NMI immigration officers say they may sue govt

NMI immigration officers say they may sue govt

Wednesday, January 06, 2010
By Haidee V. Eugenio

Now jobless, at least six long-time civil service employees of the newly-closed CNMI Division of Immigration are weighing their options that may include suing the government for leaving them in limbo.

Roman M. Tudela Jr., who serves as spokesperson of the group, said they were not given an opportunity to transfer to other local agencies or to file for retirement.

“We would like to give the government until today to answer my letter about the closing of the Immigration office. We are not asking for more. Filing a lawsuit is our last resort. We would like to settle this matter as peaceful as possible,” Tudela told Saipan Tribune in a phone interview yesterday.

Tudela worked at the CNMI Division of Immigration for over 19 years.

He wrote a letter to Attorney General Edward T. Buckingham on Jan. 4, a few days after Buckingham issued a memorandum officially stating that the CNMI Division of Immigration has ceased operations.

The office closure came a little over a month since the federal government took over control of CNMI immigration on Nov. 28 pursuant to U.S. Public Law 110-229 or the Consolidated Natural Resources Act.

Tudela said while the attorney general's memo mentioned that the office “has finally come to a conclusion,” he said he is “still in limbo on the status of my employment.”

“There are about five other long-time civil service employees who were never formally informed of our future in the CNMI government after such closure of DOI,” Tudela told Buckingham.

As of yesterday, Tudela has yet to receive a response from the attorney general.

“I understand times have been very challenging and we are all busy during this transition mode with federalization of CNMI immigration, but I feel I deserve the respect and the right to be addressed properly as CNMI government civil service employee,” Tudela said.

He also gave a copy of his letter to Gov. Benigno R. Fitial, Lt. Gov. Eloy S. Inos, House Speaker Arnold I. Palacios (R-Saipan), Senate President Pete P. Reyes (R-Saipan), and Personnel director Francisco S. Ada.

Acting press secretary Teresa Kim earlier said that the government has worked to get as many people as possible placed into alternate jobs.

She also noted ongoing meetings with CNMI immigration employees to discuss options within the government and options to retire, among other things.

Back in November, there were at least 34 remaining CNMI immigration officers with the division, but the governor said at the time that his administration is doing its best to transfer eligible employees to other local agencies such as the Department of Corrections, the Division of Customs Service, or the Labor and Immigration Identification System.

Federalization of local immigration not only marked another chapter in the CNMI's 34-year relationship with the United States, but also leaves American Samoa as the only U.S. territory that controls its own borders.

Fitial: Ombudsman shouldn't accommodate 'overstayers'

Fitial: Ombudsman shouldn't accommodate 'overstayers'

Tuesday, December 15, 2009

By Haidee V. Eugenio
Reporter

Gov. Benigno R. Fitial expressed concern yesterday about the Federal Labor Ombudsman's ongoing “accounting” of nonresident workers in the CNMI, saying such process should not be used to allow the continued stay on the islands of foreigners with no legal status to remain here.

“I hope she's not going to accommodate those overstayers,” Fitial told reporters on Capital Hill yesterday afternoon.

Fitial, who authorized the distribution of thousands of “umbrella permits” through the CNMI Department of Labor, also expressed concern about Federal Labor Ombudsman Pamela Brown's authority to conduct the accounting of nonresident workers.

“I'm concerned about the authority; if she has the authority to do what she's trying to do,” Fitial added.

The governor also said that nonresident workers are already “in good hands with the umbrella [permits].”

The Federal Labor Ombudsman's Office started the accounting of nonresident workers in the CNMI at 4pm yesterday. Based on the agency's schedule, alien workers having last names starting with A and B were to report to its offices at the Marina Heights II Building yesterday.

Alien workers are told to bring a copy of their passport or other photo identification when they go to the federal agency's office for the accounting process, which will be held daily until Dec. 29, 2009.

In a notice, the ombudsman said the accounting process is based on Public Law 110-229 or the federalization law, which requires the U.S. Department of the Interior to report to the U.S. Congress the total number of aliens within the Commonwealth.

Dekada Movement counsel Stephen C. Woodruff earlier cautioned alien workers who do not have “umbrella permits” against participating in the “accounting” process.

“There is a very real risk that aliens lacking an umbrella permit who register with the Ombudsman's office could be setting themselves up as targets for deportation by U.S. Immigration and Customs Enforcement,” he said in a statement.

CHC autonomy bill

In other news, the governor said he's waiting for comments from different agencies, including the Office of the Attorney General, on a bill providing autonomy to and ensuring accountability by, the Commonwealth Health Center.

House Bill 16-9, which seeks to create a Commonwealth Healthcare Corp., is now on Fitial's desk for action.

On Dec. 3, the House of Representatives approved on a 14-0 vote the Senate amendments to the bill.

The CHC bill, authored by Rep. Heinz S. Hofschneider and House Speaker Arnold I. Palacios, is hailed as “landmark” legislation by lawmakers and officials, including Health Secretary Joseph Kevin Villagomez and Rep. Tina Sablan (Ind-Saipan).

