[Senate Hearing 110-164]
[From the U.S. Government Publishing Office]
S. Hrg. 110-164
UNITED STATES/CNMI POLITICAL UNION
=======================================================================
HEARING
before the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
TO
RECEIVE TESTIMONY ON S. 1634, A BILL TO IMPLEMENT FURTHER THE ACT
APPROVING THE COVENANT TO ESTABLISH A COMMONWEALTH OF THE NORTHERN
MARIANA ISLANDS IN POLITICAL UNION WITH THE UNITED STATES OF AMERICA,
AND FOR OTHER PURPOSES
__________
JULY 19, 2007
Printed for the use of the
Committee on Energy and Natural Resources
U.S. GOVERNMENT PRINTING OFFICE
38-192 PDF WASHINGTON DC: 2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota LARRY E. CRAIG, Idaho
RON WYDEN, Oregon LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota RICHARD BURR, North Carolina
MARY L. LANDRIEU, Louisiana JIM DeMINT, South Carolina
MARIA CANTWELL, Washington BOB CORKER, Tennessee
KEN SALAZAR, Colorado JOHN BARRASSO, Wyoming
ROBERT MENENDEZ, New Jersey JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
JON TESTER, Montana MEL MARTINEZ, Florida
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Frank Macchiarola, Republican Staff Director
Judith K. Pensabene, Republican Chief Counsel
C O N T E N T S
----------
STATEMENTS
Page
Akaka, Hon. Daniel K., U.S. Senator from Hawaii.................. 4
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................ 1
Cantwell, Hon. Maria, U.S. Senator from Washington............... 2
Cohen, David B., Deputy Assistant Secretary for Insular Affairs,
Department of the Interior; Accompanied by James Benedetto,
Labor Ombudsman, Department of the Interior.................... 5
Fitial, Hon. Benigno R., Governor, Commonwealth of the Northern
Mariana Islands................................................ 12
Guerrero, Juan A., President, Saipan Chamber of Commerce......... 29
Murkowski, Hon. Lisa, U.S. Senator from Alaska................... 2
Tenorio, Pedro A., Office of the Resident Representative,
Commonwealth of the Northern Mariana Islands................... 35
APPENDIXES
Appendix I
Responses to additional questions................................ 51
Appendix II
Additional material submitted for the record..................... 57
UNITED STATES/CNMI POLITICAL UNION
----------
THURSDAY, JULY 19, 2007
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The committee met, pursuant to notice, at 9:43 a.m., in
room SD-366, Dirksen Senate Office Building, Hon. Jeff
Bingaman, chairman, presiding.
OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW
MEXICO
The Chairman. Why don't we go ahead and start? I welcome
all the witnesses. We have a very distinguished group of
witnesses today. Of course, we welcome the Governor. I had the
chance to visit with him and with Senator Akaka in the last
couple of days on this set of issues as well.
Unfortunately, I'm going back and forth between two
hearings this morning. We have a markup of the children's
health insurance program in the Finance Committee that was
scheduled just yesterday, but it's ongoing right now. So I'm
going to make a very short statement, turn the hearing over to
Senator Akaka, and then try to get back as quickly as I can.
Let me just indicate that both Senator Domenici and I asked
the administration to take the bill that was passed by the
Senate in 2000 and to update that bill reflecting the testimony
both that we heard from the administration and from the CNMI
Resident Representative when we had our hearing in February.
Many of you were here for that same hearing.
I've not taken a position on every aspect of what they've
come up with, but I do believe they've come up with something
that gives us a solid basis for moving forward. Some have
expressed concern that the legislation will add to the current
economic difficulties that the island is experiencing. That is
not our objective or our purpose. Instead, I believe that the
current challenges that the island is facing economically
underscore the need to establish a stable and sustainable labor
and immigration framework for the CNMI's future and to
establish a stable relationship between the United States and
the CNMI.
So I look forward to reviewing all the testimony even if
I'm not able to be here to hear it all, and hopefully I can get
back to ask some questions as well.
But Senator Akaka has been our leader on this issue and
many of the issues that affect the Pacific Islands for a long
time, and I very much appreciate his help and leadership on
this, and he's going to conduct the hearing at this point while
I rush back and try to offer a couple of amendments on the
children's health insurance program. Senator Akaka, why don't
you take charge here?
[The prepared statement of Senators Cantwell and Murkowski
follow:]
Prepared Statement of Hon. Maria Cantwell, U.S. Senator From Washington
Chairman Bingaman, Ranking Member Domenici and members of the
Committee, I want to thank you for the opportunity to speak in support
of S. 1634. I also want to thank Senators Akaka, Murkowski and Inouye
for working with me on this very important issue. Extending federal
immigration law into the Commonwealth of Northern Mariana Islands is
critical to ending the heinous practice of human trafficking in the
Commonwealth.
In February, I had the privilege of meeting Kayleen Entena, a young
woman from the Laguna Province in the Philippines. She traveled to DC
to testify in an oversight hearing before this very Committee,
providing a glimpse of the conditions of many living in the CNMI.
Kayleen was promised a chance to work abroad so that she could save
money to help her family back in the Philippines. But like the many
stories of other trafficked victims, the assurance of opportunity soon
turned into an inexplicable broken promise for Kayleen. The recruiter
promised Kayleen a waitressing job in Saipan that would pay $400.00 a
month. Instead, her so-called ``employer'' forced her to work as a
prostitute, threatening Kayleen that if she went to the police, she
would never see her family again.
Kayleen said to me, as she expressed to the Committee back in
February, ``I am hoping that this kind of illegal system will stop, the
way it happened to me, the way I was treated. I do not want this to
happen to anyone. I know that there are other women out in the
community like me.''
Fortunately, Kayleen was able to escape. She survived and is able
to share her story with us. But back in my home state of Washington, we
know of two fatal cases in which women were trafficked. Their male
sponsors sought the women out through international marriage broker
agencies available on the internet and brought them to the U.S. on
fiancee visas. In recent years, reports have indicated a disturbing
correlation between ``mail-order brides'' and domestic abuse. Congress
recognized the immediate need to address the cruel practice of human
trafficking and passed legislation I sponsored that protects women in
these situations against exploitation.
Like the two women who came to Washington State legally on fiancee
visas, Kayleen was brought into the CNMI on a tourist visa, not knowing
that such a visa would not allow her to work. This loophole is a major
reason why it is possible for traffickers to sneak their victims into
the U.S. and its territories. Unfortunately, the Commonwealth has
neither the adequate resources nor the appropriate mechanisms to
enforce such illegal behavior.
We must build on these past lessons. The Northern Mariana Island
Covenant Implementation Act is another important step in ensuring vital
safeguards are put in place to protect women from abuse and
exploitation. It is time to implement immigration and labor law in the
Commonwealth and provide the help to the women and children who need it
most.
Thank you.
______
Prepared Statement of Hon. Lisa Murkowski, U.S. Senator From Alaska
Mr. Chairman, thank you for holding this hearing on immigration
reform legislation in the Commonwealth of the Northern Mariana Islands,
S. 1634.
This issue has been before this committee for 11 years. Hearings
were held on the immigration issue in 1996 after my father, former Sen.
Frank Murkowski, and Sen. Akaka traveled to the islands in February
1996 and saw first hand some of the abuses: where workers were not
getting paid, were working in difficult conditions in some of the
garment factories, and in some cases were being lured to the islands by
promises of jobs and then being forced into illegal behavior,
prostitution, for example, and sometimes into forced abortions as well.
Those abuses prompted legislation, legislation that passed the
Senate in 2000, but ultimately did not become law. They also spawned a
variety of actions intended to remedy the concerns and protect guest
workers in the CNMI.
In 1999 a Federal Ombudsman's Office was created to give guest
workers a place to file complaints--the office fielding 962 abuse
complaints that year. Last year that number was cut in about half, but
500 cases is still a sizable complaint load.
In the same year 23 of the garment factories entered into a
``strategic partnership'' with the U.S. Department of Labor's
Occupational Safety and Health Administration to set up safety and
health standards for each worksite and staff housing. That certainly
helped to reduce the lost workday injury rate in CNMI factories.
In 2003 the independent Garment Oversight Board was created as a
result of a class-action lawsuit and it now monitors the remaining
garment factories in the CNMI and can place factories on probation and
end their eligibility to sell to 26 major U.S. retailers, if violations
are found.
In 2003 the CNMI government also worked with the Department of the
Interior's Office of Insular Affairs to establish a refugee protection
system.
Following 9/11 there has been progress on improving immigration
entrance inspections to CNMI from where access to the mainland is much
easier, both to protect against terrorists and also to combat against
human trafficking. There are, however, still questions about the
enforcement of immigration rules and adequacy of staff and funding to
enforce the CNMI's rules.
And the CNMI government has negotiated agreements with the Chinese
Economic Development Association to pre-screen Chinese nationals coming
to work in the CNMI, to limit the fees that workers can be charged.
But during a February hearing into immigration issues in the CNMI
we heard tales that all of the problems have not been solved. This year
we heard of Ombudsman cases where businesses in the CMNI have not paid
workers on a bi-weekly basis, and of security guards again facing
problems. We heard complaints where construction workers were not paid
for work performed. We heard new complaints about garment workers being
recruited to come to the islands and perhaps pushed into prostitution
as a result. These problems sounded all too much like the problems of a
decade ago.
For that reason a group of us started working with the
Administration and island officials to craft reform legislation.
Actually we started with the bill that passed the Senate seven years
ago and attempted to update it to reflect the new conditions in the
CNMI. Those conditions involve the fact that under WTO rules, global
garment quotas ended for the factories in the islands in 2005, likely
causing most of the remaining garment factories to close by year's end
shifting operations to elsewhere in Asia.
That will have a significant impact on the economy, reducing CNMI's
ability to afford immigration enforcement, especially since the CNMI's
governmental revenues have fallen 24 percent since FY 2004 and will
fall further once the last of the factories close. At the same time,
immigration problems likely will rise when workers who wish to avoid
returning to their Native countries try to remain in the islands.
Given the island's likely shift to tourism and education for
economic diversification, there may well be a need for a differing mix
of guest workers, especially for workers with special skills not
currently found on the islands. But a revised immigration program is
clearly needed to deal with the thousands of workers already in the
CNMI, some wanting and perhaps some needing to stay, while at the same
time protecting against future refugee floods and the dangers that
porous immigration policies could cause to the United States mainland
and to other territories in this age of terrorist threats.
The population of the CNMI has grown from 16,000 in 1976, when it
became a U.S. territory, to perhaps 80,000 today because of guest
worker imports, making the original U.S. citizens (21%) and the
indigenous Chamorro and Carolinian ancestry residents (estimated at 43%
in 2000) near minorities in the Commonwealth.
It is clear to me that we need new legislation to address these
concerns. I believe the only way to improve the CNMI economy is to
attract new businesses, but the best way to do that is to remove the
cloud of uncertainty affecting businesses since the termination of the
Trusteeship Agreement in 1986, by installing a new permanent
immigration law for the Commonwealth.
I understand that the Commonwealth's economy is in a difficult
condition. With the post 9/11 slowdown in aviation and the related
slowdown in tourism, tax revenues have fallen. The decision by some in
this body to raise the minimum wage for the islands is also making it
harder for economic development to occur. But delaying immigration
reform in my view is not the answer. Resolving this issue in a way that
is mutually beneficial to the U.S. and the CNMI is the best way to
promote long-term economic development for the Commonwealth.
The bill we have proposed and will hear reaction to today will
extend U.S. immigration laws and enforcement aid to the CNMI, but with
exceptions that were carefully tailored to help the island nation. The
exceptions:
Continue to require inspection of persons entering the U.S.
from CNMI, as if they were coming from a foreign nation.
Establish a CNMI-Only guest worker program for 10 years with
an option for five-year extensions, so the need for guest
workers is guaranteed to be met.
Establish a CNMI-Only visa-waiver program for countries
whose citizens now travel to the CNMI, such as the People's
Republic of China, Russia and other Asian nations, whose
citizens are most likely to spend money at the island's resort
beach hotels.
Provide a CNMI-Only opportunity for investors to obtain non-
immigrant status in an effort to help the island keep its
financial base.
``Grandfather'' certain long-term CNMI workers as
nonimmigrant residents of the United States, in an effort to
deal with the workers now on the islands, some of whom have
children that are American citizens, who do not wish to return
to their Native countries.
Continue CNMI responsibility for U.S. refugee and
nonrefoulement obligations. That means that the INA asylum
provisions would not be extended as a way of preventing the
future inducement of refugees to come to the commonwealth.
Waive the CNMI from the national caps on the number of INA
nonimmigrant worker visas. That will keep the island from
having to compete against the mainland to gain visas under the
current caps for some types of more skilled workers.
Limit the CNMI as a port-of-entry for new immigrants to the
U.S.
And establish CNMI-Only technical assistance programs for
economic planning and worker training and recruitment so the
island can train a resident workforce and get away from having
to recruit foreign workers--the cause of some of the problems
with the current system.
I certainly look forward to the testimony to hear how we can
improve the bill further; how we can make it work better for the
citizens of the Northern Marianas. But I truly believe that the 21
years that have passed since it was expected that U.S. immigration laws
would take effect following the end of the trusteeship, have been long
enough. It is time that we provide certainty and stability to this
process.
Coming from Alaska, being born there when it was still a territory,
I am, along with Senator Akaka and Senator Inouye, among the relatively
few in the Senate that understand the frustration that residents feel
when their futures are determined by lawmakers who are far away and in
some cases have never even seen the lands they are regulating. That was
almost always the case for Alaskans prior to 1959.
I am sympathetic to the impacts that immigration reform will have
and want to help reduce the negative effects on the CNMI. But I think
it is high time that we advance this legislation. I look forward to
reading all the testimony that will arise since I most likely will be
unable to attend most of this hearing because of conflicting hearings
before the Foreign Relations, Indian Affairs and Health, Education,
Labor and Pensions Committees--all scheduled for the same time.
Thank you Mr. Chairman.
STATEMENT OF HON. DANIEL K. AKAKA, U.S. SENATOR
FROM HAWAII
Senator Akaka [presiding]. Thank you. Thank you very much,
Mr. Chairman. I want the chairman to know that I really
appreciate and we do appreciate his leadership here in our
country, as well as leader of this committee.
I want to begin by extending my aloha and my best wishes
and my warm welcome to all of our witnesses, who have come a
long way to attend this hearing. I want to tell you that we
really appreciate your presence and look forward to your
testimonies here today.
For me and for us here, we're looking at this as trying to
get information that can help us put together a kind of bill
that will be helpful. So let's do this and work this out
together.
In February the committee held a hearing on the immigration
labor law enforcement and economic conditions in Northern
Marianas and found that conditions still exist which justified
extension of the U.S. immigration laws to the CNMI as provided
for in the covenant. It was also clear that this must be done
in a way that is sensitive to the islands' special
circumstances and to the current economic turndown.
Accordingly, Senators Domenici and Bingaman wrote to the
administration and asked that they revise the bill that was
passed by the Senate in the year 2000 to include the
recommendations that were made in the February hearing by the
administration witness and by the resident representative from
CNMI. Today the committee will receive testimony on this
revised bill, which is S. 1634.
It would extend U.S. immigration laws, but with special
provisions designed to meet the islands' special circumstances.
For example, it would provide a CNMI-only guest worker program,
a CNMI-only investor program, a CNMI-only visa waiver program,
and a CNMI-only waiver from caps on non-immigrant worker visas.
This legislation provides a foundation for us to build
upon. Although the Governor has expressed to me his concern
that passage of Federal legislation will add to the islands'
current economic troubles, I sense that the economic crisis in
CNMI is not a reason to defer legislation. Instead, I believe
that the current challenges underscore the need to establish a
stable and sustainable labor and immigration framework for the
CNMI's future and to establish a stable relationship between
the United States and CNMI.
So I look forward to this hearing and for your input.
Again, I want to invite, welcome all of you. You've heard the
reasons that the chairman won't be here all the time, but we'll
continue with the hearing. I want to welcome one that we've
worked with so closely and who's done a good job in working
with us on behalf of the administration--David Cohen. He's the
Deputy Assistant Secretary for Insular Affairs for the
Department of the Interior, accompanied by Mr. James Benedetto,
Department of the Interior Labor Ombudsman. Also with us is of
course the Governor of CNMI, Mr. Fitial; Mr. Pedro Tenorio,
Resident Representative of the Commonwealth of the Northern
Mariana Islands; and Mr. Juan Guerrero, President of the Saipan
Chamber of Commerce.
Although the statements are limited to 5 minutes, I want
all of our witnesses to know that your entire statements will
be included in the record.
So, Mr. Cohen, will you please proceed with your statement?
STATEMENT OF DAVID B. COHEN, DEPUTY ASSISTANT SECRETARY FOR
INSULAR AFFAIRS, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY
JAMES BENEDETTO, LABOR OMBUDSMAN, DEPARTMENT OF THE INTERIOR
Mr. Cohen. Aloha, Mr. Chairman.
Senator Akaka. Aloha.
Mr. Cohen. In previous hearings I've described at length
the impressive progress the CNMI has made to improve working
conditions there since the 1990's. As I've said repeatedly, the
CNMI should be congratulated for this progress. The CNMI
doesn't get the credit it deserves for the progress it has
made. However, the following serious problems still plague the
CNMI's immigration system.
First, the CNMI has no effective pre-screening process for
aliens entering the Commonwealth. Continued local control over
the CNMI's immigration system presents significant national
security and homeland security concerns.
Second, we have serious human trafficking concerns. While
we congratulate the CNMI for its recent successful prosecution
of people who pressured women into prostitution, human
trafficking remains far more prevalent in the CNMI than in the
rest of the United States. During the 12-month period ending
April 30, 2007, 36 female victims of human trafficking were
served by the Guma' Esperansa Women's Shelter on Saipan. All of
these victims were in the sex trade. Secretary Kempthorne
personally visited the shelter last month and met with a number
of women who were underage when they were trafficked into the
CNMI for the sex industry. He found their stories
heartbreaking.
The State Department estimates that a total of 14,500 to
17,500 victims are trafficked into the United States each year.
With a CNMI population of roughly 70,000 and a U.S. population
of roughly 300 million, these numbers suggest that human
trafficking is between 8.8 and 10.6 times more prevalent in the
CNMI than it is in the United States as a whole. This most
likely makes the CNMI look better than it really is. The
victims counted for the CNMI include only actual female victims
in the sex trade who were served by Guma Esperansa. This is
compared with a U.S. estimate of human trafficking victims of
both genders, not limited to the sex trade. In an apples-to-
apples comparison, the CNMI would fare worse.
A number of people have come to the Federal ombudsman
complaining that they were promised a job in the CNMI after
paying a recruiter thousands of dollars, only to find upon
arrival that there was no job. Secretary Kempthorne met
personally with a young lady from China who was the victim of
such a scam and who was pressured to become a prostitute. She
was able to obtain help in the Federal ombudsman's office.
We're also concerned about recent attempts to smuggle
Chinese nationals from the CNMI into Guam by boat. A woman was
recently convicted for attempting to smuggle over 30 Chinese
nationals from the CNMI into Guam. With the planned military
buildup in Guam, the potential for smuggling aliens from the
CNMI into Guam by boat is a cause for concern.
Third, we have very serious concerns about the CNMI's
administration of its refugee protection system, which was
established pursuant to a memorandum of agreement signed by
former Governor Babauta and me. Establishing a refugee
protection system in the CNMI was important to U.S. compliance
with international treaties on refugees and torture. Under the
MOA, the CNMI has established its own refugee protection system
with the assistance of the Department of Homeland Security and
financial support from my office.
Recently, the chief of the Asylum Division, U.S.
Citizenship and Immigration Service, Department of Homeland
Security, inquired about a group of cases which were of concern
to the United States due to evidence of efforts by a foreign
government to improperly interfere in those cases.
Astonishingly, the CNMI attorney general refused the requested
information and accused the Departments of Homeland Security
and State of attempting to, ``imbalance the scales of
justice,'' by inquiring about these cases and by expressing
concerns about evidence of foreign attempts at interference.
The attorney general's failure to distinguish between
possible foreign attempts to improperly influence a refugee
protection proceeding and attempts by the United States to
monitor and protect the integrity of a refugee protection
program raises serious doubts about the CNMI's capacity to
adequately carry out the program. With this uncooperative
stance from the CNMI, there is no way for the Federal
Government to confirm that the United States remains in
compliance with important international treaty obligations.
The circumstances described above present us with a
dilemma. If we can't verify that the CNMI is administering its
refugee protection program consistent with U.S. international
treaty obligations, then extending the protections of U.S. law
to aliens in the CNMI may be the only way to ensure compliance.
However, making aliens in the CNMI eligible to apply for
protection in the United States is a potentially serious
problem if the CNMI continues to determine which aliens and how
many are able to enter the CNMI. Under that scenario, the
United States could be required to provide refugee protection
to aliens that have been admitted to the CNMI through a process
controlled, not by the Federal Government, but by the CNMI. The
United States would be subjecting itself to potential costs and
other consequences of decisions made by the CNMI.
The above are some of the factors that have led us to
conclude that the CNMI's immigration system must be Federalized
as soon as possible. S. 1634 is generally sound legislation
that embodies the concept of flexible federalization; that is
federalization of the CNMI system in a manner designed to
minimize damage to the CNMI's fragile economy and maximize the
potential for economic growth. The administration supports S.
1634 subject to our request that certain changes be made. These
changes are mostly technical in nature and are described in my
written statement.
We also note that at this time the administration is
evaluating the specific provisions granting long-term status to
temporary workers in the CNMI in light of the administration's
immigration policies. We look forward to working with Congress
on this important issue.
Finally, Mr. Chairman, we again point out that the people
of the CNMI must participate fully in decisions that will
affect their future. As I've said in the past, a better future
for the people of the CNMI cannot be imposed unilaterally from
Washington, DC, ignoring the insights, wisdom, and aspirations
of those to whom this future belongs.
