 2010 and CLOSE on November 3, 2010.

What is this Diversity Lottery Program?
The program is explained on the State Department's website here. Basically, it is an invitation to aliens from countries that have low immigration rates to come to the US. It helps balance the diversity of foreigners present in the US and enriches the population with this diversity.

Who can apply?
Essentially, the lottery is open only to aliens from countries with relatively low immigration numbers into the US. For example, aliens from the Philippines and those born in mainland China do not qualify. This year's list of countries/citizens excluded from the lottery are BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

If you are an alien from any country other than those excluded, you may be eligible to apply on-line for the green-card give-away.

You must also be
1)outside of the United States; or
2)present in the US and have entered lawfully and "been inspected" and be lawfully present; or
3) present in the US despite unlawful entry/no inspection if and only if eligible for 245 (i) protection [--an expired amnesty program: beneficiary of a Form I-130 immigrant visa petition ("Petition for Alien Relative") or Form I-140 immigrant visa petition ("Immigrant Petition for Alien Worker") that was filed with the INS on or before April 30, 2001, or the beneficiary of an application for labor certification filed with the Department of Labor on or before April 30, 2001]

What does it cost?
There is NO FEE!

Are there any other eligibility requirements?
There are other eligibility requirements:.

Education or work status
Alien applicantss must have either 1)a high-school diploma or 2) have recent "qualifying occupation" experience (2 years experience during the past 5 years). You can learn more about qualifying occupations on the State Department's website, but it's not all that simple. You have to look at both the "job zone" and the "specific vocational preference" and meet both levels of qualifying occupation requirements to take advantage of this alternative.

One and only one successful application
Alien applicants must list all family members and submit individual photos of each family member, even if the family member is a US citizen or permanent resident already.

You may submit only one completed application. A second application that is also proper in all regards would disqualify the applicant-both the first and subsequent applications would be withdrawn.

And post selection criteria
Even if you win, you may have to meet additional requirements (good character, etc.). Also, the State Department notifies more than 50,000 people to "apply" for the final phase because some don't make it through this process--so you could be notified that you are in the final selected group and still not win if the 50,000 green cards are issued before your number is up.

How do you apply?
The applicant must be submitted through an on-line process. This means the photos must be scanned to certain specifications, and all questions answered, etc. You can see the instructions online here.

What are the chances of winning?
According to "About.com" the chances are about 1% that you'll get the notice and once you have that, 50% that you'll actually get a green card. In other words--very slim (about .5%)

How do you find out if you're a winner?
There is an on-line status checker. Notices will begin in May 2011. The actual green cards will be available starting in October 2011 through September 2012.

Monday, September 27, 2010

MLSC's Back To School Project

We held our annual Back-To-School Project this August and September 2010. This is a direct pass-through project where we collect money and school supplies from donors, primarily in the CNMI Bar Association, and then distribute everything in the form of school supplies to students in grades 1 through 12.

The good news for SY 2010-11 is that we collected $1190 in cash donations and approximately $915 in in-kind donations. (I say approximately because we estimate the value of the donations and don't have exact value for all items contributed.)

We distributed 77 book bags with supplies--binder, filler paper, folder, notebook, pencil case with pens, pencils, erasers and pencil sharpeners--and then depending on the grade, some additional components: the elementary add-ons (construction paper, glue, scissors, crayons, fancy pencils); the middle school add-ons (graph paper, compass, protracter, art eraser, scotch tape or index cards); the high school complement (white paper, art eraser, highlighter, white-out tape or fluid).

We also distributed all in-kind donations, so each book-bag recipient received a unique donation.

In addition to the 77 book bags with supplies, we gave out 24 small kits--containing 2 notebooks, a pack of 10 pencils and a box of crayons each. These kits were all identical (except for the colors of the notebooks) and were made possible by an in-kind donation after school started that helped us reach students on our list when we had run out of money and other supplies.

We were not very successful in reaching out to Tinian and Rota--distributing only 11 book bags with supplies to these islands' students, despite our efforts. We are happy that we did get something to each island, however.

We received less in overall cash and supplies this year than in 2009, perhaps reflecting the economic realities here; but interestingly enough, these donations came from more people than who donated in 2009--so generally the donations were smaller, but more people were reaching into their pockets to help our students.

And we really appreciate it.

