DAY IN COURT

MLSC Board Meets and Treats

2011-11-30T17:00:00.005+10:00

The Board of Directors of Micronesian Legal Services Corporation is on Saipan for its biannual meeting. The Honorable Jesus S. (Jesse) Borja gave opening remarks. Jesse worked for MLSC as an intern, as a lawyer, as Deputy Director, and then served on its Board of Directors. He is a former Associate Justice of the CNMI Supreme Court and former CNMI Lieutenant Governor. Now he acts as legal counsel to the Northern Marianas College.

(Back row L to R: Chang William (Kosrae); Danny Ongelungel (Palau); Arno Kony (Chuuk); Michael Ga'an (Yap); Lucia Blanco-Maratita (CNMI). Front row: Jesus S. Borja-guest speaker; Robert Ruecho (Guam); Branson Wase (Marshall Islands).

Some members of the Marianas Office, along with acting Executive Director Benjamin Weber, joined the meeting in the morning.

L-R (front): Jesus S. Borja, Robert Ruecho, Branson Wase; (back): Maria P. Muna, Jane Mack, Chang William, Lolita Nazaire, Arno Kony, Danny Ongelungel; Michael Ga'an, Lucia Blanco-Maratita, Dimitri Varmazis, Acting MLSC Executive Director Benjamin Weber

The Marianas Office staff joined the Board for a luncheon, at which the Board presented Maria Palacios Muna with a plaque for her 40 years of service to MLSC! Maria is a paralegal in the Marianas Office and has been with MLSC since its first year of operations!

We at the Marianas Office are privileged to work with Maria and we joined in the contratulations and thanks for her service.

(L to R: Marianas staff Jane Mack, Lolita Nazaire, Frank Rogopes, Polly Anne Sablan, Maria P. Muna, Dimitri Varmazis, Juanette Sablan, and Marianas Board member Lucia Blanco-Maratita)

Humble as always, Maria expressed surprise at the honor.

Parole-In-Place --US Immediate Relatives--Workshop Video Part 4

2011-10-22T01:15:00.004+10:00

Parole-In-Place --US Immediate Relatives--Workshop Video Part 3

2011-10-22T00:34:00.004+10:00

Parole-In-Place --US Immediate Relatives--Workshop Video Part 2

2011-10-21T15:32:00.007+10:00

Parole-In-Place --US Immediate Relatives--Workshop Video Part 1

2011-10-21T14:22:00.007+10:00

Since we conducted this workshop we have heard two things of importance:

1. USCIS is not likely to grant parole-in-place to immediate relatives of US citizens unless the I-130 (or I-360 for abuse victims and widows/widowers) has been filed. Note, however, USCIS continues to be sympathetic to specific cases where extreme hardship exists caused by medical issues (handicapped or disabled individuals, special needs children).

2. If USCIS denies the parole-in-place application, it is likely to turn over the name and information about the foreign national to ICE. This means that removal proceedings will likely be filed against you more promptly than if you did not file the parole-in-place application.

Just a caution.

Final Parole-in-Place Workshop

2011-10-21T14:22:00.000+10:00

MLSC will host its final Parole-in-Place workshop. This one is ONLY FOR CNMI Permanent residents (under the old CNMI law) and THEIR immediate relatives, and for those born here of foreign national parents between January 1, 1974 and January 9, 1978.

Workshop starts at 1 PM at American Memorial Park.

Parole-In-Place Workshops

2011-10-07T14:07:00.004+10:00

UPDATE: Change of Venue-Rota (see below in red)

REMINDER: We've already held the parole-in-place workshop for IRs of FAS citizens. Those who didn't attend can pick up the folder with forms at our office.

We're having a parole-in-place workshop for IRs of US citizens on Saipan on 10/16 (Sunday) at 1 PM at American Memorial Park. We're also holding similar workshops in Rota and Tinian. (October 13--Rota at Rota Mayor's Office at noon; October 14--Tinian at TES at 3 PM).

Then we'll have a final parole-in-place workshop for CNMI permanent residents and those born between 1974 and 1978 on October 23 at 1 PM at American Memorial Park.

There is no charge for these workshops. However, space is limited and when the auditorium is full, the doors will be closed. Please do not bring minor children to the workshops. Please do not leave minor children unattended in the Park, museum or giftshop.

Tinian Schedule

2011-09-30T10:09:00.000+10:00

MLSC will be on Tinian for client contact and new intake on October 5th, 14th, and 286th. Please call the Saipan Marianas Office, 234-6243, for an appointment or stop by the office in Tinian if you need assistance.

Rota Visits

2011-09-29T09:14:00.000+10:00

MLSC trips to Rota for October 2011 will be on October 13th, 20th, and 27th. Call our Saipan office to schedule an appointment or more information (234-6243) or visit our office in Rota on the scheduled dates.

Second Parole-In-Place Workshop

2011-09-26T09:15:00.001+10:00

The Marianas Office of Micronesian Legal Services Corporation will be hosting a series of workshops to help people prepare Parole-In-Place applications. These workshops are aimed at those foreign nationals / aliens who have no other options for their status. Each workshop targets a specific category of foreign nationals who are likely to have success or may have a good chance at success in getting Parole-In-Place from the USCIS.

The SECOND workshop is scheduled for Sunday, October 16, 2011 at American Memorial Park at 1 PM. It is for ONLY those foreign nationals who are 1) spouses or widows/widowers of or 2) parents or children of citizens of the United States of America.

Parole-In-Place is an option of last-resort. Generally speaking, where other options are available, like the CW permit for those employed, those options should be exhausted first. Although MLSC will conduct the workshop to help people understand the process and put together their applications, no individual legal advice will be given. MLSC will not be accepting cases or filing on behalf of those who attend the workshops. The purpose of the session is simply to help get information out and help people utilize the process as successfully as they can.

Each workshop will be conducted in English. Each workshop is limited by the capacity of the auditorium at American Memorial Park. If there are no auditorium seats available, the sessions will be closed. For more information, contact the Marianas Office at 234-6243.

About Ben Tured

2011-09-21T08:46:00.009+10:00

UPDATE: Intentions for Ben Tured are included in the 6 AM Mass at Kristo Rai every day this week through Tuesday, September 27. There will be a Memorial Mass at 6 PM on Tuesday September 27, 2011 at Kristo Rai Church on Saipan for Ben.

Our Executive Director, Benjamin Tured, died on Monday September 19, 2011 in Yap. He worked for our program for many decades, first as a counselor starting in 1981 (a trial assistant/paralegal in Yap, Micronesia, when it was part of the Trust Territory of the Pacific Islands) and then as a Directing Attorney (Yap office) after he graduated from William S. Richardson School of Law in Hawaii, and eventually as our MLSC Executive Director since 2004.

Ben and Mercy-sunset cruise 2009

He was still on the job in June 2011 when he developed worsening head and neck pain, which turned out to be an aggressive form of brain cancer.

Waiting to depart, sunset cruise 2009 -Jane & Ben

We are all grieving with his family--his wife Mercy, his children Maru, Sevahn and Joshua, and the many people whose lives he touched with his warm, intelligent and humorous personality.