Although the administration supports S. 1634, subject to
the suggestions in my written statement, we're concerned about
the message that would be sent if Congress were to pass this
legislation while the CNMI remains the only U.S. territory or
commonwealth without a delegate in Congress. At a time when
young men and women from the CNMI are sacrificing their lives
in Iraq in proportions that far exceed the national average, we
hope that Congress will consider granting them a seat at the
table at which their fate will be decided.
Thank you.
[The prepared statement of Mr. Cohen follows:]
Prepared Statement of David B. Cohen, Deputy Assistant Secretary for
Insular Affairs, Department of the Interior
s. 1634, the northern mariana islands covenant implementation act
Mr. Chairman and members of the Committee, thank you for the
opportunity to testify on S. 1634, the Northern Mariana Islands
Covenant Implementation Act. I come before you today wearing at least
two hats: As Deputy Assistant Secretary of the Interior for Insular
Affairs, I am the Federal official that is responsible for generally
administering, on behalf of the Secretary of the Interior, the Federal
Government's relationship with the Commonwealth of the Northern Mariana
Islands (CNMI). I also serve as the President's Special Representative
for consultations with the CNMI on any matter of mutual concern,
pursuant to Section 902 of the U.S.-CNMI Covenant. In fact, I was in
Saipan in March for Section 902 consultations with CNMI Governor Fitial
and his team. I was also in Saipan in June with Secretary Kempthorne as
part of his visit to U.S.-affiliated Pacific Island communities.
Under the Covenant through which the CNMI joined the U.S. in 1976,
the CNMI was exempted from most provisions of U.S. immigration laws and
allowed to control its own immigration. However, section 503 of the
Covenant to Establish a Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America (P.L. 94-241)
explicitly provides that Congress has the authority to make immigration
and naturalization laws applicable to the CNMI. Through the bill that
we are discussing today, Congress is proposing to take this legislative
step to bring the immigration system of the CNMI under Federal
administration. We believe that any federalization of the CNMI's
immigration system must be flexible because of the CNMI's unique
history, culture, status, demographic situation, location, and, perhaps
most importantly, fragile economic and fiscal condition. Additionally,
we would need appropriate time to address a range of implementation
issues as there are a number of Federal agencies that would be involved
with federalization. In testimony before this Committee earlier this
year, I offered, on behalf of the Administration, five principles that
we believe should guide the development of any federalization
legislation.
In previous testimony before this Committee and others, I have
described at length the impressive amount of progress that the CNMI has
made to improve working conditions there since the 1990s. As I have
said repeatedly, the CNMI should be congratulated for this progress. We
do not believe that the CNMI gets the credit that it deserves for the
progress that it has made. However, serious problems continue to plague
the CNMI's administration of its immigration system, and we remain
concerned that the CNMI's rapidly deteriorating fiscal situation may
make it even more difficult for the CNMI government to devote the
resources necessary to effectively administer its immigration system
and to properly investigate and prosecute labor abuse. I will begin my
statement with an overview of concerns that make a compelling case for
federalization.
need for an effective screening process
The CNMI is hampered by the lack of an effective pre-screening
process for aliens wishing to enter the Commonwealth. Under the
Immigration and Nationality Act (INA), before traveling to the
continental United States, aliens must obtain a visa from a U.S.
consular officer abroad unless they are eligible under the Visa Waiver
Program or other legal authority for admission without a visa. Carriers
are subject to substantial fines if they board passengers bound for
these parts of the United States who lack visas or other proper
documentation. All visa applicants are checked against the Department
of State's name-checking system, the Consular Lookout and Support
System (CLASS). With limited exceptions, all applicants are interviewed
and subjected to fingerprint checks. After obtaining a visa, an alien
seeking entry to these parts of the United States must then apply for
admission to an immigration officer at a U.S. port of entry. The
immigration officer is responsible for determining whether the alien is
admissible, and in order to do so, the officer is supposed to consult
appropriate databases to identify individuals who, among other things,
have criminal records or may be a danger to the security of the United
States. The CNMI does not issue visas, conduct interviews or check
finger prints for those wishing to travel to the CNMI, nor does the
CNMI have an equivalent to CLASS. Furthermore, CNMI immigration
inspectors determine admissibility under CNMI law rather than federal
law. The CNMI does have its own sophisticated computerized system for
keeping track of aliens who enter and leave the Commonwealth. A record
of all persons entering the CNMI is made with the Commonwealth's Labor
& Immigration Identification and Documentation System, which is state-
of-the-art. However, that is not a substitute for comprehensive pre-
screening by Federal government authorities. In a post-9/11
environment, and given the CNMI's location and the number of aliens
that travel there, we believe that continued local control of the
CNMI's immigration system presents significant national security and
homeland security concerns.
human trafficking
While we congratulate the CNMI for its recent successful
prosecution of a case in which foreign women were pressured into
prostitution, human trafficking remains far more prevalent in the CNMI
than it is in the rest of the U.S. During the twelve-month period
ending on April 30, 2007, 36 female victims of human trafficking were
admitted to or otherwise served by Guma' Esperansa, a women's shelter
operated by a Catholic nonprofit organization. All of these victims
were in the sex trade. Secretary Kempthorne personally visited the
shelter and met with a number of women from the Philippines who were
underage when they were trafficked into the CNMI for the sex industry.
As you can imagine, he found their stories heartbreaking. The State
Department estimates that a total of between 14,500 and 17,500 victims
are trafficked into the U.S. each year from many places in the world.
This estimate includes not only women in the sex trade, but men, women
and children trafficked for all purposes, including labor. Assuming a
CNMI population of roughly 70,000 and a U.S. population of roughly 300
million, the numbers above suggest that human trafficking is between
8.8 and 10.6 times more prevalent in the CNMI than it is in the U.S. as
a whole. This is a conservative calculation that most likely makes the
CNMI look better than it actually is: The number of victims counted for
the CNMI includes only actual female victims in the sex trade who were
served by Guma' Esperansa. This is being compared with a U.S. estimate
of human trafficking victims of both genders that is not limited to the
sex trade. In an apples-to-apples comparison, the CNMI's report card
would be worse. We note that most of the victims that have been served
by Guma' Esperansa were referred by the CNMI government (as a result of
referrals from the Federal Ombudsman to local authorities). However, it
is clear that local control over CNMI immigration has resulted in a
human trafficking problem that is proportionally much greater than the
problem in the rest of the U.S.
A number of foreign nationals have come to the Federal Ombudsman's
office complaining that they were promised a job in the CNMI after
paying a recruiter thousands of dollars to come there, only to find,
upon arrival in the CNMI, that there was no job. Secretary Kempthorne
met personally with a young lady from China who was the victim of such
a scam and who was pressured to become a prostitute; she was able to
report her situation and obtain help in the Federal Ombudsman's office.
We believe that steps need to be taken to protect women from such
terrible predicaments.
We are also concerned about recent attempts to smuggle foreign
nationals, in particular Chinese nationals, from the CNMI into Guam by
boat. A woman was recently sentenced to five years in prison for
attempting to smuggle over 30 Chinese nationals from the CNMI into
Guam. With the planned military buildup in Guam, the potential for
smuggling aliens from the CNMI into Guam by boat is a cause for
concern.
refugee protection
We have very serious concerns about the CNMI government's
administration of its refugee protection system, which was established
pursuant to a Memorandum of Agreement signed by former Governor Juan
Babauta and me in 2003 with the financial support of the Office of
Insular Affairs. Establishing a refugee protection system in the CNMI
was important to the U.S. because of our concerns regarding U.S.
compliance with international treaties to which the U.S. is a party,
including the 1967 United Nations Protocol Relating to the Status of
Refugees and the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. Even though the CNMI for the most
part is not included in the Immigration and Nationality Act, the U.S.
is obligated to ensure that aliens in the CNMI are not returned to
their home countries if there is a sufficient risk under the Convention
Against Torture or the Refugee Protocol that they will be tortured or
persecuted there.
Under the Memorandum of Agreement, the CNMI has established its own
refugee protection system with the assistance of U.S. Citizenship and
Immigration Services (USCIS) acting as ``Protection Consultant.'' In
this role, USCIS assisted the Commonwealth in drafting regulations and
forms, trained all staff for the program, provided quality assurance
review prior to a decision on all cases, and performed background
checks on all applicants. The two-year performance period during which
the duties of the Protection Consultant were enumerated in the
Memorandum of Agreement terminated in September 2006. USCIS and the
CNMI have yet to enter into a subsequent instrument to delineate the
assistance that USCIS has offered to provide to the CNMI, because of
lack of response by the CNMI to USCIS's requests for cooperation.
Most recently, the Chief of the Asylum Division, U.S. Citizenship
and Immigration Services, Department of Homeland Security, inquired
about a group of cases which were of concern to the U.S. Government due
to evidence of efforts by a foreign government to improperly interfere
in those cases.
Astonishingly, the CNMI Attorney General refused requested
information and accused the Department of Homeland Security and the
Department of State of attempting to ``unbalance the scales of
justice'' by inquiring about these cases and by expressing concerns
about evidence of foreign attempts at interference.
The CNMI Attorney General's failure to distinguish between possible
foreign attempts to improperly influence a refugee protection
proceeding within the U.S. and attempts by the relevant U.S. agencies
to monitor and protect the integrity of a refugee protection program
which impacts U.S. compliance with its international obligations raises
serious doubts about the CNMI's capacity to adequately carry out the
refugee protection program. It is particularly troubling that such a
posture is being taken by the CNMI Attorney General, the official who
ultimately supervises the refugee protection hearing officers and to
whom refugee protection decisions are appealed. With this uncooperative
stance from the CNMI, there is no way for the Federal Government to
address its very serious concerns and confirm that the U.S. remains in
compliance with important international treaty obligations. The
concerns that we have about the CNMI Attorney General's letter are very
serious and would not be mitigated if the CNMI were to issue decisions
in the pending cases that the U.S. Department of Homeland Security
found to be appropriate given the facts and applicable law.
The circumstances described above present the Federal Government
with a dilemma: If the Federal Government cannot verify that the CNMI
is administering its refugee protection program in a manner that
accords with U.S. compliance with international treaty obligations,
then extending the protections available under U.S. immigration law to
cover aliens in the CNMI may be the only way to ensure that compliance.
However, making aliens in the CNMI eligible to apply for protection in
the U.S. is a potentially serious problem if the CNMI maintains control
over its immigration system and continues to determine which aliens,
and how many, are able to enter the CNMI. Under that scenario, the U.S.
could be required to provide refugee protection to aliens who have been
admitted to the CNMI through a process controlled not by the Federal
Government, but by the CNMI. The U.S. would be subjecting itself to
potential costs and other consequences for decisions made by the CNMI.
This is a strong argument in favor of Congress taking legislative
action, as contemplated under Section 503 of the Covenant (P.L. 94-
241), to take control of the CNMI's immigration system.
recommended changes to this bill
The above are some of the factors that have led us to conclude that
the CNMI's immigration system must be federalized as soon as possible.
We believe that S. 1634 is generally sound legislation that embodies
the concept of ``Flexible Federalization''--that is, federalization of
the CNMI's immigration system in a manner designed to minimize damage
to the CNMI's fragile economy and maximize the potential for economic
growth. We also believe that S. 1634 reflects the principles previously
spelled out by the Administration as those that should guide the
federalization of the CNMI's immigration system. Therefore, the
Administration supports the Northern Marianas Covenant Implementation
Act, subject to the following:
Long-term Status to Temporary Workers.--At this time, the
Administration is evaluating the specific provisions granting
long-term status to temporary workers in the CNMI in light of
the Administration's immigration policies. We look forward to
working with Congress on this important issue.
Protection from Persecution and Torture.--Consistent with
the general transfer of immigration to Federal control on the
transition period effective date, the bill should clarify that
U.S. protection law, including withholding of removal on the
basis of persecution or torture, would apply and be
administered by Federal authorities beginning on the transition
period effective date. However, given the uncertainties
inherent in changing the CNMI immigration regimen, we recommend
that extension of the affirmative asylum process under section
208 of the INA to the CNMI be delayed until the end of the
transition period. We would also recommend a provision
requiring the CNMI to maintain an effective protection program
between date of enactment and the transition period effective
date.
Authority of the Secretary of Homeland Security.--In
general, it is important that the Secretary of Homeland
Security have sufficient authority and resources to effectively
administer the new responsibilities that would be undertaken
under the bill. Improvements to the bill in this regard would
include ensuring that the Secretary has full authority in his
discretion to designate countries for the new CNMI visa waiver
program (giving due consideration to all current CNMI tourist
source countries); and providing the necessary fiscal and
operational authority to conduct all necessary activities in
the CNMI.
Visa Waiver.--As noted above, it is essential that the
Secretary of Homeland Security, in consultation with the
Secretary of State, have full authority to make visa waiver
decisions in the national interest We would also recommend
consideration of authorizing integration of the proposed CNMI
visa waiver with the Guam visa waiver program as a possible
means of increasing the value of these programs to those
jurisdictions, such as, for example, allowing visitors
qualifying for both programs a combined 30 days, with a maximum
stay of 21 days in either territory.
Employment-Based Visas.--The bill would authorize the
Secretary of Homeland Security to establish a specific number
of employment-based visas that will not count against the
numerical limitations under the Permanent Alien Labor
Certification (PERM) program, if the Secretary of Labor, after
consultation with the Governor of the Commonwealth and the
Secretary of Homeland Security, finds exceptional circumstances
with respect to the inability of employers to obtain sufficient
work-authorized labor. We would recommend that this provision
be removed from the bill as unnecessary because the CNMI will
have an uncapped temporary worker program in the 10-year
transition period.
Conforming and Technical Amendments.--We would like to work
with Congress on a number of other conforming, technical and
other amendments necessary to fully effectuate the transfer of
responsibilities and effectively administer and integrate the
CNMI-specific programs with the INA. For example, the CNMI
should be added to the definitions of ``State'' and ``United
States'' in section 101 of the INA.
conclusion
We point out, however, that one of this Administration's principles
for considering immigration legislation for the CNMI is that such
legislation should be carefully analyzed for its likely impact in the
CNMI before we implement it. We have also urged that such analysis
occur expeditiously: the need to study must not be used as an excuse to
delay. We understand that the Senate has requested an analysis of the
provisions of S. 1634. We applaud the Senate for taking this step, and
urge Congress to carefully consider the results of this analysis in the
continued development of this legislation.
It is important to remember that S. 1634 deals with a unique
situation, and hence does not establish any precedents that are
relevant to the discussion of national immigration reform. S. 1634 is
designed to bring under the ambit of Federal immigration law a
territory that generally was not previously subject to Federal
immigration law. Accomplishing this transition without causing severe
economic disruption requires special transitional provisions that take
into account the reality that CNMI society has been shaped by
immigration policies that vary significantly from Federal immigration
policy. Because CNMI society has evolved in a unique manner under
unique circumstances, it would not be prudent to apply immigration
policy designed for the 50 states to the CNMI in a blanket fashion with
no transition mechanisms. The special transitional provisions contained
in this bill are designed to move CNMI society from one set of
governing principles to another in a manner that minimizes harm to CNMI
residents.
Finally, Mr. Chairman, we again point out that the people of the
CNMI must participate fully in decisions that will affect their future.
As I have said in the past, a better future for the people of the CNMI
cannot be imposed unilaterally from Washington, D.C., ignoring the
insights, wisdom and aspirations of those to whom this future belongs.
Although the Administration supports S. 1634, subject to the
suggestions outlined above, we are concerned about the message that
would be sent if Congress were to pass this legislation while the CNMI
remains the only U.S. territory or commonwealth without a delegate in
Congress. At a time when young men and women from the CNMI are
sacrificing their lives in Iraq in proportions that far exceed the
national average, we hope that Congress will consider granting them a
seat at the table at which their fate will be decided.
Thank you.
Senator Akaka. Thank you very much, Mr. Cohen, for your
testimony.
Now we'll hear from the Governor of CNMI, Governor Fitial.
STATEMENT OF HON. BENIGNO R. FITIAL, GOVERNOR, COMMONWEALTH OF
THE NORTHERN MARIANA ISLANDS
Mr. Fitial. Hafa Adai and aloha.
Senator Akaka. Hafa Adai.
Mr. Fitial. I'm pleased to have this opportunity to appear
before you to discuss Senate Bill 1634. I've been Governor
since January 2006, about only 18 months to make a dent in the
Commonwealth's problems which have been accumulating for
several years. My people are suffering and I have a plan for
recovery. But I fear that this legislation will devastate my
recovery effort.
My plan has two overall objectives; to reduce government
expenditures, and to address the serious economic decline in my
community. In order to bring government expenditures under
control, I have reduced government employment by 10 percent; I
have instituted an austerity program of two unpaid Fridays each
month. I've cut government expenditures in nearly every
department. I have adopted revised budgets for 2006 and 2007
that reflected the decline in government revenues from a peak
of $248 million in 1997 to an estimated $163 million in this
fiscal year, a decline of about 34 percent.
Our budget for this year seeks to protect essential public
services and does not add to the substantial deficit which I
inherited. We have more than doubled electricity rates to cover
the actual cost of this service. I have a reduction-in-force
plan in place to use if necessary during fiscal year 2008.
My point is simply this: I am making the necessary hard
choices, something none of my predecessors were willing to do.
Mr. Chairman, I need the understanding of this committee.
My second major objective is to stimulate growth in an
economy that has suffered external blows beyond our control.
Because of changes in WTO rules, the apparel industry in the
Commonwealth is declining. The number of factories has declined
from 34 to 15, with more closures anticipated for later this
year. The number of alien workers in this industry has declined
from 16,000 to 6,000. Taxes and fees paid to the government
have declined by more than 60 percent.
For entirely different reasons, our second major industry--
tourism--has also experienced a serious decline. Visitor
arrivals are down 40 percent in the last decade.
Discontinuation of direct flights to the Commonwealth from
Japan by Continental Airlines and Japan Airlines in 2005 has
seriously impacted this most important tourist market.
Our plan for rebuilding the economy will take time--18 to
24 months perhaps. I have made more than 15 trips to Japan,
Korea, China, to encourage new investment and increased airline
seat capacity. This process, Mr. Chairman, is a very personal
one. Potential investors from these countries want to know who
they are dealing with, who makes the decisions, and who will
take their telephone calls when a problem develops.
We have had some success already with the airlines. We have
obtained a major increase in flights from Korea beginning last
May, and we expect to double this number by the end of the
year. We have some new short-term commitments from Continental
Airlines for this summer. We have increased charter flights
from China and we have a commitment from Northwest Airlines for
new flights from Japan beginning later this year.
We have attracted new industries to our islands that do not
depend so heavily on alien workers. In particular, we have
educational institutions being established in the Commonwealth
to teach a variety of subjects in English to students primarily
from Korea, China, and other Pacific Rim countries.
The success of this new industry depends critically on our
unique visa programs for students and their parents. Just a few
weeks ago, I attended the groundbreaking for the first new
resort hotel on Saipan in 20 years, being built by a major
Korean company at a total cost of more than $300 million. Kumho
Asiana, the parent company of Asiana Airlines, has committed to
the construction of a ten-story condominium building and other
facilities on a Saipan golf course involving many millions of
dollars. These companies and future investors are worried that
their employment needs will not be met under this proposed
bill.
I have been successfully marketing the CNMI while at the
same time increasing enforcement of our labor laws. I have
resolved more than 3,400 of my predecessor's labor cases within
the last 6 months.
This legislation will cripple our recovery efforts. It
creates uncertainty throughout the economy. This uncertainty is
real. It leads potential investors and current investors to
reevaluate the benefit of investing in the Commonwealth. S.
1634 threatens the continued use of the special visa programs
vital to the visitor industry, the educational industry, and
retirement facilities for Asian retirees. It creates a
cumbersome bureaucracy of Federal departments which presents a
formidable challenge for any investor. It deprives me and my
administration of the tools needed to rebuild the economy,
enforce the laws, and restore hope to my people.
The legislation imposes substantial new burdens on the
local community by changing the status of about 8,000 alien
workers, about 25 percent of the resident U.S. citizens, by
giving them the right to reside permanently in the United
States and in the CNMI. This legislation is based on outdated
facts, allegations, and assumptions.
This is why we have the GAO study, and we thank you, Mr.
Chairman, for supporting such a study. Now that the GAO study
is under way, I ask this committee not to act on this bill
until the study is done. Certainly it would be better to
evaluate the likely impacts of S. 1634 before, rather than
after, it is enacted.
Mr. Chairman, there is one point that I do wish to make
clear. My people are loyal and patriotic U.S. citizens. We have
provided more soldiers per capita than any other State in the
United States, and unfortunately several of my people have
given their lives in Iraq. The Commonwealth welcomes Federal
support to assist in the control of our borders. We are ready
and eager to have the additional safeguards that would come
from utilization of Federal data bases to ensure that no alien
entering the CNMI presents a security risk to the United
States. We are prepared to work with you and the committee to
accomplish this objective.
In my written testimony I have addressed in detail the
following: our reasons for believing that the bill is
predicated on outdated information; the extent of our economic
decline and our plan for recovery; and the specific
deficiencies of the proposed legislation.
Thank you, Mr. Chairman, for the opportunity to appear
today and I stand ready for any questions from the committee.
[The prepared statement of Mr. Fitial follows:]
Prepared Statement of Hon. Benigno R. Fitial, Governor, Commonwealth of
the Northern Mariana Islands
Hafa Adai, Mr. Chairman and Members of the Committee, I am pleased
to have this opportunity to appear before you to discuss Senate Bill
No. 1634. I regret that I was unable to appear in person during your
hearings last February, when Lt. Governor Villagomez appeared in my
place.
Since the February hearings, Committee representatives have visited
the Commonwealth to discuss proposed legislation dealing with the
immigration and labor laws of the Northern Mariana Islands. In response
to those discussions, we submitted a Memorandum to this Committee dated
March 19, 2007. We have repeatedly asked that this Committee request
the Government Accountability Office to conduct an economic study of
the Commonwealth before approving any legislation such as Senate Bill
1634.
