Showing posts with label immigration. Show all posts
Showing posts with label immigration. Show all posts
Thursday, September 15, 2011
Parole In Place Workshops
See this article: http://www.mvariety.com/community-bulletin/parole-in-place-workshops.php
Tuesday, March 16, 2010
Power Struggle -umbrella permits
I've written another lengthy blog post with legal analysis, this time about the power struggle over umbrella permits, at the Day In Court blog.
I see more fruitless resistance by the Fitial Administration, to the harm of our community, including alien workers, employers, and the rest of us. We're all suffering from the uncertainty. We're all suffering from the wasted precious resources of our local government. We're all suffering from the focus on this problem when so many other issues need our local government's attention.
I see more fruitless resistance by the Fitial Administration, to the harm of our community, including alien workers, employers, and the rest of us. We're all suffering from the uncertainty. We're all suffering from the wasted precious resources of our local government. We're all suffering from the focus on this problem when so many other issues need our local government's attention.
Saturday, November 28, 2009
November 28-Day 1 of U.S. Immigration
It's almost the end of the day. I've been out and about--to the post office, the store, Garapan, now Java Joe's.
Nothing seems any different.
The world did not end with the federalization of the CNMI's immigration. The world did not magically improve either.
We'll have to wait and see how things develop over the next few years. This will be a slow process.
Nothing seems any different.
The world did not end with the federalization of the CNMI's immigration. The world did not magically improve either.
We'll have to wait and see how things develop over the next few years. This will be a slow process.
Wednesday, March 11, 2009
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.
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.
Tuesday, March 10, 2009
338. Federal Officials
I've met a lot of federal officials over the past two days.
Marine Monument
Some top officials from Fish & Wildlife are here about the Marine Monument--Barbara Maxfield, Barry Stieglitz, Donald Palawski; and also from NOAA--William Robinson. They are meeting with local government officials and conducting their first field review about the national marine monument, designated in January 2009 by then-President Bush.
They have the words of the proclamation and of the designation of DFW as lead agency, but apparently a lot of the groundwork, fieldwork, and framework from the process leading up to the designation has been lost by the change in Presidential administrations.
Here's what I understood would be two of the first agenda items for the Monument management:
1) fishing regulations, which are on the agenda for the next Wespac meeting scheduled for March 17-19, 23-25, 2009 in PagoPago, American Samoa; and
2) NEPA--environmental impact statements. There is a lot of groundwork that goes into one of these; and apparently DFW is looking to get started on the baseline fundamentals. (Lauri, Angelo--please correct me if I got this wrong...)
There is no fixed timeline, but some targeted dates:
4/11/2009--advisory council in place. This date is based on the proclamation language "within 3 months of the date of this proclamation." It is unlikely that this date will be met since the appointment is by the Secretaries of Commerce and Interior, and right now we don't yet have a Secretary of Commerce, although President Obama has nominated Gary Locke.
Governor Fitial's selections may not qualify, either, as the proclamation requires that the advisors be members of the local government.
8/2010--I think this was the target date for draft regulations, with the hope that they would be in place by 12/2010.
2011--Monument included in 2011 budget. It seems to be already too late to include the monument in the 2010 budget. It may be too late for the 2011 budget...
2013--full operation of Monument.
USCIS Application Support Center
Today marked the official opening of the US Citizenship and Immigration Service's Application Support Center in Saipan. This is part of the operation to federalize immigration here.
Present for the ceremony were Michael Aytes--Acting Deputy Director of USCIS, Carolyn Muzyka--Regional Director of the Western Region of USCIS, David Gulick--District Director headquartered in Honolulu, HI, and Walter Haith--Field Office Director from Guam. Other dignitaries came as well, including TSA official (Michael Connolly?), federal Court Judge Munson, DOI representative Jeff Schorr, and CNMI dignitaries including Governor Benigno Fitial, Mayor Juan B. Tudela, and Immigration Chief Mel Grey.
The ASC office is open and has the capacity to do "biometrics"--meaning fingerprinting, photographing, and getting electronic signatures. The staff gave a quick demonstration of how they do these. They have already been doing these things since 3/2/2009, but there is a small snafu for those applying for green cards. Right now USCIS still reads the various laws as requiring "admission upon inspection" and therefore says applicants must still travel to Guam. They are looking into the possibility of changing that, and will change it for sure on the start date of the federalization/transition.
There is some strong speculation that the start date will be delayed and that federalization will not start on June 1, 2009. It can be delayed as much as six months (to 12/1/2009), but could also be delayed for a shorter period of time.
The problem from the USCIS point-of-view seems to be that regulations are not in place, and the time for getting them in place is running out. USCIS does not want to start operation without regulations already in place. Given that regs usually need a 60 day comment period and then republication in adopted form, and we only have about 82 days from now before June 1, 2009, it seems like the time is too limited for a prompt start.
The USCIS officials present were an interesting mix of diplomat and bureaucrat. They got in their soundbites--about being a service provider, about wanting to do things right, about being available and open for comment and information, but they also didn't answer some direct questions, like whether there would be a delay in the start-up date. They expressly denied that there would be any amnesty by the agency, although they acknowledged that Congress could move in that direction.
They also have a policy man in the Saipan office--Fred Ongcapin--who is here to get a better grasp of some of the trickier issues and then go back to Washington and work on them.
All in all, the prospects from today's events seemed hopeful.
Marine MonumentSome top officials from Fish & Wildlife are here about the Marine Monument--Barbara Maxfield, Barry Stieglitz, Donald Palawski; and also from NOAA--William Robinson. They are meeting with local government officials and conducting their first field review about the national marine monument, designated in January 2009 by then-President Bush.
They have the words of the proclamation and of the designation of DFW as lead agency, but apparently a lot of the groundwork, fieldwork, and framework from the process leading up to the designation has been lost by the change in Presidential administrations.
Here's what I understood would be two of the first agenda items for the Monument management:
1) fishing regulations, which are on the agenda for the next Wespac meeting scheduled for March 17-19, 23-25, 2009 in PagoPago, American Samoa; and
2) NEPA--environmental impact statements. There is a lot of groundwork that goes into one of these; and apparently DFW is looking to get started on the baseline fundamentals. (Lauri, Angelo--please correct me if I got this wrong...)
There is no fixed timeline, but some targeted dates:
4/11/2009--advisory council in place. This date is based on the proclamation language "within 3 months of the date of this proclamation." It is unlikely that this date will be met since the appointment is by the Secretaries of Commerce and Interior, and right now we don't yet have a Secretary of Commerce, although President Obama has nominated Gary Locke.
Governor Fitial's selections may not qualify, either, as the proclamation requires that the advisors be members of the local government.
8/2010--I think this was the target date for draft regulations, with the hope that they would be in place by 12/2010.
2011--Monument included in 2011 budget. It seems to be already too late to include the monument in the 2010 budget. It may be too late for the 2011 budget...
2013--full operation of Monument.
USCIS Application Support Center
Today marked the official opening of the US Citizenship and Immigration Service's Application Support Center in Saipan. This is part of the operation to federalize immigration here.Present for the ceremony were Michael Aytes--Acting Deputy Director of USCIS, Carolyn Muzyka--Regional Director of the Western Region of USCIS, David Gulick--District Director headquartered in Honolulu, HI, and Walter Haith--Field Office Director from Guam. Other dignitaries came as well, including TSA official (Michael Connolly?), federal Court Judge Munson, DOI representative Jeff Schorr, and CNMI dignitaries including Governor Benigno Fitial, Mayor Juan B. Tudela, and Immigration Chief Mel Grey.
The ASC office is open and has the capacity to do "biometrics"--meaning fingerprinting, photographing, and getting electronic signatures. The staff gave a quick demonstration of how they do these. They have already been doing these things since 3/2/2009, but there is a small snafu for those applying for green cards. Right now USCIS still reads the various laws as requiring "admission upon inspection" and therefore says applicants must still travel to Guam. They are looking into the possibility of changing that, and will change it for sure on the start date of the federalization/transition.
There is some strong speculation that the start date will be delayed and that federalization will not start on June 1, 2009. It can be delayed as much as six months (to 12/1/2009), but could also be delayed for a shorter period of time.
The problem from the USCIS point-of-view seems to be that regulations are not in place, and the time for getting them in place is running out. USCIS does not want to start operation without regulations already in place. Given that regs usually need a 60 day comment period and then republication in adopted form, and we only have about 82 days from now before June 1, 2009, it seems like the time is too limited for a prompt start.
