Some subcommittee hearing "highlights"

I had my doubts about whether this subcommittee hearing would be a worthwhile endeavor. I feared that it would just be an opportunity for the Fitial Administration to push an agenda that has previously been overcome by the US Congress with passage of P.L. 110-229; and I feared that the US Congress might weaken and let its guard down, giving in to the Fitial Administration, weakening or completing debilitating the promise of P.L. 110-229.

But after watching the hearing on the video, I actually have more confidence in our Congress now. Sure, the representative from South Carolina was somewhat lost, but Kilili was most assuredly not. And having him in the House, participating in the subcommittee hearing meant that there was less cover for Governor Fitial.

Not that Governor Fitial ever tries very hard to disguise his true motives. He wants to keep a permanent subclass of foreign workers without rights available to labor in the CNMI, forever. He makes no bones about it.

Here are some of the features from the hearing.


HUMAN COSTS

Asked what he was referring to in his testimony when he said that human costs are being overlooked by Homeland Security Governor Fitial answered:

In implementing P.L. 110-229, DHS wants to start everything from scratch. They want to do it by themselves...We have a division of immigration...Because the anticipated implementation date ...was set originally for June 1, 2009, that particular division was not budgeted after June 1. And...up to now, none of those employees in the immigration division are considered for employment by the DHS...

The Governor wants the committee to look into DHS plans to employ some of our CNMI immigration employees.

That's the human cost Governor Fitial is referring to.

NOT the human cost to foreign workers. NOT the human cost to our principles and morals by maintaining a two-tiered system of labor that depends on a labor pool of workers without rights.

The 50 CNMI immigration workers are the only "human costs" on this Administration's radar screen. Not the 16,000 foreign workers here.


Permanent Residency
There was a telling exchange between Kilili and Fitial that highlights the differences between the men. Not just on foreign workers' rights, but also on federalism and the responsibility of being a public servant.

Kilili:

The law requires that several federal agencies need to be talking together... I agree...this thing, if done in the way as being proposed...would be devastating to the point would cripple our economy... At the same time CNMI government needs to cooperate with federal government ...there are issues, foreign investors, H visa caps, visa wiaver program...Govrenor, I sent you a letter...April 21...asking for specific records and numbers...people living in the Northern Marianas, foreign workers, IRs, immediate relatives of FAS, and would appreciate getting a response...

what would you recommend for FAS IRs, increasing numbers, CNMI permanent residents, investors...(seems to say he's asking for that in his letter, and then here in the subcommittee hearing, he wants the following...)

What about workers who have been in the Northern Marianas for 10 years, we need them for 10 years more...?

FITIAL:

(mentions how Kilili and he were both in the third legislature where)...I authored the non-resident workers act. The intent was to bring in foreign workers to develop our economy. I maintain that act is working...Another act by the U.S. Congress...is preventing that act...

With respect to long-term non-resident workers, there's a place for them. We should allow the present administration of President Obama to come together as national policy for immigrants....

KILILI:

Let me get this straight. We need the workers in the Northern Marianas. We want these people to remain there, but just as workers?

FITIAL:

If they come in to work, then they should be allowed to work.

KILILI:

But if they're there 20 years, and we need them for another 20 years, we keep them there just as workers, nothing more, no improved status?

FITIAL:

They're supposed to be there as only temporary guest workers. If they happen to be immediate relative, then they should be given due consideration. (something about process)

KILILI:

...I agree they should go through the process...

FITIAL:

I don't think we should give citizenship to anybody who comes in and works for long term.

Of course not. Giving citizenship would mean they have rights, which would mean they could lobby for higher wages, better working conditions, or move to the mainland. Uppity foreignors. Who do they think they are? Sweat, blood, and tears on our island and they think they should have human dignity?

Governor Fitial's true colors were so apparent. I could hardly believe that everyone continued to be civil to him. He hardly deserved it. The only thing I can give him credit for in his statement is owning it as his own, and not claiming that the people of the CNMI feel this way.

Because we don't. We want rights respected. We want an end to the two-tiered labor system that gives us a permanent underclass of powerless foreign workers. (Well, at least most of us do, I think.)

On Delay of Implementation of P.L. 110-229.
Fitial was very clear that he wants a "full year" after November 28, 2009 for the delay.

KILILI:

What do you think the federal government will do in that full year that they're not capable of doing in the next six months?

FITIAL:

I seriously doubt they can be ready by November 28 to put all the things they plan to install--securing the borders, the six ports they plan to staff, equip, run. That's due in 2010, but I doubt they have the funds. ... They only have $5million and they need $97 million...

I'm sure the federal authorities from DHS dealt with how ready they'll be. For example, Nik Pula said the issue with making reports is difficult because of the lack of data, and he wants a 1 year delay for REPORTING on permanent residency options for foreign workers.

DHS's Mr. Barth testified that they have given priority to being ready. They did NOT ask for more time.

The Administration's position seemed a very lame request. It would be like a Plaintiff asking for a delay because he thought the Defendant wouldn't be ready for trial. Um...that would be up to the Defendant to say... And up to the Federal government/DHS to say, not the Fitial Administration.


On the Visa Waiver issue:
Felix Camacho from Guam was articulate in support of adding Russia and China to the Visa waiver list. Fitial and Kilili both agreed with adding Russia and China to the Visa waiver list. The potential benefit from tourism from these markets is an economic incentive.

P.L. 110-229 puts in a balancing test for the feds to use in setting up the Visa waiver program--economic needs balanced with security concerns.

While there seems little doubt that the economic reason for adding China and Russia to the Visa waiver program is satisfied, the testimony on the security aspect was less compelling.

Felix Camacho just said security issues could be met. Somehow. No plan. Except he did mention that Guam is a remote island,and Chinese could not enter Hawaii or other American desitnations. I'm not sure the real meaning of this arguments. Presumably Chinese security threats in Guam would not be Chinese security threats in the rest of America, and therefore, if Guam is willing to take the risk, then the rest of America should be, too. Never mind the American military in Guam...security threats to them don't count.

And then there seemed to be some huge "fudging" by Governor Fitial.

In his written testimony, Governor Fitial says that the tourists from China and Russia together comprise approximately 10% of the CNMI tourists. Yet in answer to questions, at one point, he said that China alone provides about 25% of our tourists and Russia, "less". Um.. Hope the Congressmen READ the written statements...

And then there was this bit:
MADELEINE BORDALLO:

Has the CNMI ever encountered problems with overstays of Chinese and Russian visitors?

FITIAL:

Frankly, we did experience, nu, problems of overstays, but they were very, very temporary. We managed to find them and deport them back.