Toasting Omar (not in photo): Ben and Lolita

His MLSC family will miss him terribly.

(Condolences to Mercy and family may be sent to her care of MLSC in Saipan or Yap:
Box 500269, Saipan, MP 96950 or Box 206, Colonia, Yap FM 96943.)

Parole-In-Place Workshops

2011-09-15T08:00:00.000+10:00

The Marianas Office of Micronesian Legal Services Corporation will be hosting a series of workshops to help people prepare Parole-In-Place applications. These workshops are aimed at those foreign nationals / aliens who have no other options for their status. Each workshop targets a specific category of foreign nationals who are likely to have success or may have a good chance at success in getting Parole-In-Place from the USCIS.

The first workshop is scheduled for Sunday, September 18, 2011 at American Memorial Park at 1 PM. It is for ONLY those foreign nationals who are spouses or widows/widowers of citizens of Palau, the Federated States of Micronesia (FSM), or the Republic of the Marshall Islands (RepMar), collectively called the Freely Associated States (FAS).

Parole-In-Place is an option of last-resort. Generally speaking, where other options are available, like the CW permit for those employed, those options should be exhausted first. Although MLSC will conduct the workshop to help people understand the process and put together their applications, no individual legal advice will be given. MLSC will not be accepting cases or filing on behalf of those who attend the workshops. The purpose of the session is simply to help get information out and help people utilize the process as successfully as they can.

Each workshop will be conducted in English. Each workshop is limited by the capacity of the auditorium at American Memorial Park. If there are no auditorium seats available, the sessions will be closed. For more information, contact the Marianas Office at 234-6243.

MLSC's 2011 Back-to-School Project--A Success!

2011-09-14T14:25:00.010+10:00

The 2011 Back-To-School Project sponsored by Micronesian Legal Services Corporation wrapped up another successful year. MLSC provides a means for attorneys and others to contribute in-cash or in-kind for school supplies for needy children. There is a direct pass-through of all donations. The recipient children come from many of the families that MLSC serves for their legal problems and others referred to the organization from community members.

This year, MLSC distributed 79 backpacks with supplies inside, including a binder, filler paper, notebook composition book, pencil bag with pens, pencils and erasers and additional items like crayons and glue for elementary students, graph paper and compass-protractor sets for middle school students, and white paper and correction tape for high school students.

Donations to the project came from more than two dozen members of the Bar Association and staff, Congressman “Kilili” Sablan and his staff, and Mount Carmel High School’s National Honor Society, which conducted an in-school drive to help collect supplies.

“We know that we alone cannot fill the need that exists,” said Jane Mack, Marianas Office Directing Attorney. “We’re glad to see other similar projects in the community, and we’re proud to be helping in our own way.” The MLSC Back-to-School Project evolved from a personal project of the Marianas Office Directing Attorney in the 1980's, then was adopted by the entire office who wanted to help in the 1990's and eventually expanded when other attorneys in the community also joined the effort. The project has reached out consistently to approximately 75 students each year for the past five years.

Thank you to everyone who helped!

(all photos of recipient children posted with parental permission)

Tinian Schedule

2011-09-02T12:59:00.002+10:00

MLSC will be on Tinian for client contact and new intake on September 14th, 21st, and 28th. Please call the Saipan Marianas Office, 234-6243, for an appointment or stop by the office in Tinian if you need assistance.

Rota Schedule

2011-09-01T16:26:00.002+10:00

MLSC trips to Rota for September 2011 will be on September 8th, 15th and 29th. Call our Saipan office to schedule an appointment or more information (234-6243) or visit our office in Rota on the scheduled dates.

Law School Scholarship Opportunity

2011-08-24T17:06:00.001+10:00

Lim, Ruger and Kim Scholarship
The Lim, Ruger and Kim Scholarship is available to law students who demonstrate leadership potential to serve the Asian Pacific American community.

You must be in good standing at your law school and submit an essay and letters of recommendation to be eligible for this award. Selection criteria includes, but is not limited to: demonstrated commitment to and interest in pro bono, public interest and/or public service legal work; financial need; leadership potential; maturity and responsibility; and commitment to serving the needs of the Asian Pacific American community.

Award: $2,500
Deadline: September 2, 2011
Website: napaba.org

Rota Schedule

2011-05-18T11:23:00.002+10:00

At last, flights have resumed to Rota and we will be back on island to serve the community there.

New schedule:
FRI, MAY 27
THURS, JUN 9
THURS, JUN 16
THURS, JUN 23

Marianas Office Staff

2011-04-28T14:27:00.003+10:00

The Marianas Office staff:

Frank Rogopes, Maria Muna, Polly Anne Sablan, Linda Wingenbach, Lolita Nazaire, Juanette Sablan, Dimitri Varmazis. (not in photo: Jane Mack--photographing group!)

Upcoming Visits to Rota and Tinian

2011-04-04T15:36:00.002+10:00

MLSC Staff will be in Rota and Tinian this month.

ROTA:
Monday, April 11
Thursday, April 28

TINIAN:
Wednesday, April 6
Friday, April 15
Wednesday, April 27

Anyone wishing to make an appointment in advance may telephone the Marianas Office in Saipan at (670) 234-6243.

Views from MLSC islands

2011-03-14T09:13:00.015+10:00

Japan has suffered a terrible earthquake and tsunami. Our sincere condolences to those who are trying to recover and restore a semblance of peace.
________________________________

I recently traveled to MLSC offices in Majuro and Ebeye (in the Republic of the Marshall Islands) and Pohnpei (in the Federated States of Micronesia). The purpose of my trip was to conduct a follow-up training on using Prime (the Kemp's case management system). Our MLSC tech, Ekeziel (Bong) Robles, handled the heavy work, addressing both hardware and software issues and working late into the night on all islands. My job was to give some simple demonstrations of using the system and then be available to answer questions during a hands-on practicum.

There are no daily flights into and out of the islands, so our time at each place was dictated in large part by the flight schedules. This meant a bit of time in Majuro, very little time in Ebeye, and mostly the weekend and Monday in Pohnpei. The Majuro staff gave up a state holiday in remembrance of nuclear testing victims to attend the training session. The Ebeye staff had the two days of training crammed into a day-and-a-half. The Pohnpei staff came in on Sunday for the bulk of their training.

I had a little time in both Majuro and Pohnpei to take some photos, and got just a tiny glimpse of Ebeye through the lens.

These are not in any particular order...

on the way home--from the Chuuk airport

this plane was grounded and we had a 6 hour "wait"

Ebeye

on the ferry from Kwajalein to Ebeye

views from the ferry arriving at Ebeye

Room at An Roshi hotel

view from the hotel balcony

Majuro

views from Rita (the northern end of Majuro)

baseball in Laura (the southern end of Majuro)

Bong at Laura park

gate keeper to the end of Laura

Manase and Bong at Laura

Japanese Peace Park

roadside vendor selling kelaguen-style tiny sand-crab meat

an example of the ever-present mural work in Majuro

view from the hotel shore

seating at hotel waterfront

the hotel

the hotel's extension where we stayed

Majuro office staff with Bong

Majuro Office Staff: Bob Katz, Talofou Manase, Roseann, Sunny Beero, Melanie, Wagner Joash, Ben Kilawe

Pohnpei

MLSC office in Pohnpei

Another Ben

Danally

Edwina and Sal

Susin

Ben, Erwine and Bong setting up for training

Bong during the training, dealing with tech issues

Edwina and Susin during training

Pohnpei scenic

at The Village (for lunch)

The Village

Tino, Ben and Bong

view from the airport "departure lounge"

Orders to Seek Work in Debt Cases--NOT!

