Tuesday, March 16, 2010

The Power Struggle over Alien Labor

The CNMI has been struggling to hold on to power throughout the transition to U.S. control of immigration.

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 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 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.

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.

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.

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.

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.

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?

The CNMI Attorney General's Opinion does a good job of laying out the basics of pre-emption. Quoting from the opinion, in part...

" "Where a state statue conflicts with, or frustrates, federal law, the former must give way." U.S. Const. Art. VI, cl.2; Maryland v. Louisiana, 451 u.s. 726, 746 ...(1981). ... Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue...

"A federal statute's express preemption clause indicates Congress' purpose....However, "[t]he fact that an express definition of the pre-emptive reach of a statue "implies-i.e. supports a reasonable inference-that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption."

...Implied preemption may occur via field preemption of conflict preemption.

Field prempetion may be found when states regulate a subject area that federal law also regulates...

Conflict preemption may be found when state statutes conflict with federal statutes.

State statutes regulating aliens may be constitutionally permissible. "Power to regulate immigration is unquestionably exclusively a federal power. But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised."...

All of this is accurate and helpful.

It also helps clarify why the CNMI's interpretation of the CNRA is twisted and illogical.

The CNRA deals with immigration. The US federal court, in the challenge by the Fitial administration, clearly recognized that the alien labor portions of the CNRA are immigration matters. Employment authorization is a condition of admission and working without it may lead to removal; these are directly within the zone of the statute's pre-emption--admission and removal.

This law preempts the CNMI's attempt to regulate alien labor, both by field pre-emption and conflict pre-emption.

The CNMI wants to do something different than what the US is doing in the very field that the CNRA deals with--alien labor. The US transition program for alien labor clearly puts this power with the US government. The Secretary of Homeland Security is deemed to have authorized the employment of aliens as of the effective date of the transition period (11/28/2009). The CNMI can't reovke the Secretary of Homeland Security's authorization for employment. It can't pass laws now that effect status of any alien or add burdens not contemplated by Congress.

The real shame in all of this is the harm caused by the CNMI's unwillingness to be fair and rational in the transition to US immigration. Its refusal to turn over data, the verbal attacks on US officials, the waste of limited CNMI resources by litigating and continuing to press untenable positions is all very seriously harmful. And for alien workers and employers caught in the midst of this kerfuffle, the harm is not just lost wages and lost profits, but also stress and worry and uncertainty.

EDIT: For another take on this power struggle, see the Saipan Tribune column by Maya Kara and Bruce Mailman.

Monday, March 15, 2010

The "Local Preference" in Hiring

On March 10, 2010, the Marianas Variety printed an article with the title “Labor Wants Floating Benchmark to Prioritize Hiring of Locals”. According to this news, Deputy Labor Secretary Jacinta M. Kaipat encourages the CNMI Legislature to replace the local law that sets a quota for employers to hire 20% (and increasing to 30%) local/U.S. citizen labor with floating benchmarks. These benchmarks would be tied to population statistics about the labor force and set a priority for hiring local/U.S. citizen employees.

This blog post discusses some of the legal issues presented in this matter.

Control of foreign labor
When the CNMI controlled its own immigration, it could set terms and conditions for employment of foreign workers; and by extension, it could set terms and conditions for quotas of local/resident work force before employers could utilize alien labor. But the CNMI no longer has that authority. U.S. law governs not only entry and exit of aliens, but also their employment.

Judge Friedman, in the case brought by the CNMI to challenge federalization of immigration, CNMI v. U.S., #08-1572 (U.S. Dist. Court, D.C., 11/25/2009)said:
“[P]laintiff (CNMI) is just plain wrong when it asserts that nothing in federal immigration and naturalization law permits an “employer-by-employer, worker-by-worker local labor permitting scheme.” ... As defendants point out with ample support... precisely such schemes are at the heart of federal immigration law. ... Finally, and for similar reasons, the fact that the application of federal immigration laws to the CNMI through the CNRA (P.L. 110-229) may have a dramatic impact upon the CNMI’s labor force does not convert an immigration law into a labor law. It has long been recognized that the immigration laws necessarily have a significant impact on labor markets and practices.... There is thus no question that the relevant portions of the CNRA are immigration laws explicitly authorized by the Covenant.”

It is clear that the CNMI lost control of immigration, and with that, control of alien labor to the extent it is any different than local labor. The CNMI cannot now set conditions on hiring foreign workers or establish preferences for hiring local labor, with the exception of bona fide requirements. The present CNMI quota law embodies preferences that now create unlawful discrimination.

Ombudsman Pam Brown, in response to a question I posed to her on this subject, said:
“The conditions for employment of aliens contained in the Non-Resident Workers Act and P.L. 15-108 were tied to immigration control and thus, were not restricted by Title VII or IRCA. Once the CNMI lost control of immigration under P.L. 110-229, it also lost the authority to condition employment of aliens in violation of federal law and constitutional protections.”

Unlawful discrimination
Under US law, it is illegal to discriminate in hiring, firing, and some other matters based on citizenship.