I wish to thank Chairman Bingaman and Senator Domenici for joining
Members of the House of Representatives in a letter of May 4, 2007,
requesting such a study. We agree that the Committee needs current and
objective information about the Commonwealth--its economy, workforce,
and changing population--before deciding whether, and to what extent,
the federal immigration laws should be extended to the CNMI. We are now
in communication with GAO representatives regarding their schedule and
study.
Before I address Senate Bill 1634 in particulars, I would like to
make one very important point. The people of the Commonwealth are loyal
U.S. citizens. Our young men and women continue to serve with
distinction in the American military forces. Several have lost their
lives in the Iraq conflict.
We share the desire of the Members of this Committee to protect the
borders of the United States, including the Commonwealth. We are
prepared to invite oversight by the Department of Homeland Security. We
are ready and eager to have the additional safeguards that would come
from utilization of federal data bases to ensure that no alien entering
the Commonwealth presents a security risk to the United States. We are
ready to have federal immigration officials assigned to work in the
CNMI to improve the training and performance of CNMI personnel.
Our concerns with Senate Bill 1634 are totally unrelated to
national security. We oppose the bill in its present form for three
fundamental reasons. First, it is based on outdated facts, allegations,
and assumptions. Second, we believe that this legislation will
frustrate our comprehensive plan to address the Commonwealth's serious
economic depression. Third, the bill's provisions authorize an
unprecedented extension of federal authority and will deny the
Commonwealth's elected leaders any meaningful role in the management of
its economy.
senate bill no. 1634: misconceptions rather than facts
Our concern that S. 1634 lacks any meaningful relationship to the
Commonwealth of today is not fanciful. We have seen the summary
prepared by the Committee staff and distributed to the Members of this
Committee. Every single fact cited in the summary description of the
CNMI is more than five years out of date. Repeatedly the summary cites
a 1997 report from the U.S. Commission on Immigration Reform, a 1997
report from the Department of the Interior, a 1998 report from the
Immigration and Naturalization Service, 1999 data on wages, a 1999
statement by the INS General Counsel, 2000 data on unemployment, and a
2002 report from the Department of Justice.
Not surprisingly, the summary's conclusions based on these outdated
facts are simply not true. We believe that any judgment by this
Committee about the need for legislation such as S. 1634 should be
based on the facts and circumstances that exist today in the
Commonwealth. Let me give some examples:
The summary states that there is a two-tiered economy in the
CNMI. That is not true. The economic model that prompted this
Committee to act in 2000 no longer exists in the Northern
Marianas. The closures of most of the apparel factories in the
CNMI, and the repatriation of their alien workers have
substantially reshaped the economy and population mix of the
Commonwealth. This process is likely to continue over the next
few years.
The old allegation that the ``bloated'' CNMI Government is
an employer of last resort for local residents also fails to
acknowledge the facts of life in today's Commonwealth. With a
ten percent reduction in government payrolls--and the likely
need for more reductions in the next year--we are compelled to
work harder to train and place our U.S. citizens in the private
sector.
The summary suggests that there is systemic abuse of workers
and aliens in the CNMI. That is not true. There is no current
data to support this conclusion. In fact, current data show
that more than 3,400 pending labor cases have been completed in
my Administration. In almost all of these cases, the worker
filed the case in order to stay in the Commonwealth beyond the
time legally permitted under their entrance visa. They did so
because the work environment in the CNMI and the earning
potential are much more favorable than in their home country.
The statistics show that there were relatively few cases of
wage disputes--far lower than the comparable statistics in most
States--and there were only two cases involving claims of on-
the-job injuries.
The summary alleges ``weak border control'' in the CNMI.
This is not true. I have appointed a Director of Immigration
with 29 years of experience in the federal immigration system.
In many respects the entrance requirements for the Commonwealth
are more stringent than those in place for Guam or other U.S.
destinations. As pointed out in earlier submissions to the
Committee, the CNMI and federal immigration authorities have
cooperated effectively in many substantial trafficking and
other immigration violations in recent years.
The summary dismisses a recent effort by the Commonwealth to
identify and repatriate illegal aliens as having a ``65% error
rate.'' This is not true, and manifestly unfair. As part of its
accelerated enforcement of its labor and immigration laws, we
published in January 2007 a list of alien workers who,
according to CNMI records, were ineligible for employment. The
published notice asked those on the list to report to the Labor
Department with appropriate documentation. This effort turned
up more than 350 illegal aliens, nearly all of whom have since
departed the Commonwealth. It also turned up some employers who
had failed to file the necessary paperwork, and some employees
who had failed to report changes in their immigration status.
We intend to continue publication of such lists as required.
The Committee staff suggests that alien workers have caused
``degradation'' of the Commonwealth's environment. We do not
know exactly what the staff had in mind by this allegation. But
we do know that the CNMI's guest worker program was essential
to the economic growth of the Commonwealth during the late
1980s and 1990s. As pointed out by the GAO report of 2000, this
growth provided jobs and other benefits to the U.S. citizen
residents of the Commonwealth. It is true that the CNMI has
serious infrastructure needs but, with the assistance of the
federal government, we are addressing them in an orderly
fashion.
We believe that the Commonwealth--and this Committee--deserve
better information before taking action on the proposed bill. This is
why an independent study is required before the Committee acts on S.
1634--to present the current facts in an objective and fair manner.
Believe it or not: The Commonwealth does have an effective guest
worker program in place to meet our current and future needs for alien
workers.
We have substantially reduced our dependence on alien
workers. With the closures of most apparel factories and the
decline in the local economy, the number of alien workers has
fallen from its peak of about 30,000 a few years ago. We expect
the figure to be approximately 20,000 by the end of this year,
and decrease further to about 15,000 in 2008.
Over the past several years we have increased the
opportunities for our local resident workforce--both in the
public sector (teachers and health care personnel) and in the
private sector. I have insisted on more rigorous enforcement of
our present labor laws. Our legislature is currently
considering a new comprehensive labor law, with several
provisions aimed at increasing the training of local residents
so that they can replace alien workers in the private sector.
We have an effective and fair system for handling complaints
by alien workers against their employers. The backlog of
individual cases, some 3,400 in number, has now been
eliminated. Hearings were provided for all those cases where
monetary claims were contested by the employer. New procedures
and the increased use of mediation have enabled us to handle
new cases in a timely manner.
We have achieved the repatriation of several thousand alien
workers. We have both the capacity and the commitment to
enforce our labor laws by identifying the alien workers who
need to be repatriated or, if necessary, deported.
the cnmi economy and the path to recovery
This Committee is generally aware of the economic circumstances
that have adversely affected the Commonwealth over the past several
years. Attachment 1 to this testimony sets forth the details
documenting the extent of this depression and its impact on government
revenues and our budget. Let me touch on some of the main points:
Apparel Industry:
--The number of apparel factories has declined from 34 to 15--with
additional closures anticipated later this year or early
next year.
--The number of alien workers in apparel manufacturing has declined
from 16,000 to 6,000.
--The value of apparel sales has declined from $1.06 billion in
1999 to $489 million in 2006.
--The taxes and fees paid by the apparel industry to the CNMI fell
from $80 million in 2001 to an expected $30 million in
2007.
Visitor Industry:
--Visitor arrivals are down 40% since 1996.
--The causes were obvious: the Asian financial crisis (1997), 9/11
attack, SARS, and increased fuel costs.
--The discontinuation of flights to Saipan by JAL and Continental
in 2005-6 were a serious blow to our most important tourist
market--Japan.
--The decline in arrivals has led to the closure of hotels and
tourist-oriented businesses.
Government revenues have declined from a peak of $248
million in 1997 to an estimated $163 million in 2007--a decline
of about 34%.
Increased unemployment.
Dozens of closed businesses in the CNMI.
The Commonwealth does have a program for recovering from this
depression. In my State of the Commonwealth speech last April, I
emphasized five major points: (1) continued effective law enforcement;
(2) creating new work opportunities for our citizen labor force; (3)
improved utility operations and service; (4) expansion of the base for
our visitor industry; and (5) continued efforts to secure new
investment. This overall plan has the endorsement of both the
Legislature and the private sector. (A copy is attached to this
Statement as Attachment 2).
We have made some significant progress towards achieving these
objectives.
We have a revised 2007 budget that reflects our declining
revenues, protects essential public services, and does not add
to the deficit that we inherited.
We have reduced government employment, enforced an austerity
program, and are ready to implement a reduction in force if
that becomes necessary.
To deal with the need to increase airline seat capacity for
the CNMI, we have obtained a major increase in flights from
Korea that began last May, some short-term commitments from
Continental for this summer, increased charter flights from
China, and a substantial commitment by Northwest for renewal of
flights from Osaka beginning in December 2007. I am personally
engaged in discussions with Japanese, Chinese, and Korean
officials and airline executives regarding our need for
increased flights from those countries.
As the apparel manufacturing business has declined, we are
having some success in attracting different kinds of new
industries--financial services companies and educational
institutions offering English-language training and other
courses primarily to foreign students.
We have attracted major new investments from Japanese
companies (Sumitomo and NTT DoCoMo Inc.) and Korean companies.
Kumho Asiana, the parent of Asiana Airlines, has purchased one
of our golf courses and is committed to major renovations and
improvements involving several hundred million dollars. Just a
few weeks ago, I attended the groundbreaking ceremony at the
future site of a $300 million hotel and villa complex on Saipan
undertaken by the KSA Group of Korea--the first new hotel on
Saipan in many years. These were two of the many projects
described in my State of the Commonwealth address--most of them
scheduled to begin within the next 6-12 months.
Let me state the obvious: there is no quick fix for the
Commonwealth's current problems. Because of the delay in implementing
new airline commitments and the need for additional such commitments,
we are unlikely to see any substantial increase in visitor arrivals for
about 18 months. The benefits of the recent--and scheduled--investments
in hotels and other tourist attractions will also take time to develop.
Although the construction activity on such projects produces some
needed stimulus to the economy, substantial increase in revenues for
both the private and public sectors takes more time. But we do have a
vision. And, with all due respect for our critics, we prefer our vision
to that of government bureaucrats 8,500 miles away.
The ability of the private sector and my Administration to deal
with our economic crisis has been complicated by the recent imposition
of the federal minimum wage on the Commonwealth. We appreciate the
assistance this Committee provided in seeking a lower increase for the
Commonwealth. The first fifty cent increase is mandated for next week--
July 25, 2007. Federal and local labor officials have been
collaborating in preparing for as smooth a transition as possible given
the short time frame for compliance and the variety of questions
presented by employers and employees. Employers throughout the
Commonwealth are concerned by the uncertainty under the federal law
with respect to additional yearly increases in 2008 and beyond and the
difficulty in planning ahead under these circumstances. We will be
monitoring the impact of this first increase and will be requesting the
Committee's assistance as appropriate.
The enactment of S. 1634 will seriously damage the CNMI economy. It
will drastically change the rules under which investors commit their
funds to the Commonwealth. It generates uncertainty throughout the
economy. This uncertainty is real. It is important. It leads potential
investors to reexamine the profitability of investment in the
Commonwealth. It leads committed investors to reexamine the nature and
timetable for implementing their plans. It raises serious questions
regarding the continuation of the special visa programs vital to the
visitor industry, the educational industry, and retirement facilities
for Asian nationals.
Once the several federal departments begin to exercise their
responsibilities under S. 1634, an entirely new element of uncertainty
is created. It will be clear that no Northern Marianas Governor will be
able to make the kind of commitments necessary to attract investment to
the Commonwealth from predominantly Japanese, Korean, and other Pacific
Rim companies. In order to appraise investment prospects in the
Northern Marianas, potential investors will have to deal with a new
bureaucracy of five departments in Washington. To whom should such
investors go for guidance regarding the future course of the CNMI
economy? Department of Homeland Security? Department of State?
Department of Justice? Department of Labor? Or the Interior Department?
Or all of the above? Why should they bother--if there are other areas
in the Pacific of equal promise which provide greater certainty and
security which major investors reasonably demand?
Enactment of S. 1634 will almost certainly result in increased
financial dependence on the federal government by the CNMI. The
Commonwealth will soon thereafter be on the dismal course being
experienced by the freely associated states and most island communities
in the Western Pacific--a course featuring outmigration, remittances,
government payrolls, and foreign aid. This was not the objective of the
United States and Northern Marianas negotiators of the Covenant. They
envisioned and promised a self-sufficient local economy, to the extent
possible, and a standard of living comparable to that of the average
American community. In recent years the federal government has failed
to honor these commitments to the Northern Marianas--such as the
failure to reimburse the CNMI for the $200 million in costs incurred by
the Commonwealth providing public services to Micronesians from the
other former districts of the Trust Territory of the Pacific Islands.
Coming so soon after the imposition of the federal minimum wage,
enactment of S. 1634 would be another serious blow to the
Commonwealth--its economy and its U.S. citizens, who lack even a token
vote in the U.S. Congress.
We do not understand why our concerns are being dismissed before a
credible economic study has been conducted and presented to the
Committee. We urge this Committee not to act on S. 1634 until the GAO
completes its analysis and reports to the Committee.
specific deficiencies of s. 1634
Attached to this Statement is a section-by-section analysis of S.
1634 (See Attachment 3). Let me draw your attention to a few of its
most important deficiencies.
S. 1634: A New Federal Bureaucracy
Senate Bill No. 1634 creates a new federal bureaucracy composed of
five separate departments to implement the bill's provisions. It is
unclear that any of these departments--with the probable exception of
the Interior Department--wants to add these new responsibilities to
their already full dockets. The Department of State is so overwhelmed
by passport applications that it has assigned more than one hundred of
its consular officers on an emergency basis to deal with these demands.
The same is true of the Department of Homeland Security, as evidenced
by the recent reports of its backlogs with respect to visa
applications. A few weeks ago, a conflict between the Department of
State and the Department of Homeland Security resulted in the reversal
of a commitment to provide work-based visas to thousands of well-
educated, highly skilled, legal immigrants, with long experience in the
country. A spokesman for Homeland Security acknowledged that there had
been a failure of communication between his department and State. (New
York Times, July 6, 2007, p. A9) Does anyone seriously believe that the
needs of the Commonwealth--8,500 miles from Washington without a vote
in the Congress--would get a higher priority?
We note that only Interior has been asked to testify regarding S.
1634. We believe that the Committee should hear directly from the four
other agencies given duties under the bill before it is enacted. S.
1634 raises significant issues of funding, personnel, expertise, and
agency coordination that should be addressed before--not after--the
bill is passed.
The Senate bill provides only a year for the five departments to
consult with each other and the Commonwealth, and produce the many sets
of regulations required by the bill. After the effective date of the
legislation, all CNMI immigration and labor laws are expressly
preempted by the legislation, with no failsafe provision in the event
that the federal agencies are not ready at that time to enforce the new
law. It would be only prudent to anticipate such a possibility and
provide for it in the proposed legislation.
s. 1634: an unprecedented assertion of federal authority
This proposed legislation imposes a federally designed and
controlled guest worker program on a single community of U.S. citizens
within the United States. It purports to pay deference to the promise
of local self-government in the Covenant, but its terms are quite
clear: all critical decisions regarding the future economy of the
Commonwealth will be in the hands of federal officials. They will
decide which industries or new investments will be entitled to access
to alien workers. They will decide which special visa programs will be
available to the Commonwealth's critical visitor industry. They will
decide what incentives or sanctions are required to stimulate
businesses to employ local workers. To the Members of this Committee
who have served in local or State government, we pose a single
question: How would you have responded if Congress authorized five
federal departments to descend on your community and supersede local
authority over the local economy?
In a further break from established immigration policy, S. 1634
declares which non-U.S. citizens will be given permanent legal status
and permitted to stay in the CNMI. S. 1634 expressly grants a form of
amnesty to nearly 8,000 alien workers in the Commonwealth by granting
them nonimmigrant status and the privilege of living and working
anywhere in the United States. The bill's drafters chose to ignore that
such an enhanced status was not permitted or contemplated when these
workers elected voluntarily to come to the CNMI many years ago to enjoy
the economic opportunities available in the CNMI. The recent Senate
debate on immigration suggests that such a provision would never have
been supported on the national level--either because it looks like an
amnesty provision or because it imposes an enormous burden on the
Commonwealth of permanent alien residents numbering about 25% of the
local United States citizen population. The drafters of S. 1634
seemingly have no concern about the impact of this provision on the
integrity and vitality of the indigenous Carolinian and Chamorro
peoples in the Commonwealth.
s. 1634: not authorized by the covenant
Section 503 of the Covenant does permit the application of the U.S.
immigration and immigration laws to the Northern Mariana Islands after
the termination of the Trusteeship Agreement. It does not authorize the
mandatory guest worker program specified by S. 1634, accompanied by the
preemption of the Commonwealth's local labor laws and dictating the
nature and extent of future economic development in the CNMI. We
believe that S. 1634 raises very significant legal issues under both
the U.S. Constitution and the Covenant. We believe this Committee
should satisfy itself as to the legal validity of this bill's
provisions before enacting it.
Thank you for the opportunity to appear before this Committee.
Attachment 1.--Supplementary Statement Submitted by Hon.
Benigno R. Fitial
This Statement is submitted by Governor Fitial on behalf of the
Commonwealth of the Northern Mariana Islands for inclusion in the
printed record of the hearings conducted by the Senate Committee on
Energy and Natural Resources on July 19, 2007. It will address issues
raised by Deputy Assistant Secretary of Interior Cohen in his testimony
and some of the questions by members of the Committee to me and other
witnesses.
the need for the gao study
In the hearings before this Committee in February and July the
Commonwealth has emphasized the need for a careful and professional
study of the Commonwealth before enactment of legislation such as
Senate Bill 1634. We are pleased that members of the Senate and the
House of Representatives have requested the Government Accountability
Office to undertake this task. Such a study would necessarily focus on
two objectives of central importance to the consideration of S. 1634:
(1) to provide current and reliable information about the Commonwealth
as it exists today--its economy, workforce, and changing population;
and (2) to assess the economic, political, and social consequences of
preempting the Commonwealth's immigration and labor laws and
substituting a federally designed and managed guest worker program in
the CNMI.
The need for current and objective information about the
Commonwealth is apparent from the provisions of S. 1634 and the
questions posed by Senate Akaka. In our earlier statement we spelled
out in detail the deficiencies in the data, assumptions, and
allegations set forth in a briefing paper for the members of the
Committee. Based on that information, the Clinton Administration ten
years ago and this Committee seven years ago acted to impose the
federal immigration laws on the CNMI. In answer to a specific question
addressed to Governor Fitial by Senator Akaka: We oppose S. 1634
notwithstanding these earlier federal efforts because the underlying
facts in the Commonwealth today no longer require such drastic and
unprecedented legislative action. Whether we are right or wrong in this
regard, the Committee will surely benefit from GAO's assessment of the
current situation.
The GAO study is also needed to assess the impacts of
federalization on the Commonwealth's economy and community. We have set
before the Committee our detailed plan for economic recovery and
candidly expressed our fears that the federal bureaucracy and program
mandated by S. 1634 will have immediate and adverse consequences on our
recovery program. We have stressed the uncertainty already expressed by
present and potential Asian investors on whom the CNMI has necessarily
depended over the last two decades. The existing backlogs at the
Departments of State, Labor, and Homeland Security with respect to
their existing responsibilities will undoubtedly make it difficult for
local CNMI concerns to be addressed as contemplated by S. 1634. We hope
that the GAO study will take a serious look at these issues.
Under these circumstances we do not understand why the supporters
of S. 1634 are urging action before GAO reports its findings to
Congress. Deputy Assistant Secretary Cohen in his written testimony
urged ``Congress to carefully consider the results of [the GAO]
analysis in the continued development of this legislation.'' When asked
by Senator Akaka whether the legislation should be delayed pending
receipt and consideration of the GAO study, Mr. Cohen stressed the need
for legislative action and indicated that the study should not be used
as an excuse for delay and that it could be used in evaluating the
effects of the legislation after it is enacted. As discussed later in
this supplementary statement, we believe that Mr. Cohen's sense of
urgency is largely self-generated and that there is no good reason for
acting on a matter of this importance without all the relevant
information that would be developed by a GAO study.
human trafficking
As evidence of the need for immediate approval of S. 1634, Mr.
Cohen stressed the seriousness of the human trafficking problem in the
Commonwealth. Based on a statistical analysis featuring the 36 female
victims of human trafficking within a recent 12-month period in the
CNMI, he concluded that ``human trafficking remains far more prevalent
in the CNMI than it is in the rest of the U.S.'' Using a figure of
between 14,500 and 17,500 human trafficking victims brought into the
United States each year, and then comparing the number of victims with
the size of the resident population in both the CNMI and the United
States, he concluded ``that human trafficking is between 8.8 and 10.6
times more prevalent in the CNMI than it is in the U.S. as a whole.''
Cohen's analysis is a textbook example of misuse of statistics. We
are concerned here with the comparative performance of two immigration
systems--the federal system operating in the United States and the CNMI
immigration system. Accordingly, the incidence of trafficking victims
must be related to the number of entrants into the two areas rather
than the population of residents in each area. Analytically, the size
of a community is not related either to the number of entrants seeking
admission into that community or the number of immigrants victimized in
this manner. According to a professor of statistics at the Northern
Marianas College, Cohen's analysis commits the statistical offense of
creating a sample outside the population.
As one might anticipate, a more appropriate statistical analysis
produces a dramatically different result. In the last few years the
number of visitors entering the CNMI has been about 450,000. The number
of entrants into the United States in 2005, the last year for which
statistics were fully available, was 33,675,808--the total of 1,122,373
permanent legal residents, 32,003,435 non-immigrant admissions, and
550,000 illegal immigrants. (The first two figures are from the DHS
annual yearbook for 2005 and the number of illegal immigrants annually
is the middle of the range of 400,000 and 700,000 calculated by GAO.)
The results of the analysis: CNMI--one trafficking offense for each
12,500 entrants; United States--one trafficking offense for each 1,924
entrants. The United States figure is six and one-half times the CNMI
figure.