2011-02-22T16:36:00.006+10:00

The CNMI Supreme Court ruled today that the CNMI laws do not permit the Superior Court to order unemployed judgment debtors to seek work.

The case, Marianas Eye Institute v. Pitness Moses, 2011 MP 1, involved a Chuukese man who worked for six years in the garment industry and then lost his job when the industry left the islands. He has been unemployed ever since. While unemployed, he was bushcutting and something flew into his eye, so he sought help at the Commonwealth Health Center. The CHC referred him to Dr. Khorram's clinic, the Marianas Eye Institute. Neither Moses nor the clinic inquired about how Moses would pay--he assumed that the same assistance program offered by the hospital to FSM citizens (the MIAP program) would cover him at the private clinic. It didn't. He ended up with a $300+ debt that he couldn't afford.

Attorney Mike White represented MEI in a collection case and Moses stipulated to a judgment. In post-judgment proceedings, MEI agreed with Moses that he had no income or assets from which he could pay. MEI asked the court to order Moses to get a job. Failure to comply with such a court order could result in civil contempt and jail.

Moses had been looking for work already for years, without success. The work situation in the CNMI is difficult, with few jobs and a near-death economy. Despite his efforts, he had not found work.

Moses objected to the order because it was futile, and he would face jail time if he didn't comply exactly with the court's demands. In other cases, we have seen the court continue to increase its demands so that unemployed debtors are required to submit more and more applications every week; and in order to avoid the potential for jail the debtors resort to submitting useless paperwork to businesses who are not even looking for employees. The court also typically requires the debtors to report back in frequent periodic hearings, which clog the docket and often lead judges into the temptation to give tongue-lashings and verbal reprimands simply because of the debtor's continued poverty and unemployment.

The CNMI Supreme Court examined all prior appellate cases in the CNMI and looked at cases from Guam, Illinois, and other jurisdictions. In the end, the court was convinced that the CNMI statute, which allows the court to order "payments," did not expressly authorize the court to order job searches as a means of enforcing ordinary judgment debts.

The CNMI Supreme Court also said that, once the Superior Court found that there were no income or assets from which payment could be made, it could not make any order in aid of judgment.

This small victory will provide enormous relief to many people who are currently in dire economic conditions, without work but owing debt.

Martin Luther King Jr. Day Commemoration

2011-01-20T17:48:00.008+10:00

The CNMI commemorated Martin Luther King Jr. day on Monday, January 16, 2011. I had the honor of participating as an invited speaker at the formal events at the American Memorial Park auditorium. It was a "day on, not a day off."

The event started with the color guard from Kagman High School presenting the flags and Ambrose Bennett and Leo Goode leading the singing of the US national anthem, the CNMI national anthem, and the Negro national anthem, followed by a short benediction.

Attorney Joe Hill was a key organizer, and he gave some remarks at the commemoration. Assistant Attorney General Shelli Neal and Ms. Delos Santos were emcees. We also watched a short address from Congressman Gregorio (Kilili) Sablan, presented via video.

Steve Woodruff, Ms. Delos Santos, Shelli Neal, ?, Brad Pennington, Jesse Pennington, Judge Ken Govendo, Rabbi Sayed, Jane Mack; photo by Anna Rose DLG

I had been asked to speak on a very broad subject--the challenge of justice in the CNMI--and was especially asked to give a little bit of historical context from MLSC's time in Micronesia.

I identified various kinds of justice--social, economic, legal--and pared the subject down to the narrowest bit of what I know: legal justice in the context of MLSC's mission.

clipped from Saipan Tribune 1/18/2011

MLSC has been in operation since 1971, and I have been here since 1984, so I spoke about the changes I've seen and some of the challenges. I talked about technology changes, but also noted that the challenges from adapting to new technology (and the frustration with technology in Micronesia) are small compared to challenges of attitudes and entrenched thinking. I talked about the radical concept of equal access to justice and the ambivalence even found in LSC, which is dedicated to providing free lawyers to poor people, but then ties our hands with restrictions like no class actions and no challenges to welfare legislation, etc. I closed with recognizing the challenge of staying committed when the going gets tough, and how very difficult it is right now in the CNMI with the economy barely functioning and crime paying better profits than work. And of course, the very end was a call to continue seeking justice.

My speech was an introductory sort of speech, just to warm up the audience for the keynote address by Jesse Pennington. He is an attorney who worked for MLSC in the 1970's (about 1974), but also has had a long connection to the civil rights movement in the US. He had met Dr. King and had his own escape from violence in Mississippi, events and encounters he related as he built his theme about the importance of being a witness and continuing the message in today's world.

clipped from Saipan Tribune, 1/18/2011

His inspirational presentation moved back and forth from remembrance to insight to reflection.

Brad and Jesse Pennington (son and father); photo by Jane Mack

When we were finished, there was a question and answer session that also added depth to the analysis and thinking that was going on. There were some awards and thank yous, and a closing benediction.

Brad and Jesse Pennington, Willie Bundridge (one of the event organizers and who commented that this year's commemoration was better than last year's!); photo by Jane Mack

All in all, it was a very worthwhile commemoration and day.

You can see more photos by Saipan Tribune photographer Haidee v. Eugenio here.

Anna Rose Deleon Guerrero with Brad and Jesse Pennington; photo by Jane Mack

New Schedules-ROTA and TINIAN

2011-01-04T15:10:00.002+10:00

ROTA
Micronesian Legal Services Corporation (MLSC) has opened a new office in Rota, located at Room #D-107 of the Hotel Valentino, Songsong Village. A representative from MLSC will be available to meet clients and take applicant intake from 11am to 4pm on the upcoming dates:

Thursday, January 6
Thursday, January 13
Thursday, January 20

Anyone wishing to schedule an appointment can call MLSC’s main number at 234-6243/7729 or, on the dates when an MLSC representative is on Rota, please call 285-6102.

TINIAN
Visits at the MLSC office in the PM Buildling are scheduled for the following dates:

Wednesday, January 5, 2011
Wednesday, January 12, 2011

2010 Immigration Conference

2010-12-17T13:26:00.010+10:00

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.

New Schedule for Rota and Tinian Visits

2010-11-16T14:14:00.003+10:00

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.

Rota and Tinian Outreach Project

2010-10-18T11:32:00.003+10:00

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.

Tinian Schedule

2010-10-14T16:07:00.003+10:00

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.

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

2010-10-05T08:44:00.005+10:00

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.

Family-based Green Cards Filing Fees Update

2010-10-01T13:21:00.007+10:00

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
Form		Required with Form	Fee/Cost
I-130	Petition 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-485	Adjustment 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-864	Affidavit 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
Attorney		Estimate 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.