There were many happy smiles on the recipients faces; and honesty, too. One recipient kept the school supplies that were needed for her children but said someone else had donated book bags to her, so she gave back the new ones we were going to give her back and then we gave them to two other kids who were not otherwise going to get backpacks this year.

All in all, this was another successful event. Thanks to everyone who helped.

Wednesday, August 25, 2010

Community Education--House Legislative Initiative 17-1

On the November ballot, voters in the CNMI will be asked to consider three proposed amendments to the CNMI Constitution. Here is information on one of them: House Legislative Initiative 17-1.

This legislative initiative amends Article X of the CNMI Constitution by adding a new section (10). The new provision authorizes the Commonwealth to issue pension obligation bonds (POBs), not to exceed “the Commonwealth’s actuarially determined unfunded accrued liability to the Retirement Fund.” The proceeds of the bonds are deposited into the NMIRF’s “defined benefit plan” trust fund and invested with other monies by the NMIRF. The bonds may be issued only upon 2/3rds approval of each House of the Legislature, in compliance with Article X, section (3). The debt incurred by issuing the bonds may exceed 10% of the aggregate assessed valuation of the real property in the CNMI and may be authorized for operating expenses, as part of the exception from compliance with Article X, section (4).


PROS: 1. Generally, the provision would allow the CNMI government to borrow money to pay the NMIRF. Putting money into the NMIRF would help make sure that the CNMI retirees in the Defined Benefits Plan receive future benefits when due.
Stated another way, the provision would provide authority to the CNMI government that it currently does not have, giving it the flexibility to use pension obligation bonds (POBs) to address the existing NMIRF unfunded liability. POBs are essentially a loan the CNMI would secure and would provide a large amount of money to the NMIRF now to cover part or all of the unfunded liability, thus making sure retirees are paid as their benefits are due.
2. Other jurisdictions have used POBs for their unfunded accrued liability.
3. If the debt (POBs) can be obtained at less than 9% interest per year, the CNMI may realize savings by paying the bond obligation at a cheaper rate than if it paid on the NMIRF judgment, which accrues interest at 9% per annum.
4. If the debt (POBs) can be paid over a longer period of time (typically 30 years), then the CNMI may have a lower monthly payment installment, alleviating some of the financial pressure on the CNMI.


CONS: 1. The CNMI cannot get out of debt by borrowing money. It will either be obligated to the NMIRF or to the POBs investors.
2. POB investors will not be as lenient as the NMIRF in collecting on the obligation. The CNMI could be pushed to bankruptcy.
3. The POB debt created will be owed by future generations of the CNMI, even though the benefit is only to those retirees currently in the Defined Benefit Plan. No more government workers may join the Defined Benefit Plan (DBP).
4. The causes of the unfunded accrued liability are numerous and include excessive benefits to retirees, lawful (and unlawful) double-dipping, non-payment by the CNMI government and questionable investment decisions by the NMIRF. These problems will continue if “easy” money is made available through POBs; the only way to force an end to the causes of the NMIRF’s financial problems is to require that the causes be fixed first.
5. The only limit on the amount of the debt that the CNMI might incur through the POBs is the amount of the “unfunded accrued liability” owed by the CNMI to the NMIRF. If the CNMI government fails to make normal contributions in the future (as it has in the past), that liability can increase. Other events could negatively impact the unfunded accrued liability. The CNMI government could then incur more POB debt. Even recognizing that the CNMI government’s normal contributions will decrease as the size of the DBP participants declines, the potential for debt through issuing POBs on future generations that will not benefit is staggering.
6. The proposed constitutional amended misuses commonly understood financial terms which creates confusion and undercuts the benefit to the NMIRF. Unfunded accrued liability should refer to the NMIRF’s obligation to its retirees for which is does not have funds on hand and for which the retirees have a contractual right to receive. It should not be used to refer to the CNMI government’s unpaid normal contributions to the NMIRF. By misusing the terms in the constitutional provision and referring to unfunded accrued liability of the CNMI to the NMIRF, the proposed Constitutional provision creates an ambiguity as to whether unfunded accrued liability that is due to other purposes (such as non-payment by autonomous agencies or a payment scheme that is inadequate) can be the basis for POBs. For example, the CNMI government’s current unfunded accrued liability to the NMIRF is about $282 million. The NMIRF’s unfunded accrued liability to retirees is about $400 million. As this constitutional provision is written, even if the CNMI obtains POBs to the limit of its obligation of $282 million, the NMIRF will still have unfunded accrued liabilities in excess of $100 million.
7. The proposed constitutional amendment carves out an exception for POBs from the general limit on public debt. Making this exception for the NMIRF to the well-structured Article X limit on public debt opens a “Pandora’s Box” and may encourage reliance on borrowing as a means of addressing financial problems by the government for other perceived financial crises. Increasing revenues and limiting spending are safer and more reliable methods of addressing financial issues.