The USCIS officials present were an interesting mix of diplomat and bureaucrat. They got in their soundbites--about being a service provider, about wanting to do things right, about being available and open for comment and information, but they also didn't answer some direct questions, like whether there would be a delay in the start-up date. They expressly denied that there would be any amnesty by the agency, although they acknowledged that Congress could move in that direction.
They also have a policy man in the Saipan office--Fred Ongcapin--who is here to get a better grasp of some of the trickier issues and then go back to Washington and work on them.
All in all, the prospects from today's events seemed hopeful.
Monday, January 12, 2009
Federalization lawsuit-1/12/2009
Both the Saipan Tribune and the Marianas Variety report today on the CNMI's responses to the US Defendants' filings in its lawsuit challenging federalization of immigration here.
Both articles parrot the content of the CNMI's response, and give no analysis of the situation. For that, you need to check out Wendy's Unheard No More blog reports here and here.
There are two motions pending: the CNMI's Motion for Preliminary Injunction and the US Defendants' Motion to Dismiss.
For me, there is no legal merit in the CNMI arguement that control of alien labor is a matter of "local self-government" under the Covenant. It's hard to imagine that anything could be less "local" than a foreign work force.
I also find no legal merit in the repeated blathering that the US is breaching its contract with the CNMI by extending immigration here in the way it does. The Covenant is so crystal clear that the US could extend its control of immigration here, and do so by US Congressional action in a way it deems appropriate, that it's inconceivable how any respectable person would argue that to do so violates the contract between the US and the CNMI.
I can only hope that the federal court decides to dismiss the action and the CNMI attorneys are slapped with sanctions for filing a legally frivolous lawsuit.
Let us get on with the real task at hand--drafting regulations that will improve the situation here.
Both articles parrot the content of the CNMI's response, and give no analysis of the situation. For that, you need to check out Wendy's Unheard No More blog reports here and here.
There are two motions pending: the CNMI's Motion for Preliminary Injunction and the US Defendants' Motion to Dismiss.
For me, there is no legal merit in the CNMI arguement that control of alien labor is a matter of "local self-government" under the Covenant. It's hard to imagine that anything could be less "local" than a foreign work force.
I also find no legal merit in the repeated blathering that the US is breaching its contract with the CNMI by extending immigration here in the way it does. The Covenant is so crystal clear that the US could extend its control of immigration here, and do so by US Congressional action in a way it deems appropriate, that it's inconceivable how any respectable person would argue that to do so violates the contract between the US and the CNMI.
I can only hope that the federal court decides to dismiss the action and the CNMI attorneys are slapped with sanctions for filing a legally frivolous lawsuit.
Let us get on with the real task at hand--drafting regulations that will improve the situation here.
Thursday, December 18, 2008
The Covenant's Promise of Self-Government
Fitial challenges application of US immigration laws here in the CNMI because he says it infringes our right to local self-government.
What does that right include?
Covenant sections 101, 102, 103, 104 and 105 set out the basic architecture of the relationship between the CNMI and the U.S. governments. The structure is essentially a "federal" system, where power is shared between a central authority and a regional authority.
Federalism is never an easy system. There are always tensions.
The central authority in our federal system is the US government, which has "sovereignty." The CNMI agreed that it would be UNDER the US's sovereignty by Covenant section 101. This means that the US government has the ultimate power to govern.
No other power granted or guaranteed by the Covenant can trump or supersede the sovereignty of the US. The only limits on the US's sovereign power over the CNMI are those expressly stated in the Covenant.
The CNMI was guaranteed the right to local self-government. Covenant section 103. Fitial tries to argue that this guarantee is a limit on the US's sovereign power. However, the legislative comments state that local self-government is not inconsistent with US sovereignty, suggesting that it is not meant to be construed as an express limit on the US's power.
The Marianas Political Status Commission (MPSC) comments on the Covenant that are part of its legislative history help explain what that guarantee of local self-government means.
The MPSC comment continues with this comment:
The CNMI has struggled with the meaning of its local self-government powers. It has tried to expand them beyond this stated scope by saying the guarantee relates to an exclusive, substantive area of governance. It has tried to argue that the Covenant grants the CNMI more power than the powers given to states and other territories. It has made these arguments in past cases like the case challenging the US audit of CNMI tax returns, and it makes it again in the present litigation challenging the application of US immigration here.
The 9th Circuit Court of Appeals has held that the CNMI's interpretation is wrong. The court held that the guarantee of self-government relates to the FORM and MANNER of local government, not to the content of legislation. We can decide whether to have a uni-cameral or bi-cameral legislature. We can set the terms for our elected leaders to whatever number of years we like. We can hold legislative sessions on different islands. We can designate our seat of government. We can decide how many legislators we want. We can decide whether to have municipal government agencies. We have great control over the FORM and MANNER of our government.
But according to the 9th Circuit Court of Appeals, we do not have an exclusive zone of legislative power. The guarantee does not set substantive boundaries for local control. In fact, the Court held that the US Congress may pass legislation affecting the internal affairs of the CNMI. United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 755 (9th Cir. 1993).
The 9th Circuit's interpretation tallies with the comments that the MPSC made when the Covenant was drafted. The MPSC explained that the US Congress legislates for the territories (including the Commonwealth of Puerto Rico) under the US Constitution Article IV, Section 3, Clause 2, and that this power is broader than the authority to legislate as to states. The Covenant section 105, provides similarly broad power to the US Congress to pass laws for the CNMI, but provides a small concession to make sure those laws are meant to be applied here.
The Covenant is clear on the ultimate authority of the US Congress to enact laws that affect the CNMI, including laws that impact our internal, local affairs. The US Congress cannot take away our local self-government, meaning it cannot deny us the power to set the form and manner of our local government. But it can pass laws that impact local aspects of our lives. It just needs to make sure it does so deliberately, and names the CNMI in legislation that is not applicable to all the states.
It's also clear that Fitial has ignored the 9th Circuit's decision and the MPSC comments on what the Covenant's guarantee of local self-government means. He continues to argue for an expansive view of the guarantee of local self-government. He has NO legal support for his argument. Nothing in the legislative history supports his view. Comments in the legislative history directly contradict it. There are no cases that support his view.
And as to the current legal challenge, the Covenant section 503 expressly authorizes the U.S. Congress to extend application of US immigration to the CNMI. The MPSC comment notes that the US Congress can act to
In my opinion, Fitial is so far afield in what he argues is within the ambit of local self-government as to be laughable. He is so far afield in arguing against extension of US immigration laws to the CNMI as to be a joke. Of course, the hilarity comes with a high price as he uses our very limited CNMI public funds to pay expensive attorneys to push his untenable views.
What does that right include?
Covenant sections 101, 102, 103, 104 and 105 set out the basic architecture of the relationship between the CNMI and the U.S. governments. The structure is essentially a "federal" system, where power is shared between a central authority and a regional authority.
Federalism is never an easy system. There are always tensions.
The central authority in our federal system is the US government, which has "sovereignty." The CNMI agreed that it would be UNDER the US's sovereignty by Covenant section 101. This means that the US government has the ultimate power to govern.
No other power granted or guaranteed by the Covenant can trump or supersede the sovereignty of the US. The only limits on the US's sovereign power over the CNMI are those expressly stated in the Covenant.
The CNMI was guaranteed the right to local self-government. Covenant section 103. Fitial tries to argue that this guarantee is a limit on the US's sovereign power. However, the legislative comments state that local self-government is not inconsistent with US sovereignty, suggesting that it is not meant to be construed as an express limit on the US's power.
The Marianas Political Status Commission (MPSC) comments on the Covenant that are part of its legislative history help explain what that guarantee of local self-government means.
The Commonwealth of the Northern Mariana Islands will be self-governing. This means that the people will determine their own form of government and the manner in which they will govern themselves with respect to local affairs....Article II provides for a commonwealth constitution which will spell out the manner in which the people will govern themselves.
(emphasis added)
The MPSC comment continues with this comment:
The United States will have sovereignty, that is, ultimate political authority, with respect to the Northern Mariana Islands. ... United States sovereignty is not inconsistent with the exercise of the right of local self-government by the people of the Northern Marianas. ...Moreover, the states and the Commonwealth of Puerto Rico, and to a great extent even the territories, have very substantial powers of local self-government. The people within these areas determine local policies without undue interference, notwithstanding the ultimate political authority of the central government. The same will be true of the Commonwealth of the Northern Marianas.