What is disappointing about Mr. Cohen's statistical analysis is not
that it was so wrong, but that he felt it was necessary to generate a
heightened sense of urgency to persuade the members of the Committee to
enact a bill without having all of the relevant information before
them. The Commonwealth is committed to investigating all allegations of
human trafficking and to cooperating fully with the local United States
Attorney and his staff. We know that many communities in the United
States in recent years have had major criminal prosecutions involving
dozens of immigrants brought into their area for illegal sexual or
other criminal activity. Identifying the CNMI as a major offender in
this regard was an unnecessary and inappropriate accusation by a
Department of the Interior official and we believe that Mr. Cohen owes
us an apology.
refugee protection
On this subject, we believe that Mr. Cohen has made several
important observations which we in the CNMI take very seriously. We do
recognize the international obligations of the United States under the
treaties cited in Mr. Cohen's testimony. We realize that the
appropriate officials in the Department of Homeland Security are
entitled to monitor and protect the integrity of a refugee protection
program which impacts U.S. compliance with these international
commitments. We regret that a recent exchange of letters between DHS
officials and the CNMI Office of the Attorney General was politicized
rather than resolved in discussions between the two agencies.
As Mr. Cohen pointed out in his testimony, the terms of the
Memorandum of Agreement permitting the CNMI Office of the Attorney
General to share information regarding protection applicants and their
claims expired on September 26, 2006. In the absence of such an
agreement, under the provisions of the CNMI immigration regulations,
which were approved by USCIS, compliance with the request for
information pertaining to pending protection applications would have
violated these regulations and the privacy provisions of the CNMI
Constitution.
This Administration supports the Memorandum of Agreement under
which the CNMI has established its own refugee protection system with
the assistance of USCIS and would welcome the renewal of that
Memorandum. We believe that the system has worked well over the past
few years, during which 32 refugee cases were initiated--two in 2004,
13 in 2005, 14 in 2006, and three to date in 2007. The Commonwealth has
followed the same policies and practices throughout this period; no
changes were made by my Administration. So far as I am aware, no
serious differences of opinion developed during this period between
CNMI and USCIS officials regarding the administration of the program.
To the contrary, I have been advised that the consultants provided by
USCIS provided valuable assistance to the CNMI participants in the
processing of these claims.
I do not believe that we should let an exchange of letters detract
either from this past record of cooperation or our mutual interest in
enforcing the treaty obligations of the United States. I understand
that the Attorney General is consulting with USCIS officials regarding
an appropriate agreement about the assistance that USCIS has offered to
provide to the CNMI. I am confident that these officials can negotiate
in good faith to achieve a mutually satisfactory accommodation. I am
prepared to consider such additional steps as may be necessary to
achieve our common objectives in this area of refugee protection. In my
opinion, it is in the interest of both the United States and the
Commonwealth for the CNMI to administer a refugee protection program in
a manner that accords with applicable treaty obligations.
border security
Mr. Cohen and I both discussed the issue of border security in our
written statements, which prompted questions on the subject. With
respect to the authority of Congress to enact S. 1634, the Commonwealth
recognizes that the Covenant does permit application of the U.S.
immigration laws to the CNMI after termination of the Trusteeship
Agreement. However, S. 1634 is far more than an immigration law. It
imposes an unprecedented federal guest worker program on the
Commonwealth; it preempts all local labor laws relating to the use of
alien workers in the CNMI; and it replaces local decision-making with
respect to economic development with a federal bureaucracy of five
departments. No other community is the United States has been subjected
to such a federal intrusion into local matters.
The Commonwealth believes that border control can be addressed
separately from control of the local guest worker program or the
special visa programs essential to the CNMI visitor industry. With
respect to the guest worker program, the decisions regarding the nature
and extent of economic development could be left to locally elected
leaders, where such a responsibility belongs, but no guest worker would
be admitted before his or her name was checked against the federal
databases to ensure that the guest worker did not present a security
risk to the United States. With respect to the special visa programs
used by the Commonwealth to attract visitors from destinations such as
China and Russia, the CNMI could similarly follow its usual procedures,
which were outlined in Lt. Governor Villagomez's testimony before the
Committee in February, and then rely on the federal databases to
provide an additional level of protection against security risks.
Mr. Cohen contends in his written statement that only the federal
government can implement an effective, pre-screening process for aliens
wishing to enter the Commonwealth. He describes the federal procedures
in some detail and contrasts them with the procedures followed by CNMI
officials. In fact, the screening procedures used by the CNMI in its
Visitor Program are quite rigorous. Most aliens seeking admission to
the Commonwealth require a sponsor. The sponsor must supply
documentation identifying the visitor, the intent of the visit, contact
information for the alien and the sponsor while the visitor is in the
CNMI, and an affidavit of support. In this affidavit, the sponsor must
promise to support the visitor if necessary, that the visitor will not
become a charge to the community, and that the sponsor will reimburse
the CNMI for all expenses incurred as a result of the visitor becoming
a deportable alien, including detection, detainment, prosecution, and
repatriation. Selected tour agencies are allowed to gather information
regarding prospective visitors, fill out applications, and submit them
to the CNMI Division of Immigration. Each agency has posted a $500,000
bond which is subject to forfeiture in the event of a breach of the
operating agreement between the CNMI and the travel agency or tour
operator.
The comparative merit of the federal and CNMI systems rests
ultimately on the number of aliens who manage to subvert the system and
gain entry illegally into the United States or the Commonwealth. We
know the federal results: about 550,000 illegal entrants each year and
a total of some 11.5 million illegal immigrants in the United States. A
study conducted last year in the CNMI found that out of 334,195 entries
during the period from March 2006 through October 2006 only six
``overstays'' were found--people for whom CNMI records revealed no
departure, no extensions, no adjustment of status, no pending claims,
and no detention status. Because of lack of enforcement in previous
administrations, the Commonwealth is now dealing with guest workers who
no longer have legal status to remain in the CNMI. These efforts have
resulted in a substantial number of voluntary repatriations, including
most of the alien workers who previously had jobs in apparel factories
that have closed during the past two years.
The Commonwealth believes that its enforcement system can be more
effective in this community than a federal system administered from
Washington. The small size and island character of the Commonwealth
facilitates an effective immigration system--both in excluding illegal
entrants and in identifying and deporting persons no longer qualified
to remain in the community. However impressive the resources of the
United States appear in the abstract, the federal performance in this
distant location almost always falls far short of expectations. This
certainly has been the experience in the Northern Marianas, even after
the Senate hearings in 1998-99 when the Chairman of the Senate
Committee on Energy and Natural Resources chastised the federal law
enforcement authorities for failing to implement their responsibilities
in the CNMI. It is reflected today in the performance of federal
agencies responsible for handling labor cases under federal laws, where
there are substantial backlogs, and in the underfunding of essential
border protection agencies. A case in point is the U.S. Coast Guard
operation in the CNMI, whose three personnel lack even a single boat to
patrol the 400 mile chain of the Northern Mariana Islands and to act in
a timely fashion to apprehend smugglers or other criminals.
continuity in policy making
Federal legislation such as S. 1634 is frequently advocated on the
basis that it will bring stability and certainty to the CNMI. In this
connection, Members of the Committee have commented that governors and
legislators in the Commonwealth are subject to the electoral process,
which generates uncertainly about the continuity of current labor and
immigration policy.
It is certainly true that no elected governor or legislator in the
CNMI can promise that their successors will subscribe to the same
public policies as they have. Indeed, the voters' selection of new
leaders may be predicated on the desire for a new policy direction. But
this is inherent in the democratic process and is reflected as well in
the changing policies of the federal government. In fact, the most
drastic change in policy affecting the Commonwealth in recent years
resulted from the U.S. election in November 2006, which turned control
of the U.S. Congress to the Democratic Party. As a result, the
Commonwealth has been faced with a series of Congressional hearings and
proposed legislation that has not been on the Congressional agenda for
several years and comes at a time when the limited resources of the
CMNI have been stretched to their limits in dealing with our serious
economic situation.
Conceding the uncertainties of the democratic process, there are
factors influencing political choices in the Commonwealth that will
limit future elected leaders in the CNMI--just as they have influenced
the decisions of my Administration. The reduced revenues resulting from
the simultaneous decline in the Commonwealth's two major industries
impose a necessary discipline on expenditures and the size of the
Commonwealth government. The loss of government jobs and the decline in
the reliance on guest workers require new programs to increase the
number of local resident workers in the private sector. The need for
new investment and industries dictates that the Commonwealth's elected
leaders shape an economy and community that are receptive to investors.
In addition, the continued oversight of the Commonwealth by federal
officials and members of Congress provides an additional safeguard that
CNMI leaders will not ignore the realities of their situation and seek
to return to the self-indulgence that the prosperous 1990s encouraged.
More fundamentally, uncertainty regarding the future governance of
the Commonwealth does not justify enactment of S. 1634. There are ways
short of legislation to deal with federal concerns about the CNMI's
performance. In Lt. Governor Villagomez's testimony in February we
suggested the use of negotiated benchmarks to assess the Commonwealth's
performance in such areas as financial management, size of government,
job opportunities for local residents, educational programs and
standards, reliance on guest workers, and management of a labor market
that provides fair treatment and procedural guarantees for all CNMI
workers. At the very least, development of such benchmarks by the
Interior Department and the CNMI under the oversight of the U.S.
Congress would respect the Covenant's promise of local self-government
and would avoid the very considerable risks associated with the
complicated and worrisome provisions of S. 1634.
proposed amendments to s. 1634
The Committee has asked for our views regarding amendments to S.
1634 proposed by Resident Representative Tenorio and Mr. Cohen. They
are as follows:
1. Section 6(a)--Immigration and Transition.--In the Section
by Section Analysis of S. 1634 attached to my July 19, 2007
testimony, I expressed our concerns about the one-year period
provided for planning before the effective date of the
legislation. We proposed either a period of two years or, in
the alternative, providing for an extension in the legislation
to be used in the event it was needed. The Resident
Representative seconded these concerns and suggested an
approach that would provide for an extended transition period
if needed.
2. Section 6(c)(2)--Family-Sponsored Immigrant Visas.--
Resident Representative Tenorio recommended that this provision
be eliminated because it is already covered by Section 506(c)
of the Covenant. We agree.
3. Section 6(c)(3)--Employment-Based Visas.--We recommended
deletion of this provision in our Section by Section Analysis.
Both Mr. Cohen and the Resident Representative have reached the
same conclusion.
4. Section 6(d)--Nonimmigrant Investor Visas.--We recommended
that this section be amended to provide that CNMI investors be
entitled to the same immigrant status as provided to alien
workers under the proposed legislation, which would also be
more comparable to the U.S. citizenship afforded under the
United States investor program. Resident Representative Tenorio
recommended ``that this section include language that would
allow for easy processing of new investors into the CNMI.'' We
reiterate our recommendation and support the Resident
Representative's suggestion.
5. Section 6(h)--Long Term Status to Temporary Workers.--Mr.
Cohen advised that ``the Administration is evaluating the
specific provisions granting long-term status to temporary
workers in the CNMI in light of the Administration's
immigration policies.'' Resident Representative Tenorio
expressed concern about the provision in his written statement,
and proposed in his oral testimony that, if such a provision
were enacted for guest workers who had been in the CNMI for
five years and met the statutory requirements, they would not
be allowed to leave the CNMI for another five years without
their employer's permission. We believe that this suggestion is
both impractical and unenforceable. In our Section by Section
Analysis we expressed strong opposition to the provisions of
Section 6(h). The proposal has generated unrealistic
expectations among the guest worker population in the CNMI,
stimulated boycotts of commercial enterprises because of the
Chamber of Commerce's opposition to the provision, and
contributed to increased divisiveness between guest workers and
the indigenous peoples of the Commonwealth. We recommend that
the provision be eliminated from S. 1634.
6. Visa Waiver Program under Section 3(b).--Resident
Representative Tenorio emphasized the importance of the visa
waiver program to the CNMI, but makes no recommendation
regarding the relevant provisions of S. 1634. Mr. Cohen appears
to be indicating that the Secretary of Homeland Security wants
to be ensured that he ``have full authority to make visa waiver
decisions in the national interest.'' We believe that the
Secretary already has excessive authority under S. 1634 and
would oppose any amendment that would enable the Secretary to
disregard the economic importance of such programs to the CNMI
and to terminate any visa waiver program in the CNMI at his
sole discretion, without any opportunity for the Commonwealth's
interests to be considered. In our earlier submissions to the
Committee we have advised that the Guam visa program is less
stringent than the Commonwealth's. Accordingly, we would
consider carefully the pros and cons of any combination of the
two programs as is apparently being considered by the Interior
Department.
7. Section (d)(3)--Payment of Fees by Employers.--Resident
Representative Tenorio recommended that this provision be
terminated because it is contrary to Section 703(b) of the
Covenant. This Covenant provision provides for ``cover over''
or transfer of certain taxes and fees collected by the United
States to the CNMI Government. We have three problems with this
provision. First, if the fees are set at the level used in Guam
(three times the current fees charged by the CNMI), the result
will be a devastating burden on CNMI employers. Second, the
preemption of local laws contemplated by S. 1634 would deprive
the CNMI Treasury of the approximately five million dollars
annually in employer fees immediately upon the effective date
of the law. Third, the Department of the Treasury has contested
every ``cover over'' claim advanced by the CNMI Government
under Section 703(b) in recent years so that the ultimate
recovery of these fees is very uncertain in the absence of a
specific legislative directive by Congress. We continue to
believe that, if compelling federal interests require enactment
of a law such as S. 1634, then the costs should be fully borne
by the federal government (not by local employers) and it is
the responsibility of the agencies involved to calculate those
costs and present them to Congress before it enacts the
legislation.
non-voting delegate for the cnmi
The Committee has asked whether the Commonwealth would support S.
1634 if a provision were added authorizing a non-voting delegate for
the Commonwealth in the House of Representatives. Such a provision does
exist in H.R. 3079 under consideration by the House Committee on
Natural Resources.
We strongly support the proposal for a non-voting delegate for the
CNMI. It is a disgrace that the U.S. Congress has for years denied the
Commonwealth the same privileges as have been afforded to the other
insular areas. However, we believe that legislation providing for a
non-voting delegate should be considered on a stand-alone basis.
Notwithstanding our strong support for such a proposal, therefore, its
inclusion in S. 1634 will not temper our conviction that enactment of
S. 1634 will cause serious and irreversible damage to the economic
development of the Commonwealth.
Furthermore, as Mr. Cohen observed in the closing paragraph of his
prepared statement, legislation as important to the CNMI as S. 1634
should not be enacted by Congress until the Commonwealth has a
representative in the House of Representatives to participate in its
development and consideration.
Attachment 2.--Financial Highlights
The Commonwealth of the Northern Marianas (CNMI) continues to
experience severe economic challenges. Tourism, the major industry
responsible for more than fifty percent of government revenues, has not
recovered from a series of adverse external events such as the SARS
epidemic, Asian financial crisis, the 9/11 attack, and the Iraq war. It
has been made worse by the withdrawal of Japan Airlines' direct flights
in 2005 which accounted for approximately 40% of the tourist arrivals.
The apparel industry, the second largest contributor to the local
economy, has been in the decline since the lifting of import quota
restrictions from World Trade Organization (WTO) member countries. The
inability of this industry to compete globally, coupled with increasing
costs of production and overhead (higher wages, more expensive
utilities, higher fuel and shipping costs), has affected levels of
production which resulted in accelerated closure of many local
manufacturing operations.
In the midst of the declining economy and decreasing government
revenues, the new CNMI administration adopted a policy of living within
its means while ensuring essential public programs and services are
maintained and provided. To this end, the unrealistic revenue budget
for fiscal year 2006 was immediately reduced and the extraordinarily
generous expenditure budget was drastically cut. The result was a new
and more realistic appropriations law to guide and control government
operations and related expenditures. The discussion in the following
paragraphs essentially describes the results of this effort.
A. Compliance with the Single Audit Act
For the first time since the enactment of the Single Audit Act, the
CNMI has, for fiscal year ended September 30, 2006, complied with the
filing requirement for the timely submission of audited financial
statements. For fiscal year 2005, the current administration filed the
required financial statements within the 30-day extended filing period.
For many years, the CNMI lagged way behind in meeting this fundamental
requirement.
While the CNMI did not get a clean opinion in its financial
statements from the independent auditors, the CNMI is committed and
focused in addressing the issues identified by the auditors, such as
inadequacies in the accounting system and related internal control
weaknesses over financial reporting. The CNMI expects to resolve many,
if not all of these issues in the upcoming fiscal year 2007 audited
financial statements.
B. Results From Operation--Fiscal Year 2006
Revenues and expenditures (budgetary basis) for the CNMI General
Fund for fiscal year 2006 shows actual expenditures of $192,746,565
exceeding actual revenues of $192,660,289, resulting in a slight
operating shortfall of $86,276. Other financing sources exceeded other
financing uses by $137,859. The combined effect of these two items
resulted in revenues and other financing sources exceeding expenditures
and other financing uses by $51,581. This is a marked improvement from
the previous fiscal year where expenditures exceeded revenues on the
same budgetary basis by $12,419,374.
The total budgetary deficit also showed significant signs of
improvement, from $169,047,484 in fiscal year 2005, to $163,551,688 in
fiscal year 2006. This reduction in the budgetary deficit was due
primarily to significant decrease in reserves, as well as from the
overall positive effect of the results from operation described in the
preceding paragraph. The unreserved fund deficit (budgetary basis)
increased from fiscal year 2004 to 2005 by $25,312,466.
C. Net Assets
Unlike the fund balance measure which focuses on assets available
for current period expenditures and liabilities due and payable in the
current period as reported in the governmental funds, the net assets
measure for the governmental activities includes capital assets and
long-term liabilities using the accrual basis of accounting.
For fiscal year 2006, the CNMI's net assets deficiency increased
from $38.1 million to $49.4 million, an increase in net deficiency of
$11.3 million, or 29.6% from previous year. This indicates the CNMI's
financial condition, as a whole, has not improved much from previous
year, although the rate of deficiency has slowed. The decline in net
assets for fiscal year 2005 alone was $19.5 million.
The primary factor for the decline in net assets in fiscal year
2006 is the disbursement of $6.7 million in payments for land claims
from bond proceeds received in 2004 and not included in the offsetting
revenues for the year. Additionally, the liability to the Northern
Mariana Islands Retirement Fund (NMIRF) increased by $16.1 million, due
to the suspension of General Fund employer contributions beginning
March 1, 2006.
D. General Fund Deficit
For the year ended September 30, 2006, the CNMI General Fund's
total fund deficit on a GAAP basis increased by $16.4 million or 11.9%,
to a total fund deficit of $152.1 million. The total unreserved fund
deficit in the general fund increased by $2.9 million, or 1.7% of the
total unreserved fund deficit of $177.2 million.
E. Fiscal Year 2007
The previously enacted budget for fiscal year 2007 was $193.285
million, Public Law 15-28. After careful review of the revenue
collection trends, and taking into account current and relevant
economic data, the fiscal year 2007 budget has recently been amended by
reducing total government appropriations to $163,285 million, a $30
million budget reduction. The reduced budget required a 5% reduction
from identified essential programs and activities, such as health
services, police protection, public school system, etc. It also
mandated budget reduction of at least 15.9% for all other budget
activities, including the legislative and judicial branches.
Major features of the amended fiscal year 2007 operating budget:
Budget for the year reduced by $30 million
Budget for essential programs reduced by 5 percent
Budget for other programs reduced by 15 percent
Potential lapses identified and reprogrammed to cover
potential shortfalls
Austerity Holiday in effect every other Friday
No hiring for the remainder of the fiscal year
Continued freeze on travel and other expenditures
Continued ban on overtime compensation except emergency and
health care personnel.
F. Fiscal Year 2008 Budget
Fiscal year 2008 budget is currently being compiled. The total
resources to be reported for the fiscal year is expected to be
generally the same as the current budget at $163 million. Cost
containment and expenditure controls will be strictly enforced.
Attachment 3.--Section by Section Analysis of S. 1634
The Commonwealth of the Northern Mariana Islands is opposed to
enactment of S. 1634 for the reasons set forth in the testimony of Lt.
Governor Timothy P. Villagomez on February 8, 2007, before the Senate
Committee on Energy and Natural Resources, the Memorandum dated March
19, 2007, submitted to the Committee, and in the testimony of Governor
Benign R. Fitial before the Committee on July 19, 2007.
In summary, the Commonwealth's opposition is based on the following
contentions: (1) Congress should defer any action on the bill until the
Government Accountability Office has completed the study requested by
Members of Congress; (2) the proposed legislation relies on outdated
assumptions and facts and fails to reflect the current operation and
capacity of the CNMI's labor and immigration programs; (3) the bill
proposes a cumbersome bureaucracy of five separate federal departments
that promises to be dilatory, expensive, and dismissive of local
concerns; (4) the imposition of a federal guest worker program on the
Commonwealth raises substantial legal questions under both the U.S.
Constitution and the Covenant; (5) the bill is virtually certain to
deter new investment in the Commonwealth, to cause irretrievable damage
to the local economy and community, and to increase the CNMI's reliance
on federal funds; and (6) the bill is not necessary to address
legitimate national security concerns in the Western Pacific.
If the Committee decides to consider S. 1634 at this time, we
submit the following specific suggestions for its consideration.
Section 6(a). Immigration and Transition.--This provision states
that the effective date for the ten-year transition program will be
approximately one year after enactment of the legislation. We have two
comments.
First, we have serious doubts that the five agencies involved can
complete the tasks assigned to them under the bill within a single
year. It specifies that during this period ``the Secretary of Homeland
Security, in consultation with the Secretary of State, the Attorney
General, the Secretary of Labor, and the Secretary of the Interior,
shall establish, administer, and enforce a transition program to
regulate immigration to the Commonwealth'' as set forth in subsequent
provisions of the bill. These provisions require the promulgation of
appropriate regulations and interagency agreements. In addition to this
drafting responsibility, the agencies would be required to recruit,
train, and relocate personnel.