SUMMARY: Proponents of the provision view this as essential to the health of the NMIRF; opponents view it as extremely detrimental to the health of the CNMI and a large step in the wrong direction.

Wednesday, August 18, 2010

Community Education--House Legislative Initiative 16-18

On the November ballot, voters in the CNMI will be asked to consider three proposed amendments to the CNMI Constitution. Here is information on one of them: House Legislative Initiative 16-18.

HLI 16-18

This legislative initiative amends Article XI, section 5(g) of the CNMI Constitution by adding a new phrase The new provision authorizes the “corporation” (I think this means now the Department of Public Lands) to use up to 20% of its revenues for land compensation claims before transferring its funds to the Marianas Public Land Trust.


PROS: The provision attempts to address the long-standing problem of unpaid claims for private land that has been taken by the government for public use. It does this by authorizing use of up to 20% of income from public lands each year for payment on these obligations before the money is transferred to the MPLT for investment and savings.

This provision identifies a source of money that is related to public lands to be used for payment for private lands that have been acquired for public use.

It also protects the income stream from those private lands by limiting the amount that can be taken to 20%

It has a stated purpose of allowing such income to be used to pay on court judgments for land compensation claims, to overcome past arguments against such use.



CONS: Although the provision authorizes the possible use of income from public lands, it does not require that such income be used or that any land compensation claim actually be paid.

There is no factual basis stated in the initiative to support the cap of 20%. This figure seems to be arbitrary and it is impossible to discern whether it is reasonable, too high or too low.

The 20% cap relates to revenue. It is unclear what the intent and effect of the language means: does it apply to net revenue after the corporation has retained necessary amounts for reasonable expenses, etc., or does it refer to gross revenues, calculated on all income the corporation receives?

It is also unclear whether the addition of this provision to the Constitution will allow litigants who are owed land compensation to compel the corporation to pay their judgments unless the corporation can show it has already reached the 20% cap.



SUMMARY: The Legislative Initiative amends the CNMI Constitution to provide authorization to use up to 20% of income from public lands to pay land compensation claims. It does not compel any payment. The 20% cap is not related to any identifiable plan, scheme or budget that is set forth in the initiative.

Wednesday, August 11, 2010

Community Education--House Legislative Initiative 16-13

On the November ballot, voters in the CNMI will be asked to consider three proposed amendments to the CNMI Constitution. Here is information on one of them: House Legislative Initiative 16-13.

HLI 16-13

This legislative initiative amends Article III, section 20 of the CNMI Constitution by adding a new subsection (c). The new provision prohibits the CNMI Legislature from increasing benefits to members of the Retirement Fund unless the CNMI government has satisfied its obligations to the Fund under the law or unless the Retirement System is fully funded.


PROS: The provision attempts to prevent further harm to the Retirement Fund from the pressure of providing greater benefits to its members. It prevents the Legislature from an outright increase of benefit payouts.

CONS: The protection is weak. There is no protection against increasing costs to the Fund that could occur from other means like raising salaries of its staff or from incurring other obligations that could run the Fund into the ground. It is also unclear how broad the scope of the prohibition is—for example does it encompass rule changes on double-dipping; would it protect against full benefits for Austerity Friday employees? It leaves room for debate and disagreement on whether the conditions for overcoming the protection have been met—if the CNMI and the NMIRF disagree on whether all obligations have been paid, whose opinion controls? If the CNMI goes bankrupt and its obligation to the Fund is discharged, has it satisfied its obligation? If the CNMI pays all of its obligation but that is not enough to fully fund the system, can benefits still be raised?

