Debt Collection Job Search Orders: A Survey of Jurisdictions

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

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


Here is the questionnaire we used:

Micronesian Legal Services Corporation (MLSC) is conducting a brief and informal survey of LSC offices and their experience, if any, with court orders to seek employment for the enforcement of judgments on consumer debts. This effort is in response to a recent Commonwealth of the Northern Mariana Islands (CNMI, USA) Supreme Court decision legitimating such orders (2009 MP 7). MLSC is seeking your assistance in forwarding this e-mail to local LSC service providers and staff in order to answer the following three questions: 1. Has your office handled cases involving orders to seek employment to satisfy a consumer debt? If so, in what context? For example, is it in a bankruptcy case? 2. If no, why not? For example, is there a constitutional prohibition? Any case law? Or is it because creditors find it cost prohibitive to collect from judgment proof debtors? 3. If yes, please describe. Is it pursuant to statute? How frequently are these orders to seek employment issued? Do they tend to be successful for creditors? Can you forward a copy of a sample order?

Below is a summary of the responses we received.

SUMMARY OF RESPONSESred=responded

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

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

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

• 1 U.S. territory: Guam.

• 3 Micronesian political entities: Palau, Kosrae, Yap.

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

(From Ohio:

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

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

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

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


Conclusions: It appears from this empirical data that in fact, the opinion of Professor Vern Countryman, given in testimony before the House Judiciary Committee in 1975, is indeed true.

Compulsory wage earner plans would be inconsistent with the policy and traditions of a country which has abolished involuntary servitude by the Thirteenth Amendment to its Federal Constitution, has abolished peonage, or debt slavery by federal statute...and has abolished all but a few vestiges of imprisonment for debt by state constitutions and statutes.

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

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


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

Orders to Seek Employment

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

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


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

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

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

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

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

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

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


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

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

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

Opening for Intake in Domestic Cases

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

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



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

Foreign Students in CNMI Schools

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

CNMI Investor Permit

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




USCIS Update Sept. 11, 2009

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

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

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

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

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

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

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

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

MLSC's Back To School Project

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



This year our list of donors includes:

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

These generous contributors made it possible for the Marianas Office to distribute so far:

82 book bags, each containing basic supplies (binder, filler paper, folder, notebook, composition book, pencil case, pens & pencils; and grade-appropriate add-ons like ruler, glue and crayons; or protractor/compass set and graph paper; or white paper and highlighter)

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

and

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

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



Thanks to everyone who made this project a success.

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

Fees & Costs Updated: Family-Based Green Cards

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.