It currently takes about one year for the U.S. Citizenship and
Immigration Services (USCIS) of the Department of Homeland Security to
process a simple adjustment of status for an Immediate Relative (IR) in
the CNMI. In addition, both the Department of Homeland Security and the
Department of State are experiencing highly publicized difficulties in
executing their present responsibilities with respect to both passports
and visas. Under these circumstances it seems highly unrealistic that
DHS could accomplish all that must precede initiation of the transition
program within one year.
Our first recommendation is to set the effective date for two years
after enactment of the legislation. This would also provide additional
time for the CNMI to recover from its current economic depression. If
this is not done, it seems only prudent to anticipate the need for a
possible extension of the effective date for the transition program and
specifically to authorize consideration of such an extension at some
point (perhaps nine months) after the bill's enactment. It would be
extremely damaging to the CNMI and the United States if the
Commonwealth's own programs were preempted before the federal agencies
were fully funded, staffed, and prepared to assume their
responsibilities under S. 1634.
Second, we recommend reconsideration of the concept of a ten-year
transition program. Any transition period seems of questionable merit.
The proposed bill certainly will deprive the CNMI of its ability to
respond effectively and promptly to the economic and alien workforce
changes resulting from international trade challenges, a declining
tourist market, and other macroeconomic factors. Instead of an
arbitrary ten-year deadline, the transition period should terminate
only after the CNMI has attained measurable economic milestones on the
road ``to achieve a progressively higher standard of living for its
people as part of the American economic community and to develop the
economic resources needed to meet the fmancial responsibilities of
local self-government.'' Covenant, Section 701. Because S. 1634
threatens to undermine this fundamental tenet of the Covenant, it
should contain provisions protecting the CNMI from the severe adverse
impacts that might result from its enactment. At the very least,
Congress needs to recognize the risk that its legislation may have
serious, and unintended, adverse consequences on the Commonwealth and
accept financial responsibility expressly for addressing those
consequences.
Section 6(b). Numerical Limitations for Nonimmigrant Workers.--This
provision permits an exemption from the numerical limitations for H-2B
temporary workers, but only for the ten-year transition program. The
assumption that the CNMI could operate without access to such temporary
workers is wholly unrealistic for such a small island community, where
the economy is very different from communities of similar size on the
Mainland, which can draw on a work force of citizens and aliens (legal
and illegal) from a much larger area and population. If any transition
were based on measurable economic and infrastructural benchmarks
reflecting progress towards the American standard of living as
envisioned in Covenant Section 701, the limit of the use of temporary
workers might be gradually adjusted in a more rational and measured
manner.
Section 6(c)(2). Family-Sponsored Immigrant Visas.--This provision
opens the door for more family-sponsored immigrant visas than
appropriate for the CNMI. Leaving these decisions to federal officials,
even after ``consultation'' with CNMI officials, raises considerable
risk. If family-based immigrants are not employed, they will generate
more demand on the Commonwealth's public services, most of which are
not reimbursed by the federal government to the same extent that they
are in the 50 states. To the extent that the new immigrants sought and
obtained jobs, they could be impeding the development of the skills of
the indigenous peoples. This is an example where federal control is
wholly unnecessary. Any legitimate federal interest here could be met
by letting the Commonwealth decide how many family-sponsored immigrants
should be admitted subject to appeal to federal authorities if the CNMI
acted in an arbitrary and capricious manner.
Section 6(c)(3). Employment-Based Visas.--This provision for
employment-based immigrant visas links permanent legal residence in the
United States with the entry of alien workers for legitimate employment
needs in a way that radically departs from the principles underlying
the federal immigration laws.
Under the federal laws even skilled workers are admitted on a
nonimmigrant basis without any assurance that ultimately the worker
will obtain lawful permanent residence. The most familiar example is
the H-1B category which permits employers to hire nonimmigrants in
specialty occupations. These visas are valid for the period of
employment of up to three years. The visa can be renewed, in which
event the worker can have H-1B status for a maximum continuous period
of six years, after which the worker must remain outside the U.S. for
one year before another H-1B petition can be approved.
There is no reason why the CNMI should be limited to fulfilling its
employment needs, for skilled or semi-skilled workers, with only
immigrants admitted for lawful permanent residence in the United
States. S. 1634 overlooks various practical aspects of any such
employment-based immigrant program. For example, if one employer has
invested in hiring an employee in this category, transfer to another
employer should be restricted to some extent. In addition, what is the
employer to do if the immigrant worker proves to be incompetent,
dishonest, or simply lazy? If permanent residence has already been
granted, what enforcement mechanisms exist to ensure that the
expectations of both the employer and the community are met? Problems
of this kind illustrate the troublesome nature of this unprecedented
program and argue strongly for meeting the employment needs of the CNMI
separately from the decision as to who should be entitled to the status
of lawful permanent resident of the United States.
Section 6(d). Nonimmigrant Investor Visas.--S. 1634 provides that
long-term investors in the CNMI may be entitled to nonimmigrant
investor visas under the federalized program. This contrasts with the
immigrant status afforded to the alien workers employed by these
investors. Under the United States investor program, U.S. citizenship
is available for investors who make particular kinds of investment in
the United States. There is no reason for discriminating against the
comparable investors in the CNMI. If they wish it, they should be
entitled to the same lawful permanent resident status in the United
States as the employees entering the CNMI.
Section 6(f).--This section provides that the proposed legislation
shall, on the transition program effective date, supersede and replace
all laws, provisions, or programs of the Commonwealth relating to the
admission of aliens and the removal of aliens from the Commonwealth.
This scope of this provision is uncertain. The creation of a federally
controlled guest worker program under S. 1634 would seem to preempt all
CNMI laws and regulations relating to the workforce in the
Commonwealth. It is also confusing with respect to the CNMI special
visitor visa programs, which are expected to continue under the terms
of S. 1634.
Section 6(h).--This provision of S. 1634 defines a category of
long-term employees who will be entitled, along with their spouses and
children, to lawful nonimmigrant status. This status will enable these
persons, if they meet certain other background and medical tests, to
establish residence as a nonimmigrant anywhere in the United States and
its territories and possessions.
This is one of the most troubling provisions in S. 1634. It is
based on the assumptions that these ``workers'' who have resided in the
CNMI for five years have contributed to the economic development of the
CNMI; that they have accordingly built up ``equities'' that entitle
them to remain in the CNMI if they wish (or move to other parts of the
United States); that they have nowhere else to go and therefore are
subject to exploitation in the Commonwealth; and that the federal
government should intervene on their behalf and let them remain in the
Commonwealth if they wish to do so.
The Commonwealth basically disagrees with these assumptions. The
contention that these alien workers have ``no place to go'' and
therefore are entitled to remain in the CNMI is no more true than with
respect to the Samoans who work in the tuna factories of American Samoa
or the Mexicans who work in the fields or cities of the United States.
These aliens are always free to return to their country of origin. In
fact, many of the long-term Filipino workers in the Commonwealth
regularly visit their families in their home country.
Section 6(h) imposes on the indigenous peoples of the CNMI a non-
indigenous population that may amount to as many as eight thousand
persons--approximate one-fourth of the number of local U.S. citizens in
the Commonwealth. Discussion of this proposal has elicited two main
concerns.
One concern addresses the problems that may arise if many of these
new lawful alien residents elect to stay in the Commonwealth. Some of
them may no longer be employed, or employable, and will therefore
present the same kind of financial burden on the Commonwealth as has
been the case with the Micronesians who moved to the CNMI under the
Compact provisions agreed to by the United States without consultation
with the CNMI. If this provision remains in S. 1634 and is enacted, the
Congress should expressly provide that the Commonwealth will be
reimbursed annually for the costs associated with providing public
services to this group of residents.
The second concern emphasizes the likelihood that all in this group
who can afford to leave the CNMI will do so--for the greater range of
jobs and higher wages in Guam or the Mainland. If so, many employers
expect to have a sudden and extensive need for new employees to fill
these vacancies and believe it will be unlikely that these positions
can be filled with suitable replacements from the local resident
workforce in the near term.
In order to address these concerns, this provision should be
amended to reduce the number of the persons (``workers'') given this
new status. One way to accomplish this would be to provide that the
term of lawful residence in the CNMI should be fifteen years rather
than five.
Visa Waiver Program under Section (b).--The visa waiver provisions
contained in S. 1634 are seriously defective. Ultimate control rests
with the Department of Homeland Security and the statutory provisions
requiring consultation among the various federal agencies will prevent
the CNMI from responding promptly to new visitor industry initiatives.
In addition, these provisions are based on the Guam visa waiver
program, which is more lenient than the current CNMI waiver program.
For example, Guam allows waivers for two countries that have militant
groups hostile to the United States. The Guam program is also unable to
deal with those aliens who enter under its waiver program but do not
depart as required under the terms of their entry.
The proposed bill permits an alien to stay in the CNMI for only 30
days. But visitors to Guam and the rest of the United States can have
long-term visitors that help their economy. There is no rational basis
for denying the Commonwealth the same opportunity.
The proposed bill requires a bond for every alien visitor. This is
far too restrictive. The CNMI visitor program has less than a one
percent violation rate; it is far more effective than the federal
program, which has a 40% violation rate.
Section (d). Special Provision to Ensure Adequate Employment;
Northern Mariana Islands-Only Transitional Workers.--This section
provides the details regarding the transitional program during the ten
year transition period. Subsection (2) gives the Department of Homeland
Security broad discretion to decide on the number, terms, and
conditions of permits ``to be issued to prospective employers for each
nonimmigrant worker who would not otherwise be eligible for admission
under the Immigration and Nationality Act.'' Even assuming this
Department has the necessary expertise to make these judgments, the
provision indicates the kind of micromanagement of the CNMI economy by
federal officials that is unnecessary and unprecedented. An
alternative, more respectful of the Covenant's guaranty of local self-
government, would be to authorize the Governor of the Northern Mariana
Islands to decide these matters subject to review by DHS to ensure that
its national security concerns have been suitably addressed.
Section (d)(3).--This subsection provides that the Secretary of
Homeland Security is authorized to establish and collect appropriate
user fees from the employer of such an alien. In short, the federal
officials not only replace local decision-makers on these critical
economic matters but also appropriate the fees that under the current
system are paid to the Commonwealth in a very significant amount (about
five million dollars). If the costs of the transitional program are to
be fully covered by the fees paid to the Secretary of Labor, the result
will be devastating to local businesses. The fees currently required of
employers in Guam are about three times the amount required under CNMI
laws. If compelling federal interests require enactment of a law such
as S. 1634, then the costs should be fully borne by the federal
government (not by local employers) and it is the responsibility of the
agencies involved to calculate those costs and present them to Congress
before it enacts the legislation.
Section (d)(5)(A).--This subsection permits temporary workers in
the transition program to transfer between jobs without the permission
of the employee's current or prior employer. This provision is a
significant departure from the U.S. laws governing H-2B nonimmigrant
temporary workers on the Mainland, which make transferring to another
employer nearly impossible. If transfers are freely granted without the
sponsoring employer's consent, petitioning employers could spend
significant resources to locate, recruit, and process suitable
employees, only to have them quickly transfer to another employee. We
see no reasoned basis for discriminating against the CNMI in this
fashion.
Section (d)(5)(B).--This provision assigns to the sole discretion
of the Secretary of Homeland Security the decision whether a business
in the CNMI is legitimate and to what extent it may require alien
workers. States in the United States are allowed to enact their own
laws defining lawful businesses and the CNMI should have the same right
to local self-government.
Senator Akaka. Thank you very much for your testimony,
Governor.
Now we'd like to hear from Mr. Guerrero.
STATEMENT OF JUAN A. GUERRERO, PRESIDENT, SAIPAN CHAMBER OF
COMMERCE
Mr. Guerrero. Hafa Adai, Mr. Chairman.
Senator Akaka. Hafa Adai.
Mr. Guerrero. I'm Juan T. Guerrero, current president of
the Saipan Chamber of Commerce. I represent the chamber's 167
members. I'm honored to testify before this committee a second
time concerning the potential extension of Federal immigration
laws to the Commonwealth of the Northern Mariana Islands.
When I testified before this committee in February of this
year, I discussed the concerns of the Commonwealth business
community with regard to the application of Federal immigration
laws to the islands and I appealed for an opportunity for the
Commonwealth to work together with the Federal Government to
address Federal concerns in a manner that recognized local
realities. At the same time, Lieutenant Governor Timothy P.
Villagomez asked this committee for a careful and independent
study of the CNMI by the Government Accountability Office. The
Resident Representative to the United States, Pedro A. Tenorio,
also asked this committee that a joint congressional,
administrative, and Congress study group be formed to enable
careful study, deliberation, and consultation prior to the
enactment of Federal legislation affecting the Commonwealth's
immigration policies. I'm even informed that some Senate
members have expressed a desire for such a study prior to the
enactment of any Federal law.
But such a study is not happening and the chamber must
object to that. A few Congressional staff members visited the
islands for a few days after the February hearings. They
solicited comments. They told us that there was no draft
immigration legislation for us to review or comment on at that
time. They told us to hurry up with any suggestion we may have
because, as they phrased it, ``the train is leaving the
station.'' The visit made headlines, but it was not the serious
study that so many have asked for, that the people of the
Commonwealth deserve.
The reason that a careful study prior to the implementation
of Federal legislation is so important is that there is so much
rhetoric, so much false accusation, and so much emotion
associated with what is granted the CNMI under the covenant and
how our local economy was developing. It is critical at this
moment in the Commonwealth's history that the U.S. Congress put
the brakes on a process that seems to be plowing ahead with
regards for facts or consequences.
There is absolutely no compelling reason why immigration
reform of this massive scope must take place on a few tiny
islands in the middle of the Pacific Ocean without the Federal
Government first commissioning a dispassionate and careful
study of the program and processes currently in place in the
Commonwealth, a review of what is working and what is not, and
consideration of how to best fix what may need repair without
needlessly destroying our economy and our way of life.
There has been over the past 2 decades an enormous amount
of inflammatory information published in the national and
international media concerning the CNMI. This information has
formed world opinion of the Commonwealth. It may even help form
some of your or your colleagues' opinions of the Commonwealth.
The vast majority of it is simply wrong. You must not allow a
process predicated on such misinformation to proceed unchecked.
The chamber is sympathetic to the homeland security
concerns of the Federal Government. We absolutely do not object
and in fact we welcome Federal voter protection in the
Commonwealth. We will also be happy to have Federal officials
work with our local government to increase the effective
enforcement of our local labor law and immigration laws. We
believe this can be accomplished without Federalization and we
believe it can be accomplished within the letter and the intent
of the covenant.
While the chamber is sympathetic to the plight of many
nonresident workers whose standards of living in their home
countries may cause a desire for local non-immigrant status in
the United States, we must urge that no such status be granted
anyone without careful contemplation of the economic
consequence of allowing tens of thousands of foreign
individuals the right to a long-term residency. The Federal
Government cannot expect the Commonwealth to shoulder what
would be an enormous financial burden created solely by virtue
of Federal legislation.
The granting of Federal immigration status to a group of
almost 8,000 long-term employees in the Commonwealth also
raises the very likely possibility that legislation purporting
to aid the local industry would actually have the opposite
effect. The Commonwealth law was never developed with the
potential grandfathering of thousands of workers and tens of
thousands of their family members as lawful immigrants in mind.
It is simply wrong to impose this on the people and the
businesses of the Commonwealth in the retroactive manner
contained in the draft legislation.
We are currently experiencing dramatic and emotional debate
in the Commonwealth as a result of the particular proposal
which was introduced by the Federal Government. It is unfair to
the employers and citizens of the Commonwealth, as well as
nonresident workers, to ignore the very real and dramatic
effect that immigration status will have on tens of thousands
of human lives. I am very sympathetic to the plight of the
nonresident workers.
For this, if for no other reason, you must stop and weigh
the heavy consequences of your action with regard to this
section of the proposed legislation before proceeding further
down the path.
It isn't fair that certain Federal officials created and
raised the issue of likely Federal immigration status for
nonresident workers in an effort to bolster support for Federal
immigration control in whatever quarters they would. This has
taken, Mr. Chairman, a life of its own back home.
I once again plead with this committee to study the likely
impact of this legislation before it is enacted, and not after.
It is manifestly unfair to the people of the Commonwealth,
United States citizens, for this Congress to impose a law on
the islands that would not only wreak havoc with our labor pool
and our tourism industry, but will also dramatically alter the
quality and nature of life, the demographic makeup, and the
right to local governance, over issues that we negotiated and
agreed to in the covenant.
The chamber will be pleased to provide more information and
answer questions that might be of assistance to this honorable
committee. Si Yu'us Ma'ase and thank you, Mr. Chairman.
[The prepared statement of Mr. Guerrero follows:]
Prepared Statement of Juan T. Guerrero, President, Saipan Chamber
of Commerce
Hafa Adai, Mr. Chairman and Members of the Committee. I am Juan T.
Guerrero, current president of the Saipan Chamber of Commerce. I
represent the Chamber's 167 members and am honored to testify before
this Committee a second time concerning the potential extension of
federal immigration law to the Commonwealth of the Northern Mariana
Islands.
introduction
When I testified before this Committee in February of this year, I
discussed the concerns of the Commonwealth business community with
regard to the application of federal immigration law to the islands,
and I appealed for an opportunity for the Commonwealth to work together
with the federal government to address federal concerns in a manner
that recognized local realities. At the same time, Lieutenant Governor
Timothy P. Villagomez asked this Committee for a careful and
independent study of the CNMI by the Government Accountability Office.
Resident Representative to the United States Pedro A. Tenorio also
asked this Committee that a joint congressional, administrative, and
CNMI study group be formed to enable careful study, deliberation, and
consultation prior to the enactment of federal legislation affecting
the Commonwealth's immigration policies. It saddens me to report that
the apparent response to our testimony and our requests was a few-day
visit to the islands by three congressional staffers, one of whom has a
well-documented and long-standing history of animosity towards the
government of the Commonwealth, and a new Senate bill, 1634, that does
little to address the concerns of those of us whose lives and
livelihoods hang in the balance.
discussion
Over the past 24 years, the Commonwealth has administered a labor
and immigration program, that was designed and agreed upon by the
federal and local governments to address the unique labor and tourism
needs of the islands, consistent with the letter and intent of the
Covenant to Establish a Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America. This program was
not, and is not, intended to be parallel to or wholly consistent with
the federal immigration and naturalization policies and objectives of
the United States. The Covenant, and related laws, contemplated and
provided for unique treatment of tourism and labor issues singular to
the Commonwealth. Now, 29 years after the implementation of the
Covenant, the Commonwealth is being taken to task by staff members of
the United States Congress for not fulfilling some apparently unstated
objectives of the federal government and for allegedly abusing this
system in a manner that has not violated the Covenant, or the
federally-approved CNMI Constitution, or federal laws, or local laws.
There was an observation in 1998 that the CNMI labor and
immigration system ``is broken and cannot be fixed locally.'' This has
been proven wrong. As more fully addressed in my February testimony,
Lieutenant Governor Villagomez's February testimony, as well as the
CNMI government's response to the ``24 questions'' in March of this
year (attached as Appendix I to the February 8, 2007 hearing transcript
of this Committee on Conditions in the Commonwealth of the Northern
Mariana Islands), the Commonwealth has made great strides in
proactively discouraging labor and immigration abuses, as well as in
the investigation and prosecution of alleged abuses. In comparison with
the unmitigated immigration control failures of the mainland United
States during the same time frame, the marked improvements in the
locally-administered Commonwealth immigration program should be
acknowledged and fostered.
There is a reason that you have heard many requests for serious
study of the overall issues facing the Commonwealth before the United
States Congress continues to legislate our future--requests from the
Chamber of Commerce, from the local administration, from our Resident
Representative, and in written form from individuals, as well as a
local group that collected hundreds of signatures of both United States
citizens and non-resident workers. The reason that there is much clamor
for such a study is that so many people believe it is impossible for
this Committee or the United States Congress to formulate sound policy,
or even to determine if federal policy needs to be formulated at all,
without the benefit of an impartial, unbiased, and current review of
the Commonwealth's strengths and weaknesses. All of the testimony you
have heard and read, including my own, comes from specific viewpoints
and with certain hopes and expectations. If you do not have access to
underlying facts, how can you move forward in a fair fashion? While we
appreciate the congressional staffers' brief visit to the Commonwealth
following the last hearing, we doubt it yielded much more than
additional opinion. What is needed before Congress can continue is the
serious and comprehensive study that has been asked for from many
quarters--not additional opinion.
While media reports might lead the uninformed to believe otherwise,
the CNMI government and its agencies have worked closely with various
agencies of the federal government for 24 years, in an attempt to
ensure that programs designed to stimulate economic growth did not
condone, promote, or tolerate labor abuses. The Commonwealth's foreign
worker program solves a labor shortage problem with respect to many job
categories and provides attractive employment opportunities for foreign
workers who earn many of times what they would earn in their home
countries, at salaries that are affordable to local businesses
struggling to survive in an isolated and depressed economy, and which
jobs would be unattractive to mainland workers at the prevailing wages.
Workers are free to transfer to different employers with the consent of
their current employer, or may unilaterally choose to transfer at the
end of their contract period (which is usually one year). Workers enjoy
all legal protections available to United States citizens, and in some
respects, even more. All employers are required to provide medical
coverage for non-resident employees, and are also required to provide
return airfare to each non-resident employee's country of origin at the
termination of each employee's contract term if that employee desires
to return home. All of this information has been disclosed on many
occasions, in many forms, by many individuals and groups. There is
little more that I can add to the detailed testimony offered by the
local administration, the Chamber, and others at the February hearing,
as well as in other forums with federal officials, other than a plea
that you study and consider facts and not tired, biased, and
demonstrably false allegations.
