PAROLE RENEWAL WORKSHOP

The Marianas Office of Micronesian Legal Services Corporation has scheduled parole renewal workshops for those non-citizens who already have parole-in-place, but whose status may be ending soon.

There will be two back-to-back sessions at the American Memorial Park auditorium.

SUNDAY, October 28 1 PM

SUNDAY, October 28 3 PM

Each workshop will be conducted in English. Seating is on a first-come, first-served basis. Please do not bring children. 

The purpose of workshop is to review the process and information needed to successfully renew  parole status.  Individual legal advice will not be given.

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

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.

Parole-In-Place Workshops

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.

Community Education--House Legislative Initiative 17-1

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

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


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


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

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

Community Education--House Legislative Initiative 16-18

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

HLI 16-18

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


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

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

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

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



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

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

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

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



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

Community Education--House Legislative Initiative 16-13

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

HLI 16-13

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


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

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

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

The Power Struggle over Alien Labor

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

A BIT OF HISTORY
For years the CNMI has opposed federal immigration and clung to its own control of immigration through many tactics. The most notorious action included hiring the lobbyist Jack Abramoff.

It opposed all attempts to extend U.S. immigration control to the CNMI for decades, but it finally lost the battle when the U.S. Congress passed the Consolidated Natural Resources Act of 2008. This became P.L. 110-229. Title VII of this act addresses "immigration, security and labor" in the Northern Mariana Islands.

THE CNRA
The CNRA extends U.S. immigration to the CNMI, but it first provides for a transition period. This started on November 28, 2009.

The CNRA provides for the federal immigration authorities to take over CNMI immigration on the effective date of the transition period (11/28/2009). It also provides for the end of CNMI immigration on that date.

During the first two years of the transition period, aliens who had lawful status on the effective date of the transition period under the CNMI immigration laws are not subject to deportation for violation of INA sec. 212 (a)(6)(A), 8 USC 1182 (a)(6)(A); that protection lasts until "completion of the period of the alien's admission under the immigration laws of the Commonwealth", or 11/27/2011, whichever is first.

During the first two years of the transition period, aliens who were permitted to work on the effective date of the transition period under the CNMI laws are deemed to have US authority to work during their protected period of presence in the CNMI.

Although the CNRA states that its purpose is to provide a phase-out of the "nonresident contract worker program of the Commonwealth" and a phase-in of US immigration, the law actually cuts off CNMI authority over immigration on the transition effective date (11/28/2009) and puts the entire management of the transition program regarding alien admission and labor under the U.S. authorities. The CNRA phase-out relates only to presence and ability to work of aliens admitted under the prior CNMI laws. The US transition program also, in some ways, mimics the CNMI alien worker program, and so it, too, is an element of the phase-out of a nonresident contract worker program, even though it is a new and separate program.

THE FITIAL LAWSUIT
The CNMI administration, led by Governor Fitial, challenged the CNRA law in federal court. It claimed that the law would ruin the CNMI by depriving the CNMI of foreign labor needed for the economy. It also claimed that the CNMI administration strongly wanted to stabilize the labor market in the CNMI, and had authority over labor; and that the US authority was limited to immigration.

The federal court finally determined that there was no basis for the challenge and dismissed the CNMI's complaint as to the CNRA. CNMI v. U.S., #08-1572 (U.S. Dist. Ct. D.C., 2009). (Opinion available here.)

The only portion of the CNMI lawsuit that garnered success was the challenge to the late "adoption" of regulations for the US-administered transitional worker program. This had the effect of derailing the availability of new transitional workers being admitted. Until final regs are adopted, no new workers under a transitional CW permit can be hired.

UMBRELLA PERMITS
However, there remain in the CNMI many alien workers who actually have jobs or who had authority to seek transfers to new employers under the CNMI regime. In the final days of CNMI control of immigration, the CNMI issued "umbrella permits" which were a last-ditch measure, ostensibly to stabilize the labor force and provide the maximum allowable time under the CNRA to alien workers here. These were handed out in a mad rush, while aliens lined up for hours, day and night. The "umbrella permits" provided the maximum allowable time for admission to the CNMI under CNRA law--through 11/27/2011.