(emphasis added)
The CNMI has struggled with the meaning of its local self-government powers. It has tried to expand them beyond this stated scope by saying the guarantee relates to an exclusive, substantive area of governance. It has tried to argue that the Covenant grants the CNMI more power than the powers given to states and other territories. It has made these arguments in past cases like the case challenging the US audit of CNMI tax returns, and it makes it again in the present litigation challenging the application of US immigration here.
The 9th Circuit Court of Appeals has held that the CNMI's interpretation is wrong. The court held that the guarantee of self-government relates to the FORM and MANNER of local government, not to the content of legislation. We can decide whether to have a uni-cameral or bi-cameral legislature. We can set the terms for our elected leaders to whatever number of years we like. We can hold legislative sessions on different islands. We can designate our seat of government. We can decide how many legislators we want. We can decide whether to have municipal government agencies. We have great control over the FORM and MANNER of our government.
But according to the 9th Circuit Court of Appeals, we do not have an exclusive zone of legislative power. The guarantee does not set substantive boundaries for local control. In fact, the Court held that the US Congress may pass legislation affecting the internal affairs of the CNMI. United States ex rel. Richards v. De Leon Guerrero, 4 F.3d 749, 755 (9th Cir. 1993).
The 9th Circuit's interpretation tallies with the comments that the MPSC made when the Covenant was drafted. The MPSC explained that the US Congress legislates for the territories (including the Commonwealth of Puerto Rico) under the US Constitution Article IV, Section 3, Clause 2, and that this power is broader than the authority to legislate as to states. The Covenant section 105, provides similarly broad power to the US Congress to pass laws for the CNMI, but provides a small concession to make sure those laws are meant to be applied here.
From the point of view of the United States, the existence of the power under Article IV, Section 3, Clause 2 is a fundamental part of a close and permanent relationship with any political entity which is not a state of the union.
...since the power of the Congress with respect to a commonwealth, such as the Commonwealth of the Northern Marianas, is ...broader than Congress' power with respect to a state, special precautions have been taken in Section 105. Article IV, Section 3, Clause 2 will continue to be the mechanism through which the Congress will legislate with respect to the Northern Marianas. But Section 105 provides that laws which Congress could not also make applicable to a state cannot be made applicable to the Northern Marianas, unless the Northern Marianas is specifically named in the legislation. This assures that Congress will exercise its special authority under Article IV, Section 3, Clause 2 purposefully, after taking into account the particular circumstances existing in the Northern Marianas.
The Covenant is clear on the ultimate authority of the US Congress to enact laws that affect the CNMI, including laws that impact our internal, local affairs. The US Congress cannot take away our local self-government, meaning it cannot deny us the power to set the form and manner of our local government. But it can pass laws that impact local aspects of our lives. It just needs to make sure it does so deliberately, and names the CNMI in legislation that is not applicable to all the states.
It's also clear that Fitial has ignored the 9th Circuit's decision and the MPSC comments on what the Covenant's guarantee of local self-government means. He continues to argue for an expansive view of the guarantee of local self-government. He has NO legal support for his argument. Nothing in the legislative history supports his view. Comments in the legislative history directly contradict it. There are no cases that support his view.
And as to the current legal challenge, the Covenant section 503 expressly authorizes the U.S. Congress to extend application of US immigration to the CNMI. The MPSC comment notes that the US Congress can act to
make them [immigration and naturalization laws] applicable either as they are applicable in other areas under the American flag, or in some special way which takes into account the particular conditions in existence at that time in the Northern Marianas.
In my opinion, Fitial is so far afield in what he argues is within the ambit of local self-government as to be laughable. He is so far afield in arguing against extension of US immigration laws to the CNMI as to be a joke. Of course, the hilarity comes with a high price as he uses our very limited CNMI public funds to pay expensive attorneys to push his untenable views.
Wednesday, December 17, 2008
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:
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.
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.
Wednesday, September 17, 2008
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 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:
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 end to slavery...Thanks to P.L. 110-229.
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.
Wednesday, May 14, 2008
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.
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.
Friday, May 9, 2008
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.
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.
Friday, May 2, 2008
224. State of the Commonwealth-Redux
I attended the State of the Commonwealth address by Governor Benigno R. Fitial and Resident Representative Pedro A. Tenorio.
I did not take notes. I occassionally zoned out (oops!). But here are my impressions of what was said.
On Immigration and Minimum Wage:
Governor Fitial thinks S. 2739 is terrible. He thinks the increase in minimum wage is terrible, too. Together, he believes these will damage our economy. He said there are 3 ways to respond: 1) litigation challenging the law(s); 2) negotiation on the regulations; and 3) seeking future amendment.
He continued with the mantra that the CNMI's right to self-government includes the right to control over economic factors which includes labor and immigration. He stated that S. 2739 violates the Covenant. These arguments would presumably be the basis for some legal challenge.
He said that he would be putting together a group of business leaders and government officials to work on the implementing regulations, distorting (oops, that's my word) the intent of the new immigration laws.
He said that he would push for the U.S. to do a better job gathering reliable economic data so that reports, like the recent U.S. Labor Report, would not be subject to easy attack when it supports suspension of the increase in minimum wage.
He said that in the future, there is room to have these laws changed and he will work for that. He did not mention whether he would once again be hiring an expensive lobbying firm.
Representative Tenorio said that the Covenant never provided for nor anticipated that the CNMI would have permanent control over immigration; that the CNMI's control over immigration was always thought to be temporary. He said the time for control has passed and that, as part of being a full member of the U.S. with its immigration laws here, we also get to be a full member by having an elected representative in Congress.
His pitch (whether on immigration or other issues) was for developing a cooperative working relationship with the U.S., helping the feds to understand what we need and why we need it, but also accepting and living up to our role as part of the U.S. He said the CNMI is "America's face in Asia."
He explained that he supported the federalization of CNMI immigration, despite some nasty attacks on him. And that we cannot deny that scam artists took advantage of our lenient immigration handling and that abuses of alien workers occurred here.
Although he supports federalization of immigration and the minimum wage hike in general, he also believes that our economy is hurting. He supports a two-year suspension of hikes in the local minimum wage after it reaches $4.05 this May 2008.
On environmental and cultural preservation and conservation:
Governor Fitial: Perhaps I missed it, but I didn't hear anything on this.
Representative Tenorio: He stated in general terms how the people of the CNMI are tied and defined by the land and sea, how we recognize the importance of our cultural heritage and how we need to protect it.
He lauded Governor Fitial's signing of some agreement that commits the CNMI to preserving 30% of shorelines and 20% of forests for conservation.
And then mentioned the debate on the Pew Charitable Trust Fund's proposal for a National Marine Monument. He chided the Legislature for their "untimely," premature rejection of this project. He said he supports it, that we need the financial help that this project offers. He said whether we miss this opportunity or not, we need to develop a plan for future conservation and preservation.
On CUC:
Governor Fitial said that we've gotten a huge grant from the U.S. and will have our power plant repaired with it, up to 90% capacity, when completed. But that the fuel issues and lack of adequate funding persist. He chided the Legislature for its political short-sightedness in suspending the power of CUC to set its own rates, needed to keep it on an even financial keel. He also promotes privatization, but thinks that the preference for local owners should be scrapped.
Representative Tenorio said basically that CUC is a local problem,. He mentioned that we can all be grateful that it is still keeping the lights on despite its severe situation, and that the U.S. can and does help us with this type of problem. We need to be attuned to ways that we can accept and use this help.
Other issues:
Governor Fitial recognized (and this is where he started, it was very touching) the military men and women of the CNMI who have died in action, especially the 4 who died since he gave his last state of the union address.
Representative Tenorio spoke a little about other places where our lives in the CNMI intersect with our federal government, mentioning the increases in Medicaid caps, problems with veterans benefits, etc.
Most notably, Representative Tenorio spoke of the duty of elected officials to represent the entire community, while Governor Fitial spoke only of coalitions of his department heads, indigenous citizens, and selected business leaders.
My impressions:
I thought Governor Fitial's praise of the Department of Labor and the Chamber of Commerce were totally offensive. He completely ignored the reality that the CNMI has unfortunately earned its reputation as a place of sweatshops and sex trafficking. He completely ignored large segments of the community, and would continue the racism and nepotism that has corrupted the CNMI.
I was appalled that he wants to continue fighting against the federalization of immigration and the raise in the minimum wage. His statement that no community in the U.S. would be subjected to such US control (over immigration) is an outright lie.
I thought Governor Fitial did get it right when he spoke of the Legislature's failure to grasp the reality of our economic slide as to CUC. The higher rates may be unpopular, but they are necessary.