Diversity Lottery

2010-09-29T11:04:00.004+10:00

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.

MLSC's Back To School Project

2010-09-27T12:14:00.003+10:00

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.

Community Education--House Legislative Initiative 17-1

2010-08-25T10:01:00.000+10:00

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.

Community Education--House Legislative Initiative 16-18

2010-08-18T09:58:00.000+10:00

Community Education--House Legislative Initiative 16-13

2010-08-11T09:48:00.002+10:00

Back-To-School Project STARTING

2010-08-02T12:35:00.001+10:00

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.)

Open for Domestic Intake/Comment Moderation

2010-07-30T12:07:00.004+10:00

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.

Immigration Forum Links

2010-07-15T12:21:00.004+10:00

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.

Managaha

2010-05-07T16:55:00.009+10:00

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!)

Implicit Bias

2010-04-13T15:11:00.004+10:00

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.

Open for Domestic Intake

2010-04-05T13:12:00.002+10:00

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.

New Case, New Duty

2010-04-01T11:39:00.004+10:00

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).

The Power Struggle over Alien Labor

2010-03-16T14:24:00.012+10:00

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.

The "Local Preference" in Hiring

2010-03-15T17:35:00.014+10:00

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.

Victims of Crime

2010-03-11T18:08:00.006+10:00

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)

Another Donation

2010-01-30T20:45:00.004+10:00

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.

Elliot-Park vs. Manglona, et al.

2010-01-13T11:09:00.009+10:00

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.

Saipan Sunset for Omar!

2010-01-04T15:36:00.002+10:00

Our staff attorney, Omar Calimbas, has left MLSC for California, where he'll be working at the Asian Law Caucus. (I think I have that right.)

We had a lovely send-off for him--a sunset cruise on the Puti'on Saipan. Omar danced cha-cha with Polly Anne; Ben and Bong requested songs; and the teens pow-wowed on the top deck before taking over the dance floor. Sumptious buffet and a lovely pink sunset opposite a full rising moon.

We'll miss Omar.

and a Joyous New Year!

2009-12-21T08:31:00.003+10:00

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.

Happy Holidays!

2009-12-15T15:24:00.004+10:00

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.

We Need A Staff Attorney!

2009-12-10T11:30:00.003+10:00

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

Alien Registration

2009-12-09T13:48:00.005+10:00

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.

MLSC Board Members

2009-12-02T15:12:00.003+10:00

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.

Understanding Our Election Laws-"Votes Cast"

2009-11-12T10:08:00.003+10:00

“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.

Some information for voters in the CNMI

2009-11-05T15:12:00.007+10:00

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.

Debt Collection Job Search Orders: A Survey of Jurisdictions

2009-10-13T15:28:00.009+10:00

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 RESPONSESred=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.

Orders to Seek Employment

2009-10-09T16:44:00.009+10:00

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.)

Opening for Intake in Domestic Cases

2009-09-28T15:22:00.003+10:00

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.

Foreign Students in CNMI Schools

2009-09-21T14:43:00.005+10:00

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.

CNMI Investor Permit

2009-09-16T09:08:00.006+10:00

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-

MLSC's Back To School Project

2009-09-05T13:54:00.010+10:00

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.)

Fees & Costs Updated: Family-Based Green Cards

2009-05-22T08:21:00.020+10:00

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
Form		Required with Form	Fee/Cost
I-130	Petition 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-485	Adjustment 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-864	Affidavit 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
Attorney		Estimate 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.

Family-Based Immigration Workshop

2009-05-06T20:50:00.006+10:00

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.

Green Cards: Financial Eligibility Requirements

2009-05-01T19:22:00.020+10:00

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.

Guardianship of a Minor.

2009-04-22T13:02:00.006+10:00

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. back to top

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. back to top

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. back to top

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. back to top

Federalization Delayed.

2009-04-01T08:16:00.004+10:00

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.

USCIS to Conduct “Green Card” Interviews in Saipan.

2009-03-23T15:33:00.007+10:00

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.

32. Creditor and Debtor Issues in the CNMI

2009-03-02T16:06:00.003+10:00

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.

About Impeachment

2009-02-12T14:18:00.003+10:00

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.

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

2009-01-30T12:45:00.010+10:00

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.

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

2009-01-29T17:20:00.013+10:00

Part I

Some confusion seems to be swirling around a recent CNMI Immigration public service announcement regarding documentation and status when June 1 arrives. Let’s first turn to the main source. The Jan. 20 PSA states that aliens will lose CNMI status if outside the CNMI after June 1. The PSA goes on to explain that CNMI-issued documents relating to admission or immigration status will not be recognized by the Dept. of Homeland Security (DHS) for purposes of entering the CNMI. The PSA apparently was based on DHS advice.

These pronouncements appear consistent with Public Law 110-229. When federalization goes into effect on June 1 (with a possible delay of up to 180 days), the Immigration and Nationality Act will replace CNMI immigration law (except for those relating to asylum protection, which will continue through the transition period). All local laws and regulations on the admission of aliens will end, and with it, any benefits or status conferred by those laws. For those aliens traveling outside the CNMI during the switchover date, CNMI-issued documents that would normally provide for admission to the CNMI will not be honored by DHS.

Therefore, in one sense, the PSA is inaccurate, because CNMI-conferred immigration status will end, wherever you are.

Of course, that’s not the end of the inquiry. What else will happen in the wake of the switchover that will affect the tens of thousands of aliens living here? Here’s a summary of what we know, which is taken from the only source of law on the matter, which is Section 702 of Pub. L. 110-229 (see also the GAO report , which has been around for a while but is still an excellent source):

• Aliens lawfully present in the CNMI on June 1 will be allowed to remain here for the duration of their permit or 2 years, whichever is shorter.

• DHS will most likely set up a registration system to track their presence.

• For these aliens, they may apply for the standard suite of federal immigration benefits, such as an H visa or family-based green card.

• For aliens who aren’t eligible for federal immigration benefits, the CNMI-only worker transition program might provide an opportunity for these aliens to continue to live and work in the CNMI for the next several years.

The critical picture that seems to form from this is the repositioning of CNMI permit holders to the federal transition program. As opposed to what conclusions people may be drawing from the recent PSA, it’s this segue that I suspect will define the situation of the majority of aliens living here under a CNMI work permit, due to the difficulties in qualifying for a federal visa.

I’ll explain all of this in further detail in an upcoming post.

Now Is the Time-Passports and Birth Records

2009-01-29T11:18:00.003+10:00

Our CNMI immigration is scheduled to be federalized effective June 1, 2009.

Now is a good time to take care of establishing your U.S. citizenship under the Covenant. I'll be posting about the requirements for each category of U.S. citizen listed in Covenant section 301 in another installment.

But here I just want to remind people that birth records are needed for passport applications. And those records can present new, unexpected problems.

If you were born in the CNMI, there's a fair chance that the name on your birth record is different than the name you're using! If you were born in Chuuk, the probability of this occuring is even greater. We see this problem all of the time--people using the names given on their baptismal records, when their official birth records have a very different name. People use names on school records and employment records, even on their marriage records, driver's licenses, and birth records of their children--using the name they've "always" used--only to find out when they get a copy of their birth certificate that they were given a different name at birth.