Allen Stayman has referred to our local immigration and labor
departments as ``essentially organized crime.'' To suggest that
trafficking, prostitution, or other human rights abuses are the result
of the policies, procedures, or efforts of the CNMI government is
irresponsible, false, and unbecoming of a federal official. As I
pointed out in February, there occurs, in the mainland United States,
frequent and well-publicized human trafficking, with related
prostitution and human rights abuses. No one, including me, would
suggest that these terrible acts, committed by criminals, are somehow
the fault of the Immigration and Naturalization Service, or that law
enforcement agencies are turning a blind eye. It is unfair and
disingenuous for Mr. Stayman to ascribe broad criminal intent and/or
behavior to our local government as a result of similar individual
unfortunate events that may occur in the Commonwealth. There will
always be bad people who commit criminal acts. The most we can expect
of any government is that best efforts are made to deter such behavior,
and vigorous prosecution occurs whenever such behavior is uncovered.
That is what happens in the Commonwealth, both at the local and federal
levels.
While there has been much discussion that ``federalization'' is the
only option, there is simply no empirical evidence that the
Commonwealth's immigration system can be more effectively run through
federal offices than by retaining local control for purposes of
administering a tourism-based and employment-based immigration program.
Our economy is small and fragile. The much-improved processes and
procedures in the Commonwealth allow for nimble adjustment to the ever-
changing needs and requirements of the countries from which workers and
tourists originate. Unlike the mainland United States, the Commonwealth
will not have the luxury of waiting for federal machinery to gear up
and effectuate changes required by any country or in response to the
needs of that country's citizens--those travelers will simply opt to
travel to another Pacific-rim tourist destination with less onerous and
time-consuming visit requirements for vacationing. If the well-
publicized visa delays currently being experienced by many visitors to
the United States were to occur in the CNMI, the results would be
disastrous to the tourism industry and the business community as a
whole.
It has been suggested that the Chamber, in February, opposed any
``U.S. action'' with respect to improving our local labor and
immigration processes. In the Chamber's written testimony, we averred,
``across-the-board imposition of federal law . . . will [not] solve any
problems, real or perceived, that may exist in the CNMI.'' More
importantly, I stated that the Chamber ``look[s] forward to an
opportunity to work with federal officials to reach agreement on these
important issues in ways that answer the concerns of all interested
parties without destroying our local economy.'' And while I agreed with
the Honorable Chairman's characterization that the Chamber opposed any
legislated changes with regard to federal authority over local
immigration policy, the Chamber has never opposed, but in fact has and
does support, working with the federal government to address any
legitimate concerns. The testimony submitted in February, and answers I
gave, were made in the absence of any draft immigration legislation and
under the assumption that any ``federalization'' would be pursuant to
Section 503 of the Covenant, which seems to permit the application of
existing federal immigration and naturalization laws to the
Commonwealth, but not the crafting of new federal law specific solely
to our island community. The Chamber did and does object to any such
across-the-board imposition of federal immigration law to the CNMI,
especially in the absence of any serious consultation and study.
The Chamber fully supports the enforcement of border protection by
the federal government. This is a component of an overall immigration
program that is distinct from the Commonwealth's ongoing need to
control locally the admission of foreign workers as well as visitors.
The federal government's border patrol obligations are explicitly
contemplated in the Covenant. Federal control of local visa programs is
not.
The ``grandfather clause'' contained in the Senate bill
contemplates allowing workers who have lived in the Commonwealth for
more than five years prior to the enactment of the law the right to
``lawful nonimmigrant'' status. Such action allows these individuals
the right to remain in the Commonwealth (or, for that matter, relocate
to the mainland United States) for purposes of living and working. This
action would allow the right to immigrate family members to the
Commonwealth under ``immediate relative'' status. Such status would be
renewable by those individuals every five years. They would not be
eligible to vote or to receive federal entitlements, such as Medicaid/
Medicare, federal scholarships, and the like. We have estimated that
approximately 8,000 current workers in the Commonwealth would qualify
for such status. There are two possible outcome scenarios under this
grandfather clause, and neither is good. The implications of allowing
almost 8,000 individuals, who are currently required to return to their
countries of origin when they are no longer able to obtain employment
in the islands, to remain--and to immigrate immediate relatives to join
them, for the long-term--are profoundly negative for the Commonwealth.
These tens of thousands of lawful nonimmigrants would be given the same
preference for local jobs that this Senate has repeatedly claimed to be
attempting to protect for United States citizens. These lawful
nonimmigrants and their families would prove an immense burden on the
local infrastructure in a way, and to a degree, that was never
contemplated by--nor allowed--under the Commonwealth's existing guest
worker program. In addition to our objection to the apparent intent to
amend the Commonwealth's Covenant-sanctioned immigration program ex
post facto, we note that there seems to be absolutely no congressional
contemplation of the funding for the enormous costs that would
certainly be shouldered by the Commonwealth in such an event.
There is another possibility concerning these individuals who would
be granted lawful nonimmigrant status and who would be able to travel
freely to and work in the mainland. They could simply move to the
continental United States in search of higher-paying job opportunities
than exist in the Commonwealth, thereby depriving the vast majority of
local employers of the qualified and experienced labor pool that they
have, for years, paid and treated fairly in accordance with CNMI law
under the provisions of the Covenant. Aside from the implications for
the United States of allowing the immigration of thousands of foreign
nationals to the mainland, which is not the concern of the Commonwealth
government or business community, it would prove a tremendous blow to
business in the Commonwealth. While we have heard your staff's concerns
with ``fairness issues,'' we believe (except when employers violate the
law), that the business community and the local government have treated
these individuals fairly. Non-resident workers are hired for limited-
duration contracts, which may be, and usually are, renewed on an annual
basis. There has never been any promise of permanent residency, or any
other federal immigration status. These workers have, for the most
part, elected to remain in the Commonwealth and work for wages, and
under conditions superior to other alternatives they have. Those who
have received better offers have left. ``Unfairness'' has been created
by federal officials who raised the issue of ``likely'' federal
immigration status for non-resident workers in an effort to bolster
support for federal immigration control in whatever quarters they
could.
To a large degree, our most serious reservation with the Senate
bill is that it appears to legislate through yet-to-be-determined
regulation. While we have no doubt that this Committee and this
Congress have only the best intentions, and the best interests of the
Commonwealth at heart, we must object to any legislation that places so
much power with so little congressional direction in the hands of
future cabinet secretaries.
In January of this year, David Cohen spoke at the Chamber's
inaugural dinner and noted,
I was at a meeting the other day, and one of our local
legislative leaders remarked that at most, only 20 percent of
the Members of Congress have even heard of the CNMI. And I
thought to myself, `That's the good news; the bad news is that
that 20 percent has only heard about the CNMI because they read
Ms. Magazine.' Most Americans who have any sort of impression
at all about these islands have the wrong one.
Mr. Cohen's apt comments about the power and impact of biased and
misleading reporting sum up my feelings about the negative and untrue
publicity that continues to parade as ``fact.'' We have asked for
serious study by an independent government agency, the General
Accountability Office, before the finalization of any legislation. What
we received instead was no study by anyone and a bill apparently not
based on our current reality that commits significant issues to future
determination by unknown appointed federal officials.
conclusion
I, once again, plead with this Committee to study the likely impact
of this legislation before it is enacted, and not after. It is
manifestly unfair to the people of the Commonwealth--United States
citizens--for this Congress to impose a law on the islands that will
not only wreak havoc with our labor pool and our tourism industry, but
will also dramatically alter the quality and nature of life, the
demographic make-up, and the right to local governance over local
issues that we negotiated for and agreed to in the Covenant.
The Chamber would be pleased to answer any questions or provide
further information that might be of assistance to this Committee.
Si Yu'us Ma'ase, Olomwaay, and Thank You.
Senator Akaka. Thank you very much, Mr. Guerrero, for your
statement.
Now we'll hear from Pedro Tenorio and your statement.
STATEMENT OF PEDRO A. TENORIO, OFFICE OF THE RESIDENT
REPRESENTATIVE, COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS
Mr. Tenorio. Aloha, Senator, and Hafa Adai from the people
of the Commonwealth. Thank you for this opportunity to share
with you my thoughts on this most important piece of
legislation, which will have profound effects on the
Commonwealth of the Northern Mariana Islands. Before I get into
the specifics, I would like to express my deep appreciation to
this committee, the Secretary of the Interior, and the Office
of Insular Affairs for their hard work and for including our
recommendations in the drafting of this bill. While I have a
few comments, overall I believe that this bill is a significant
step forward in addressing the concerns I outlined before this
committee's February 8 oversight hearing.
As I stated at that hearing, there has been no improvement
in our economic condition and the outlook remains gloomy. We
are bracing for more garment factory closures, layoffs in
public and private sectors, and government revenue and tax
collections continue to decline. We have few options for
improving our economy with outside assistance. I request on
behalf of our people for your generosity and understanding of
our plight.
The implementation of section 503 of the covenant is
expected to bring long-term benefits and stability.
Specifically, it will provide stability and confidence to
investors, secure current and future tourist markets, provide
for a closely monitored transition program that will ensure we
have uninterrupted access to the needed skilled work force.
As a member of the Marianas Political Status Commission
which negotiated the Covenant, I can say with great confidence
that it was our intention that nonresident workers would be
employed only to supplement our local work force.
Unfortunately, however, it has become obvious that nonresident
workers have supplanted our local work force in the private
sector, creating a wholly unsustainable economy.
When we were negotiating the Covenant, we were concerned
about immigrants to the U.S. overrunning our indigenous
population, but our control of immigration has led us to this
end. I hear reports daily about overstaying workers and phony
employment scams. I do not believe that our track record speaks
to an effective system of monitoring a nonresident work force
or providing protections for our resident work force. We need a
major course correction to protect the indigenous population
from losing the promise of achieving the American dream
entrenched in our Covenant.
Implementing this act will fulfill our joint commitment and
obligation to the Covenant. The Covenant was entered into in
good faith and I as a negotiator intend to honor that
commitment. Many people in the CNMI fear the outcome of Senate
bill 1634. They fear political and social elimination as well
as the loss of their homeland. However, I feel in reality we
face this already. If things do not change, we are at the
greatest risk of losing our culture, our way of life and
control over our own destiny, if we have not already.
Many local families are leaving the CNMI for Guam, Hawaii,
or the U.S. mainland because just surviving in the CNMI is too
difficult. I have recently learned that every year, nearly half
of our high school graduating seniors enlist in the U.S. armed
services. Many of them enlist out of a deep sense of duty and
patriotism, but some of them enlist because there are simply no
employment options for them in their homeland.
Mr. Chairman, I see this bill as a mechanism for restoring
the CNMI to the Chamorrans and Carolinians who have always
called it home. I believe that Senate bill 1634 is a good
beginning. However, I have a few suggestions, which you can
find in my written testimony. These are to strengthen the bill
so that we can regain the CNMI as the homeland for its
indigenous population.
Today I will mention just three. I want to emphasize the
critical importance of section 3(e) of the bill. There's no
doubt that we need to invest in training for residents to
prepare them for jobs currently held by nonresidents. While
this is included in the current language of the bill, I would
like to see specific funds dedicated to areas that require
formal training that leads to certification in the various
trades and technical fields.
We must invest in our educational system to produce skilled
workers from our own people. Without these funds and this
training, I feel that this legislation will also lead to a
failed policy in the CNMI.
Second, I would like to see throughout this bill a greater
role for the CNMI government before, during, and after this
transition period. I fear that decisions made here in
Washington will not thoroughly embrace the needs and true
situation being faced in the CNMI. I therefore urge your
committee to conserve and promote maximum local self-government
by a direct engagement of our own government in deciding what
is needed and what is best for us.
Third, as you know, unlike the other territories, we do not
have a delegate in the House. Since this bill is named the
``Covenant Implementation Act,'' perhaps it could address other
areas of the Covenant that are yet unfulfilled, such as section
901, and add language in this bill that would provide for a
nonvoting delegate in the House of Representatives.
Mr. Chairman, in addition I have attached a letter to
Senators Bingaman and Domenici from a majority of the members
of the CNMI legislature in support of the seven items I
delineated in my February 8 testimony, a supportive statement
from an additional CNMI senator, as well as Senate Joint
Resolution 15-17 in support of a nonvoting delegate for the
CNMI, and a letter from a fellow former Covenant negotiator are
also attached.*
---------------------------------------------------------------------------
* Attachments have been retained in committee files.
---------------------------------------------------------------------------
I believe that the people of the CNMI are ready for
positive change and to work in partnership with the Federal
Government to turn our Commonwealth around and rebuild a
Chamorro and Carolinian homeland. Thank you, Mr. Chairman, and
I'm ready for questions.
[The prepared statement of Mr. Tenorio follows:]
Prepared Statement of Pedro A. Tenorio, Office of the Resident
Representative, Commonwealth of the Northern Mariana Islands
Hafa Adai, Mr. Chairman, Senator Domenici, and Members of the
Committee. Thank you for this opportunity to share with you my thoughts
on this most important piece of legislation which will have profound
affects on the Commonwealth of the Northern Mariana Islands. Before I
get into the specifics, I would like to express my deep appreciation to
this committee, the Secretary of the Interior and the Office of Insular
Affairs for their hard work and including our recommendations in the
drafting of this bill. While I have a few comments, overall I believe
that this bill is a significant step forward in addressing the concerns
I outlined before this committee's February 8th oversight hearing.
As I stated at that hearing, there has been no improvement in our
economic condition and the outlook remains gloomy. We are bracing for
more garment factory closures, layoffs in both the public and private
sectors, and government revenue and tax collections continue to
decline. We have few options for improving our economy without outside
assistance. I request on behalf of our people, for your generosity and
understanding of our plight.
Although many individuals in the CNMI will be making more due to
the implementation of federal minimum wage, many families will be
losing a wage earner due to the loss of jobs. I am greatly concerned
about the ongoing degradation in the quality of life in our islands.
The cost of living continues to increase and we lack common American
social welfare safety nets such as unemployment benefits and Temporary
Assistance to Needy Families. While the implementation of Section 503
of the Covenant is expected to bring long term benefits and stability,
I would like to bring to the Committee's attention, that the immediate
future offers little hope in improving the livelihood of our people.
As a member of the Marianas Political Status Commission which
negotiated the Covenant, I can say with great confidence that it was
our intention that non-resident workers would be employed only to
supplement our local workforce. Unfortunately, however, it has become
obvious that non-residents have supplanted our local work force in the
private sector, creating a wholly unsustainable economy. When we were
negotiating the Covenant we were concerned about immigrants to the U.S.
overrunning our indigenous population, but our own control of
immigration has led us to this end. I hear reports daily about
overstaying workers, and phony employment scams. I do not believe that
our overall track record speaks to an effective system of monitoring a
non-resident workforce or providing protections for our resident
workforce. We need a major course correction to protect the indigenous
population from losing the promise of achieving the American dream
entrenched in our Covenant.
Many people in the CNMI fear the outcome of Senate Bill 1634. They
fear political and social alienation as well as the loss of their
homeland. However, I feel in reality we face this already. If things do
not change we are at the greatest risk of losing our culture, our way
of life, and control over our own destiny, if we have not already. Many
local families are leaving the CNMI for Guam, Hawaii, or the mainland
because just surviving in the CNMI is too difficult. I have recently
learned that every year nearly half of our high school graduating
seniors enlist in the U.S. armed services. Many of them enlist out of a
deep sense of duty and patriotism, but some of them enlist because
there are simply no employment options for them in their homeland.
We are eagerly awaiting the results of the many studies and
assessments that are currently being conducted or are scheduled to be
conducted in the near future. Not only do I think they will reveal the
dire state of our economy, but I am hoping they provide insight into
ways that we can overcome and correct our economic problems and improve
the living conditions of the people of the CNMI.
Mr. Chairman, I see this bill as a mechanism for restoring the CNMI
to the Chamorro and Carolinians who have always called it home. I
believe that S. 1634 is a good beginning; however I have a few
suggestions. These are to strengthen the bill so that we can once again
regain the CNMI as the homeland for its indigenous populations.
1. The New Section 6(a) of the Covenant--Immigration and
Transition.--The bill currently calls for a transition period to begin
one year after enactment. This seems a little ambitious, and I would
suggest including language that would allow for a possible delay, if
needed, to the beginning of the transition period, so as to ensure that
regulations are not rushed and that everyone is prepared and responsive
to the changes.
2. The New Section 6(c)(2) of the Covenant--Family Sponsored
Immigrant Visas.--I believe that this section is already covered by
Section 506(c) of the Covenant and one or the other should be deleted.
3. The New Section 6(c)(3) of the Covenant--Employment Based
Visas.--This section would allow skilled workers to enter the CNMI as
U.S. legal permanent residents outside of INA caps. While this would be
an asset in helping us attract doctors and nurses, I see that it will
become a revolving door for immigrant health care professionals
entering the U.S. I would suggest that other provisions in the bill
could be utilized to bring in these professionals and that this section
be deleted.
4. The New Section 6(d) of the Covenant--Nonimmigrant Investor
Visas.--With the current on-going economic downturn in the CNMI, I
respectfully request that this section include language that would
allow for easy processing of new investors into the CNMI.
5. The New Section 6(h) of the Covenant calls for a one time
grandfather provision for certain long-term employees. This is probably
the most controversial and discussed section of this bill, and while
there are no compromises that will make everyone happy I would like to
share a few thoughts on this topic.
I appreciate OIA's and the committee's intent to preserve the
political and cultural rights of the indigenous populations in the
CNMI, but I do not feel that this section truly addresses the problems
at hand. We need these long staying non-resident workers as much today
as we did when they were hired. The change of status for potentially
thousands of these workers early in the transition period could leave
us without a workforce if they exercise their option to leave
immediately. Although this bill allows for a temporary guest worker
program, I would like to see the transition period utilized to train
and place as many indigenous persons into our private sector as
possible. During this time I hope that we can refocus our educational
system on training and skill development for our local people so they
are ready to assume jobs currently held by non-residents, stabilize our
economy, and build the Commonwealth we envisioned when we negotiated
the Covenant.
6. Section 3(b) would grant a visa waiver program for the CNMI.
This is vital to begin the recovery of our tourism economy. While
countries are not specifically named, this would allow tourists from
China and Russia to visit the CNMI the two potentially promising new
markets that the Marianas Visitors Bureau has worked so hard to
develop. I would like to take this opportunity to make the committee
aware of the continued bilateral talks between the Peoples Republic of
China and the United States. As more and more Americans wish to travel
to China including to the 2008 Olympic Games to be held in Beijing,
there is increased pressure for Chinese citizens to visit U.S.
destinations. In recent bilateral talks the Chinese delegation
expressed its desire that the U.S. Government make modifications in
visa policy and procedures to promote travel to the United States
including the CNMI by Chinese citizens. The Chinese delegation said
such modifications would be conducive to expanding the bilateral air
services agreement with a view to reaching full liberalization of air
transport between China and the United States as the ultimate
objective. I am attaching documents relating to these recent talks.
The CNMI plays a vital role in meeting the U.S. obligations in this
bilateral agreement. Allowing us to include China in a visa waiver
program will help the U.S. meet its obligation under this agreement.
7. Section 3(d)(3).--This section calls for the collection and use
of appropriate user fees from employers of aliens during the transition
period. I believe that this section is contrary to Section 703(b) of
the Covenant, and should therefore be deleted.
8. Section 3(e) Technical Assistance Program.--There is no doubt
that we need to invest in training for residents to prepare them for
jobs currently held by non-residents. While this is included in the
current language of the bill, I would like to see specific funds
dedicated to areas that require formal training that leads to
certification in the various trades and technical fields. We must
invest in our education system to produce skilled labor. Without these
funds and this training, I feel that this legislation will also lead to
a failed policy in the CNMI.
9. I would like to see throughout this bill a greater role for the
CNMI Government before, during, and after this transition period. I
fear that decisions made here in Washington will not embrace the needs
and true situation being faced in the CNMI.
10. As you know, unlike the other territories, we do not have a
Delegate in the House, so all of us in the Commonwealth appreciate your
courtesy and willingness over the years in affording the Resident
Representative an opportunity to speak on behalf of the United States
citizens residing almost half way around the world. Since this bill is
named the Covenant Implementation Act, perhaps it could address other
areas of the Covenant that are yet unfulfilled, such as Section 901,
and add language to this bill that would provide for a non-voting
Delegate in the U.S. House of Representatives.
Mr. Chairman, Senators, in addition I have attached a letter to
Senators Bingaman and Domenici from a majority of the members of the
CNMI Legislature in support of the seven items I delineated in my
February testimony. A supportive statement from an additional CNMI
Senator, as well as Senate Joint Resolution 15-17 in support of a non-
voting Delegate for the CNMI, and a letter from a fellow former
Covenant negotiatior are also attached. I believe that the people of
the CNMI are ready for positive change and to work in partnership with
the federal government to turn our Commonwealth around and rebuild a
Chamorro and Carolinian homeland.
Si Yuus Masse, Ghilisow, Thank you.
Senator Akaka. Thank you very much, Mr. Tenorio, for your
testimony.
I'd like to begin the questions by first addressing one to
Mr. Cohen. In his testimony, Mr. Cohen, the Governor has
emphasized the progress that his administration has made in
responding to the labor and immigration concerns of the Federal
Government. Do you recognize this progress, and if so, why do
you believe legislation is still needed?
Mr. Cohen. Thank you, Mr. Chairman. We definitely recognize
the very significant progress that has been made in the CNMI.
In previous testimony before this committee, I went point-by-
point listing a number of very significant developments. In
summary, the labor situation in the CNMI in no way resembles
the labor situation that existed in the late 1990's, several
years ago, when you and other Senators went out to see things
for yourselves.
So we at the Office of Insular Affairs have been the first
to stand up to defend the CNMI when people try to tarnish its
image with old information. We're very sympathetic to that. But
all of the challenges that were listed in my testimony are
current challenges and, notwithstanding all the progress that's
been made, there are significant challenges that still remain,
and it's getting harder and harder for the CNMI to properly
address those challenges, properly administer an effective
labor and immigration system that can crack down on abuse and
make sure that there is proper investigation and then
prosecution of wrongdoing, simply because their government
revenues are plunging so precipitously that it's becoming
difficult for them to properly operate all sorts of government
services, not only the labor and immigration system.