But the permits also had "revocation" dates stamped on them.

It was clear even at the time that the CNMI government was issuing the "umbrella permits" that it had an ulterior motive. It wanted to extend its control over alien labor through the two year period.

THE MOST RECENT POWER STRUGGLE
And so the struggle for power over alien labor continues in the CNMI.

After 11/28/2009, the CNMI Department of Labor started scheduling appointments for , charging fees about, and "revoking" some of the newly issued umbrella permits.

The U.S. Ombudsman, Pam Brown, went on record saying that the USCIS would honor all umbrella permits as authority to stay until 11/27/2011 and would not honor any "revocation."

The CNMI DOL, through Jacinta Kaipat, lambasted Pam Brown, calling her reckless and accusing her of creating confusion, and insisting that she did not speak for the U.S. government. Kaipat told the CNMI Legislature that CNMI DOL can maintain control over umbrella permits. She had the backing of the CNMI AG, Ed Buckingham.

The Assistant Secretary for the Interior, Tony Babauta then joined the fray, supporting Pam Brown's position as that of the U.S.

On March 15, 2010, according to the CNMI newspapers, the USCIS released information on umbrella permits and other alien labor matters in a question and answer format. This official US government information fully corroborated the information provided by the Ombudsman--that the US will honor umbrella permits as permission to stay and to work and that it will not recognize CNMI revocations done after 11/27/2009.

And on March 16, 2010, the newspapers carried Governor Fitial's very different answers to the questions, re-asserting the CNMI's power to revoke umbrella permits (and significantly, charge fees in connection with their non-revocation). The CNMI Attorney General issued an opinion that the CNMI retained legal authority and could revoke alien labor permits.

You can read much more detail about the entire history of the struggle at Unheard No More. You can read the CNMI Department of Labor's press releases at their blog, CNMI Labor Forum.

THE BASIC AREA OF CONTENTION
It is clear that the U.S. and the CNMI government authorities do not agree on the meaning of the CNRA. They do not agree on the scope of authority to the US and the limitations of authority on the CNMI.

I am not sure, but it appears that this disagreement may be limited to the transition period issues. For example, it seems beyond debate that after the transition, the CNMI will have the same limitations on its immigration/labor powers as every state does. It will have the same powers as every state, too.

It is not clear whether the disagreement about control and authority will extend beyond the first two years of transition. At present, the debate centers around the umbrella permit, which at best ends 11/27/2011.

The transition presents unique questions because it has not occurred before, so there is no guidance from any state or federal authority on how to interpret the CNMI's role under the CNRA for now.

SOME LEGAL ANALYSIS
Nothing in the CNRA can be read as authority for the CNMI's continued enforcement of its former alien labor program.

The umbrella permits are immigration permits to be present in the CNMI on the effective date of the transition. They expressly state that they are effective until 11/27/2011. The USCIS is recognizing them for that period of time.

This recognition by the USCIS provides the stability of an alien labor pool that the CNMI claimed to want. Aliens holding umbrella permits have the CNRA protections-they can't be deported for violation of INA sec. 212 (a)(6)(A), 8 USC 1182 (a)(6)(A) until the completion of the period of their admission or 11/27/2011, whichever is first. They can work during that time period.

The US reads the CNRA as authority that the CNMI can't retroactively effect the period of admission. And that seems most consistent with the text and the purpose of the CNRA law.

The CNMI tries to bootstrap its way into a two-year extension of its labor policies and programs. The CNMI's struggle seems more about getting fees and making alien workers jump through hoops, keeping them hostage, than it does about providing a stable pool of labor.

THE CNRA AGAIN
At present, we have only the language of the CNRA to consider when it comes to the issue of foreign workers in the CNMI. None of the federal agencies tasked with its enforcement have issued final regulations regarding its implementation.