I thought Pete A. acted as a leader when he said that it is important to include all segments of the community in any problem-solving and that we need to work together. I appreciated his support for the national marine monument but wish it had been stronger. I loved his clarity on the scope and intention of the Covenant as to immigration control, shining the light on the Governor's lie.
I did not take notes. I occassionally zoned out (oops!). But here are my impressions of what was said.
On Immigration and Minimum Wage:
Governor Fitial thinks S. 2739 is terrible. He thinks the increase in minimum wage is terrible, too. Together, he believes these will damage our economy. He said there are 3 ways to respond: 1) litigation challenging the law(s); 2) negotiation on the regulations; and 3) seeking future amendment.
He continued with the mantra that the CNMI's right to self-government includes the right to control over economic factors which includes labor and immigration. He stated that S. 2739 violates the Covenant. These arguments would presumably be the basis for some legal challenge.
He said that he would be putting together a group of business leaders and government officials to work on the implementing regulations, distorting (oops, that's my word) the intent of the new immigration laws.
He said that he would push for the U.S. to do a better job gathering reliable economic data so that reports, like the recent U.S. Labor Report, would not be subject to easy attack when it supports suspension of the increase in minimum wage.
He said that in the future, there is room to have these laws changed and he will work for that. He did not mention whether he would once again be hiring an expensive lobbying firm.
Representative Tenorio said that the Covenant never provided for nor anticipated that the CNMI would have permanent control over immigration; that the CNMI's control over immigration was always thought to be temporary. He said the time for control has passed and that, as part of being a full member of the U.S. with its immigration laws here, we also get to be a full member by having an elected representative in Congress.
His pitch (whether on immigration or other issues) was for developing a cooperative working relationship with the U.S., helping the feds to understand what we need and why we need it, but also accepting and living up to our role as part of the U.S. He said the CNMI is "America's face in Asia."
He explained that he supported the federalization of CNMI immigration, despite some nasty attacks on him. And that we cannot deny that scam artists took advantage of our lenient immigration handling and that abuses of alien workers occurred here.
Although he supports federalization of immigration and the minimum wage hike in general, he also believes that our economy is hurting. He supports a two-year suspension of hikes in the local minimum wage after it reaches $4.05 this May 2008.
On environmental and cultural preservation and conservation:
Governor Fitial: Perhaps I missed it, but I didn't hear anything on this.
Representative Tenorio: He stated in general terms how the people of the CNMI are tied and defined by the land and sea, how we recognize the importance of our cultural heritage and how we need to protect it.
He lauded Governor Fitial's signing of some agreement that commits the CNMI to preserving 30% of shorelines and 20% of forests for conservation.
And then mentioned the debate on the Pew Charitable Trust Fund's proposal for a National Marine Monument. He chided the Legislature for their "untimely," premature rejection of this project. He said he supports it, that we need the financial help that this project offers. He said whether we miss this opportunity or not, we need to develop a plan for future conservation and preservation.
On CUC:
Governor Fitial said that we've gotten a huge grant from the U.S. and will have our power plant repaired with it, up to 90% capacity, when completed. But that the fuel issues and lack of adequate funding persist. He chided the Legislature for its political short-sightedness in suspending the power of CUC to set its own rates, needed to keep it on an even financial keel. He also promotes privatization, but thinks that the preference for local owners should be scrapped.
Representative Tenorio said basically that CUC is a local problem,. He mentioned that we can all be grateful that it is still keeping the lights on despite its severe situation, and that the U.S. can and does help us with this type of problem. We need to be attuned to ways that we can accept and use this help.
Other issues:
Governor Fitial recognized (and this is where he started, it was very touching) the military men and women of the CNMI who have died in action, especially the 4 who died since he gave his last state of the union address.
Representative Tenorio spoke a little about other places where our lives in the CNMI intersect with our federal government, mentioning the increases in Medicaid caps, problems with veterans benefits, etc.
Most notably, Representative Tenorio spoke of the duty of elected officials to represent the entire community, while Governor Fitial spoke only of coalitions of his department heads, indigenous citizens, and selected business leaders.
My impressions:
I thought Governor Fitial's praise of the Department of Labor and the Chamber of Commerce were totally offensive. He completely ignored the reality that the CNMI has unfortunately earned its reputation as a place of sweatshops and sex trafficking. He completely ignored large segments of the community, and would continue the racism and nepotism that has corrupted the CNMI.
I was appalled that he wants to continue fighting against the federalization of immigration and the raise in the minimum wage. His statement that no community in the U.S. would be subjected to such US control (over immigration) is an outright lie.
I thought Governor Fitial did get it right when he spoke of the Legislature's failure to grasp the reality of our economic slide as to CUC. The higher rates may be unpopular, but they are necessary.
I thought Pete A. acted as a leader when he said that it is important to include all segments of the community in any problem-solving and that we need to work together. I appreciated his support for the national marine monument but wish it had been stronger. I loved his clarity on the scope and intention of the Covenant as to immigration control, shining the light on the Governor's lie.
Thursday, May 1, 2008
221. S. 2739 -ISLA
I've put up a summary of the new immigration act, ISLA, Title VII of S. 2739 on the blog of Micronesian Legal Services--Day in Court--for anyone interested.
Or you can sort through the whole bill by typing in S. 2739 and clicking on "bill number" in the search box here.
Or you can sort through the whole bill by typing in S. 2739 and clicking on "bill number" in the search box here.
Monday, April 28, 2008
218. Immigration, Willie Tan, Fishing, Hillary Clinton
First the good news: According to Unheard No More and this Weekly Calendar, S. 2739, the bill to federalize the CNMI, will be voted on in the U.S. House on Tuesday, 4/29/2008.
Less good news: Check out Unheard No More for some ruminations on Willie Tan's fishing interests (in light of the proposed national marine monument here).
EDIT: Angelo says that Jerry Tan will be writing a letter in support of the national marine monument. That's good to hear. Sometimes it's good to discuss rumors and ruminations, conspiracy theories and all, because you get information that helps provide a fuller picture. According to Angelo (correct me if I read this wrong), the Tan fishing venture doesn't fish in the area where the monument is proposed. So who does fish up there? And is the opposition more about the potential mining interests?
Other ruminations: Dengre's recent post on Daily Kos, tying Willie Tan's influence to Democratic candidate Hillary Clinton. Yes, I was fully supporting Hillary. Give me time. I'm reconsidering.
Less good news: Check out Unheard No More for some ruminations on Willie Tan's fishing interests (in light of the proposed national marine monument here).
EDIT: Angelo says that Jerry Tan will be writing a letter in support of the national marine monument. That's good to hear. Sometimes it's good to discuss rumors and ruminations, conspiracy theories and all, because you get information that helps provide a fuller picture. According to Angelo (correct me if I read this wrong), the Tan fishing venture doesn't fish in the area where the monument is proposed. So who does fish up there? And is the opposition more about the potential mining interests?
Other ruminations: Dengre's recent post on Daily Kos, tying Willie Tan's influence to Democratic candidate Hillary Clinton. Yes, I was fully supporting Hillary. Give me time. I'm reconsidering.
Friday, September 14, 2007
136. Kudos to Pete A for his stance on the CNMI's Federalization and other thoughts.
The governor has called on Pete A. to retract his support for federalization of the CNMI immigration. I say--Pete A.--right on.
My very first blog post was about the minimum wage and federalization. I tackled both issues, which are related, like two sides of the same coin.
Since I wrote that blog post, we've gotten a small minimum wage increase of $.50 per hour, so our workers now earn $3.55. Next year, the U.S. law provides that there will be another $.50 increase here, unless forces against it manage to interrupt the law's application (always a possibility). Meanwhile the U.S. got a bigger minimum wage increase, so the gap between job pay here and in the U.S. continues to widen. I'm not happy with the minimum wage increase--I think it was too small and spread out over too much time. And it was designed to give ammunition to those who will say how raising the wages has caused businesses to fold, hurting the economy, without any appreciable increase in benefits. Well, consumer spending can hardly go up with such a small-scale increase. I think this wage increase was designed to fail, not succeed. As I said, I'm not happy.
Federalization of our immigration was on track, too, but seems to be getting derailed. I am very proud of Pete A. for sticking to his guns about what the people here really want. I WANT FEDERALIZATION NOW.
The CNMI has lost its ability to take care of immigration. We have a huge backlog of cases awaiting hearings or decisions. We're seeing human trafficking-foreign women tricked into accepting jobs where they are locked up except when they're dancing nude and serving ladies drinks. We have aliens murdered in the CNMI and a DPS that is over-taxed and unable to solve the murders.
We need help.