So the CNMI is suffering from a lot of developments that
are beyond its control and because of this and other reasons we
strongly believe that it is imperative for the Federal
Government to step in and take control of the labor and
immigration system.
Senator Akaka. Mr. Cohen, in your written testimony that we
received, on page 6 you say that one of the administration's
principles for considering legislation is that it should be
carefully analyzed for its likely impact before implementation.
Is the fact that studies are ongoing a reason for the committee
to delay consideration of this bill?
Mr. Cohen. Mr. Chairman, we would not recommend that the
committee delay consideration of the bill. The bill that you
introduced--as you know, the way it's drafted--it provides a
framework within which there is considerable flexibility
through the promulgation of regulations and the development of
specific policies. There's considerable flexibility to have a
significant influence on how the labor and immigration system
will actually function under your legislation.
So these studies are very important and very valuable. If
this body is still considering this legislation at the time
when some of these studies are completed, then certainly that
could influence the legislation itself. But the intention is to
put in place a flexible framework and the studies can inform
the regulatory process that will really determine how all of
this works.
The top priority for this administration is homeland
security and national security issues, and we're extremely
sympathetic to the economic issues as well. Those are following
closely behind. But homeland security and national security
trumps everything in a post-9/11 environment. The
justifications that we have raised for Federalization mostly
focus in the homeland security, national security realm, and
that's why we think it's imperative to move quickly with the
legislation.
It's also imperative to move quickly, frankly, because of
points that were raised by the other witnesses, that
uncertainty retards economic development. Since this is raised,
since the bill has been introduced, and since many have called
for Federalization, as long as that is hanging out there and
people don't know what the ultimate rules of the game are going
to be, that creates a type of uncertainty that is harmful to
economic development. I think the business community--the
potential investors--they would rather know quickly what the
rules are going to be over the next few years, than to delay
this process.
Senator Akaka. Mr. Cohen, on your written testimony on page
7 you emphasize that the people of the CNMI must participate in
the decisions that affect their lives. Do you believe that this
committee has provided properly for the participation and
consideration of this bill?
Mr. Cohen. Yes, sir. I think this committee has made
excellent efforts to gauge the wide spectrum of opinion that
exists in the CNMI. I'm gratified to hear that your counterpart
committee in the House is actually going to go to the CNMI, and
that will provide an opportunity to reach a lot more people and
to hear a lot more voices, and I know you're going to get the
input from your colleagues in the House.
But one thing, if I could reiterate something that I stated
in my testimony, that needs to be done in order to make sure
that the people of the CNMI are properly represented in this
body is to grant them a nonvoting delegate to Congress. We've
heard arguments against it, some suggesting that somehow the
CNMI doesn't deserve to have a delegate in Congress, and
frankly many of us find those arguments offensive. It suggests
that an entire people is not worthy of the same representation
that all other communities in this country have, certainly all
other territories and commonwealths, at a time when, as I said,
young men and women from these communities are sacrificing
their lives much more frequently in our current wars than
people from the 50 States.
So we don't believe in collective punishment. You know, if
certain people have a problem with certain policies or things
that occurred in the CNMI, we don't see how that provides a
justification for denying the good citizens of the CNMI the
voice they so desperately need, especially at a time when
Congress is considering such important legislation that will
affect the future of the CNMI.
Senator Akaka. Thank you. Thank you very much for your
responses.
Governor Fitial, you have said you accept that mistakes
were made in the past, but that your administration is
committed to reforms, and you've mentioned that eloquently, to
have, ``zero tolerance,'' for criminal behavior. However, one
problem for the United States is that CNMI Governors and
legislative leaders change, and with them the policies and
commitment to reform change. You have come in and you have done
certain things already.
Don't you agree that Federal legislation would establish
more stable policies?
Mr. Fitial. I always believe in doing the right thing, and
when I first became Governor the very first month or even
within 2 months I abolished an agency in the government that
was involved in so much abuses, so many abuses. That's the
Marianas Public Land Authority. So I abolished that because
they were wasting public funds for personal interests, and I
established instead the Department of Public Lands and that is
now directly under me.
I also reorganized the Labor Department because that was
also a source of abuses. So that's the way I am, Mr. Chairman.
Whenever I see something wrong, I always take corrective
action.
My mission is to establish a new trend of administration
for local government, a new trend that will replace the trend
of abuses from previous administrations. I hope that whoever
succeeds me will continue the trend that I now want to
establish in the local government.
Senator Akaka. Governor, on page 11 of your statement you
say that this bill is an unprecedented extension of U.S.
authority. Don't you agree that the United States and CNMI
specifically agreed in the Covenant to the extension of U.S.
immigration laws?
Mr. Fitial. I believe in the spirit of the Covenant in
allowing the CNMI to have a self-government that will be
supported by the Federal Government. These principles came from
the trusteeship agreement between the United States and the
United Nations. The United States was tasked under the
trusteeship agreement to promote the quality of life in the
Northern Marianas. We were given the right to self-government.
And if the Federal Government wants to support us, we welcome
that support and assistance.
But if the Federal Government wants to do my job, then
there's no more reason for me to exist. I would like to ask the
Federal Government to help me and not to supplant me or replace
me, because I believe that we, the local people, would do
better or best in correcting or solving our local problems. All
we need is the assistance of the Federal Government and that's
all I ask.
Senator Akaka. Governor, I wanted to follow up on something
that has been mentioned here, and that is to provide a delegate
from CNMI. What are your comments about that?
Mr. Fitial. I support that, Mr. Chairman, because I believe
that is good, and anything that is good I always support.
Senator Akaka. Thank you.
Representative Tenorio, in your recommendation No. 5 you
express concern that granting permanent non-immigrant status to
the estimated 8,000 long-term workers in the CNMI could leave
the CNMI without a work force because these workers can go to
the United States. You did mention that many already have left
the islands and gone elsewhere for jobs. Would you support an
amendment to require that these workers remain in the CNMI for,
say, 5 years before they could enter the United States?
Mr. Tenorio. Thank you, Mr. Chairman. I agree with any
proposal that would keep these non-immigrant workers who would
be grandfathered to stay in the United States or the CNMI for a
period that would provide for the business community to prepare
itself toward phasing in local workers that will be trained
during this period. I don't feel that the ability or the
authority of the workers to be extended immediately after their
status is granted is the right thing to do, because that would
just allow them to move out as quickly as possible. Once they
have enough funds for plane tickets, they would probably go to
Guam or go to Hawaii or go to the U.S. mainland. What will
happen then is a huge drain, an immediate drain of the local
work force who happen to be nonresidents, and at the same time
there is an absence of a trained local work force that can take
the jobs immediately. This is why I think an amendment to
obligate these new non-immigrant workers to stay longer, for
some period until the business community can adjust itself,
aimed at phasing in the newly trained local workers or other
means of employing the work force that is needed.
Senator Akaka. I know in your testimony you did mention
about a delegate from CNMI. Do you have any further comment
about that?
Mr. Tenorio. I'm just very pleased to note, Mr. Chairman,
that H.R. 3079 was just introduced last night by Chairperson
Christiansen of the House Insular Affairs Subcommittee and also
the Chairman of the House Resources Committee, Congressman
Rahall. I did have some discussions in the past with the
members of the committee and I'm gratified that the bill now
has been introduced in the House as of last night.
Senator Akaka. Well, I again think that this is something
that we need to consider.
Mr. Guerrero, on page 2 of your testimony it reads, and I
quote: ``The CNMI has administered a labor and immigration
program that was designed and agreed upon by the Federal and
local governments.'' My question to you is: how do you
reconcile this statement with the history of U.S. opposition to
CNMI labor and immigration policies, that in 1986 the Reagan
Administration called for--and I'm quoting from that--``timely
and effective action to reverse the influx of alien workers''?
In 1997, the Clinton Administration recommended legislation to
extend U.S. immigration, and this committee has three times
reported such reform legislation.
So I'd like to hear a response to this, Mr. Guerrero?
Mr. Guerrero. Thank you, Mr. Chairman. That is a very
loaded question. In a very small island community such as the
Commonwealth of the Northern Marianas, with a very limited
local population work force, unless a careful study can be
conducted, my statement at this point in time would be just
guessing, or anybody's statement for that matter would be a
guess.
We know for a fact that, based on the number of the local
work force, that we would not be able to sustain at the peak of
the Commonwealth. At that peak we had close to over 30,000 work
force that are nonresident workers and now we have seen that
decline and it will further decline probably down to 15,000 in
numbers.
If the effort of the Federal Government or if the effort
and policies of the Federal Government and the CNMI government
are to promote economic development so that it can be a
sustainable economy, the only way that we can see our island,
the Northern Marianas Islands, to progress forward is to allow
for it to continue until such time as we see that the local
work force would replace nonresident workers.
Again, I hope that that answered clearly and provides for
trying to allow the Government Accountability Office to conduct
a precise, unbiased report so that it can provide us a
mechanism to make a reasonable study of the reality of what the
CNMI economy should be and where the nonresident worker can be
totally taken out of the picture at that point.
Senator Akaka. Mr. Guerrero, the Governor's testimony
states that the nonresident labor needs are expected to drop
from a high of 30,000 a few years ago to about 15,000 in 2008.
This legislation proposes to fill much of that need by granting
non-immigrant status to about 8,000 of the CNMI's most
experienced workers. On page 10, you object to this provision,
in part because these workers would, and I'm quoting, ``simply
move to the continental U.S.''.
If the bill were amended to require that these non-
immigrant workers would need to remain in the CNMI, as in my
question to Mr. Tenorio, say 5 years, would you still object?
Mr. Guerrero. Mr. Chairman, thank you again for that
question. Again, only a study will be able to determine at what
point in time the need for nonresident workers should decrease.
I agree with the Governor's statement that it is decreasing. At
the same time, that is decreasing because of our economic
situation right now. We have seen the exodus of airlines. Japan
Airline has stopped servicing the Commonwealth. Therefore, the
number of tourists coming to the island has decreased. Japan
Airline, for example, represented about 40 percent of Japanese
tourists coming to Saipan. When numbers decline, then the need
to employ would decline.
But the Governor at the same time in our discussions the
other day indicated that there are new hotel developments that
are coming in, that are breaking ground. If we were to block
and deny these new investors to develop so that we can have a
sustainable economy, then we would not be able to fill those
positions without providing for flexible nonresident workers in
the Commonwealth.
The question on the extension to 5 years, to limit
nonresident workers at this time to 5 years, again I certainly
would like to see more study put into that so that we can be
able to guess at a better level, so that we can say that it's
OK, in 5 years they can be allowed to exit to the United
States.
Senator Akaka. Well, I won't leave you out. I'll ask you
the question, too. What's your comment about a delegate from
CNMI?
Mr. Guerrero. Mr. Chairman, the chamber of commerce
basically would endorse probably the delegate seat for the
purpose that it would provide for a better relationship. It
will provide for our commonwealth to be heard on the U.S.-CNMI
floor and it will provide for a better relationship in terms of
legislation passing this Congress, so that in the future
whatever would affect the Commonwealth can be, we have a
representative that is here in Congress that can speak on
behalf of the Northern Marianas, unlike what it is now today
where we are denied that process. We are the only territory or
commonwealth in the entire umbrella of the United States that
is denied this delegate seat in Congress.
Again, I think that we would be very honored with, and the
Governor and our people in the Commonwealth would be very
honored if that were to materialize in the very near future.
Senator Akaka. Thank you very much for that comment.
We haven't heard from Mr. Benedetto. I know you're
accompanying Mr. Cohen, but Mr. Benedetto, last March you
reported that, and I quote, ``A number of serious problems have
yet to be effectively addressed''. You provided the committee
with copies of letters sent to CNMI authorities urging action
on specific cases.
My question to you is, has the CNMI responded adequately in
following up on those and other more recent cases? If you can
be specific, give us some specific examples.
Mr. Benedetto. Thank you, Senator. Generally speaking,
there hasn't been a lot of cooperation or communication
concerning specific cases. The reason is that many of the cases
that were referred to were referred--we requested that they
open compliance agency cases.
I have to go back and give you a little background on this,
but basically there's two kinds of cases. One is an individual
labor complaint. So a worker may not be paid and we might
assist that worker in filing an individual labor complaint.
When the Governor said that 3,000-plus or 3,400-plus of those
cases had been cleared, that's a tremendous accomplishment and
I have to take my hat off to the administration for that
accomplishment.
However, there are another 1,500 of these compliance agency
cases and these are the kind of cases that are a little bit
more difficult to resolve. They require a little bit more
investigation. Typically, the ones that I've requested in the
last 5 years have been cases that may involve criminal conduct
by the employer, cases where multiple workers are affected; for
instance, if it is alleged that at the work site, that all
employees have not been paid for 6 weeks or 12 weeks or
whatever. If the employer is a chronic violator and it looks as
though the general, regular individual complaint process is not
going to actually resolve the problem, or cases in which it is
alleged or suspected that a government official is involved in
the violation.
The fact of the matter is that those cases have not been
investigated, and that's why the Commonwealth hasn't been able
to get back to me to report on progress in those cases. So
while I do acknowledge the tremendous accomplishment in
clearing the backlog and I have to also acknowledge the work of
the hearing office, at the same time that they were clearing
the old cases dating all the way back to 1997 the hearing
officers, Hearing Officers Hershbein and Cody and Sole, have
been pulling out all the stops to deal with the labor
complaints that come in on the front end. So they're making
sure that the mediations are timely and the adjudications are
timely, so that another backlog is not created.
But there need to be some additional investigators. The two
things that I would recommend to improve the situation at this
point are, No. 1, they need more inspectors, because as we all
know an ounce of prevention is worth a pound of cure, and if
they have some people going out to the work sites and checking
on these things they can actually get a lot more bang for their
buck and actually prevent violations. They need to double the
amount of investigators that they have.
In the absence of a sufficient number of properly trained
and supervised investigators in the investigations section, it
won't be long before they have another backlog comprised of
these complex cases.
Senator Akaka. Well, thank you for your response.
I'd like to, on this same question, ask the Governor to
make any comments he would like, and then finally ask Mr. Cohen
on this same question for any comments that you may have.
Governor.
Mr. Fitial. Thank you very much, Mr. Chairman. I would like
to make just a brief comment. I had to create a special task
force to accomplish what Mr. Benedetto just talked to, the
closing of more than 3,400 pending labor disputes that I
inherited from my predecessors within a 6-month period. I am
told now by my special task force, comprising of the hearing
officers and investigators, that all these other pending labor
cases that Mr. Benedetto mentioned will be closed by the end of
September this year. Believe me, 6 months, 3,400; less than 3
months, 1,500.
I'm on top of this, Mr. Chairman. That's why I created that
task force, because I'm personally involved in closing these
pending labor cases that I inherited from my predecessor.
Senator Akaka. Thank you for your comment.
Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chairman. First of all, I'd like
to add my voice of congratulations to the Governor and his team
for clearing the backlog of over 3,000 cases. I agree it was a
tremendous effort.
I'd also like to acknowledge that Jim's Federal Ombudsman's
Office staff, especially Sophie Chin, Ripon Ahmed, I believe--I
don't know if others helped out as well--worked with the
Governor's team for translation and other services to help
achieve that milestone.
I would also echo what Jim has said, that we continue to
have concerns about the compliance agency cases. As Jim said,
they are the more difficult cases. The 3,000 that were cleared
were generally individual complaints. But where there is the
pattern of systematic abuse, those tend to be the compliance
agency cases.
I welcome the Governor's commitment to clear those in a
timely fashion. It's going to take a lot of effort. It's going
to take a lot of resources, including the investigative
resources that Jim has mentioned, in order to achieve that.
Although very serious problems remain that we're discussing and
that the Federal Ombudsman's Office and the CNMI Department of
Labor deal with every day, I think our concerns have shifted
somewhat from the big garment factory abuses--for one thing,
the garment factories are on their way out--and the concerns
that originally got the attention of Senators like yourself and
Members of Congress and others in what was going on in the
CNMI--a lot of those have significantly improved or are no
longer as pressing concerns as they once were. They've been
overtaken by events.
The concerns that we really focus on now are more along the
lines of what I testified to, the human trafficking issues,
people being recruited and then showing up and having no job
and being pressured into prostitution. These are the things
we're looking very closely at now, and we welcome the
cooperation of the Governor and the CNMI administration to make
sure that these problems can be properly addressed.
Senator Akaka. Mr. Cohen, let me further ask you: on your
testimony on page 3, you raise concerns regarding CNMI's
administration of the refugee protection system and conclude,
and I quote, ``This is a strong argument in favor of Congress
taking legislative action.'' Would you elaborate on that?
Mr. Cohen. Certainly, Mr. Chairman. I need to give a little
bit of background, and I hope I'm not going to be too lengthy.
But shortly after I came into office, I worked with my
colleagues in the Federal Government to get the Northern
Marianas Islands to institute a refugee protection program.
That was a very important Federal priority because the CNMI is
part of the United States for the purposes of our treaties,
even though it's deemed to be outside of the United States
currently for the purposes of the Immigration and National Act.
So even though aliens who are admitted into the CNMI have
no right to travel on to the rest of the United States, they
are entitled to the same refugee protection rights that all the
parties to those international treaties are entitled to. So
there was a gap in our system because the CNMI did not have a
refugee protection program. So we worked with the CNMI to
impress upon the prior administration the importance of
implementing this type of system and then running that
effectively.
They did that. We signed the MOU. My office paid for the
establishment of the program. It's up and running. The
Department of Homeland Security has provided all of the very
valuable technical expertise to get the regs drafted. We got a
human trafficking law drafted and passed. The Department of
Homeland Security has provided training both at its own expense
and at my office's expense.
So we've worked very hard to get that program going. The
problem is, if the Federal Government cannot monitor how that
CNMI system is being operated to confirm it's being operated
properly, then we, the Federal Government, are in danger of
slipping out of compliance with these international treaties to
which we're a party. In other words, the United States is
responsible for ensuring that the CNMI has the proper refugee
protection system, and if we don't get the type of cooperation
that we need to monitor that that is indeed the case, then the
only alternative we can think of is to bring aliens in the CNMI
under the protection of the U.S. system.
But that creates a real problem because then the CNMI is
controlling the front door. They're deciding which aliens get
in, how many, from which countries. But the United States
Federal Government has the responsibility at the back end. If
they let in too many people from high-risk asylum places, for
example, the Federal Government's going to have to bear that
burden and assume that cost.
So if we can't confirm that the CNMI has a properly
administered refugee protection program, then we're, No. 1, in
danger of slipping out of compliance with important
international treaties, and if we take over the asylum system--
or the refugee protection system, and leave the CNMI in control
of its immigration system, then it's an open-ended commitment
that the Federal Government is subjecting itself to, because
the Federal Government would be responsible for bearing the
cost of decisions that it has no control over, decisions that
are made solely by the CNMI.
So that's led us to this conundrum that's not a tenable
situation from the standpoint of the Federal Government.
Senator Akaka. Thank you, Mr. Cohen, for that explanation.
Governor, you have said that you welcome U.S. participation
in border control, but not in the guest worker program.
However, in order to establish effective border control Federal
authorities must decide who may enter U.S. territory and who
may not. As a practical matter, Governor, how can you separate
a guest worker program from immigration?
Mr. Fitial. Thank you very much, Mr. Chairman.
Before I answer your question directly, let me just say
that we are very happy to continue to provide the services that
we are providing now under the refugee protection program. That
program was just instituted during the last administration. We
have never had that program before. But we are willing to
continue providing that service and we believe that we are
doing a good job in providing that service. But if the Federal
Government wants to take over that service, we will not object
to the Federal Government taking over that service.
Now, with respect to the guest worker program, I created
the guest worker program in 1982 when we severed our
relationship with the trust territory government in 1978. I
understand that there was no private sector development during
the trust territory days because the Federal Government would
not allow us under Title 33 of the trust territory code.
So when I initiated the investment program and the guest
worker program in 1982, that was to grow the private sector in
the CNMI. So we have a law that governs the guest worker
program in the CNMI and we believe that that law is working
very well to our advantage to grow the local economy.
So if the problem is with border control, we will welcome
the Federal Government to assist us in patrolling our borders
or controlling our borders. But we would prefer to continue
administering the guest worker program as we are doing now,
because I believe that, since I was the one that authored that
program, I know best how to enforce it.
Senator Akaka. Thank you, Governor.
Let me ask two questions of Mr. Tenorio. In your
recommendation No. 7, you oppose the Federal collection of fees
from employers for the operation of the guest worker program.
Given that the CNMI currently charges employers for processing
guest workers and the United States charges employers for
processing employment visas, why is it not appropriate in this
case?
Mr. Tenorio. Thank you, Mr. Chairman. I want to refer the
committee to section 703 of the Covenant, which provides for
the cover over of fees and taxes collected pursuant to the
Covenant agreement, revenues or fees collected in the CNMI, to
be covered over to the local government. There's a current
agreement under section 703 of the Covenant. I would like the
committee to use that as the basis for providing or rebating to
the CNMI any fees and other types of cash requirement that is
to be collected from the operation of the immigration office
under the new proposal, respecting the spirit of that section
703.
At the same time also, we have to be realistic that the
Northern Marianas is suffering from a very serious financial
shortfall and it's going to take time for our government, our
economy, to pick up to the point where we can let go of any
funds that could be usefully provided to the government for its
own operations. So in a way, again there's a need for funds for
the government to survive. I know that you would agree with me
that the Federal Government needs that fund less than the CNMI
does.
Thank you.
Senator Akaka. You say that, Mr. Tenorio, you say that this
bill has a mechanism for restoring the CNMI to the Chamorro and
Carolinians who call the islands home. Your statement suggests
a tension between those who seek economic development, even if
that requires a large permanent class of guest workers, and
those who value preservation of the indigenous community over
economic growth.
My question is: do you think that this tension--and now
that I think of it, I'm going to ask the Governor to respond,
too, to that--do you think that this tension is behind the
problems in the CNMI? How should it be resolved and where do
you think the responsibility of this committee lies?