1) Title VII prohibits discrimination based on “national origin.” This includes not only intentional discrimination tied directly to national origin but also practices that have an adverse impact relative to national origin. Adding a citizenship requirement to hiring decisions in the CNMI would adversely impact many specific groups based on national origin—including citizens of the FSM, Palau and the Marshall Islands, and US permanent residents and others who are present and lawfully eligible to work from the Philippines, China, Korea, Japan, Bangladesh and other countries. Such a “citizenship’ requirement imposed by employers would be illegal discrimination unless it was tied to actual bona fide job needs (such as meeting security classifications for some federal jobs in transportation, etc.). The EEOC enforces these provisions.

The EEOC website says
“Employers who impose citizenship requirements or give preferences to U.S. citizens in hiring or employment opportunities also may violate IRCA.”

Implicit in the word “also” is that such practices violate Title VII, absent bona fide job qualifications.

Can the CNMI, by passing legislation that sets residency or citizenship requirements, create bona fide job qualifications? It would seem that the CNMI would need a compelling state interest to engage in such discrimination. A preference for US citizens would be the province of the US government, and federal law would likely pre-empt CNMI law on the subject. U.S. law has already set a balance.

2) The Immigration Reform and Control Act (IRCA), §274B, 8 U.S.C. §1324b, specifically prohibits citizenship or immigration status discrimination with respect to hiring, firing, recruitment or referral for a fee by employers with four or more employees. The Office of Special Counsel enforces the anti-discrimination provision. Their website says:
“Employers may not treat individuals differently because they are, or are not, U.S. citizens.”

In essence, anyone who is lawfully present and permitted to work as a matter of federal law is entitled to an equal chance at employment, regardless of whether they are a U.S. citizen or hold some other immigration status. Employers in the CNMI must comply with this law through the I-9 process.

There are some lawful considerations that might disfavor hiring foreign workers in the CNMI. Employers are not required to sponsor alien workers for H1 categories; nor are they prohibited from considering the length of time a worker (say, under an umbrella permit) may be available for the job. Questions in the hiring process about citizenship or specific immigration status beyond eligilibity to work, however, could give rise to an inference of discrimination.

Floating benchmarks/Hiring goals
The call for change is from the quota system to “floating benchmarks” which are described as similar to “hiring goals.” The idea, I think, is to have targets (benchmarks) for how many U.S. citizens should be employed by any employer, based on the percentage of citizens in the general labor force here.

I found some guidance about what “hiring goals” are on the Berkeley Lab human resources website. The following series of questions and answers provides insight into what hiring goals really are.

Q: What is the difference between quotas and placement goals?
A: Quotas are either a ceiling or a floor for the employment of minorities or women. Placement goals are reasonably attainable objectives or targets that are used to measure progress toward achieving equal employment opportunity.

Q: What does the Laboratory do to meet its placement goals?
A: The Laboratory makes good faith efforts to remove identified barriers, expand employment opportunities, and produce measurable results.

Good faith efforts include broad advertising of job openings; supplemental inclusive outreach efforts to ensure that all qualified candidates, including minorities and women, are represented in applicant pools; and careful monitoring of outreach, recruitment, search and selection practices to ensure that equal opportunity is provided at every stage of these processes.

Q: Do good faith efforts include extending preferences in hiring minorities and women when trying to meet placement goals?
A: No. According to the Federal regulations, placement goals do not provide a justification to extend a preference to any individual on the basis of that person’s race, ethnicity, or sex.

Q: Will setting placement goals lead to preferences in hiring?
A: No. According to the Federal regulations, placement goals do not create job set-asides for specific groups, nor are they intended to achieve proportional representation or equal results.

Q: Can the Laboratory hire less qualified individuals in order to meet its placement goals?
A: No. Placement goals may not be used to supersede merit selection principles or as a justification for hiring a less qualified individual in preference to a more qualified individual. The Laboratory’s policy is to select the individual who possesses the qualifications to perform the duties of the position most effectively.”

From these questions and answers, it is clear that the thrust of “hiring goals” is affirmative action and equal employment opportunity. They aren’t traditionally used to promote hiring of the dominant segment of U.S. citizens in preference to other eligible foreign workers. They are not a way to lawfully “discriminate” or give “preference” to any one. They are, in contrast to discrimination and preferences, utilized by removing barriers to employment and using broad advertising of job openings, outreach, and equal opportunity at every stage of the process.

Final analysis
If the goal of the recommendation by the CNMI DOL is to favor local residents or even U.S. citizens, the proposed legislation is likely illegal and unconstitutional. U.S. federal law pre-empts the CNMI’s right to pass laws about foreign labor that are significantly different in purpose and effect than the U.S. laws. No state or local government can evade the equal protection of the law that is extended to all people present in the jurisdiction.

If the goal is to do a better job of making sure all qualified candidates know about jobs and apply for them, then it is permissible. There just can’t be any “prioritization” of hiring locals under cover of citizenship.

Thursday, March 11, 2010

Victims of Crime

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

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

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

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

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

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

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

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

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

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

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

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

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

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.


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.)


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.


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)