Birth records can be corrected or changed, but the process takes a little bit of time (from 1 to 3 months, on average). So NOW IS THE TIME to get a copy of your birth record. Check it out.

And if it has a different name than the name you're using, get legal help to correct the situation now.

Staff Attorney Position-accepting applications

2009-01-15T11:17:00.003+10:00

We have an opening for a staff attorney at the Marianas Office.

We are looking for an attorney with at least 2 years of experience in law or in the CNMI; excellent writing skills; reliable and current references; and a demonstrated interest in advocacy for the poor.

If you're interested, contact me through the blog or by e-mail or snail mail.

Jane Mack, Directing Attorney
MLSC - Marianas Office
P.O. Box 500826
Saipan, MP 96950

Reminder-Open to New Domestic Cases Soon

2009-01-15T11:14:00.002+10:00

We'll be open for new family law cases the week of January 26-January 29, 2009. If you have a family law case and want our help, call us at 234-6243 or 234-7729 to schedule an appointment during that time.

Some Scheduling Matters

2008-12-29T11:51:00.003+10:00

Just fyi:

The Marianas Office will be closed for the holidays in the afternoon of December 31, 2008, and on Thursday, January 1, and Friday, January 2, 2009.

We are typically open to the public Monday through Fridays as follows:

M-R-8 AM to noon; 1 PM to 5 PM

F-1 PM to 5 PM. (Friday mornings we have staff meeting and are closed during that time; we are sometimes open for a portion of Friday morning, but it depends on how long our meetings last.)

DOMESTIC cases: We will be accepting applications in family cases Monday through Thursday, January 26-29, 2009. If you have a case that relates to divorce, child custody, child support, guardianship, adoption or other family matter and you want our help, this is the time to apply for assistance.

If you are served summons and complaint or have some other time-sensitive matter, you may, of course, apply for our help at any time.

Happy holidays to all.

Great Day for Debtors' Rights

2008-12-19T15:49:00.004+10:00

Today is a great day for judgment debtors in the CNMI.

The CNMI Supreme Court issued a decision in the case of PFC vs. Muna, 2008 MP 21, holding that the Superior Court must honor due process rights in civil contempt proceedings.

Specifically, the Superior Court must do the following in all future civil contempt hearings:
1. Advise the alleged contemnor that he has a right to be represented by counsel.
2. Advise the alleged contemnor that the Court will appoint counsel for him if he is too poor to afford counsel on his own.
3. Continue the matter to allow the non-indigent contemnor the opportunity to get counsel.

4. If a person brought into court on alleged contempt says s/he is too poor to afford counsel and s/he wants court-appointed counsel, the Superior Court is to undertake a quick examination of the contemnor's situation to determine if s/he is presumptively eligible for court-appointed counsel. If s/he is, then the Court appoints counsel before proceeding to the contempt matter.

5. Alternatively, the Superior Court can say before the contempt proceeding begins that it will NOT consider loss of liberty as a possible sanction in the matter. Then there is no court-appointed counsel, but there is also no jail sentence that can be imposed and then left hanging over the head of the judgment debtor as a means to compel payments.

Stay tuned for more information on this matter.

Decision is now available on-line at the Law Revision website: PFC vs. Muna

Short-Handed

2008-10-04T19:49:00.007+10:00

MLSC will be short one attorney for a while. Staff Attorney Ed Peterson resigned recently.

He will be missed.
Here are some photos from our farewell barbecue.

Maria P. Muna, Lolita Nazaire, Nerita Peterson

Maria & Frank Rogopes work the grill.

Juanette Sablan, Lolita and Maria.

Juanette, Omar Calimbas, Erik Brown, Polly Anne Sablan, Frank,
Ben Tured, Ed Peterson, Nerita, and Lolita.

Omar presents the first (cool-headed) award.

I (Jane) present the second (adventure) award.

Ed is overcome by it all.

Commonwealth vs. United States, Case 1:08-cv-01572

2008-09-17T16:53:00.003+10:00

In the news this week was a report that the CNMI Governor, on behalf of the CNMI, sued the United States of America to stop federalization of immigration here. The lawsuit was filed on Friday, September 12, 2008 and assigned to Judge Paul L. Friedman.

The lawsuit alleges that the new federalization law, P.L. 110-229, goes beyond implementing a federal system of immigration and instead imposes a federal labor scheme on the CNMI, in violation of several laws.

The first count alleges that P.L. 110-229 violates the right of the CNMI to local self-government of internal affairs, as guaranteed by the Covenant, section 102. The U.S. may not over-ride the CNMI's local self-government of internal affairs unless the CNMI consents. (Covenant, section 105). The complaint alleges that implementation of the new system interferes with the CNMI's regulation of internal labor and economic affairs, and will cause economic harm that violates the U.S.'s guarantee to assist the CNMI in becoming part of the American economic community and able to meet its financial responsibilities of self-government.

The second count alleges that P.L. 110-229 was enacted in violation of the U.S. Constitution because the CNMI had no vote in Congress. The complaint alleges that the CNMI had no ability to participate in the political process, and that this defective political process violates the constitutional limits placed on Congress to enact laws.

The complaint asks the U.S. District Court for the District of Columbia to enter a permanent injunction prohibiting implementation and enforcement of P.L. 110-229.

The Defendants include the U.S., Michael Chertoff (Secretary of the U.S. Department of Homeland Security), the U.S. Department of Homeland Security, Elaine Chao (Secretary of the U.S. Department of Labor), and the U.S. Department of Labor. Because the defendant are all U.S. government offices or agents, they have 60 days after the U.S. Attorney is served with the summons and complaint to file their answer.

It's always risky to predict what will happen in litigation. CNMI Senator Maria Pangelinan was reported as saying that a stipulated settlement / consent decree declaring parts of the law inapplicable in the CNMI could be entered into. However, the same article reports that a spokesman for the U.S. Senate Committee on Energy and Natural Resource believes the law will be upheld.

On the merits of the claim of the first count: it's difficult to see how "local self-government of internal affairs" can be stretched to encompass employment of foreign nationals. The extension of U.S. immigration here was expressly envisioned by the Covenant--and is expressly allowed. U.S. immigration, where ever it applies, effects the availability of foreign workers for certain job categories. It seems that the U.S., by extending U.S. immigration here, is specifically trying to bring the CNMI closer into the U.S. American economic community.

On the merits of the claim of the second count: the Covenant implicitly acknowledged that U.S. citizens living in the CNMI would not have a vote in U.S. Congressional elections. The Covenant designed our participation in the political processes of the U.S.: a resident representative; and 902 talks between governments. The claim that the political procedure used by the U.S. Congress to enact P.L. 110-229 violates the U.S. Constitution is really a claim that our Covenant violates the U.S. Constitution. This seems a very risky tact to take, but also one not likely to succeed.