Later, M. Bordallo asks questions to the federal witnesses, including DHS' Richard Barth, and referenced some written testimony where Governor Fitial apparently claims that there have been NO Chinese overstays on visitor permits during the past year, thanks to vigorous efforts with Chinese tour agencies and the use of bonding.

Bordallo asked if DHS had any information about overstays from China in the CNMI, whether it was true that there were NO overstays, and Barth said he had no such information. It seems that Bordallo may be skeptical of this claim, herself.

To borrow a word from Governor Fitial--FRANKLY--I don't believe such a claim.

Furthermore, the problem with Chinese "tourists" entering without visas isn't just that they may overstay. I know of at least 2 Chinese women who were TRAFFICKED into the CNMI on tourist visas. And then there are all our drug lords, and other Chinese crime syndicate operators.

Faleomavaega also got the picture clearly; recognizing that Hawaii, which also relies heavily on tourism, does not grant visa waiver to China and Russian tourists, and in fact, Guam and Saipan get Visa waivers from Taiwan and some other countries that Hawaii doesn't.


ALL OUR EGGS
We have put all our eggs in one basket--the basket that depends on cheap foreign labor. We need to re-evaluate. We need to diversify our industries, but more importantly, we need to find our true selves and our own economic productivity possibilities. We need to develop our LOCAL labor force to handle a full range of jobs, from service to management (and not just management). We need to recognize that our economic problems pre-date federalization of our immigration--listen to Nik Pula's testimony. In just the first few sentences he paints the grave situation that has been unfolding for at least the past 10 years.

And stop trying to justify an unfair labor system that depends on corrupt immigration practices with our need for a sustaining economy. We can have BOTH--a fair labor system, fair immigration system, and a healthy economy. We just have to start... and WORK at it, make it happen.

Subcommittee Hearing-GAO testimony & video link

Interested in the testimony presented at the Subcommittee on Insular Affairs, Oceans and Wildlife--that's a subcommittee of the Committee on Natural Resources, House of Representatives? This is the hearing on the impact and progress of federalizing the CNMI's immigration pursuant to P.L. 110-229.

While we wait for Wendy to report at Unheard No More, here's something to read:
GAO testimony about its position: Coordinated Federal Decisions and Additional Data are Needed to Manage Potential Economic Impact of Applying U.S. Immigration Law.

The chart on the first page of the attachment to the testimony is a good graphic summary of P.L. 110-229.

You can also get the full sense of the flow of the hearing by this listing of witnesses: subcommittee panel listing and by watching a video of the hearing, also at this link.

Thanks to Dan MacMeekin.

340. On the Amicus Brief in the Federalization Lawsuit

I've read the amicus brief filed by Bob O'Connor on behalf of the NMI Descent organization in the lawsuit challenging federalization of immigration. You can find a link to it here at Wendy's blog.

This blog post is my initial reaction, brief analysis, and random thoughts about it--in no particular order.

1. It's written very well. Bob covers a lot of ground and hacks through a lot of underbrush and misconceptions about the Covenant and the CNMI-US relationship with clarity and perception. Although I disagree with the bottom-line conclusions, I am in awe of his writing talent and the depth of his thinking on the issues.

2. He takes some basic positions that are clearer, neater, and more cogent than either the CNMI or the US in their briefs: a) the Covenant's guarantee of a right for self-government over internal affairs is mandated by international law and the UN Mandate to the US for the trusteeship; b) the Covenant is not just a public law of the US but a bilateral agreement; c) it doesn't matter whether you call the CNMI a US territory that is different than other territories, or not a territory because of the differences--the real significance of the Covenant is that it alone governs the relationship between the US and the CNMI; d) because self-government over internal affairs is an essential part of the relationship between the CNMI and US, the Covenant and the limits it puts on US power must be construed to promote that essential, fundamental aspect of the Covenant; e) reading the provision to provide a purely institutional guarantee without a substantive provision could result in an empty, meaningless promise of self-government. The example Bob gives on this is the hypothetical if the US Congress were to immediately pass a law after each and every law enacted by the CNMI local government declaring such CNMI local law a nullity--not changing the Covenant, not effecting the existence of the local governing institutions, but clearly gutting the meaning of self-government.

3. These positions were so well-articulated I am persuaded as to each of them. I would have already agreed with a, b, and c before reading his brief and could even have articulated these ideas. d was a natural corollary. e was a stretch for me, but I was persuaded as to the issue of a substantive component to the self-governing provision of the Covenant despite my earlier discussion (argument?) with cactus on this matter, by the clarity of the example. The writing is brilliant and helpful to getting through the thicket of the Covenant and self-government of internal affairs at least this far.

4. Bob also disagrees with both the CNMI and the US on the next step of the analysis. He embraces the balancing test of Richards. He says because there is a substantive element to the guarantee of self-government, it must be weighed in the balance each time the US enacts a law applicable in the CNMI.

He dispatches of the US argument that the balance has already been struck in the covenant itself because at section 503, the Covenant acknowledges that US immigration laws can be later made applicable to the CNMI. Bob's argument is simple--that section 503 only relates to what federal laws do not apply at the start of the CNMI. That they may later apply does not negate the US's need to comply with the balancing test because the source of Congress's power to enact any law is section 105.


While I like that analysis of the Covenant's framework, this is also where I think his analysis begins to falter. The substantive element of self-government only applies to self-government over "internal affairs."

5. Bob glosses over the "internal affairs" issue. He assumes that anything that effects our economy to a great extent is automatically an internal affair. He argues that because we have handled immigration, it is a matter of self-government that we continue to handle immigration. He claims that because the CNMI has already wedded itself to cheap foreign labor, our use of cheap foreign labor is an internal affair.

If you use the same kind of hypothetical analysis on this argument that Bob uses on the institutional vs. substantive aspect of the right of self-government, you can see the flaw of this type of reasoning.

If we decided to build our economy on the production of heroin, it would be an "internal" affair and protected by the right to self-govern.

If we decided to become a banking center for money-launderers, it would be an "internal" affair and protected by the right to self-govern.

If we decided to embark on a new industry of cloning individuals or selling babies or whatever... it would be an "internal" affair and protected by the right to self-govern.

If we decided to make our economy based on selling jihadi movements information or goods or services, or have schools here for training, it would become an "internal" affair and protected by the right to self-govern.

You get the idea.

In a small place like the CNMI, everything can be said to have a big effect here. With Bob's analysis of what is "internal"--everything is internal, nothing is external, unless it doesn't effect the CNMI at all.

6. In Bob's analysis, the fundamental right to self-govern is so strong that few laws would overbalance it. In this case, he fails to credit any of the interests that the US has in passing the CNRA.