SUMMARY: The Legislative Initiative amends the CNMI Constitution to provide some protection to the Retirement Fund that presently does not exist. That protection may not be strong enough to address the many and varied problems described in the initiative, but it is more than presently exists.

Monday, August 2, 2010

Back-To-School Project STARTING

The Marianas Office is once again gearing up for its BACK TO SCHOOL PROJECT. Every year we distribute free book bags containing school supplies to needy kids in grades 1 through 12.

We need donations!!!
If you want to help, we accept in-kind or in-cash donations. Typically, we give a back-pack with a binder, filler paper, folder, notebook composition book, pens, pencils and erasers. Extras may include a pencil bag, crayons-glue-scissors-ruler for grade school kids, protractor-compass-graph paper for middle school kids, and typing paper-correction tape-art eraser for high school kids. We will also distribute all school supplies donated, so feel free to choose what you would like to see in the hands of kids--like dictionaries or other books, calculators, colored pencils, etc.

Call or e-mail anyone here and we'll arrange pick-up of your donation.

About recipients:
If you know someone you think especially needy, let us know. We are compiling our list now.

We try to reach out to kids in Saipan, Tinian and Rota. If we gave back-packs last year, we are not likely to give another one this year. We target the neediest and so we will want/need information about the family's financial situation. (We already have this information about our clients.)

Friday, July 30, 2010

Open for Domestic Intake/Comment Moderation

The Marianas Office will be open for domestic intake (divorce, paternity & child support, adoptions, guardianships, etc.) from August 9 through August 12, 2010. Intake hours are 8 AM to 12 Noon; 1 to 4 PM.

People interested in applying for MLSC help on a domestic matter should bring
1) proof of their household's financial eligibility (tax returns or pay stubs or benefit notices for all household members; resources/land ownership info);
2) a copy of all relevant documents (marriage certificate, birth certificates, land and marital assets info/titles, etc., )
3) a brief statement of what the problem is and what you want MLSC to do to help you. (e.g. I am separated from my husband because he was violent towards me; and I want MLSC to help me get a divorce. I want custody of our children and the family home.)


Applicants should also be prepared to answer questions from our intake workers.

You can set an appointment for intake by calling ahead--234-6243 or 234-7729--or just come in and wait your turn.

P.S. I have turned on comment moderation because of the amount of spam we've been receiving on this blog.

Thursday, July 15, 2010

Immigration Forum Links

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.

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!)

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.

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.

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
"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 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:
“[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.

Thursday, March 11, 2010

Victims of Crime

There has been an awfully lot of violence in Saipan lately.

Reported incidents include
(1) the violence purportedly at the hands of Shane Hocog that resulted in the death of Larry Gonzales;

(2) the temporary absence of a 5 year old girl, allegedly kidnapped and choked by Steven Hocog;

(3) the
nighttime incident against 2 young girls
, allegedly involving sexual contact by Juan C.Taitano;

(4) the internet cafe incident against 3 boys, ages 11 and 12, allegedly involving sexual contact by Marc Thomas Doyle;

(5) the incident allegedly involving MMA fighter Kelvin Fitial, and reported as his reaching through a car window to punch the face of a man who was already in his seat belt;

(6) the incident allegedly involving MMA fighter Maitai Charley, and reported as his assault on people in a car at Winchell’s and on a man who came to the rescue; the rescuer was the father of a 10 year old boy by-stander, who now suffers nightmares, loss of bowel movement, and other emotional trauma;

(7) the domestic violence incident allegedly involving a police officer, Kelani Vincent Pangelinan, shooting his gun inside the house, choking his live-in partner, twisting her arm, and refusing to let her leave until she had sex with him;

(8) the incident of purported sexual assault of a 13 year old girl by Steven R. Aguon at her home on February 20, 2010;

(9) the incident of purported sexual assault of a 6th grade girl near CK cemetery—LAST YEAR, by Steven R. Aguon;

(10) The alleged molestation of two minor girls in a barracks in Tanapag by Steven R. Aguon about March 6, 2010.

This level of violence is unprecedented in Saipan in the 25 years I’ve been here. Any of these incidents could have happened at an earlier time; but for all (but one) of them to have happened in Saipan during the past few weeks is staggering.

This post is to provide some information about victims’ rights and possible remedies. My research has been very frustrating and there is little at present in the CNMI to help.