Right now, P.L. 110-229 is scheduled to go into effect in the CNMI on June 1, 2009. The most likely effect of the lawsuit, unfortunately, will be a delay in the CNMI's cooperation with the U.S. in formulating regulations that must be in place in order for the law to be implemented on time. Undoubtedly, Governor Fitial will use this excuse to seek a delay in the start of federalization. The alternative, which even the U.S. doesn't want, would be the implementation of federalization without CNMI government input.

Although the complaint alleges that the federalization of immigration will cause uncertainty for our foreign investors and our populace in the CNMI, this lawsuit will only add to that uncertainty.

21. Examining the Law about the Proposed Marianas Trench Marine Monument

2008-09-13T20:38:00.009+10:00

One of the current issues of interest in the CNMI relates to the possibility of a new national marine monument. Presently under consideration by the President of the United States is a proposal to designate the Exclusive Economic Zone (EEZ) around the three CNMI islands of Uracas (a/k/a Farallon de Pajaros), Maug, and Asuncion as a national marine monument.

Here is some information about the law that relates to this issue.

The CNMI CONSTITUTION, Article XIV: The CNMI Constitution requires strong protection for the environment. It specifically provides that the three northernmost islands of Uracas (a/k/a Farallon de Pajaros), Maug, and Asuncion be protected and maintained as uninhabited islands, to preserve the natural environment there.

Section 2: Uninhabited Islands. ... The islands of Maug, Uracas, Asuncion, ... and other islands specified by law shall be maintained as uninhabited places and used only for the preservation and protection of natural resources, including but not limited to bird, wildlife and plant species.

The CNMI Constitutional protection, however, does not extend to the waters and submerged lands around these islands.

Fish at Maug.
Photo by OceanBen, NOAA.

CNMI vs. UNITED STATES OF AMERICA: The CNMI claimed ownership of the submerged lands around all of the CNMI islands. It sought to quiet title to those submerged lands in a lawsuit it filed against the U.S. However, both the U.S. District Court and the Ninth Circuit Court of Appeals denied the CNMI's claim, and held that when the CNMI negotiated the Covenant, it failed to make any claim for the submerged lands; at that time, the doctrine of U.S. "paramountcy"--meaning U.S. control of submerged lands--was well established law. The Court held that the submerged lands adjacent to the CNMI belong to the U.S.

In essence this means that the U.S. controls all of the submerged lands in the Exclusive Economic Zone around the CNMI, from the high water mark on each island out to 200 miles.

The ANTIQUITIES ACT of 1906: This federal law allows the President of the U.S. to designate

historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments...

Any site under U.S. federal control that has historic, cultural, or scientific significance can be designated a "monument" and that designation provides protection from excavation, injury, and destruction. Removal of antiquities can only be done by permit, and must be collected in a reputable museum or educational institution.

The Antiquities Act has been used more than 100 times by Presidents to designate monuments. Although the Antiquities Act speaks of "land," it apparently applies to submerged lands and the waters above them: the most recent designation was the creation of the monument in the northwestern Hawaiian Islands-- the Papahanaumokuakea Monument.

Because the land must already be owned or controlled by the U.S. the Antiquities Act does not require approval or consent from inhabitants of the state or territory where the monument is located. However, it has been the practice that the President examines whether there is local support for the designation of a monument; this is what President Bush did before designation a monument in the northwestern Hawaiian Islands.

There have been no public hearings and there will be no vote on the proposal for a Marianas Trench national marine monument. The only way for the President to gauge public sentiment is through public comment, either in the newspapers and other media, or through letters and e-mails to the White House.

Corals at Maug.
Photo from Oregon State University.

In the CNMI, most elected officials have gone on record and notified the President of their opposition to designation of the proposed Marianas Trench national marine monument. However, a great many individuals and businesses have gone on record or notified the President of their support for the designation of the proposed Marianas Trench national marine monument.

If you want to be heard on the issue, you can sign a petition in favor of the monument (contact Angelo Villagomez). Or you can sign a petition against the monument. You can also write a letter to either or both CNMI Newspapers, the Marianas Variety and the Saipan Tribune. Or you can write directly to President George W. Bush at The White House, 1600 Pennsylvania Ave, Washington, D.C. 20500, or send an e-mail to comments@whitehouse.gov (text format only).

TIMEFRAME: There is no law that limits or defines the time frame for comments or for designation of the Marianas Trench national marine monument. It appears, however, that this is a proposal of the Bush Administration staff, and there is no indication that the proposal would be taken up by either candidate for President (McCain or Obama) in the next administration.

Rules and Regulations: It appears that if a Monument is designated, then rules and regulations are adopted. These would likely require co-management of the national marine monument, between the CNMI and the U.S., as was done in the Hawaii monument. It appears that co-management agreements are negotiated between the governments, but not subject to any particular process.

We could likely expect to see rules and regulations published in the Federal Register (and then the Code of Federal Regulations). The regulations for the Papahanaumokuakea Monument suggest that there would not likely be a comment period, except for certain limited topics; EDIT--the recent information from University of Hawaii, William S. Richardson School of Law Professor Jon Van Dyke indicates that there is a short time period (75 days in the case of the Hawaiian monument) for public input after the President's designation.

The designation of monument status guarantees the most conservation protection available under law, and that protection is then further detailed in the regulations, worked out by the co-managers with public involvement.

20. MLSC's Budget Woes

2008-07-21T12:28:00.002+10:00

If you're interested, you can read about our situation here in the Saipan Tribune.

Applying for a Family-Based Green Card in the CNMI: Fees, Costs, Time

2008-06-05T13:12:00.005+10:00

Family-Based Green Cards in the CNMI
Generally, aliens can be present in the US with either non-immigrant (temporary) status or a green card (permanent resident status). Permanent residency is primarily obtained through a family member or employment. Many aliens in the CNMI have gotten their green card through a sponsoring immediate relative, like a U.S. citizen spouse. This is because the Covenant, despite broadly excluding the CNMI from federal immigration law, has always recognized the CNMI to be a part of the US when considering aliens who are immediate relatives of US citizens living here. With the enactment of Public Law 110-229 on May 8, 2008, the Covenant will be amended to recognize the CNMI as part of the US for all immigration purposes. As mentioned in our previous post, this will have a direct impact on a variety of aliens who do not have federal immigration status, including those with CNMI IR status but who do not have green cards.

This post covers some of the practical issues with applying for a family-based green card. For an overview of the process and eligibility requirements, go to the United States Citizenship and Immigration Services (USCIS) webpage here.

Fees & Costs
USCIS fees associated with a green card application can be quite expensive. In July 2007, the USCIS revised its fee schedule, which resulted in many filing fees doubling and even tripling. USCIS does allow for some fee waivers based on an inability to pay. However, proving an inability to pay might run you the risk of being denied admissibility based on being considered a public charge, which means being dependent on public benefits like Medicaid or food stamps. Being a public charge is one ground for a green card denial.

Besides the USCIS fees, there are at least two substantial costs: the medical exam and the airfare to Guam for the green card interview. An I-693 medical report form needs to be completed by an authorized health care provider. The examination required for this report is different from the check-up for the CNMI work permit. There are at least two authorized health care providers for the I-693 medical exam in the CNMI: Pacific Medical Center and Marianas Medical Center. Both are located in Saipan. Contact the health provider directly to verify the current fee range.