He goes so far as to say the US has NO interest in how the CNMI conducts its labor matters, how we structure our economy, how we treat workers here; the CNMI's decision to not extend rights to alien workers is an internal affair because those rights would be exercised here.

This argument ignores the reach of the US Constitution to the CNMI and its protections of equal treatment, due process, and fundamental fairness. The argument ignores the reality that the face we present to the rest of the world as being part of the US means that what we do in the CNMI can tarnish the US' reputation abroad. The argument ignores the case law cited by the US government that the US, not local governments, is "parens patria" and thus the US has an obvious federal interest in treating all people with dignity and fairness.

7. Bob also fails to acknowledge that US citizenship and the path of alien workers to US citizenship is not internal at all, but strictly within the province of the US federal government. He mentions that the CNMI has controlled the reins of access to rights, and claims that US control will flood the CNMI with aliens who gain rights at the expense of the indigenous.

In other words, he argues that as a matter of local self-government, the CNMI has a RIGHT to continue to have a two-tiered economy with a class of workers who are permanently excluded from every avenue to political rights.

8. He makes a few good points in his arguments, even for these offensive positions--for example, that the US has not had a coherent immigration policy.

No doubt that the US has vacillated on how best to have immigrant labor and protect US labor at the same time.

9. But it is disingenuous to suggest that the US has not embraced an immigration policy that promotes eventual citizenship for immigrants. It isn't uniform, it isn't all encompassing, but there are certainly SOME doors open for immigrants to use as a means for gaining citizenship--besides a familial relationship of marriage or parenting an adult US citizen child (which IR door is open here only because of the Covenant provision). In the US, some workers can gain US citizenship; some foreigners can get in through the quotas; etc.

In the CNMI, all doors are closed, except to those IRs who come through the applicable portals of Immigration and Nationality Act.

So the US Congress can express an interest legitimately in wanting an immigration system that does not rely on cheap foreign labor that is permanently excluded from the political process, permanently kept as an underclass.

And Bob's refusal to acknowledge that federal interest is the biggest weakness of his brief.

10. He also argues that the CNMI is not part of the US, arguing that the US's interest in control of its borders does not mean the US has any interest in control of the borders of the CNMI.

This is a very big leap and very significant. Bob doesn't give enough analysis to support his assumption.

It's also a very dangerous argument. Imagine if a foreign power came knocking at our door with its guns ablaze. We could 't defend ourselves. We're counting on the Covenant and the U.S.'s promise to protect and defend us. But what if "we" aren't part of the US. What interest would the US have in spending its money to defend our borders? Would we be claiming "self-government" then? Or would we be demanding that the US live up to its commitments?

Since the US has a covenant commitment to defend us, it obviously has an interest in securing even our border.


All in all, Bob's argument, although very well written and persuasive on some aspects, depends on very flawed assumptions:

1. that "internal affairs" to which local self-government applies includes everything that has an effect here and applies to immigration of aliens into the CNMI, applies to employment of foreign workers in the CNMI, and applies to control of the CNMI's borders.

2. that this is not the US and not within the US's border, so the US has no security interest.

3. that citizenship and rights of foreign workers are a matter of local concern only and not a federal interest.

Federalization-Motions Pending

Governor Fitial's lawsuit challenging the U.S. law that federalizes CNMI's immigration faces a critical point on January 15, 2009 (U.S. time), when Judge Friedman hears two opposing motions.

Governor Fitial has filed a motion for a preliminary injunction. He hopes to get a ruling that, at least temporarily, stops application of the law to the CNMI.

The U.S. defendants have filed a motion to dismiss the case. They hope for a ruling that disposes of the case completely and thus clears the way for application of the law to proceed.


A Brief Recap:

In April 2008, the U.S. Congress passed S. 2739, which President Bush signed into law as P.L. 110-229 in May 2008. It extends U.S. immigration to the CNMI, beginning in June 2009. In September 2008, Governor Fitial filed a lawsuit in federal court in Washington, D.C. against US defendants (Homeland Security and Labor officials), challenging the law.

Fitial's challenge focuses on two essential claims: that the law allegedly violates the CNMI's right to self-government guaranteed by the Covenant; and that the law was unconstitutionally enacted without the CNMI's participation in the legislative process. Fitial claims that the law will wreak havoc on the CNMI economy, devastating it.


For more on the complaint and claims made, see my previous blog posts at:
Fitial vs. federalization: a neutral summary at Day In Court
Fitial vs. federalization: 1st installment at Saipanwriter
Fitial vs. federalization: 2nd installment at Saipanwriter.


Fitial's Motion:

For Fitial to succeed on the preliminary injunction motion, he has to meet the federal law standard:

To obtain a preliminary injunction, the plaintiffs must prove: (1) a likelihood of success on the merits; (2) irreparable harm; (3) that less harm will result to the defendant if the preliminary injunction issues than to the plaintiffs if the preliminary injunction does not issue; and (4) that the public interest, if any, weighs in favor of plaintiffs. See Pappan Enterprises, Inc. v. Hardees's Food Systems, Inc., 143 F.3d 800, 803 (3d Cir. 1998)).

Injunctive relief is considered an extraordinary measure and is not lightly granted. Fitial will need to make a strong showing in order to prevail.

He faces high hurdles on all prongs of the test.

1) likelihood of success on the merits: The chance for success on the merits is frought with difficulties.

On his claim for violation of the Covenant, Fitial faces the contradiction of the Covenant itselt. Fitial uses as the basis for his claim the Covenant's guarantee of a right to the CNMI's "self-government," but the Covenant also expressly permits the U.S. Congress to extend U.S. immigration to the CNMI. Clearly, the framers of the Covenant did not view federal immigration control as defeating local self-government.

On his claim for violation of the U.S. Constitution: The Covenant provides for participation in the U.S. political process through a Resident Representative and through 902 negotiations. It did not provide for direct participation in the Legislative process. The U.N. found that the Covenant was sufficient and that the CNMI, by ratifying it at a plebiscite by an overwhelming majority, effectively engaged in its self-determination. Although there is no doubt that participation in legislative processes is a fundamental aspect of democracy, Fitial will have to show that the U.S. Constitution requires participation to be through an elected Legislator and that the U.S. Constitution prohibits participation of the kind defined in the Covenant. In other words, Fitial will have to show that 200 years of U.S. territorial policy violates the U.S. Constitution.

2) irreparable harm: In order to get a preliminary injunction to stop application of P.L. 110-229, Fitial must show that he faces irreparable harm that would be caused by the law if he doesn't get the injunction. There is no clarity of harm to him. He asserts a right to claim harm to all of the CNMI because he is the Governor. He relies on speculative reports that discount their own reliabiity for predictive assessments. Much of the harm he is concerned about seems tied to other economic factors, as well.