I'm tired of hearing U.S. citizen spouses threaten their alien spouse with divorce and automatic deportation as a means of family control and domination. Our laws don't call for any requirement of people getting married to provide for permanent residence for their spouses.
I'm disgusted that we have an alien here who applied for refugee protection and who is still waiting for a decision more than a year after having a hearing. You know--justice delayed is justice denied.
I find it frustrating that we have difficulty addressing human trafficking because of the problems with the fit between U.S. law and CNMI's immigration role.
We don't need control of immigration to be "self-governing." We elect our leaders. Our congressmen make our local laws. We can participate in a federal system, where the federal government handles issues of national concern like foreign relations and immigration and the local government handles issues of local concern like crime and public services. There's nothing demeaning about such a federal system.
The CNMI doesn't have enough money. Our CUC is in a sorry state. Our public schools are understaffed and under-funded. We don't have enough money for doctors and blood and all that we need for health care. Our police officers are underpaid and overworked. Our roads need fixing. We can't even take care of the stray dog population or copper wire thefts. Why do we want to keep pouring our CNMI dollars into an immigration system that only benefits a few businessmen and exploits other human beings? Why do we want to embrace a system that has forced our U.S. citizen population to head to the mainland in droves so they can get decent jobs rather than compete here against unlimited numbers of aliens willing to take the pittance offered as a salary?
We need federalization of our immigration. We need it now. Actually, we needed it yesterday, last month, last year, last century. But we still need it--NOW.
My very first blog post was about the minimum wage and federalization. I tackled both issues, which are related, like two sides of the same coin.
Since I wrote that blog post, we've gotten a small minimum wage increase of $.50 per hour, so our workers now earn $3.55. Next year, the U.S. law provides that there will be another $.50 increase here, unless forces against it manage to interrupt the law's application (always a possibility). Meanwhile the U.S. got a bigger minimum wage increase, so the gap between job pay here and in the U.S. continues to widen. I'm not happy with the minimum wage increase--I think it was too small and spread out over too much time. And it was designed to give ammunition to those who will say how raising the wages has caused businesses to fold, hurting the economy, without any appreciable increase in benefits. Well, consumer spending can hardly go up with such a small-scale increase. I think this wage increase was designed to fail, not succeed. As I said, I'm not happy.
Federalization of our immigration was on track, too, but seems to be getting derailed. I am very proud of Pete A. for sticking to his guns about what the people here really want. I WANT FEDERALIZATION NOW.
The CNMI has lost its ability to take care of immigration. We have a huge backlog of cases awaiting hearings or decisions. We're seeing human trafficking-foreign women tricked into accepting jobs where they are locked up except when they're dancing nude and serving ladies drinks. We have aliens murdered in the CNMI and a DPS that is over-taxed and unable to solve the murders.
We need help.
I'm tired of hearing U.S. citizen spouses threaten their alien spouse with divorce and automatic deportation as a means of family control and domination. Our laws don't call for any requirement of people getting married to provide for permanent residence for their spouses.
I'm disgusted that we have an alien here who applied for refugee protection and who is still waiting for a decision more than a year after having a hearing. You know--justice delayed is justice denied.
I find it frustrating that we have difficulty addressing human trafficking because of the problems with the fit between U.S. law and CNMI's immigration role.
We don't need control of immigration to be "self-governing." We elect our leaders. Our congressmen make our local laws. We can participate in a federal system, where the federal government handles issues of national concern like foreign relations and immigration and the local government handles issues of local concern like crime and public services. There's nothing demeaning about such a federal system.
The CNMI doesn't have enough money. Our CUC is in a sorry state. Our public schools are understaffed and under-funded. We don't have enough money for doctors and blood and all that we need for health care. Our police officers are underpaid and overworked. Our roads need fixing. We can't even take care of the stray dog population or copper wire thefts. Why do we want to keep pouring our CNMI dollars into an immigration system that only benefits a few businessmen and exploits other human beings? Why do we want to embrace a system that has forced our U.S. citizen population to head to the mainland in droves so they can get decent jobs rather than compete here against unlimited numbers of aliens willing to take the pittance offered as a salary?
We need federalization of our immigration. We need it now. Actually, we needed it yesterday, last month, last year, last century. But we still need it--NOW.
Tuesday, May 29, 2007
91. Some Thoughts on the Proposed Alien Labor Bill
H.B. 15-38. AvailableHere . It's called the Commonwealth Employment Act of 2007, but it's all about alien labor. I haven't been invited to comment on it in my official job, so I can't submit these comments to the Legislature. But as a citizen and human being, I can speak my mind here.
I've made it through the first 10 pages of 63. The bill is long enough to suggest that it took some sincere effort. And I appreciate that.
But from what I've read so far, I already feel sick to my stomach from it.
This bill can't be good because it is based on assumptions that are wrong, assumptions that start with a view of our economic woes through the wrong end of the scope, assumptions aimed at rooting out the evils caused by those d___ foreigners we bring in to work for us, assumptions that are foolish and immoral.
Here are some things in the "findings and purposes" section that rankle:
PAGE 1.
"The employment preference for citizens and permanent residents is implemented by clarifying and improving provisions of the current law, such as limiting public sector jobs to citizens and permanent residents...requiring that employers provide jobs to citizens and permanent residents ...at least 20% of the work force, and restructuring the moratorium on new hiring of foreign nationals..."
WRONG. #1. This law will not help get locals into the labor force. Locals and permanent residents will continue to rush to the mainland where they can earn $7.25 per hour or more. What will get them into the local labor force are higher wages and better working conditions. Until employers are FORCED to provide these, no amount of law or administration is going to improve the preference for hiring locals. Locals don't want the bad jobs, and cheap foreign laborers complains less, are easier to dupe and scare into obedience, and are still readily available.
WRONG. #2. Employers must hire locals in numbers that make up at least 20%?!! That's the ratio of local workers to foreign workers we are aiming for? Four foreign workers for every local? Do you think locals want to work in those conditions? Do you think our US. citizens and permanent residents want to be the outcast, the minority, at work on our islands? Better to head to the US. Our Chamorros, Carolinians, Chuukese, Palauans, etc. will be a minority there, but they'll earn more and get full rights.
WRONG. #3. Restructuring the moratorium is a load of waffle. Set a moratorium and enforce it. Stop cheating.
STILL ON PAGE 1.
"This employment preference is promoted by effective job referral services...effective advertising...and effective training to qualify citizen and permanent resident employees for jobs that require special skills."
WRONG. #1. What makes you think that we can have effective job referral services with a new law. We have a law. We have a job referral office. It doesn't work. The problem is not that workers aren't signing up for jobs. The problem is not that referrals aren't being made. The problem is that employers WANT TO HIRE ALIEN WORKERS. We don't need to fix the government office or train the workers. We need to force an attitude change on the employers. WE NEED TO TAKE AWAY CHEAP FOREIGN LABOR. Otherwise, there will never be good jobs for our local people in the CNMI.
WRONG # 2. We can qualify our local population for skilled jobs, but if we allow employers to pay minimum wage for these jobs, because alien workers will accept the jobs at that price, we will never get our local population into the jobs. Accountants at minimum wage. Engineers at minimum wage. Paralegals at minimum wage. Nurses earning far below stateside standards. We will never get our local population into these jobs. W ell, at least not here. And the brain drain will continue and get worse.
STILL ON PAGE 1.
"The Covenant envisioned the employment of foreign nationals ...to create an economic base that would provide the citizens ...the economic opportunities and standard of living that their counterparts on the mainland enjoy..."
WRONG. #1. The Covenant envisioned that the CNMI would strictly limit immigration. The reason for local control was to allow fewer aliens into the CNMI than might come in under U.S. control, not to allow more. We screwed up.
WRONG #2. Are we really going to pass a law that says we're using the poor of the world to enrich ourselves? That's what this says. And it's immoral.
MOVING TO PAGE 2.
"The Commonwealth's...investment in ...education...has produced a local work force...for managerial, supervisory, technical, professional, and other skilled jobs.... foreign national workers must be available to fill the unskilled and lower skilled jobs..."
WRONG. #1. (I'm screaming here.) We are so superior that we continue to think we should "supervise" and "manage" others. We've done such a good job with our government, with CUC, with the state of our roads, our capital assets, our retirement program... This is so wrong.
WRONG. #2. Even if we have some talent (and we do), some educated (and we do), some imaginative thinkers (and we do), as a general policy, we should want only the best for the CNMI. We should always be looking for the skilled, the educated, the professional. WE DO NOT NEED MORE CAR MECHANICS, FARMERS, MAIDS, FACTORY WORKERS, WAITRESSES, STREET-WALKERS, PIMPS AND PROSTITUTES.