In other news, Fitial said everyone is invited to his inauguration set for Jan. 11, 2010.

Fitial is only the second governor in CNMI history to be re-elected.

When asked whether he would invite Delegate Gregorio Kilili C. Sablan (D-MP) or Assistant Secretary for Insular Affairs Tony Babauta, Fitial said, “Everyone deserves to be invited.”

Fitial, workers welcome ruling

Fitial, workers welcome ruling

Friday, November 27, 2009

Federal takeover excludes labor-for now
By Haidee V. Eugenio
Reporter

The federal government will only be able to implement border control at the stroke of midnight on Nov. 28, but not the existing CNMI labor program, at least for now.

This is because of a federal judge's order dated Nov. 25 preventing the U.S. Department of Homeland Security from implementing in its current form the interim final rule on the CNMI transitional worker program, which takes effect on Saturday.

Gov. Benigno R. Fitial and the United Workers Movement-NMI separately welcomed yesterday U.S. District Court for the District of Columbia Judge Paul L. Friedman's ruling granting the CNMI government's motion for a preliminary injunction preventing DHS from implementing its CNMI transitional worker (CW) classification rule.

“I am very pleased with this favorable decision by Judge Friedman. The interim final rule fails to comply with Public Law 110-229 and will be very damaging to the Commonwealth if it goes into effect in its present form,” Fitial said in a statement yesterday.

Fitial, who turns 64 today, sued the federal government over federalization.

He urged DHS to consider the over 100 comments that have so far been filed on its transitional worker program rule.

In an interview with Saipan Tribune on Wednesday, Fitial reiterated that a federal takeover of local labor is “unnecessary.”

“We don't have any problem having the federal government take over immigration. Let them control our border because we don't have the capabilities to do that, but we have a strong enforcement mechanism to control our labor. Why do they have to remove labor from us? It doesn't make sense and we're the only one. All the other [U.S.] territories, they control their own labor,” he said.

'Green card'

Ronnie Doca and Rabby Syed, leaders of the workers group, hope that latest court ruling will give DHS more time to consider their concerns.

Workers groups in the CNMI want the federal government to grant “green cards” or legal permanent resident status to certain classes of nonresidents in the CNMI, including long-term foreign workers.

“We are happy with the ruling so DHS will have more time to look into our concerns. Among the most important things we are asking [for] is a better immigration for long-time nonresident workers, and a blanket authority for those with valid CNMI permits to re-enter the CNMI after a vacation or emergency exit,” said Doca, board chairman of the group, which comprises thousands of foreign workers in the CNMI.

Worker groups have started a signature campaign asking President Obama and the U.S. Congress to grant “green cards” to certain foreigners in the CNMI, ahead of the May 10, 2010, deadline for Interior Secretary Ken Salazar to recommend to Congress whether a grant of permanent immigration status to nonresidents in the CNMI is necessary.

'Exit, entry'

DHS' interim final rule, which is supposed to take effect Saturday, prohibits foreign workers from re-entering the islands using only their valid CNMI work and entry permit.

Friedman said DHS could “promulgate a narrowly focused and temporary emergency regulation” that addresses only the “exit and entry” problems presented in the department's interim final rule.

Regulations by DHS' U.S. Citizenship and Immigration Services would have required foreign workers to secure a CW-1 visa from a U.S. embassy for them to re-enter the CNMI, but only after they first secure a CNMI-only transitional worker status, which may take up to 60 days to acquire.

This means foreign workers can exit but not re-enter the CNMI up to at least early 2010, in order to secure a CW status and a CW-1 visa to comply with the DHS interim final rule.

DHS, however, repeatedly said that nonresident workers can exit the CNMI any time during the transition period from Nov. 28, 2009 to Dec. 31, 2014, but they cannot re-enter the islands without a CW-1 visa obtained from a U.S. embassy.

There is also a possibility that an applicant may be denied a CW-1 visa and therefore won't be able to re-enter the CNMI and continue working on the islands despite possessing a valid CNMI work and entry permit.

The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker, or CW, program.

A “transitional worker” under P.L. 110-229 is defined as an alien worker who is currently ineligible for another classification under the U.S. Immigration and Naturalization Act and who performs services or labor for an employer in the CNMI.

Most of the foreign workers in the CNMI are from the Philippines and China, while others are from Korea, Thailand and Bangladesh.

Florida-based human rights activist and former Rota teacher Wendy Doromal expressed hope that the comments so far submitted on the DHS interim final rule “should now be considered by DHS.”

Many relate to travel restrictions and the requirement for a visa for a foreign worker to return to the CNMI after traveling for personal or medical reasons.

Friedman agreed with the CNMI that DHS had no reasonable basis for publishing the interim final rule without complying with the notice and comment provisions of the Administrative Procedures Act.

The judge also made clear that he was denying any possible effort by the U.S. Department of Justice representing DHS to obtain a stay of his order pending appeal to the U.S. Court of Appeals in Washington, D.C.

Border control

The DHS transitional worker rule is supposed to take effect Saturday, when DHS' U.S. Customs and Border Protection takes over border control.