3) balance of hardship tips in favor of movant: Fitial claims certain hardship and economic doom from application of the law, in particular difficulty in attracting foreign investment and a manpower shortage. On the other side of the balance, the law was designed to address other hardships, including labor abuses and the disincentive of local manpower. Delay in implementing the law adds to these hardships. The law also includes some measures to provide for a temporary continuation of the current use of alien labor and a gradual phasing out of reliance on it, cushioning some of the hardship Fitial complains of. Additionally, granting the preliminary injunction will add to the uncertainty here and would likely worsen the climate for foreign investment, not remedy it.

4) public interest: This is the most politically divisive issue because it requires an impartial assessment of the CNMI's policies. Many in the CNMI are sensitive to criticism and refuse to acknowledge any failure or responsibility on our part.

My view of the public interest: The CNMI has built its economy on foregin workers by keeping their wages low and their availability high. The CNMI has also denied foreign workers any entry into permanent status, keeping them in a permanent state of powerlessness. These CNMI policies have made for a private sector with low wages, few workers' rights, and poor working conditions. This third-world economy private sector has not attracted local workers, who prefer government jobs or opportunities in Guam, Hawaii and the mainland. While the CNMI has had some short-term economic benefit from its policies, it has done so at a high moral cost. It also ruined its international image, creating a vision of the CNMI as a place of sweatshops, sex trade, and human trafficking. Fitial argues that a return to this style of economy is in the public interest. I disagree.

I think it unlikely that Fitial will prevail on his motion for preliminary injunction. However, loss on the preliminary injunction would not necessarily be an end to the case.


The Federal Motion:

The U.S. Defendants seek to dismiss the case on four grounds: 1) jurisdiction: case or controversy. The injuries alleged are not concrete and particularized, but instead speculative and hypothetical; 2) jurisdiction: The case is not ripe for review; 3) jurisdiction: Fitial lacks standing; and 4) failure to state a claim: The law is expressly authorized by the Covenant.

1) Case or controversy--the CNMI's standing: In order to bring a case to court, a party must have suffered an "injury in fact." There must be a legally cognizable interest that is violated. And the violation of that interest must be the cause of the alleged injury.

The federal defendants complain that the CNMI's case is based on speculation, not fact; that the injury to the economy stems as much or more from other considerations like the CNMI's own bad policies and world economic forces and personal investor decisions than from the prospect of US immigration; that the CNMI has no legally cognizable interest in handling its own immigration; and that granting relief as requested in the complaint is no guarantee of a remedy for the injuries alleged.

This last point is especially clear when applied to the second cause of action in Fitial's lawsuit: The remedy of delaying application of P.L. 110-229 would have NO effect whatever on the claimed constitutional violation--the CNMI's lack of participation in the legislative process. In fact, P.L. 110-229 is the law that amplifies the CNMI's role by giving us a delegate to Congress.

It's also clear that the remedy sought will not address the declining economy that is due to the pull-out of the garment industry and the migration of local workers to the mainland.

2) Ripeness: This is a jurisprudence consideration that prevents courts from premature adjudication, from deciding abstract disagreements, or weighing in on differences on policy. The CNMI has the ability to work with the federal agencies to craft the regulations that implement the law, and thereby avoid some or all of the fears they express in the lawsuit. Where the injury alleged may never occur, the case is not deemed ripe for review.

3) Fitial's standing: This is different than the CNMI's standing addressed in #1 above. Fitial brings the action as governor. He claims no other basis than his concern as the chief executive of the CNMI. The federal defendants call this a "parens patriae" case, meaning the Governor is acting as a father-figure raising the concerns of his constituents. However, the federal defendants say that the U.S. government acts as the parens patriae on matters about the relationship of citizens to the federal government, and the state government does not have the right to do so.

Fitial must have a "procedural" interest in order to bring the action, a statutory or legal duty apart from his general role as Governor, that gives him a concrete and particularized injury in his own right. Fitial apparently has none, and in fact, as pointed out in our local newspapers by Representative Tina Sablan, the duty to represent the CNMI in legal matters rests with the Attorney General.

I suspect that the CNMI Acting AG will step in, and thereby address this procedural defect.

4) Failure to state a claim: This is perhaps the most basic aspect of the federal government's motion. The Covenant authorizes the U.S. Legislature to extend federal immigration to the CNMI. The U.S. Legislature has done so.

The federal defendants argue that the self-government protections of the Covenant relate to "institutional" guarantees, not substantive. That the protection is for us to elect our own local leaders and have our own local government free from federal intrusion, not to have control over certain spheres of influence. They cite a CNMI-9th Circuit case that expressly interpreted the Covenant in this manner.

The federal defendants also point out the obvious--that federal immigration laws are not labor laws. But even if they were, the Covenant permits application of federal labor laws, too.



If the federal Court grants the U.S. Defendants' motion to dismiss, the case will be over at the trial level. It is possible that Fitial would appeal, but it seems unlikely he would get the immediate relief he so desperately wants.



Conclusion:
My personal analysis leads me to think that the U.S. Defendants must prevail on both motions. However, it's never safe to predict a judge's conclusions. From a quick review of Judge Friedman's more prominent decisions, it appears that he is conscientious and dedicated to the law. We can only wait and see how he views these issues.

271. Latest 9th Circuit Case

The latest 9th Circuit case, Chicanos Por La Causa, Inc. vs. Napolitano is very interesting in light of our CNMI Governor's lawsuit against the U.S.

In the CPLC case, the Arizona Legislature passed a licensing law that revokes licenses of businesses that hire illegal aliens. The law requires that Arizona employers verify employment on-line using the federal website system.

The 9th Circuit said that federal immigration law pre-empts state law as to sanctions for recruiting and hiring illegal aliens, pursuant to 8 U.S.C. sec. 1324a(h)(2), except that states retain rights over licensing and similar matters.

In this case, the 9th Circuit held that the state law that requires revoking the license of a business for employing illegal aliens is within the state's rights, and not pre-empted. It held that the state could require employers, for its state licensing, to use the federal employee-status verification system. It cautioned that its holding was limited to the facial challenge, and indicated that when the law is actually implemented, it could be subject to challenges as applied.

I find this interesting because one of the claims raised in the lawsuit by Governor Fitial is that P.L. 110-229 pre-empts our local "labor" laws. Federal immigration laws directly impose limits on recruitment and hiring of foreign workers. Clearly, under federal immigration law, federal immigration measures are permitted to pre-empt even states' laws (in some instances and to some degree), except for local concerns like business licensing.