These are not the key to a sustainable economy. These are not the people who will make us smart, beautiful, welcomed in the world. We do not need the masses. And we can't sustain them. For Pete's sake, we import food! We import all our fuel! We have limited land. WE DO NOT NEED THE MASSES, THE TEEMING HORDES. We want fewer people, doing more. And that means we need to entirely revamp our thinking about who we allow to enter the CNMI.
If we are truly so smart and educated, we won't be afraid of the competition from other smart, educated people that we let come in. We'll benefit from the exchange of ideas. We can become a mecca of learning, of advanced research and design for oceanography, for the environmental green campaign, for something to help the world. We do not want to become a floating casino, money-laundering off-shore bank, dung-hole of the Pacific.
STILL ON PAGE 2.
"The current economic situation...requires the continued availability of foreign nationals...but also demands that the system...be more efficient and less costly to operate."
WRONG & RIGHT. This says we want cheap labor! We don't want to spend the money on an immigration and labor system that would be fair--just cheap. Well, the cheapest way would be to completely turn over immigration control to the U.S. Then the CNMI wouldn't have to pay for it at all. LET'S DO THAT!
STILL ON PAGE 2.
"The early-intervention mediation...achieves good results in promoting fair employment relationships..."
A THOUGHT. I don't know about this program. To be truthful, I've never heard of it. I wonder how many alien workers know about it. Perhaps it does work, in which case it should be advertised more widely.
ANOTHER THOUGHT. The biggest labor problem alien workers face is not getting paid for their work. When this happens, they are stuck. If they complain, they can be terminated and sent home without the benefits of the employment contract they made. If they don't complain, they may end up working for long periods of time without ever being compensated. They are helpless. This is why Buddi Dhimal set himself on fire--he worked and didn't get paid, and the CNMI government helpfully decided to send him back to Nepal without his pay. This is why the Chinese and other garment workers marched in protest. This is what makes work in the CNMI into slavery.
We can't make employers pay their workers because the employers leave, or have no money or assets that we can reach here. And we have "helpfully" stopped requiring employers to post bonds, if they ever did.
What we really need is a requirement that for every alien worker hired, the employer posts one year of salary and benefits. Then the CNMI government can issue the paychecks to them. When the next year comes, the employer has to post another year's advance payment to renew the contract. If employers don't like it, perhaps they'll hire locals.
STILL ON PAGE 2.
"Economic stability and growth ...require support for the visitor industry and other investments, both local and foreign, that generate new employment opportunities."
WRONG. #1. We don't need to generate new employment opportunities. Who will fill those jobs? More aliens. This system only provides stability for continued dependence on foreign workers.
What we need is to figure out a new economic model, a sustainable economy, that recognizes the limits of our environment and resources, and takes advantage of our natural strengths. We need to generate self-sufficiency, and something to export to help our GNP.
WRONG. #2. Not all economic investment is created equal. I am tired of seeing little tire shops along the road--we have enough already. On the other hand, the plastic recycling venture should be applauded and supported and multiplied everywhere. I am not totally against garment factories. I like clothes. But I want all of our businesses to be fair to their employees, zealously considerate of our environment, and basically moral. Not the robber-baron version of enterprise.
WRONG. #3. We need to support the visitor industry, but I fear that this statement in a bill that addresses alien labor means that we have to make exceptions to our good limits and standards on alien labor, exceptions for hotels and tour companies. And I think that's a bad idea. Look around. We have a local population that can fill many of these jobs. Visitors like to see local people when they visit. If there's one place our local population should be, it's in the visitor industry--spreading that island friendliness, creating our own "hafa adai" spirit to rival the aloha spirit of Hawaii.
I'm ready to tackle page 3, but it's late, I'm tired, and this post is already long. I'll come back to it tomorrow or the day after. But for now--let's just say, I think this bill will not take the CNMI in the right direction.
Just a brief summary, observation, here. This bill is aimed at alien workers. We can't change the vast number of impoverished, desperate people in Asia who are willing to come and work for low wages in the CNMI, willing to pay recruiters, willing to cheat and lie their way into the CNMI, just desperate to be willing enough to do anything. We have to stop focusing on our alien workers and start focusing on what we can change. Ourselves. Our own attitudes. That's where the solution to our economic woes lies. And that's where we need to put our energy.
I've made it through the first 10 pages of 63. The bill is long enough to suggest that it took some sincere effort. And I appreciate that.
But from what I've read so far, I already feel sick to my stomach from it.
This bill can't be good because it is based on assumptions that are wrong, assumptions that start with a view of our economic woes through the wrong end of the scope, assumptions aimed at rooting out the evils caused by those d___ foreigners we bring in to work for us, assumptions that are foolish and immoral.
Here are some things in the "findings and purposes" section that rankle:
PAGE 1.
"The employment preference for citizens and permanent residents is implemented by clarifying and improving provisions of the current law, such as limiting public sector jobs to citizens and permanent residents...requiring that employers provide jobs to citizens and permanent residents ...at least 20% of the work force, and restructuring the moratorium on new hiring of foreign nationals..."
WRONG. #1. This law will not help get locals into the labor force. Locals and permanent residents will continue to rush to the mainland where they can earn $7.25 per hour or more. What will get them into the local labor force are higher wages and better working conditions. Until employers are FORCED to provide these, no amount of law or administration is going to improve the preference for hiring locals. Locals don't want the bad jobs, and cheap foreign laborers complains less, are easier to dupe and scare into obedience, and are still readily available.
WRONG. #2. Employers must hire locals in numbers that make up at least 20%?!! That's the ratio of local workers to foreign workers we are aiming for? Four foreign workers for every local? Do you think locals want to work in those conditions? Do you think our US. citizens and permanent residents want to be the outcast, the minority, at work on our islands? Better to head to the US. Our Chamorros, Carolinians, Chuukese, Palauans, etc. will be a minority there, but they'll earn more and get full rights.
WRONG. #3. Restructuring the moratorium is a load of waffle. Set a moratorium and enforce it. Stop cheating.
STILL ON PAGE 1.
"This employment preference is promoted by effective job referral services...effective advertising...and effective training to qualify citizen and permanent resident employees for jobs that require special skills."
WRONG. #1. What makes you think that we can have effective job referral services with a new law. We have a law. We have a job referral office. It doesn't work. The problem is not that workers aren't signing up for jobs. The problem is not that referrals aren't being made. The problem is that employers WANT TO HIRE ALIEN WORKERS. We don't need to fix the government office or train the workers. We need to force an attitude change on the employers. WE NEED TO TAKE AWAY CHEAP FOREIGN LABOR. Otherwise, there will never be good jobs for our local people in the CNMI.
WRONG # 2. We can qualify our local population for skilled jobs, but if we allow employers to pay minimum wage for these jobs, because alien workers will accept the jobs at that price, we will never get our local population into the jobs. Accountants at minimum wage. Engineers at minimum wage. Paralegals at minimum wage. Nurses earning far below stateside standards. We will never get our local population into these jobs. W ell, at least not here. And the brain drain will continue and get worse.
STILL ON PAGE 1.
"The Covenant envisioned the employment of foreign nationals ...to create an economic base that would provide the citizens ...the economic opportunities and standard of living that their counterparts on the mainland enjoy..."
WRONG. #1. The Covenant envisioned that the CNMI would strictly limit immigration. The reason for local control was to allow fewer aliens into the CNMI than might come in under U.S. control, not to allow more. We screwed up.
WRONG #2. Are we really going to pass a law that says we're using the poor of the world to enrich ourselves? That's what this says. And it's immoral.
MOVING TO PAGE 2.
"The Commonwealth's...investment in ...education...has produced a local work force...for managerial, supervisory, technical, professional, and other skilled jobs.... foreign national workers must be available to fill the unskilled and lower skilled jobs..."
WRONG. #1. (I'm screaming here.) We are so superior that we continue to think we should "supervise" and "manage" others. We've done such a good job with our government, with CUC, with the state of our roads, our capital assets, our retirement program... This is so wrong.
WRONG. #2. Even if we have some talent (and we do), some educated (and we do), some imaginative thinkers (and we do), as a general policy, we should want only the best for the CNMI. We should always be looking for the skilled, the educated, the professional. WE DO NOT NEED MORE CAR MECHANICS, FARMERS, MAIDS, FACTORY WORKERS, WAITRESSES, STREET-WALKERS, PIMPS AND PROSTITUTES.