AT THE FEDERAL LEVEL
Helping victims of crime is a national priority.

The highest priority seems to be strengthening law enforcement to arrest, prosecute and punish criminals and to keep them from becoming repeat offenders. For example, in an interview on March 6. 2010, President Obama discussed the problems with John Walsh on AMERICA’S MOST WANTED of sex offenders repeating their crimes and how to stop that—to fund the national sex offender registry, to get DNA automatically upon arrest of any suspect, to have interstate cooperation.

President Obama also said:
If you think 30 years ago, when these terrible crimes happened, the victims were just left to deal with this on their own. We’ve seen a cultural change which I think is enormously positive. People realize we’ve got to rally around victims, make sure they’ve got the support they need, the medical care they need, the counseling that they need. But most importantly that we recognize what’s happened to them, that we insist on justice.

“That’s what people need more than anything., so they can stop feeling like victims and feel like they’ve got some power.”

To that end, the U.S. Department of Justice has an Office for Victims of Crime (OVC).

The federal government, through the OVC, funds state initiatives in two key areas:
1) victim compensation and
2) victim assistance


The federal government addresses the needs of victims of crime by funding state and territorial government programs in both of these key areas, but it is the state and territorial governments that operate the programs that deal directly with victims.

AT THE CNMI GOVERNMENT LEVEL

Direct Victim Compensation: Every state and almost every territory (including District of Columbia, Puerto Rico, Virgin Islands, and Guam) offer a direct victim compensation program, according to the OVC.

This type of program offers reimbursement to victims of crime for medical costs, mental health counseling, funeral and burial costs, and lost wages or lost support. Some state programs provide more, including crime scene clean-up, transportation and other expenses. Most programs, however, only pay out for violent crimes and not for property crimes. Some also weigh the culpability of the victim in causing or participating in the criminal activity.

According to the OVC, our state agency tasked with helping victims of crime is the Criminal Justice Planning Agency (CJPA). Unfortunately, the CNMI is not on the list of states and territories with direct victim compensation programs, according to John Cruz of CJPA. We have no CNMI statute establishing such a program; and therefore, we have no program and no funds for direct victim compensation.

The CNMI might be eligible to apply for this help, if the CNMI Legislature passed the appropriate laws and contributed some funding. It appears that the US OVC will pay 60% of expenditures for victim compensation, but apparently the local government must pay the other 40%; US OVC payments to the state or territory government are based on expenditures in the previous year.

Until the CNMI legislates for direct victim compensation and provides some funds for it, there will be no access to additional funds from the US Department of Justice / OVC.

Assistance for Victims: The CNMI’s CJPA distributes federal funds through grants to agencies providing assistance to victims in the CNMI. According to John Cruz, three agencies or entities in the CNMI are offering services to victims of crime.

1. Karidat, which operates 3 programs: Victims Advocacy, Victims Hotline, and Guma Esperanza. According to Lauri Ogumoro at Guma Esperanza, Victims Advocacy provides help to victims of domestic violence, helping them prepare and file for temporary restraining orders under the Family Protection Act. They offer referral services for counseling, as well. Karidat also operates a Victim Hotline, where callers receive both immediate consultation and referrals for follow up help. Guma Esperanza provides shelter for victims of both domestic violence and human trafficking. They help identify possible immigration relief for HT victims and refer victims for legal assistance, after developing the factual record.

2. Tinian Health Center operates a “Family Protection Program,” according to CJPA. I have no details on what services this program provides. We called the THC for information, but we were told that the woman who knows about this was “off” and so we got no information.

3. CHC operates a “Victim’s Help” program, according to CJPA. Victims will find no help, though, because a call to CHC will only yield a circuit of referrals. When we called for information, the switchboard transferred us to Public Health, who transferred us to the Secretary’s secretary, who wanted to transfer us back to Public Health.

CNMI law:
The CNMI Constitution, Article I, section 11, provides:
The right of the people to be secure in their persons, houses, and belongings against crime shall be recognized at sentencing. Restitution to the crime victim shall be a condition of probation and parole, except upon a showing of compelling interest.”


6 CMC § 4109 provides:
If a defendant is convicted of any offense defined in this title, the court may, in lieu of or in addition to other lawful punishment or as a condition of probation or suspension of a sentence, order restitution or compensation to the owner or person damaged or the forfeiture of wrongfully obtained property to the Commonwealth.”