The Fitial administration, in its complaint, likened States' rights under the U.S. Constitution (Articles 1 and 10) to our local self-government over internal affairs under the Covenant, but that doesn't seem to bolster the claim that application of federal immigration laws here violates those self-government rights.

This case is a 9th circuit decision; and the Administration's suit against federalization is filed in the Washington, D.C. district court, part of the 2nd Circuit, I think. So this case isn't binding precedent, but it's still informative of how the federal courts view the relationship of U.S. immigration law to state's rights and laws.

In my opinion, it doesn't seem to lend any support to the Fitial lawsuit challenging federalization of our immigration here.

269. CNMI vs. U.S. Case 1:08-cv-01572, 2nd installment

Today's newspaper headlines from the Tribune and the Variety suggests that the CNMI may suffer negatively in its relationship with the U.S. because of filing the lawsuit. The Governor's public relations aide, Charles Reyes, tries to spin this concern as "discrimination" by the U.S. Nice try, but there's no suggestion anywhere that the U.S. plans to retaliate against the CNMI simply because it filed suit.

The Variety clearly exposes this concern as specifically related to drafting the regulations to implement the law. How can the CNMI administration cooperate in designing these regulations when it is challenging the underlying legislation? There is no doubt that the lawsuit will affect the CNMI-U.S. relationship as it concerns implementing P.L. 110-229.


More thoughts on the lawsuit:

The complaint is premised on several assumptions, mentioned in my previous post. It is also based on intentional disregard of certain facts and legal points.

1. No mention of U.S. sovereignty. The complaint speaks of the "terms of affiliation" between the CNMI and the U.S. as expressed in the Covenant.(Complaint paragraph 1.) The complaint repeatedly references the Covenant provision for the CNMI's right to self-government of local matters found in Section 102, and mentions this is the "core" of the Agreement. There is no corresponding concession or mention that the Covenant, at Section 101-perhaps even more fundamentally, clearly recognizes that the CNMI is not only in political union with the U.S., but also is "under the sovereignty of the United States of America."

2. No mention of the massive support for federalization from the foreign worker community. The complaint speaks of the impact of federalization on the foreign workers in the CNMI, characterizes those effects as solely negative, and paints itself as the champion of distressed foreign workers here. No where is there any mention of the massive support for federalization among the foreign workers here.

More ironically, some of the negative aspects of federalization that the CNMI complains of are the result of the legislation having been stripped of benefits for the alien workers at the insistence of the CNMI administration! Specifically, the complaint laments the effect on long-term workers, but argued to Congress against grandfathering these workers in with permanent residence.

3. Guam is hardly mentioned. In trying to portray the CNMI as isolated and remote, the complaint mentions the mainland and Hawaii, but ignores how close we are to Guam. (Complaint paragraphs 1, 14) It offers no explanation of why Guam can have a decent economy with U.S. control of immigration and the CNMI can't.


Besides omissions, there are some distortions presented in the Complaint. One could argue that the entire complaint-- where it calls our foreign labor workforce "stable" and predicts the doom & gloom for the CNMI future as if it were a certainty--is itself a distortion! But here are some other specific ones:

4. The Complaint makes a claim that the U.S. has violated Covenant section 105, but glosses over Sec. 105's opening text. That section starts as follows:

The United States may enact legislation in accordance with its constitutional processes which will be applicable to the Northern Mariana Islands, but if such legislation cannot also be made applicable to the several States the Northern Mariana Islands must be specifically named therein...

The only limitation on this broad power is the right of local self-government. And so the complaint tries to force the CNMI's desire for unlimited access to foreign workers into this exception.

Section 105, and the rest of the Covenant, grant as broad legislative power to the U.S. Congress with regard to the CNMI as it has with the rest of the States and Territories. Nothing in the Covenant suggests that the limitation of "local self-government" means something different here than it does in the rest of the U.S.

The Covenant expressly extended federal laws that were in existence at the time that applied to Guam to the CNMI (as they applied to the States) (Covenant sec. 502), with very limited exceptions. The Covenant expressly permits the U.S. to legislate for U.S. control of immigration (Covenant sec. 503(a)), and to extend minimum wage laws here (Covenant sec. 503 (c)).


5. Our lack of voting rights is claimed as a violation of the U.S. Constitution. The claim is that the political process by which P.L. 110-229 was enacted was defective and violated the U.S. Constitution, Article.

This is by far the most interesting claim. It has emotional appeal. It resonates with our history lessons--no taxation without representation. And I imagine that every U.S. citizen here would support the push to give us voting rights in federal elections (especially the Presidential election).

Note this claim is not saying that the political processes of the Covenant (Section 902 talks) failed to occur or were not available. It is challenging the basic fact that the CNMI had no voting representative in the U.S. Congress.

The problems, as I see it, with this argument are two-fold: 1) This argument would mean that all U.S. laws enacted for the CNMI are defective (including budget appropriations and other help we are relying on). And 2) the Covenant itself expressly designed our relationship with the U.S. to exclude our representation in Congress! It gave us only a "Resident Representative." And it gave us a mechanism for negotiation and dialogue with the federal government through our CNMI government. (Covenant sec. 902.)

Attacking the political process by which P.L. 110-229 was enacted and applied to the CNMI is an attack on the basic, fundamental cornerstone of the COVENANT. If this were to succeed, it would likely wipe out the whole Covenant, or at least cripple it so severely we'd be back at the beginning of our negotiation process.

I doubt that any court in the U.S. would buy this argument.
It is especially ironic that this argument is raised in the very legislation that finally gives us a voice (however faint)-a voting representative/delegate to Congress.

6. Although the complaint says that it is aimed at the defective political process by which P.L. 110-229 was enacted, most of the verbiage is aimed at showing how wrong Congress was in its decision to extend immigration here. But in one of the court cases cited in the complaint, the court has this to say:

...nothing...authorizes courts to second-guess the substantive basis for congressional legislation.

This is the heart of the matter. Our administration has leveled an attack on legislation it doesn't like, arguing how very wrong it is, how very bad it will be for the CNMI, how the U.S. Congress had miscalculated. But Courts simply don't get to change or stop legislation because they think Congressmen were uninformed.

(Too bad--we could challenge so much of what our CNMI Legislature does if this were the case!)

7. My favorite ridiculous claim in the complaint is that no other community in the U.S. is subject to the same level of federal restriction.

The very essence of P.L. 110-229 is to apply U.S. immigration law to the CNMI. The basics of this law apply to all of the U.S. The restrictions imposed here will, in fact, be more sensitive to our community and special needs, giving us benefits other U.S. communities do not have. These include the continuance of CNMI-Only permits for some foreign workers, so that we are allowed to have contract workers in job categories who wouldn't be allowed to work those same jobs in the U.S.