Another cost may be for an attorney if you choose to have one assist you with the process.

The following table breaks down what might come out of your pocket for a green card:

Processing Time
It can take several months or up to a year to process a green card application. You can track general processing times for each USCIS center/office on the USCIS website here. The time it takes depends in large part on the backload of applications at any given USCIS center/office, and whether there are any special issues presented by an applicant’s situation. Before, the average range of time to process a green card was 6-8 months. USCIS is now saying to expect a much longer time frame. This is because of the surge in applications that were submitted last year to avoid the scheduled fee increases.

It usually has taken a month or so to receive the USCIS notice of receipt of the initial application package. If there are no initial problems with the application, USCIS next schedules a green card interview in Guam. This may happen around 2-3 months later. Again, this could take longer now due to an unusually large backload of applications. You and your sponsor will need to attend the interview together. USCIS does not cover the airfare to Guam. After the interview, USCIS may have additional requests for evidence. If an approval is granted, you will receive a notice and your permanent resident card by mail.

Top image entitled “Liberty for immigrants' rights” by philocrites . Middle image entitled “Got this in the mail today” by lacylouwho . Bottom image entitled “Permanent resident card” by nh7a . Top and middle images published under an Attribution NonCommercial Creative Commons license. Bottom image published under an Attribution NonCommercial Share Alike Creative Commons license.

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

2008-05-14T16:39:00.006+10:00

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

Here are some that may apply to MLSC clients:

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

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

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

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

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

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

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

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

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

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

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

What will happen to those with CNMI Permanent Residency?

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

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

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

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

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

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

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

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

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

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

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

S. 2739. ISLA, n/k/a P.L. 110-229

2008-05-01T12:13:00.009+10:00

ISLA—Immigration, Security, and Labor Act (originally H.R. 3079, included as Title VII in S. 2739) Passed the Senate on 4/10/2008; Passed the House on 4/29/2008; Signed by President Bush on 5/8/2008.

some key phrases in the intent section:
“effective border control”
“extending” U.S. immigration laws to the CNMI
“the orderly phasing-out of the nonresident contract worker program”
“the orderly phasing-in of Federal responsibilities...”
“providing a mechanism for continuous use of alien workers, to the extent those workers continue to be necessary to supplement the Commonwealth’s resident workforce”
“to protect those workers from the potential for abuse and exploitation.”

effective date: 1st day of the 1st full month commencing one year after enacted.
Thus, if this bill is signed promptly by President Bush (in May 2008), the effective date would be JUNE 1, 2009.

what happens? This law amends P.L. 94-241 (the Covenant), which had previously exempted the CNMI from the scope of U.S. immigration law, and allowed the CNMI to control its own immigration..

U.S. immigration laws, as defined in 8 U.S.C. § 1101 (a)(17)[1] go into effect in the CNMI on the start date of the transition period and subject to some exceptions/limitations:
(1) there will be a transition period where U.S. immigration laws apply, allowing entry of aliens under U.S. immigration categories, and operating in tandem with a program operated by U.S. immigration authorities that permits alien workers in the CNMI similar to the current CNMI immigration program under a special CNMI-only/special H Visa program.
(2) only the CNMI asylum/non-refoulement program will be in operation during the transition period; U.S. asylum / non-refoulement is not in operation in the CNMI during the transition period.

On the transition program effective date, all CNMI laws, provisions, and programs relating to the admission of aliens and their removal are superseded and replaced by U.S. law.

when is the transition period? start date[2] likely 6/1/2009 to end date 12/31/2013[3].

who’s in charge of immigration? The Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Interior.

what happens now--in the pre-transition period? The federal agencies promulgate regulations to deal with the transition. Regarding the tourist visa-waiver program, the regulations must be promulgated within 180 days after enactment of ISLA.

The CNMI may not increase the number of aliens present in the CNMI after the date ISLA is enacted

delays? Possible. If there will be a delay, notice of delay must be published 30 days in advance of start date (i.e. 5/1/2009). The Secretary of Homeland Security (after consulting with the Secretary of State, Attorney General, Secretary of Labor, Secretary of Interior AND the CNMI Governor) may, in his sole discretion, delay the effective date of the transition program for a period up to 180 days. SO START COULD BE AS LATE AS 1/1/2010.

End of transition period can also be delayed as to the section d--CNMI-only/special H Visa program. See reports section, infra.

what happens to the aliens here under CNMI immigration laws? For any alien lawfully present on the start date of the transition period, that alien may not be deported until his CNMI entry permit expires or 2 years elapse, whichever FIRST occurs.

what about entry by aliens during the transition period?
1) Anyone eligible under any U.S. immigration law (including all of the H Visa categories, investor categories, etc.), may enter the CNMI as they would the U.S.

2) Workers under 8 U.S.C. § 1101 (1)(15)(H), without restriction of numerical quota limit. (H Visa)

3) Workers under special provision ISLA sec. 6d, in a CNMI-only/special H Visa[4] system where Secretary of Homeland Security allocates and determines numbers, terms, conditions to employers, and reduces yearly number allowed, eventually down to zero by 12/31/2013.[5] (sec. d CNMI only/special H Visa). Spouses and minor children admissible, too, under this special program.

investors?
1) Long-term investors on the start date under the current CNMI law may obtain “CNMI-only nonimmigrant investor” status under 8 U.S.C. §101(a)(15), provided they maintain the investment that formed the basis of their status.

tourists? The Secretary of Homeland Security may institute a visa waiver program for 45 day visits for business or pleasure, after consultation with Secretary of Interior, Secretary of State, Guam Governor and CNMI Governor. Tourists must sign certain waiver of rights.

asylum seekers? The CNMI asylum/non-refoulement program continues in effect. Aliens may not seek asylum under U.S. law until 1/1/2014.

alien spouses of FSM/Palau/RepMar citizens? There is no special provision for these persons. They will likely be considered as aliens with legal status until their permits expire or two years elapse, under the general provision about aliens in the CNMI.

what about transfers? There is a special provision that aliens who are admitted to the CNMI under section d (CNMI-only/special H Visas) may transfer between employers during the period of their lawful stay, without permission of the current or prior employer, but within authorized categories for CNMI-special H Visas.

what are the new fees for entry? whatever is usually charged for immigration matters, PLUS
1. $150 per non-immigrant worker; paid by §d (CNMI only/CNMI special H Visa program) employer during transition period. This money is remitted to the CNMI for vocational training and education.

what about permanent residency? For those aliens who have green cards (U.S. permanent residency) already, the CNMI is specifically deemed to be part of the U.S. and presence in the CNMI is “considered to be presence in the United States.”

For those aliens who have CNMI permanent residency (under laws that were eventually repealed in the 1980's), there is no clear answer in this new law about ability to adjust status or what status will be recognized.