These are not the key to a sustainable economy. These are not the people who will make us smart, beautiful, welcomed in the world. We do not need the masses. And we can't sustain them. For Pete's sake, we import food! We import all our fuel! We have limited land. WE DO NOT NEED THE MASSES, THE TEEMING HORDES. We want fewer people, doing more. And that means we need to entirely revamp our thinking about who we allow to enter the CNMI.
If we are truly so smart and educated, we won't be afraid of the competition from other smart, educated people that we let come in. We'll benefit from the exchange of ideas. We can become a mecca of learning, of advanced research and design for oceanography, for the environmental green campaign, for something to help the world. We do not want to become a floating casino, money-laundering off-shore bank, dung-hole of the Pacific.
STILL ON PAGE 2.
"The current economic situation...requires the continued availability of foreign nationals...but also demands that the system...be more efficient and less costly to operate."
WRONG & RIGHT. This says we want cheap labor! We don't want to spend the money on an immigration and labor system that would be fair--just cheap. Well, the cheapest way would be to completely turn over immigration control to the U.S. Then the CNMI wouldn't have to pay for it at all. LET'S DO THAT!
STILL ON PAGE 2.
"The early-intervention mediation...achieves good results in promoting fair employment relationships..."
A THOUGHT. I don't know about this program. To be truthful, I've never heard of it. I wonder how many alien workers know about it. Perhaps it does work, in which case it should be advertised more widely.
ANOTHER THOUGHT. The biggest labor problem alien workers face is not getting paid for their work. When this happens, they are stuck. If they complain, they can be terminated and sent home without the benefits of the employment contract they made. If they don't complain, they may end up working for long periods of time without ever being compensated. They are helpless. This is why Buddi Dhimal set himself on fire--he worked and didn't get paid, and the CNMI government helpfully decided to send him back to Nepal without his pay. This is why the Chinese and other garment workers marched in protest. This is what makes work in the CNMI into slavery.
We can't make employers pay their workers because the employers leave, or have no money or assets that we can reach here. And we have "helpfully" stopped requiring employers to post bonds, if they ever did.
What we really need is a requirement that for every alien worker hired, the employer posts one year of salary and benefits. Then the CNMI government can issue the paychecks to them. When the next year comes, the employer has to post another year's advance payment to renew the contract. If employers don't like it, perhaps they'll hire locals.
STILL ON PAGE 2.
"Economic stability and growth ...require support for the visitor industry and other investments, both local and foreign, that generate new employment opportunities."
WRONG. #1. We don't need to generate new employment opportunities. Who will fill those jobs? More aliens. This system only provides stability for continued dependence on foreign workers.
What we need is to figure out a new economic model, a sustainable economy, that recognizes the limits of our environment and resources, and takes advantage of our natural strengths. We need to generate self-sufficiency, and something to export to help our GNP.
WRONG. #2. Not all economic investment is created equal. I am tired of seeing little tire shops along the road--we have enough already. On the other hand, the plastic recycling venture should be applauded and supported and multiplied everywhere. I am not totally against garment factories. I like clothes. But I want all of our businesses to be fair to their employees, zealously considerate of our environment, and basically moral. Not the robber-baron version of enterprise.
WRONG. #3. We need to support the visitor industry, but I fear that this statement in a bill that addresses alien labor means that we have to make exceptions to our good limits and standards on alien labor, exceptions for hotels and tour companies. And I think that's a bad idea. Look around. We have a local population that can fill many of these jobs. Visitors like to see local people when they visit. If there's one place our local population should be, it's in the visitor industry--spreading that island friendliness, creating our own "hafa adai" spirit to rival the aloha spirit of Hawaii.
I'm ready to tackle page 3, but it's late, I'm tired, and this post is already long. I'll come back to it tomorrow or the day after. But for now--let's just say, I think this bill will not take the CNMI in the right direction.
Just a brief summary, observation, here. This bill is aimed at alien workers. We can't change the vast number of impoverished, desperate people in Asia who are willing to come and work for low wages in the CNMI, willing to pay recruiters, willing to cheat and lie their way into the CNMI, just desperate to be willing enough to do anything. We have to stop focusing on our alien workers and start focusing on what we can change. Ourselves. Our own attitudes. That's where the solution to our economic woes lies. And that's where we need to put our energy.
Tuesday, April 24, 2007
71. Breaking News
Sirens roared past the office.
The report is that a Chinese--actually Nepalese-- man went to the front of CNMI Department of Labor and set himself on fire. Still waiting to hear why. Now I know why, but can't say anything more than that he was frustrated with Labor's failure to help him collect back wages.
There's a discussion about U.S. immigration /takeover-pros and cons- over at Ken Phillips blog, SOSaipan . We've obviously got to do something. First, we can pray for this man's well-being and recovery. Things here are getting totally out of hand.
ed. 11/55 AM.
The report is that a Chinese--actually Nepalese-- man went to the front of CNMI Department of Labor and set himself on fire. Still waiting to hear why. Now I know why, but can't say anything more than that he was frustrated with Labor's failure to help him collect back wages.
There's a discussion about U.S. immigration /takeover-pros and cons- over at Ken Phillips blog, SOSaipan . We've obviously got to do something. First, we can pray for this man's well-being and recovery. Things here are getting totally out of hand.
ed. 11/55 AM.
Tuesday, February 13, 2007
23. Testimony before Congressional Committee
I second this opinion.
LetterToTheEditor
I wouldn't put my words in all caps to make my points--it isn't necessary. And I'd note that Lauri Ogumoro is not the director of Karidat, she's the head of their shelter and Angie Guerrero is the director. Other than these small quibbles, I completely agree with Jim Ross's assessment and share his sentiments.
I'd also emphasize that the women testifying for Karidat declined the offer from the Department of Interior to pay their expenses connected with the trip to D.C. to testify. I wish everyone would be so ethical.
You can read Lauri's testimony here. OgumoroTestimony
You can find a listing of who has testified before the U.S. Senate Committee, with links to their comments, here. U.S.SenateCommitteeOnEnergy
Bishop Camacho and the contingent who represented him at the hearings testified well and presented the community's input--we're ready for change. Our Lieutenant Governor and representative from the Chamber of Commerce spoke for their private interests, regardless of what the people want.
I hope the U.S. Senate gets the people's message.
LetterToTheEditor
I wouldn't put my words in all caps to make my points--it isn't necessary. And I'd note that Lauri Ogumoro is not the director of Karidat, she's the head of their shelter and Angie Guerrero is the director. Other than these small quibbles, I completely agree with Jim Ross's assessment and share his sentiments.
I'd also emphasize that the women testifying for Karidat declined the offer from the Department of Interior to pay their expenses connected with the trip to D.C. to testify. I wish everyone would be so ethical.
You can read Lauri's testimony here. OgumoroTestimony
You can find a listing of who has testified before the U.S. Senate Committee, with links to their comments, here. U.S.SenateCommitteeOnEnergy
Bishop Camacho and the contingent who represented him at the hearings testified well and presented the community's input--we're ready for change. Our Lieutenant Governor and representative from the Chamber of Commerce spoke for their private interests, regardless of what the people want.
I hope the U.S. Senate gets the people's message.
Tuesday, January 23, 2007
8. Sentencing the Crime Committed or the Crime Charged?
Judge Govendo issued his sentences today to Edward Frank Cabrera and Jenny Luo. Each got 5 years jail, with 2 years suspended and 3 years to be served without possibility of parole. They were also sentenced to similar terms on other counts, but all actual jail terms are served "concurrently," meaning at the same time. Each will be on probation at the end of the sentence, and one of the probation sentences is consecutive, so the probation term is a total of 7 1/2 years after they get out of jail. Each was fined $8,000. Mr. Cabrera's business license for his nightclub, karaoke, massage enterprise was revoked and permanently barred. Ms. Luo's entry permit to the CNMI was revoked and she is permanently barred from re-entry. She will likely be deported immediately upon conclusion of her jail (so the probation term for her is meaningless.)
The sentences are consistent with the probation report. They seem reasonable when you look in the abstract at the crimes for which each Defendant was found guilty--permitting prostitution, promoting prostitution, immigration fraud.
However, I can't help but feel the sentences miss the mark.
Two women were deceived into believing they had legitimate jobs in the CNMI, and then were forced to be prostitutes. One was repeatedly raped over her protests. All at the hands of, arranged for and with money collected by, these two defendants.
Three years jail doesn't seem long enough. Not even to me, a liberal do-gooder who is opposed to the "tough on crime" agendas of some politicians.