This is significant. If the USCIS were to issue regulations, the CNMI may recognize their pre-emptive authority. The AG's opinion at footnote 2, acknowledges the pre-emptive power of regulations, citing Fidelity Federal Sav. and Loan Ass'n v. de la Cuesta, 485 U.S. 141, 153 (1982). However the footnote also gives some clue that the CNMI would likely argue that any regs that differed significantly from its own interpretation of the CNRA would be challenged as an impermissible construction of the statute.

The central issue between the US and the CNMI seems to focus on the effect of the CNMI status for aliens who remain for the two year period. The CNMI reads the CNRA as impliedly giving it authority to continue to effectuate its alien labor laws as long as there are aliens in the CNMI who were admitted pursuant to those laws.

"The Commonwealth retains authority over certain immigration status issues regarding aliens lawfully in the Commonwealth as of the CNRA's effective date, November 28, 2009. This is because the CNRA provides a two-year transition period, during which Commonwealth immigration status must be respected and, by implication, the Commonwealth maintains jurisdiction to administer, and in a proper case, revoke that status."

The footnote to this claim says that the power extends to "Commonwealth immigration status of aliens legally present on November 28, 2009 ...including compliance with the express provisions set forth in the permits issued by the Commonwealth."

This interpretation takes several huge leaps in logic. It also blurs the distinction between immigration and labor.

The CNRA explicitly pre-empted admissibility and removal of aliens from the CNMI. Thus, there is no longer any "Commonwealth immigration status of aliens."

The Attorney General's opinion states that the CNRA expressly provides that the Commonwealth immigration status may continue during the transition period, but that statement is inaccurate. The CNRA provides protection from removal and authority to work, but it does not "continue" the CNMI alien status. No such status now exists. There can be no CNMI administration of such status.

The CNRA protects those who had such status on the transition effective date from removal for the period of time for which they were granted lawful admission by the CNMI prior to the effective date of the CNRA. If they were authorized to work on the transition effective date, they shall be considered authorized "by the Secretary of Homeland Security" to be employed until "the expiration of the alien's employment authorization under the immigration laws of the Commonwealth" or 11/27/2011, whichever is earlier. Everything is determined at the transition effective date. No where in the CNRA does it say that the CNMI can retroactively change the period of time for which aliens were granted admission or authorized to work.

The CNMI argues that aliens with umbrella permits might not have been able to stay for the full two years if they didn't comply with certain CNMI labor requirements; so the CNMI should continue to be allowed to enforce those requirements.

The CNRA does not say this. It does not suggest this. The clarity of the "transition effective date" as the date upon which rights and privileges are determined contradicts this interpretation. Furthermore, the CNRA expressly gives the US control over the transitional worker program, making it clear that it is the US that is to administer labor and immigration issues during the transition, not the CNMI. It would conflict with the CNRA's transitional worker program administered by the US to allow the CNMI to continue to administer its own alien worker program during the transition. Even more clearly, the CNRA expressly states that the Secretary of Homeland Security is deemed to have authorized employement for those present and authorized by the CNMI on the transition program effective date; how can the CNMI now revoke the Secretary of Homeland Security's authorization to work?

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

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

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

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

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

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

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

All of this is accurate and helpful.

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

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

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

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

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

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

Elliot-Park vs. Manglona, et al.

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

This is a CNMI case.

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

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

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

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

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

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

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


There are 2 parts of the decision I especially like:

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

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

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

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

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


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

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

CNMI Investor Permit

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




USCIS Update Sept. 11, 2009

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

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

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

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

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

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

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

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

Fees & Costs Updated: Family-Based Green Cards

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

GREEN CARD FEES & COSTS
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.

Guardianship of a Minor.

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

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

What is a guardianship for?

How is a guardianship different from an adoption?

How is a guardianship different from a power of attorney?

Who can be a guardian?

How do you get a guardianship?

When does a guardianship end?



What is a guardianship for?

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

• making medical decisions and getting copies of medical records;

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

• accessing certain public benefits, such as public housing.     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.

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.

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

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.

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

Part II

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

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

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

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

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

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

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

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

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

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

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.

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

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.

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.

TWA's and Tax Season

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.