Summarizing: The CNMI's economy does not operate in a vacuum. It is tied to the U.S. economy, as well as being influenced by world events. When we suffer economically, we look to the U.S. for help, so even our "local" economic conditions have a greater effect beyond our borders.

Immigration and foreign labor are not "local" matters.

We've agreed to the CNMI in political union and "under the sovereignty" of the U.S. and have expressly acknowledged the power of the U.S. Congress to pass legislation that applies to the CNMI.

Nothing in P.L. 110-229, or in the way it was enacted, intrudes on our very limited right of "local self-government" over internal affairs.




A Last Comparison:

An Excerpt from "Slavery in the Light of Social Ethics," by Chancelor Harper, printed in Cotton is King, and Pro-Slavry Arguments: Comprising the Writings of Hammond, Harper, Christy, Stringfellow, Hodge, Bledsoe, and Cartwright, on This Important Subject, E.N. Elliott, ed. (Augusta, GA: Pritchard, Abbott & Loomis, 1860):

... But let us suppose it [emancipation] to be brought about in any manner, and then inquire what would be the effects.

The first and most obvious effect, would be to put an end to the cultivation of our great Southern staple. And this would be equally the result, if we suppose the emancipated negroes to be in no way distinguished from the free labourers of other countries...Even if it were possible to procure laborers at all, what planter would venture to carry on his operations under such circumstances? I need hardly say that these staples cannot be produced to any extent where the proprietor of the soil cultivates it with his own hands. He can do little more than produce the necessary food for himself and his family.

And what would be the effect of putting an end to the cultivation of these staples, and thus annihilating, at a blow, two-thirds or three-fourths of our foreign commerce? Can any sane mind contemplate such a result without terror? ...

COMPLAINT paragraphs 7 and 71 (portions):
"Finally, if left unchecked, P.L. 110-229's forced removal of two-thirds of CNMI's existing employment base and its projected devastation of the local economy by 50% or more would violate constitutional rights of due process and equal protection of CNMI's people, employers, and property owners.

P.L. 110-229 will strike a devastating, and perhaps fatal, blow upon the Commonwealth's economy by prohibiting the CNMI from ensuring an adequate supply of labor for local residents and businesses."

An end to slavery...Thanks to P.L. 110-229.

268. CNMI vs. U.S. 1:08-cv-01572. Ruminations--installment 1.

Thanks to Wendy's link directly to the Complaint for Declaratory and Injunctive Relief, I've been reading up on the CNMI's lawsuit against the U.S. The case seeks to stop implementation of P.L. 110-229 in the CNMI.

I've put up a brief, fairly neutral assessment of the lawsuit at the MLSC's DAY IN COURT blog. The analysis here at my personal blog,Saipan Writer, is more opinionated!

The case is assigned to Judge Paul L. Friedman, who, interestingly enough, has had a small part in the Abramoff litigation.

The complaint is signed by David W. DeBruin of Jenner & Block, with William M. Hohengarten and Sharmila Sohoni, also of Jenner & Block listed as additional counsel.
Howard P. Willens is listed as "Special Legal Counsel to the Governor."

I've been trying to understand both the factual and legal claims, as well as the "vision" that the Fitial Administration has for economic recovery of the CNMI, which is ostensibly the motivation behind this lawsuit.





SOME BASIC ASSUMPTIONS
There are some basic assumptions that act as the underpinnings for the factual and legal claims. These are not typically stated overtly, but are embedded in the rhetoric of the complaint. In my opinion, none of these assumptions are true.

1. The CNMI cannot be self-sufficient. It must exploit the availability of cheap, foreign workers in order to maintain its economy. In fact, in the CNMI "labor" means foreign labor.

The complaint does not identify new and viable future economic development for the CNMI. It claims that federalization will harm any chance at recovery, but the complaint simply looks to the past to describe those economic prospects.

The complaint mentions both the tourism sector and the garment industry. It first complains at paragraph 32 of economic limitations imposed by the Trust Territory government; and then touts the CNMI past under its new control as a model of good economic management and development. At paragraph 41, speaking of the past, the complaint says "The Commonwealth also began systematic efforts to encourage foreign investment in the visitor industry and to bring tourists to the islands in substantial numbers...These efforts were successful." It then describes some of the setbacks from the Asian economic crisis, the SARS outbreak, the terrorist attack of 9/11, and even the pull-out of the garment industry after rule changes by the WTO.

Then it makes this startling statement:

"The Commonwealth's economy can be resuscitated only through a renewed influx of foreign investment and the presence of a stable workforce able to support construction and new economic development."

When it speaks of labor, it means only foreign labor. It complains at paragraph 70 that the federalization of immigration will "pre-empt" CNMI labor laws. Inherent in this statement is the assumption that we have no labor laws that apply to the local work force, that all our labor laws relate to foreign workers, because the federalization of immigration does not change anything as to local workers.

According to the administration, we must turn back the hands of time. We must be allowed to do again what we did before. This is the program Governor Fitial suggests as the road to economic recovery.

This approach ignores that the past policies resulted in only short-term benefits that made some (like the Governor) rich, but did not provide sustained economic growth for the CNMI, and led to our current predicament.


2. The CNMI has a right to depend on foreign workers for its economy.

The complaint makes the following unequivocal statement: "The Commonwealth cannot grow its workforce by attracting American labor." Implicit throughout the complaint is the insistent whine that the CNMI MUST HAVE foreign workers in order to have an economy. It is reminiscent of the argument of white plantation owners in the South who insisted they needed slavery in order to have an agricultural economy, and thus argued that slavery should be allowed.

Could we have a prosperous economy from our own sweat? Hidden in the text of the complaint is the information that the local population/U.S. citizen base has doubled since the Covenant went into effect. One obvious option that the Commonwealth could use to grow its workforce would be encouraging a business climate that keeps its local workers happy so they don't migrate to the U.S.

Furthermore, we live in a mobile world; if the CNMI truly becomes part of the American economic community, then there is no reason to believe that American labor will not be attracted to employment opportunities.

As it is now, though, the underlying assumption of the complaint shows the current administration wants to keep the third-world status of our economy, keep us depending on cheap foreign labor, easily exploited and without civil rights.

In addition to the subtle, unstated bigotry in the rhetoric of the CNMI's right to have cheap foreign labor to ensure its own wealth, there is an express element of racism in the complaint. At paragraph 48, it reads: "American workers also may be deterred from moving to the Commonwealth by the Commonwealth's unique culture, its ethnic and demographic makeup, and the higher cost of living. To an ordinary American worker, moving to the Commonwealth will feel more like moving to a foreign country than moving from one part of the mainland to another."