The sentences are consistent with the probation report. They seem reasonable when you look in the abstract at the crimes for which each Defendant was found guilty--permitting prostitution, promoting prostitution, immigration fraud.
However, I can't help but feel the sentences miss the mark.
Two women were deceived into believing they had legitimate jobs in the CNMI, and then were forced to be prostitutes. One was repeatedly raped over her protests. All at the hands of, arranged for and with money collected by, these two defendants.
Three years jail doesn't seem long enough. Not even to me, a liberal do-gooder who is opposed to the "tough on crime" agendas of some politicians.
Saturday, January 20, 2007
5. Red Heart Massage
In September 2005, Edward C. Cabrera returned to Saipan with two women from the Philippines, who came in on tourist entry permits. Jenny Luo picked up the trio of arrivals in a taxicab with Ed Cabrera's name on the door. Mr. Cabrera and Ms. Luo took the women to Mr. Cabrera's business, the Red Heart Massage, gave each a room, and then brought men to them for sex.
One of the women came to Saipan believing she would work as a waitress, the other as a legitimate masseuse. Over the next few weeks, the women were usually kept locked in the room, with men brought to them for sex. When the women cried or begged to go back to the Philippines rather than do this "work," Jenny told them they owed Mr. Cabrera and the business and had to pay back their debts.
Eventually they escaped. On September 25, 2005, Mr. Cabrera and Ms. Luo were arrested and charged with assisting illegal entry, promoting prostitution and other similar charges.
They were not charged with aiding and abetting rape. There were not charged as sex traffickers. No charges of involuntary servitude were placed against them. All charges were made in the CNMI Superior Court and no federal charges were brought against either Edward Cabrera or Jenny Luo.
In August 2006, Judge Govendo found Mr. Cabrera and Ms. Luo guilty of most of the charges.
On Friday, January 19, 2007, I watched the attorneys for the government and the defendants argue their cases about the sentencing.
Kevin Lynch, Assistant Attorney General, spoke about the seriousness of the crimes and the harm to the victims and to the CNMI. He asked for the judge to make the sentences run concurrently--meaning one after the other, to lengthen the time in jail, because the statutory maximum for each count wasn't very high. He asked the court for more jail time(12 years) than recommended by the Probation report (3 to 5 years). Kevin also asked for a hefty fine and sanctions that included relinquishment and denial of business licenses to each.
Joseph Arriola and Robert Torres argued for their clients, Edward Cabrera and Jenny Luo respectively. Joey asked for probation, arguing primarily that Mr. Cabrera has a minor son who needs his attention. Judge Govendo said all criminal defendants with children could make this argument--what would that mean for enforcing the laws of the CNMI?
Rob asked for no greater sentence than the probation report recommendation. He sought leniency for his client, who had many years ago, also been a rape victim. His argument blamed the victims, the women tricked and forced into prostitution, because they had willingly come to Saipan as tourists hoping to work after they got here.
Kevin pointed out that Ms. Luo's victimization, while creating her own private pain, did not excuse her compliance with the laws of the CNMI. As he said, we all have our own private niches of pain, but our pain doesn't give us license to break the law. Ms. Luo, of all people, should have realized from her own experience how traumatic and victimized these two women would be by the forced prostitution, their repeated rapes.
Mr. Cabrera seemed scared at the sentencing. He was too choked up to speak when given an opportunity first.
Ms. Luo spoke instead, a lengthy diatribe in Chinese, translated quietly and professionally. The translation could not disguise Ms. Luo's lack of remorse--Ms. Luo said that she was trying to be a good wife to Mr. Cabrera. He had this business and she worked in it as the manager, did what he said. She saw nothing wrong with that. She openly blamed the women that she forced into prostitution and said that they cheated her, that she lost money on this whole venture, that all she wants to do is make a living, "survive."
When Mr. Cabrera was again given a chance to speak, after Ms. Luo, all he said was "sorry." As with all criminal defendants who apologize, it wasn't clear if he regretted his criminal conduct and immoral exploitation of people poorer and more desperate than himself, or if he just regretted getting caught.
I don't know what sentence Judge Govendo will give.
But I hope it's commensurate with the crime.
I think Mr. Edward Cabrera and Ms. Jenny Luo are slavers, creating / adding to female sexual slavery here in the CNMI. And I think we should all be outraged by their conduct.
Young women in the Philippines who mistakenly think they can come in as tourists and then get jobs violate our immigration laws with their tourist entries, but these actions are only illegal because of our laws, not because they are inherently wrong.
In contrast, Mr. Cabrera and Ms. Luo exploited and enslaved two young women for their own financial greed. Mr. Cabrera's and Ms. Luo's actions are morally repugnant.
I'm glad the CNMI finally caught and charged the employers who exploited these workers. I hope the CNMI and the U.S. will take a more active role in prosecuting any and all similar conduct.
One of the women came to Saipan believing she would work as a waitress, the other as a legitimate masseuse. Over the next few weeks, the women were usually kept locked in the room, with men brought to them for sex. When the women cried or begged to go back to the Philippines rather than do this "work," Jenny told them they owed Mr. Cabrera and the business and had to pay back their debts.
Eventually they escaped. On September 25, 2005, Mr. Cabrera and Ms. Luo were arrested and charged with assisting illegal entry, promoting prostitution and other similar charges.
They were not charged with aiding and abetting rape. There were not charged as sex traffickers. No charges of involuntary servitude were placed against them. All charges were made in the CNMI Superior Court and no federal charges were brought against either Edward Cabrera or Jenny Luo.
In August 2006, Judge Govendo found Mr. Cabrera and Ms. Luo guilty of most of the charges.
On Friday, January 19, 2007, I watched the attorneys for the government and the defendants argue their cases about the sentencing.
Kevin Lynch, Assistant Attorney General, spoke about the seriousness of the crimes and the harm to the victims and to the CNMI. He asked for the judge to make the sentences run concurrently--meaning one after the other, to lengthen the time in jail, because the statutory maximum for each count wasn't very high. He asked the court for more jail time(12 years) than recommended by the Probation report (3 to 5 years). Kevin also asked for a hefty fine and sanctions that included relinquishment and denial of business licenses to each.
Joseph Arriola and Robert Torres argued for their clients, Edward Cabrera and Jenny Luo respectively. Joey asked for probation, arguing primarily that Mr. Cabrera has a minor son who needs his attention. Judge Govendo said all criminal defendants with children could make this argument--what would that mean for enforcing the laws of the CNMI?
Rob asked for no greater sentence than the probation report recommendation. He sought leniency for his client, who had many years ago, also been a rape victim. His argument blamed the victims, the women tricked and forced into prostitution, because they had willingly come to Saipan as tourists hoping to work after they got here.
Kevin pointed out that Ms. Luo's victimization, while creating her own private pain, did not excuse her compliance with the laws of the CNMI. As he said, we all have our own private niches of pain, but our pain doesn't give us license to break the law. Ms. Luo, of all people, should have realized from her own experience how traumatic and victimized these two women would be by the forced prostitution, their repeated rapes.
Mr. Cabrera seemed scared at the sentencing. He was too choked up to speak when given an opportunity first.
Ms. Luo spoke instead, a lengthy diatribe in Chinese, translated quietly and professionally. The translation could not disguise Ms. Luo's lack of remorse--Ms. Luo said that she was trying to be a good wife to Mr. Cabrera. He had this business and she worked in it as the manager, did what he said. She saw nothing wrong with that. She openly blamed the women that she forced into prostitution and said that they cheated her, that she lost money on this whole venture, that all she wants to do is make a living, "survive."
When Mr. Cabrera was again given a chance to speak, after Ms. Luo, all he said was "sorry." As with all criminal defendants who apologize, it wasn't clear if he regretted his criminal conduct and immoral exploitation of people poorer and more desperate than himself, or if he just regretted getting caught.
I don't know what sentence Judge Govendo will give.
But I hope it's commensurate with the crime.
I think Mr. Edward Cabrera and Ms. Jenny Luo are slavers, creating / adding to female sexual slavery here in the CNMI. And I think we should all be outraged by their conduct.
Young women in the Philippines who mistakenly think they can come in as tourists and then get jobs violate our immigration laws with their tourist entries, but these actions are only illegal because of our laws, not because they are inherently wrong.
In contrast, Mr. Cabrera and Ms. Luo exploited and enslaved two young women for their own financial greed. Mr. Cabrera's and Ms. Luo's actions are morally repugnant.
I'm glad the CNMI finally caught and charged the employers who exploited these workers. I hope the CNMI and the U.S. will take a more active role in prosecuting any and all similar conduct.
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