For those who do not have permanent residency yet, but wish to apply, no grant of status is provided for in this law; however see “reports.”

what about removal/deportation? The Secretary of Homeland Security is the authority for issuing exclusion, deportation, and removal orders, starting on the transition date. He applies whatever U.S. or CNMI law is appropriate to the case.

what happens to employees of CNMI immigration? There is no specific provision for them. The CNMI immigration department will cease to exist when the transition period starts. TSA and other homeland security departments will take-over immigration operations, and will need qualified personnel.

future reports:

1) Secretary of Homeland Security, (consultation with Secretary of Interior and other departments) to Senate Committee on Energy and Natural Resources, Senate Committee on Homeland Security and Governmental Affairs, the Senate Committee on the Judiciary, and House Committee on Natural Resources, House Committee on Homeland Security, and House Committee on Judiciary by 12/1/2008. Report is about current and planned levels of TSA, Customs & Border Protection, Immigration & Customs Enforcement, USCIS, and Coast Guard personnel and resources necessary for fulfilling mission requirements in Guam and CNMI comparable to level provided at other similar ports of entry. Consider military build-up and anticipated growth in tourism.

2) Permissive/not required: annual report from CNMI Governor to President on implementation, with recommendations.

3) Secretary of Interior, in consultation with the Secretary of Homeland Security and the CNMI Governor, to Congress, by 5/2010, on the number of aliens residing in the CNMI, their legal status, the number of years each has been in the CNMI, prediction of need by CNMI economy for future alien workforce, and recommendation about long-term status of workers.

4) GAO to Congress by 6/2010, assessing performance of federal agencies and CNMI Government in meeting congressional intent, short-term & long-term impacts of implementation on economy; and economic benefit of investors grandfathered in; and assessment of number of illegal aliens in CNMI.

5) President to Senate Committee on Energy and Natural Resources, Committee on the Judiciary of the Senate, and House Committee on Natural Resources, and House Committee on Judiciary by 3/1/2011, and every 3/1/ thereafter. Evaluating overall effect of transition program.

6) Secretary of Homeland Security to Senate Committee on Energy and Natural Resources, Committee on the Judiciary of the Senate, and House Committee on Natural Resources, and House Committee on Judiciary, by end of 3 years after start date (6/2012), on projected number of asylum claims

7) Secretary of Labor, after consultation with Secretary of Homeland Security, Secretary of Interior and Governor of CNMI, on current and anticipated labor needs in the CNMI, and shall publish notice in Federal Register, 180 days before end of transition period (6/30/2013), if determines need for CNMI-only/special H Visa workers warrants extension of transition period. Delay of end of transition for this special workers-entry program only—5 years at a time.

8) Permissive, not required. Secretary of Homeland Security (after consultation with Secretary of State and Secretary of Interior) to Senate Committee on Energy and Natural Resources, Senate Committee on Judiciary, House Committee on Natural Resources, and House Committee on Judiciary, about feasibility of creating additional Guam or CNMI-only visa categories.(non-immigrant statuses for investors, students, and retirees, but not for employment) [any time].

Footnotes:
[1] 8 USC §1101 (a)(17) The term "immigration laws" includes this Act and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens.
[2] But see “delays” infra.
[3] But see “delays” and “reports” infra.
[4] Note that this special type of entry permit is not given a name in the ISLA; I call it a CNMI-only/special H Visa because of its characteristics. It will be up to regulations to give it an actual name.
[5] But see “delays” and “reports”.

TWA's and Tax Season

2008-04-14T09:01:00.008+10:00

Many foreign workers in the CNMI are concerned about preserving some legal status during the transition from CNMI-controlled immigration to the federalized, U.S. immigration system. No one is exactly sure how long the implementation of the U.S. immigration will take, but the plan does have delays built into it, and it takes time to write and adopt regulations.

In the meantime, more and more foreign workers are facing loss of status.

2007 Unity March, photo by W. L. Doromal

The following information is my understanding based on a conversation with private attorney Alexis Fallon. As noted in our sidebar, nothing in this column is intended to be legal advice. With that said, this might be worth checking out for those foreign workers who have lost or face losing their legal status before the full benefits of U.S. immigration are realized.

1. TWA's, that is temporary work authorizations, are available to those who have legitimate pending legal cases. A manufactured claim isn't going to work.

But you may already be part of one of two on-going class actions, and thus eligible for a TWA, even if you have already lost employment or other basis for legal status. Both legal cases relate to taxes, the bane of most workers. This time, the tax system, and its problems, may help and give you foreign workers a right to a TWA.

2. Basically, in the CNMI we have chapter 2 tax (which is a local tax) and chapter 7 tax (which is our federal tax). We get rebates on chapter 2.

Did you earn more than $5,800 in any year from about 2002 on? If the answer is yes, did you file a tax return? If yes, you should have gotten some rebate, even a small one. Did the CNMI pay it to you on time. If the answer to this last question is no (either you didn't get it, or you didn't get it on time), you are part of one of the class action cases pending in court right now. You may be eligible for a TWA.

3. In the CNMI, permanent residents and U.S. citizens pay FICA, which is tax for Social Security and Medicare. Foreign workers generally are exempt from FICA.

Did you have FICA (sometimes noted as social security or medicare) deducted from your check? If you did, you are part of a different class action case pending in court right now. You may be eligible for a TWA.

How do you claim the benefit of being part of these class actions? One way (not necessarily the only way) is to contact the attorney, Alexis Fallon, who is handling them. Even if you are part of the class, she charges $150 to help get the TWA.

The benefit of having a legal status as the CNMI transitions from local control to federal immigration is that you have a better chance of securing some long-term U.S. benefit (like residency). Right now, there are no guarantees and no permanent residency built into the law. But there is a requirement for a study during the transition. And hope.

As always, if you have questions about anything you read on this blog, or have legal issues of your own, consult an attorney.

On the importance of taking time to reflect

2008-04-08T13:54:00.007+10:00

MLSC Marianas Office had its annual "burn out" day at Managaha on Friday 4/4/2008. This is a time when we, as an office, have a picnic for an entire work day. It isn't all fun and games; we actually work.
We start with our general weekly staff meeting.
We review every new application for assistance (intake) and gauge whether the applicant is qualified for our services (meets income and asset eligibility criteria) and determine whether the case fits within our priorities. Our first priority is to the clients on cases we have already accepted. Sometimes this means that we cannot take a new case on, no matter how eligible and meritorious the case. And for those cases we do accept, we assign to one of the case handlers in the office.
Then we get to the real reason for our retreat. We take turns expressing our opinons about what we've done right during the past year, what problems we've encountered, what we want to do or do better on during the coming year, and how we're going to tackle these goals.
And then we barbecue, eat, swim, walk around the island, chat, relax.
There's something very rejuvenating about these retreats. The hectic day-in, day-out pace of work gets put into perspective. We can enjoy each other's company without the pressure of jobs that need urgent attention. We can see what our work means and how we can help our community by doing it.

A few photos:

The blue lagoon (from the boat).

Managaha-still beautiful.

Our newest staff: secretary Juanette Sablan

Frank Rogopes (1984 to present)

Omar Calimbas (2006-present)

Lolita Nazaire (2006-present)

Ed Peterson with wife Nenita (2007-present)

The whole gang-almost. (I've cropped myself out of the photo for aesthetic reasons! Maria P. Muna is off-island so missed the Managaha trip.)

In the shade of the pala-pala.

On the tour boat back to Saipan.