The CNMI Superior Court has analyzed the interplay between the Constitution’s mandatory language and the statute’s permissive language in the case CNMI v. Jung Yeong Min, Traffic #90-3247 (7/31/1990). The Court held that the original constitutional provision was designed to establish and provide funding for a victim-of-crime assistance program for victims of violent crime, but the substituted amendment, which was adopted, intended to place the burden of restitution only on the perpetrator, to cover all crimes, and be limited to restitution for losses “proximately caused” by the crime. But the proximate cause issue did not provide standing to the victim—the victim was not permitted to contest the sentence. The court held that the defendant, convicted of DUI on breathalyzer evidence, was not subject to restitution for the damage to the automobile he wrapped around a telephone pole, as the damage was not “proximately caused” by the crime. The only remedy for the victim/owner of the car was to sue for civil damages.

6 CMC §§ 9101 et seq. sets forth provisions creating an Office of Victims’ Rights within the Criminal Justice Planning Agency. It sets forth duties and responsibilities of the office. Some of those duties include providing information to victims about the perpetrator, the court proceedings, emergency medical and social services, restitution relief; other duties include arranging for reasonable protection from the offender, providing transportation to ensure a victim’s access to all court appearances and assistance programs; and acting as an advocate for victims of crime to obtain aid and services from public and private agencies. None of these responsibilities can be enforced, though, because the law gives no means to do so. NO CAUSE OF ACTION OR DEFENSE is given to victims for failure of the agency to live up to its responsibilities.

The law also lists a Victims Bill of Rights.

Those rights include 1) the right to be treated with fairness and with respect for the victim’s dignity and privacy; 2) the right to be reasonably protected from the accused offender; 3) the right to be notified of court proceedings; 4) the right to be present at all public court proceedings related to the offense; 5) the right to confer with the attorney for the government in the case; 6) the right to restitution; 7 the right to information about the conviction, sentencing, imprisonment, and release of the offender. The statutes also provide that these rights are not enforceable! NO CAUSE OF ACTION OR DEFENSE is provided to the victims for violation of their rights under this law.

All in all, the CNMI has a Constitutional provision that has little meaning; the laws pay lip service to victims’ rights but provide no real protection.

The only agency in the CNMI doing anything of real help designed especially for victims is Karidat. (CHC and Public Health may provide medical care and counseling services, but victims get no more help than anyone else; there is no indication of any special services for victims.)

OTHER INFORMATION

Victim’s Rights—Federal Immigration Law
For victims who are aliens (not U.S. citizens), there may be immigration relief available. If you are a victim of rape, torture, human trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy or solicitation to commit any of these crimes, you may be eligible for a U Visa. A U Visa allows an alien to live and work lawfully in the U.S. for three years, with the possibility of adjusting status to lawful permanent resident (green card).

Victims may include survivors of homicide as well.

The key provision, however, is that the victim must cooperate with law enforcement officials and have information that is helpful in prosecuting the crime.

The victims must have suffered substantial physical or mental abuse. The cause of the suffering must be a crime that violates the laws of the United States or any state or territory, or the harm must have occurred within the United States.

If you want more information about the possibility of seeking a U Visa, or about any of your rights as a victim, you should see an attorney.


A CHANCE TO MAKE A DIFFERENCE

As President Obama said, thirty years ago, victims throughout the U.S. had no greater rights than we are seeing here in the CNMI. What brought about change in the US was a strong movement of victims and advocates seeking change. Now, there is a large federal fund that is distributed to all 50 states and the participating territories with victim compensation programs, so that victims get financial aid to pay for their medical bills, to pay for funeral costs, to cover lost time at work, to pay for counseling, to provide child and spousal support that has been interrupted by crime, and for other needs arising from victimization. We haven’t seen any of that benefit here, but we have a growing number of victims.

There is a National Crime Victims Rights Week, set for April 18-24, 2010.

I have not heard of any activities scheduled in the CNMI, but this would be an opportunity for those interested to do something.

Other organizations where you might find help include:

National Center for Victims of Crime (1-800-394-2255)
National Organization for Victim Assistance (1-800-879-6682)
OVC Resource Center (1-800-851-3420)

Saturday, January 30, 2010

Another Donation

MLSC received a donation of $85,000 from the Garment Trust Fund.