Edward H. Low, public affairs liaison at CBP's San Francisco office, earlier said that between 40 and 50 CBP officers will be on Saipan to take over immigration control at the Saipan International Airport at the stroke of midnight on Nov. 28.

But as of press time yesterday, Low said he's still checking to see what, if any, impact the court ruling will have on CBP operations.

Among other things, the federal takeover of local immigration means U.S. visas will be required of foreigners to enter the CNMI, just like Guam, Hawaii, and the rest of the United States, except for nationals of countries that are included in visa waiver programs.

The CNMI is the last U.S. territory that controls its own borders.

Fingerprinting and eye scan will also become main fixtures at the airport, just like anywhere in the U.S.

P.L. 110-229 or the Consolidated Natural Resources Act, signed by President George Bush in May 2008, not only applies federal immigration control in the CNMI but also gave the CNMI its first non-voting delegate to the U.S. Congress.

As a result of the federalization law, the CNMI held its first delegate election in November 2008, won by Gregorio Kilili C. Sablan, a former executive director of the Commonwealth Election Commission.

'Federalization law is legal'

'Federalization law is legal'

Friday, November 27, 2009

NMI arguments 'unpersuasive, plain wrong'
By Ferdie de la Torre
Reporter

U.S. District Court for the District of Columbia Judge Paul L. Friedman has upheld the constitutionality of the law that applies federal immigration laws to the CNMI.

In explaining his order dismissing counts 1 and 2 of the CNMI government's amended lawsuit against federalization, Friedman described the Commonwealth's arguments “unpersuasive, unavailing, and just plain wrong.”

Friedman said that Congress was authorized to enact the Consolidated Natural Resources Act by the plain and unambiguous terms of Section 503 of the Covenant. CNRA, the federalization law, is also known as Public Law 110-229.

The judge also ruled that the challenged provisions of the CNRA comply with the mutual consent provision of Section 105 and the “self-government” guarantee of Section 103 of the Covenant.

“No doubt the CNMI would prefer that federal legislation never affect any matters of local concern, no matter how inextricably intertwined they may be with federal affairs. But it cannot rely on the Covenant to ensure that result,” said Friedman in a 39-page opinion that explained his Tuesday order dismissing two of the CNMI government's three-count lawsuit.

The CNMI, through the Jenner and Block law firm, had asked the court to prevent the federal government from acting in violation of the Covenant and urged the court to issue a permanent ban against the implementation of the federalization law in the Commonwealth.

In Count 1, the CNMI claimed that federalization is in violation of the Covenant in that it infringes on the right of the CNMI to self-government and abrogates that right without the CNMI's consent.

The CNMI argued, among other things, that the federalization of immigration and foreign worker-related labor matters in the CNMI violates sections of the Covenant which call for local control over local matters and require mutual consent for any changes to the Covenant.

The CNMI insists that Congress acted in excess of its authority in passing some provisions of the CNRA, and that those provisions must be stopped.

Friedman disagreed. He concluded that under the express and unambiguous language of Section 503 of the Covenant, Congress was free after Nov. 3, 1986, to apply immigration and naturalization laws of the U.S. to the CNMI.

“As a result, the CNRA is a legitimate exercise of federal congressional authority so long as its challenged provisions qualify as being among 'the immigration and naturalization laws of the United States.'”

Friedman said so long as the CNRA qualifies as an “immigration and naturalization law,” it does not infringe upon the “internal affairs” of the CNMI within the meaning of Section 103.

He said the CNMI's argument that the CNRA cannot be viewed as an “immigration law” is unpersuasive.

The judge said the CNMI is just plain wrong when it asserts that nothing in federal immigration and naturalization law permits an “employer-by-employer, worker-by-worker local labor permitting scheme.”

“The fact that the application of federal immigration laws to the CNMI through the CNRA may have a dramatic impact upon the CNMI's labor force does not convert an immigration law into a labor law,” he said.

Friedman said even if the court were to agree with the CNMI that the CNRA is not an immigration and naturalization law that Congress is specifically authorized by the Covenant to enact, the court will still find the CNRA valid under the Covenant.

The CNMI had argued that the provisions of the CNRA dealing with foreign workers already in the CNMI “have nothing whatever to do with border security” but are internal labor matters.

Friedman rejected this argument, saying this appears to be based on the assumption that “border security” is achieved only at the border and nowhere else.

“That assumption makes little sense here. Thousands of individuals who would have been ineligible to enter the CNMI under federal immigration law already reside in the CNMI,” he said.

Obviously, Friedman said, the U.S. could not simply ignore these individuals and at the same time regard the CNMI's borders as “secure,” because one of the principal ways the U.S. secures its borders is by requiring compliance with its immigration laws.

He said the CNMI wishes to characterize the regulation of foreign workers already admitted to the CNMI as a local matter because the CNMI's economy is dependent on the labor of foreign workers.

“In addition to being circular, that argument fails to recognize that the presence of thousands of foreign workers in the CNMI, few of whom would qualify to enter the CNMI under federal immigration laws, raises legitimate foreign policy and security concerns-concerns solely within the province of the federal government,” Friedman said.