First of all, it suggests that "American workers" are not Chamorros and Carolinians. U.S. citizenship makes one an American, but the repeated phrasing in the complaint about American workers seems to refer only to U.S. citizens coming from the mainland U.S. It ignores the American status of those living here. It ignores the great diversity that exists among Americans from Guam, Hawaii, Alaska and the contiguous 48 states.


3. The use of foreign workers in the CNMI is not an immigration matter but a labor matter; the entry and departure of foreign workers into the CNMI and use of them for labor is a "local" matter only.

There is a repeated refrain in the complaint that our Covenant guarantees our right to local self government over internal matters, and that regulating our use of foreign workers falls within the ambit of this protection. At paragraph 61, the complaint alleges that, by regulating the admission of foreign workers to the CNMI for employment, the law "preempts local labor laws."

"No other community in the United States is subject to such massive federal intrusion into matters of local concern."

It seems obviously wrong to say that contracting for services of citizens of foreign countries is a "local" activity. It definitely involves international communication and commerce. It involves working with foreign governments. It effects the American image in foreign ports.

And it seems obviously wrong to say that no other community in the U.S. is subject to such "federal intrusion" when in fact EVERY community in the U.S. is subject to the same U.S. immigration control!


4. The CNMI has already addressed abuses of foreign workers that caused the U.S. Congress' concern with immigration, and there are no longer any problems.

The complaint says at Paragraph 2 that "To address issues that had existed in the past, local CNMI labor laws currently provide extensive protections for these foreign workers while they are employed in the Commonwealth."

There are two parts to this assumption. One that the CNMI has better protections for foreign workers in place now and so Congress made a mistake in its reasons for federalizing immigration now.

And two, that our wonderful our new law provides primary preference in employment for citizens and permanent residents, and this will address the issue of building a better local base for the economy. (Paragraph 54.)

Neither of these tally with reality.

The CNMI has always had some form of protection on the books for non-resident workers. The CNMI law has always had a preference for local hires. It fails to mention that there is nothing to suggest that the CNMI will be any better at enforcing the protections or preference now than before. And it ignores the real problem--that the assumption that we MUST have foreign workers to have an economy will always undermine development of our own talent pool.

5. The U.S. taking away the CNMI's cheap foreign labor market fundamentally violates the Covenant relationship between the CNMI and the U.S.

We are addicted to cheap foreign labor. The U.S. federal government is taking away our drug. This changes our relationship to the U.S. It requires us to grow up and act responsibly--on our own, with an economy built on our community resources.

We want our drug.

Did the Covenant build in a right for the CNMI to be addicted to cheap foreign labor? Are we entitled to have slaves?

The complaint calls the U.S.'s federalization of immigration "paternalistic" and claims that there was no call for the U.S. to intervene. But shortly after that it alleges that the U.S. must help the CNMI with its economy under the terms of the Covenant.

The Covenant says that the U.S. will help the CNMI join the American economy:

"the Government of the United States will assist the Government of the Northern Mariana Islands in its efforts to achieve a progressively higher standard of living for its people as part of the American economic community and to develop the economic resources needed to meet the financial responsibilities of local self-government."

The complaint alleges that this section 701 of the Covenant means that we are entitled to our drug-cheap foreign labor, and the U.S. has to help us get it and keep access to it.

But I read this very differently. To me this says the CNMI will become part of the U.S. American economic community--and that means following the same kinds of rules and recognizing the same kinds of rights that workers must have.

To me, the development of economic resources means OUR OWN economic resources, not exploitation of the teeming hordes of impoverished Asia. And local self-government means governing ourselves about matters that are ONLY local concern--not involving interstate or global commerce, or other matters of larger scope.

In the next installment, I'll ruminate on some other aspects of the complaint--obvious omissions, more contradictions, and the legal claims.

233. CNMI Emergency Regs on ISLA

I attended the CNMI Bar Association luncheon on 5/13, 2008 and listened to a presentation by Deanne Siemer about the recently issued emergency regs. I also read the regs which Deanne provided in advance.

There are some interesting, and troubling, aspects to what's going on just now as our current administration responds to ISLA, P.L. 110-229 (chapter 7) [ f/k/a S. 2739].

1. Deanne's most outrageous statement was probably her boast that she's urging vociferously that Governor Fitial fight P.L. 110-229 with litigation in court. She thinks the law is terrible because from her viewpoint it is intended to shut down the CNMI's economy and prevent our recovery and any possible move in that direction.

Her unstated view of our economic recovery is essentially-we will get rich off the backs of poor foreign workers. We need cheap foreign labor for any economic success. We are incapable of finding a niche in any economic market if we can't take advantage of cheap, non-citizen, workers whom we can abuse and misuse.


Photo by Angelo Villagomez

Although she reiterated several times how horrible she thought the new federal immigration law is and how she is urging Governor Fitial to litigate (and mentioned that she herself is a litigator), I didn't hear her state any legal grounds upon which the law would be challenged.

2. Deanne went through the emergency regs. The government has come up with a number (22,417) that represents an assessment of how many aliens are in the CNMI who entered or renewed under a permit that would entitle them to work. Not all of these entered as "contract workers." For example, an IR spouse would be entitled to work and would be counted in this number. Trafficking victims, regardless of how they entered, who have been given special P permits are included. Missionaries are included, etc.

This number (22,417) is the cap that is now in place under ISLA, according to Deanne. (ISLA contains a provision that says the CNMI cannot increase the number of alien workers once the law becomes law, which was 5/8/2008).

3. In order to comply with the cap over the next year, the regs use a "body for body swap" method. One alien out who is counted in the number means one can come in. This will keep the CNMI from going over the cap.

4. The devil is in the details. When I read these emergency regs before the CLE presentation, they seemed almost innocuous, and in some ways, good. When Deanne explained how they would be interpreted, I began to see through the veil of nice words.

A company may claim the "slot" for the body-for-body-swap if they repatriate an alien worker. BUT THE WORKER DOES NOT HAVE TO BE THEIR WORKER! The company has 90 days to claim the slot.

If I understood correctly, a company can repatriate aliens facing deportation proceedings and claim the slot. Wendy Doromal noted in a recent blog post that the newest Labor policies call for deportation of workers with unsatisfied judgments (absent a court order providing for their staying and getting a transfer) and she asked on her blog, Unheard No More, where the money would come from to deport workers--well, here's where it will come from. Companies that want to bring in new workers can get a slot for every worker they repatriate.

I fear this will encourage companies to "help" aliens return against their wills and then claim the slot.