What could have been a very happy event was turned bittersweet by the "on-going protests of garment factory workers who wanted to share in the trust fund.

MLSC had nothing to say about who the recipients of the trust would be.

We applied because there was a general call to non-profit organizations who might want to be included and have a share of funds that were not distributed. Because we have in the past and will continue to provide legal assistance in civil cases to people in the community without discrimination, including those who were garment workers, we thought we would be a good candidate for sharing in the funds. The trustee agreed and recommended a donation to us. The U.S. District Court reviewed the application and recommendation and approved the disbursement of the donation to us (along with other charities, who received varying amounts).

It is sad to see that some very poor people have not been granted any of the funds, despite their work in the garment industry, despite their need and the arguable merit of their requests.

We have already had some of these people come to our office and intimate that we should turn over some of our contribution to them. Whether we sympathize or not, we do not give money or direct financial aid to anyone. We are not a social services agency.

We will continue to provide legal help to applicants to the best of our ability. We will use the donation to that end.

Wednesday, January 13, 2010

Elliot-Park vs. Manglona, et al.

The Ninth Circuit issued a decision on January 12, 2010 in the case of Ae Ja Elliot-Park vs. Jarrod Manglona, Michael Langdon, Anthony Macaranas and the Department of Public Safety, and Norbert Duenas Babauta. Case No. 08-16089.

This is a CNMI case.

The alleged facts: Manglona, Langdon and Macaranas, as DPS officers, responded to a vehicular accident in Papago. Mrs. Elliot, who is Korean, had been hit by Norbert Babauta, who had beer cans rolling around the back of his pick-up truck, smelled of alcohol, and told the officers he blacked out while he was driving. The officers didn't even administer field sobriety tests to Babauta; they didn't arrest him; they never charged him.

He and Mrs. Elliot were taken to CHC, where Dr. Austin got involved. He called DPS to complain that Babauta hadn't been charged with DUI! Despite some "investigation, Babauta was never charged with DUI.

Mrs. Elliot, through the law offices of O'Connor, Berman, Dotts & Banes (case handled by Horey and Hasselback), sued in U.S. federal court, claiming a denial of civil rights for discrimination under section 1983. She alleged that the officers favored Babauta because he was local and disfavored her because she was Korean; she also alleged that on the same day, the same officers acted differently in handling another DUI where the victim was local and the offender not.

The defense: The officers claimed qualified immunity. They moved to dismiss the case on the pleadings. They said it was unreasonable to expect a police officer to know that he couldn't favor a Micronesian/Chamorro over a Korean in responding to a crime scene.

The ruling: The District Court denied the claim and refused to dismiss the case. (EDIT: Not sure about this. The 9th circuit majority seems to say this; but the dissent says it would affirm the grant of qualified immunity; the Variety reported on the original case that it was dismissed here.)

The 9th Circuit has now decided that the police officers were not entitled to qualified immunity.

These officers and the DPS will have to face trial (or negotiate a settlement).


There are 2 parts of the decision I especially like:

1. The police officers argued that they did provide some response to Mrs. Elliot. They came to the scene; they "investigated"; they arranged for transport to CHC. Their argument was that their discrimination wasn't total, so it was okay!

"According to the officers, only a complete withdrawal of police protective services violates equal protection. But diminished police services, like the seat at the back of the bus, don't satisfy the government's obligation to provide services on a non-discriminatory basis."


2. The police also argued that arresting someone isn't "protective services" so there was no clearly established right and they could thus claim "qualified immunity." In other words, they were saying that it was reasonable for them to think what they were doing was okay. The 9th Circuit disagreed.

"It hardly passes the straight-face test to argue at this point in our history that police could reasonably believe they could treat individuals disparately based on their race."


There was a dissent. Bascially, one judge felt that the discretion police have is so broad that it could have reasonably been thought to cover this situation and the officers may not have had sufficient notice that what they were doing was wrong. As this judge notes, though, everybody will know now!


And as the majority held--it's basic law. Government actors can't discriminate in the provision of services based on race (or any of the other protected classifications).

UPDATE: 3/3/2010 The case has now been settled in the District Court with an undisclosed settlement package in favor of the plaintiff, according to an article in the Saipan Tribune.