5. It wasn't quite clear to me whether the company who repatriates an alien owed money by a former employer would have to pay for the judgment, but at one point Deanne did seem to say that employers might be able to buy the voluntary departure of aliens owed money by paying the money owed. According to her, there are many aliens owed small amounts of money (she mentioned $200 or $300).

It would be much more helpful if companies were required to pay the judgment through court (or even DOL) and there is verified payment--not just some signature by the foreign worker (who may be pressured or tricked into signing a complete satisfaction in order to get some/any money).

6. There was some talk about "voluntary" departures. This was in the context of aliens overstaying, who might be given a one-time opportunity to voluntary depart without any stigma or deportation effect, meaning they could come back with a job, if possible. Companies who want to secure the slot of such an alien would pay for the repatriation.

Deanne said that under U.S. law there is a complete ban on return if you are deported. And she talked glowingly of the DOL website with job listings that aliens in their home countries could peruse in order to secure a means of returning. I would need to check further on all of this, and for now remain skeptical.

7. She mentioned that companies could get slots in other ways, through a point system for unclaimed slots, a lottery, for "anticipated projects" and, in some cases, just because the Labor Department gives them slots within DOL's discretion. To me, this seemed to indicate that DOL would continue to operate in an arbitrary and capricious manner to the benefit of some and detriment of others.

8. Temporary absences by foreign workers (for medical leave or vacation) will not be counted as a departure/repatriation. This seemed sane and reasonable.

9. Deanne continued to praise CNMI PL 15-108 as a wonderful law designed with the possible loss of immigration in mind. I've blogged a little on PL 15-108 and believe it to be fundamentally flawed-attempting to preserve a two-tiered system where locals are "trained" for management with higher paying jobs while aliens do the real work and get paid a pittance. What I found interesting was how NOW Deanne is saying this law was supposed to be in anticipation of federalization of immigration, not in lieu of it, when originally it was touted as a reason why the U.S. should back off of its attempt to apply U.S. law to the CNMI.

10. Deanne said there are about 1,900 illegal aliens in the CNMI. She foretold a complete quagmire in the transition, believing the U.S. will be incapable of handling all of the immigration caseload.

I didn't believe her. Right now, one judge in Superior Court handles the deportation calendar. I don't see why Judge Munson in federal court would be less capable. Nothing about the structure of the AG's office and DOL make me think they have a lock on doing it right and the U.S. would automatically screw up.

11. The periodic exit requirement of P.L. 15-108 will not be enforced, according to Deanne. It wasn't clear to me if that was throughout the period leading up to the transition, or if it only applied for only the first six months, subject to being enforced especially if the start date of the transition period is delayed.

12. Deanne said the DOL is honoring "two year" contracts, so that alien workers can, if their employers agree, renew now or at their regular renewal date for a new 2 year period of work.


I need to think about all of this more and get a better handle on the details. I don't think the emergency regs are completely bad. I think they at least nod at following the letter of P.L. 110-229, but I don't think they're quite in keeping with the spirit of that law.

Guess we'll see how things play out.

230. S. 2739 / P.L. 110-229 --what now?

The good news--President Bush signed S. 2739 into law. Read the details, press releases, and celebrate at Wendy's blog.

I'm concerned about

1) spouses who are being divorced.

The CNMI immigration did 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 don't get green cards because the U.S. citizen spouse intentionally wants to use the lack of permanent status as a means for control over their alien spouse.

But sometimes, they just can't afford the cost of the green card processing.

So now, in the CNMI, divorce means you lose your local "immediate relative" status. Just today I looked at a woman's application for help in a divorce case where she has teen children, has been living in the CNMI and been married to a U.S. citizen for more than 15 years, and now has been served with divorce papers after separating from her spouse several months ago.

In the U.S., she would have gotten a green card soon after the marriage, and would now already be a U.S. citizen. Here, once the divorce is finalized, she'll lose her "local IR" status and be deportable. She'll be "illegal" when U.S. immigration kicks in next June 1, 2009, unless she manages to get hired on as a contract worker.

This seems so wrong. Her kids are U.S. citizens, but still too young to petition her in. This is not a one-person issue--there are many spouses in this situation, spouses without green cards, spouses whose marriages are of long duration, but aren't surviving the stresses of life now.


2) Widows.

As noted above, spouses do not all have green cards. In the U.S., there's a requirement for U.S. citizen spouses to get their alien spouses green cards if they live in the U.S. So there's a corresponding law that upon divorce of the U.S. citizen spouse, the alien spouse has no status, except or unless s/he has a green card. (This prevents alien spouses of U.S. citizens living abroad from automatically claiming a right to relocate and live in the U.S.) But alien spouses living in the U.S., upon widowhood, generally continue to have a right to their green card status.

In the CNMI, alien spouses who have faced this issue upon the death of their U.S. citizen spouse 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 will have uncertain/no protection under U.S. law. And no clear category that they'll fit into under the new U.S. immigration system.

3) "CNMI Permanent Residents."

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, but will have uncertain/no protection under U.S. law, and no clear category that they'll fit into under the new immigration system.

4) U.S. citizen children who are minors with alien parents.

I feel for these kids. They're U.S. citizens. They have a right to be here in the CNMI. But their parents don't. 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. Maybe they'll come back when they're old enough or have the money, but they'll not forget how their parents were made to suffer without status.

5) Long-time workers facing unemployment.

As noted above, 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.

Edit--adding #6, thanks to Lil Hammerhead:
6. Alien spouses of citizens from the Freely Associated States-FSM, Palau, RepMar. 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 (which I doubt will be as kind as Judge Munson's interpretation of due process). 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.

What I think we need:

1) an immediate halt to new immigration of incoming aliens except for tourists; and an immediate halt to deportation except for tourists overstaying their entries that start today. Stripping the CNMI of these powers during the interim before the effective date of the U.S. immigration would prevent further harm.

2) an amnesty provision that grants "legal" status for up to 3 years (1 year of pre-U.S. immigration and then 2 years after transition start date)to all aliens here, whether workers, spouses, widows, permanent residents, students, or those just hiding out, coupled with a registration requirement. Any alien not registered when U.S. immigration takes control could automatically be deported.

3) a permanent residency track for those who have been here the longest. This could be done either by deciding on a specific number of years--e.g. been here 5 years (7 years; 10 years...) or it could be done by granting a specific number of permanent residency slots ( e.g. 1,000; 3,000; 5,000, 7,000...), starting with the aliens who have been here the longest and moving forward until the number of slots has been filled.

This would give us an "alien" worker population for industry and commerce; it would provide some certainty as we head into the transition; it would defeat the CNMI's current efforts to do a little last "kicking while they're down" of aliens here; and it would be nice to people who've not always been treated with the greatest respect.

jmho.