Mr. Tenorio. Thank you again, Mr. Chairman. I personally
feel that there is a tension between or among the local
population and the guest workers that are there. But I believe
as well that by providing appropriate training and education of
the local work force, who can then be phased into jobs that are
presently being occupied, I think that the overall situation
would greatly improve.
Where might the committee be helpful? I also mentioned in
my written testimony the fact that I would be requesting
training funds, and I'd like the committee to support a request
for availability of training funds to establish technical and
vocational education programs and institutions in the
Commonwealth. So that way there is a realistic approach to
solving this shortfall of manpower and skilled absence in the
Commonwealth.
I feel that without funds being made available from the
U.S. Government to set up training institutions similar to what
Guam has now and other States, like Hawaii for example, to
train the local workers in new kind of skills and to then begin
to phase into those jobs that are presently being occupied by
nonresident workers--I feel this is what I meant by taking back
our homeland, taking back the opportunity that was created
because of the Covenant agreement with the United States, and
just so that we don't completely lose out. I feel that Congress
needs to be very much engaged in this process, especially in
the area of appropriating funds to improve our vocational
educational system in the CNMI.
Senator Akaka. Thank you, Mr. Tenorio.
Governor, for your comments.
Mr. Fitial. Thank you very much, Mr. Chairman. I think we
have a guest worker program that is working pursuant to law,
statute. These guest workers came in to work and they signed
contracts where the terms and conditions are spelled out very
clearly. None of these terms and conditions include the
opportunity for them to become permanent residents and
eventually become U.S. citizens.
So I strongly feel that if they want to come in to become
permanent residents and U.S. citizens, then they should just
comply with the U.S. Federal law on becoming a U.S. permanent
resident and naturalization.
But we will continue to support the guest worker program
because we need the guest workers to help grow the economy. But
I personally do not support the idea of giving them permanent
residence and eventually to allow them to bring in their
families so that they can become U.S. citizens eventually. I
don't think that the other States in the Union would also
support that idea.
Senator Akaka. Well, I want to thank you, Governor, and all
of our witnesses, for your responses, your testimony, and for
being here at this hearing.
I want to thank Chairman Bingaman for his leadership on
this issue and for scheduling today's hearing. While I
understand that concerns have been raised--and you've done a
job in letting us know that--I look forward to collaboratively
working with the vested stakeholders to refine this legislation
and to move forward with a balanced proposal that is sensitive
to the needs of the CNMI. I want you to know that we really
appreciate what you've said and again look forward to working
with you.
So the hearing record will be open for 2 weeks here for
other members to provide any statement they may have or
questions they may have as well and to hear from them as well.
Again, I want to tell you that for me this hearing has been
very valuable and it'll help us to look at this bill and see
what we can do, as I said earlier, to refine the bill so it can
be helpful to the CNMI as well as to take care of the kind of
responsibilities we have for the CNMI. I just feel that
together we need to set a greater vision for our Pacific
Islands and I look forward to trying to bring that about.
So with that, I want to say Hafa Adai and aloha to all of
you, and this hearing is adjourned.
[Whereupon, at 11:12 a.m., the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Responses of Pedro A. Tenorio to Questions From Senator Bingaman
Question 1a. Your recommendation No. 4 is to amend the provision in
S. 1634, which would grandfather current alien investors, in order to
permit the entry of new alien investors.
Are you familiar with the U.S. foreign investor program and are
there features of that program that should, or should not, apply in the
CNMI?
Question 1b. What standards do you think should be used for alien
investors to enter the CNMI in the future?
Answer. I have reviewed the federal foreign investor programs and
have for the most part found them adequate in regard to the standards
that they establish for potential foreign investors.
I suggest that we do not limit CNMI investment to just countries
that the U.S. has treaties with and that the CNMI be allowed investors
from countries which we receive tourists, especially those countries
included in the CNMI visa waiver program. It is only logical that we
encourage investments from those countries that we receive tourists, as
these businesses could support the continuation and expansion of those
tourist markets. Therefore, investors should be included as a component
of the visa waiver program allowing them the flexibility to come and go
from the CNMI as needed to support their investments. In addition, due
to the critical condition of our economy and the tremendous need to
attract new employers to the CNMI, I think that it is appropriate for
DHS staff, who can expedite the processing of these investor
applications, be present in the CNMI.
I would request the standards outlined for the visa waiver
investors be positive inducements and encourage investment. The
standards outlined for Treaty Investors would seem to be appropriate
due to their flexibility, and should be applied in a manner respectful
of the CNMI's economic realities.
I would invite the Committee to consult with individuals
knowledgeable about foreign investor programs and territories to
determine what is working and what is not.
Question 1c. How many alien investors are their in the CNMI now,
and what do you believe is a reasonable number of future investors to
be admitted to the CNMI annually?
Answer. Unfortunately at this time I cannot tell you how many
foreign investors we have in the CNMI or what a reasonable number of
new investors should be admitted annually into the CNMI. However, I
encourage you to refer this question to Governor Fitial and the
Strategic Economic Development Committee who jointly hold the reigns on
our economic development plans.
Question 2. Do you have any reasonable estimate of the number of
people who may be in the CNMI, ``out of status''?
Answer. I have no reasonable estimate of the number of people who
may be in the CNMI ``out of status.'' Again this is a question
appropriate for Governor Fitial and the LIDS system.
I appreciate your ongoing willingness to perfect this bill and
provide the CNMI with a system that meets the ongoing needs of our
business community and economy. I look forward to continuing working
with committee staff on this bill.
______
Responses of Hon. Benigno R. Fitial to Questions From Senator Bingaman
Question 1. What are your views regarding amendments to S. 1634
proposed by Resident Representative Tenorio and Mr. Cohen?
Answer. They are as follows:
1. Section 6(a)--Immigration and Transition.--In the Section
by Section Analysis of S. 1634 attached to the Governor's July
19, 2007 testimony, we expressed our concerns about the one-
year period provided for planning before the effective date of
the legislation. We proposed either a period of two years or,
in the alternative, providing for an extension in the
legislation to be used in the event it was needed. The Resident
Representative seconded these concerns and suggested an
approach that would provide for an extended transition period
if needed.
2. Section 6(c)(2)--Family-Sponsored Immigrant Visas.--
Resident Representative Tenorio recommended that this provision
be eliminated because it is already covered by Section 506(c)
of the Covenant. We agree.
3. Section 6(c)(3)--Employment-Based Visas.--We recommended
deletion of this provision in our Section by Section Analysis.
Both Mr. Cohen and the Resident Representative have reached the
same conclusion.
4. Section 6(d)--Nonimmigrant Investor Visas.--We recommended
that this section be amended to provide that CNMI investors be
entitled to the same immigrant status as provided to alien
workers under the proposed legislation, which would also be
more comparable to the U.S. citizenship afforded under the
United States investor program. Resident Representative Tenorio
recommended ``that this section include language that would
allow for easy processing of new investors into the CNMI.'' We
reiterate our recommendation and support the Resident
Representative's suggestion.
5. Section 6(h)--Long Term Status to Temporary Workers.--Mr.
Cohen advised that ``the Administration is evaluating the
specific provisions granting long-term status to temporary
workers in the CNMI in light of the Administration's
immigration policies.'' Resident Representative Tenorio
expressed concern about the provision in his written statement,
and proposed in his oral testimony that, if such a provision
were enacted for guest workers who had been in the CNMI for
five years and met the statutory requirements, they would not
be allowed to leave the CNMI for another five years without
their employer's permission. We believe that this suggestion is
both impractical and unenforceable. In our Section by Section
Analysis we expressed strong opposition to the provisions of
Section 6(h). The proposal has generated unrealistic
expectations among the guest worker population in the CNMI,
stimulated boycotts of commercial enterprises because of the
Chamber of Commerce's opposition to the provision, and
contributed to increased divisiveness between guest workers and
the indigenous peoples of the Commonwealth. We recommend that
the provision be eliminated from S. 1634.
6. Visa Waiver Program under Section 3(b).--Resident
Representative Tenorio emphasized the importance of the visa
waiver program to the CNMI, but makes no recommendation
regarding the relevant provisions of S. 1634. Mr. Cohen appears
to be indicating that the Secretary of Homeland Security wants
to be ensured that he ``have full authority to make visa waiver
decisions in the national interest.'' We believe that the
Secretary already has excessive authority under S. 1634 and
would oppose any amendment that would enable the Secretary to
disregard the economic importance of such programs to the CNMI
and to terminate any visa waiver program in the CNMI at his
sole discretion, without any opportunity for the Commonwealth's
interests to be considered. In our earlier submissions to the
Committee we have advised that the Guam visa program is less
stringent than the Commonwealth's. Accordingly, we would
consider carefully the pros and cons of any combination of the
two programs as is apparently being considered by the Interior
Department.
7. Section (d)(3)--Payment of Fees by Employers.--Resident
Representative Tenorio recommended that this provision be
terminated because it is contrary to Section 703(b) of the
Covenant. This Covenant provision provides for ``cover over''
or transfer of certain taxes and fees collected by the United
States to the CNMI Government. We have three problems with this
provision. First, if the fees are set at the level used in Guam
(three times the current fees charged by the CNMI), the result
will be a devastating burden on CNMI employers. Second, the
preemption of local laws contemplated by S. 1634 would deprive
the CNMI Treasury of the approximately five million dollars
annually in employer fees immediately upon the effective date
of the law. Third, the Department of the Treasury has contested
every ``cover over'' claim advanced by the CNMI Government
under Section 703(b) in recent years so that the ultimate
recovery of these fees is very uncertain in the absence of a
specific legislative directive by Congress. We continue to
believe that, if compelling federal interests require enactment
of a law such as S. 1634, then the costs should be fully borne
by the federal government (not by local employers) and it is
the responsibility of the agencies involved to calculate those
costs and present them to Congress before it enacts the
legislation.
Question 2. The Committee would like information regarding various
aspects of the Commonwealth's population and guest worker program.
Answer. In the Commonwealth's testimony before the Senate Committee
in February and July, we provided estimates regarding the CNMI's
overall population and the current number of alien workers in the
community. Based on the closure of apparel factories over the last
several years and the current economic decline, we estimated that the
number of alien workers has declined from a peak of about 30,000 to
25,000 in 2006 and an estimated 20,000 by the end of 2007. In
anticipation of more business closures, we estimate that the figure may
fall as low at 15,000 by the end of 2008. With these figures before us,
and taking into account the new businesses coming into the CNMI, we
have estimated that the overall population in the Commonwealth may fall
to the 60,000-65,000 range by the end of 2008.
We recognize that more reliable figures are necessary for the
economic studies to be conducted by GAO and the Burger & Comer team,
which recently contracted with the CNMI to conduct the economic impact
study funded by the Interior Department. We decided at a meeting on
August 3 to complete the statistical work on a 10% sample survey
(Household Income and Expenditures Survey) conducted in 2005. We
believe that the processing of these data and the submission of the
tabulations can be completed within 45-60 days for use by the CNMI and
provided to the GAO and the Burger & Comer personnel involved in their
studies. We have requested permission from the Office of Insular
Affairs to expend a small portion of the funds previously allocated to
the CNMI Department of Commerce for this purpose. We will
simultaneously pursue other lines of investigation, especially with
respect to the alien worker and freely associated state populations, so
that we can update the figures generated by the 2005 sample survey to
reflect developments over the past two years.
We have addressed the backlog of proceedings at the Department of
Labor in order to clarify the status of the alien workers involved in
those cases. Because of certain problems in the enforcement of CNMI
laws in the last Administration, these cases were allowed to
accumulate, which in turn allowed many alien workers to remain in the
CNMI because they had a pending labor case. We have now eliminated the
backlog of some 3,400 complaints filed by individual workers. Whenever
a hearing was requested by the worker, it was granted. These hearings
resulted in decisions by a hearing officer as to such matters as the
worker's entitlement to a transfer order, reimbursement for unpaid
wages, payment of the fare necessary for repatriation, or a temporary
work authorization. All such decisions by hearing officers may be
appealed, and the statutory time period for appeal has now passed. The
Labor Department's procedures require one additional public notice with
respect to complaints that have been dismissed, and that is in process.
After all the procedural requirements have been met, the Department of
Labor will be able to determine with increased confidence which of
these alien workers are no longer entitled to remain in the CNMI and,
if necessary, deportation proceedings will be initiated.
Similar action is now being taken with respect to the backlog of
so-called agency cases--about 1,350 in number. We are hopeful that
these cases will be completed, with hearings as required, by the end of
September as represented by the Governor at the July 19 hearing before
the Senate Committee. The last remaining backlogs then will be pending
requests for renewals or transfers, and we have scheduled those for
reduction in the current year.
The Commonwealth issued its first list of overstayers in January
2007 on what was called a NO HIRE list. As we have reported to the
Committee, publication of the list prompted several hundred voluntary
repatriations. It also stimulated employers and employees alike to make
certain that the Labor Department records accurately reflected the
worker's current status. The Department of Labor and the Division of
Immigration are working on a second such list, dealing with aliens from
2004 who may no longer be entitled to remain in the CNMI.
The Department of Labor procedures for dealing with the recent
closures of apparel factories have been very effective in processing
the affected workers. With the cooperation and assistance from the
Federal Ombudsman Office, for example, the Department efficiently
handled the closure of the Concorde factory early this year, which
affected about 1,400 workers. An informational hearing was provided for
all the workers; they were advised of the procedures for paying wages
due until the closedown date and for asserting any wage or other claim
or for seeking a transfer to another job; and they were told of the
procedures for repatriation. Only a handful of the 1,400 pursued wage
claims; and a somewhat larger number were able to get jobs elsewhere in
the CNMI. But the overwhelming majority, perhaps as many as 1,200, were
promptly repatriated at their election. The Department has detailed
records regarding the handling of this and other recent closures.
We are optimistic that these efforts, plus improvements in our
computer systems, will give us the increased ability to provide up-to-
date information about the alien worker population in the CNMI. By the
time the two economic studies are completed, we anticipate that we will
have provided data with respect to overstayers in the CNMI that is very
current, and we will have in place procedures for ensuring that the
number will continue to decrease in the future.
We hope this information is of assistance to the Committee.
______
Responses of David B. Cohen to Questions From Senators Bingaman and
Domenici
Question 1. We recognize the Administration does not yet have a
position with respect to the long-term status of temporary workers. In
developing your position please address whether the Administration
would have any objection if the provision dealing with the status of
temporary workers was amended to restrict workers who may obtain
nonimmigrant status under a new section 6(h) to the CNMI for several
years.
Answer. Dialogue about this provision should continue and we are
open to constructive ideas.
Question 2. In his testimony, Resident Representative Tenorio made
ten suggestions for changes to S. 1634. Please provide, in addition to
your recommended changes, the Administration's position on the ten
suggestions provided by Resident Representative Tenorio in his written
testimony before the Committee.
Answer. The Administration appreciates and values Resident
Representative Tenorio's constructive suggestions. More specifically,
here are our comments on them:
Suggestion 1: The bill should include language allowing a delay, if
needed, to the beginning of the transition period.
Response: We agree that some additional reasonable flexibility
provided to the Federal Government to delay the beginning of the
transition period would be appropriate.
Suggestion 2: Proposed section 6(c)(2) of the Covenant Act,
relating to family-sponsored immigrant visas, is already covered by
section 506(c) of the Covenant, and one or the other should be deleted.
Response: We agree that proposed section 6(c)(2) is not necessary.
Regarding section 506 of the Covenant. we would note that section 506
provides for very limited applicability of certain provisions of the
Immigration and Nationality Act (INA) to the Commonwealth, as an
exception to the general current inapplicability. Section 503 of the
Covenant recognizes that Congress can by law make applicable to the
CNMI U.S. immigration and naturalization laws that are currently
inapplicable by virtue of the Covenant. As S. 1634 would generally
apply the INA to the Commonwealth as of the transition period effective
date, section 506 would be superseded.
Suggestion 3: Proposed section 6(c)(3) of the Covenant Act,
relating to employment-based permanent immigration to the Commonwealth,
should be deleted. Response: We agree with this suggestion.
Suggestion 4: Proposed section 6(d) of the Covenant Act should
include language that would allow for easy processing-of new investors
into the Commonwealth.
Response: The bill as introduced includes a ``grandfather''
provision for certain investors already present in the Commonwealth. In
addition, it includes authority to establish additional Commonwealth-
only nonimmigrant categories, including for investors. We believe these
provisions adequately address this concern.
Suggestion 5: Expresses some concerns about the provision of the
bill to provide nonimmigrant status to alien workers in the
Commonwealth who have resided there for at least five years, including
concern that they may leave the Commonwealth immediately if granted
status, but does not suggest specific changes to the provision.
Response: Dialogue about this provision should continue and we are
open to constructive ideas.
Suggestion 6: China should be included in any Commonwealth visitor
visa waiver program.
Response: We understand the Commonwealth's interest in promoting
Chinese tourism. All potential candidates for inclusion in a
Commonwealth visa waiver program, including China, should be fully
considered on their merits in the totality of the circumstances. We
would strongly oppose, however, any provision that directed the
inclusion of any specific country in the program or otherwise limited
the authority of the Federal Government to make decisions regarding the
scope of such a program.
Suggestion 7: Section 3(d)(3), regarding collection and use of user
fees from employers, should be deleted as contrary to section 703(b) of
the Covenant.
Response: Section 703(b) of the Covenant currently provides that
immigration fees collected in the Commonwealth should he paid over to
the Commonwealth government. It is our position that if immigration
becomes a Federal responsibility in the Commonwealth, the fees paid for
those Federal immigration services should he available to cover the
costs of those services, as they are in the rest of the United States
generally.
Suggestion 8: Specific funds from the technical assistance program
provisions should be dedicated to areas requiring formal training
leading to certification in the various trades and technical fields.
Response: We have no objections to using technical assistance funds
for formal training. We believe, however, that technical assistance
should not be hamstrung with prescribed requirements, For example,
should there he a requirement for formal training, and after a period
of time we find that such prescribed training is not producing the
skills that employers need, we might need to change to an
apprenticeship program that is conducted by the employers themselves.
Omitting legislative requirements will provide the flexibility
necessary for a successful technical assistance program.
Suggestion 9: Throughout the bill there should he a greater role
for the Commonwealth government before, during and after the transition
period.
Response: We agree that consultation with the Commonwealth
government throughout this process is not just appropriate, but vital
to its success, while also recognizing that the Federal responsibility
over immigration provided by this bill would require the Federal
Government to be the ultimate decisionmaker in immigration matters
relating to the Commonwealth, as elsewhere in the United States.
Suggestion 10: Language should be added to the bill to provide for
a non-voting Delegate for the Commonwealth in the U.S. House of
Representatives. Response: We strongly agree that the Commonwealth
should have a Delegate in the U.S. House of Representatives on the same
terms as other United States Territories. We would defer to Congress as
to the inclusion of language relating to the House of Representatives
in a bill introduced in the Senate and currently pending before a
Senate committee.
Question 3. Both the Governor and the Resident Representative have
expressed concern over the number of agencies that would be involved in
implementing this bill, the role of the CNMI government, and that one
year may not be enough time to promulgate the necessary agreements and
regulations.
Please briefly describe how this program would be coordinated,
whether you believe the bill should establish a coordinating structure,
a requirement for further consultation with the CNMI, or provide
authority to delay the implementation date, if necessary.
Answer. S. 1634 calls for implementation of its provisions to begin
slightly more than one year after the date of enactment. Five Federal
agencies would be given responsibilities under the provisions of S.
1634: the Departments of Homeland Security, Interior, Labor, State and
Justice. In 2003, President Bush re-established the Interagency Group
on Insular Areas (IGIA). A primary duty of the IGIA is to coordinate
issues that involve several Federal agencies. CNMI immigration, with
the involvement of five Federal agencies, is tailor-made for
coordination by the IGIA. With such an institution in place, we believe
that it would be redundant to create another coordination mechanism.
While S. 1634 provides CNMI immigration would be administered by
Federal authorities, the CNMI governor will he consulted in a number of
instances. The Administration believes that the amount of consultation
is appropriate and is targeted at areas where local input will be
helpful.
Assuming immediate action by the IGIA and interested agencies,
officials in the Administration believe that one year will be
sufficient to implement the provisions of S. 1634. The Administration,
however, would not object to a mechanism that would allow a short delay
in implementation if it would aid proper administration of the program.
Question 4. In his testimony, the Governor states that the need for
guest workers is declining from a high of 30,000 a few years ago, to an
estimated 15,000 next year. Are you confident that the CNMI is able to
repatriate these excess workers in an orderly fashion?
Answer. This past spring, officials of the government of the CNMI
explained that the repatriation of foreign workers had gone well to
that date, and that they did not foresee problems in the future. They
indicated that the CNMI government had funds for cases where such
employers did not fulfill their obligations to repatriate workers. The
Governor was likely referring to the number of legal foreign workers.
We do not have knowledge of CNMI plans for repatriating illegal foreign
workers, including overstays. Immigration and Customs Enforcement would
need to assess the federal response to this issue during the transition
period.
Question 5a. The Committee has received conflicting information on
population trends in the CNMI and the extent to which aliens are ``out
of status.'' Briefly describe the Department's efforts to get better
information on population and workforce trends in the CNMI.
Answer. The 2000 census is the latest information on population and
workforce trends related to legal workers in the CNMI. The Government
of the CNMI sought to conduct a mid-decade census, but the $2 million
cost was beyond its means. The Office of Insular Affair also was not
able to bear the cost. Immigration and Customs Enforcement would need
to assess the number of illegal aliens, the information that is
available and how it may be improved during the transition period.
Question 5b. Do you believe there is a significant problem with
visitors and workers being ``out of status''? If so, do you have a
reasonable estimate of the number?
Answer. For years, people have guessed at the number of illegal
aliens in the CNMI. Census numbers deal with the numbers of legal
foreign workers. Census has not counted nor estimated the number of
illegal aliens in the CNMI.
Question 6. In his testimony, Resident Representative Tenorio
states that while the extension of federal immigration law is expected
to bring long term benefits, the immediate future offers little hope
for improving conditions.
Please describe the steps the Federal government should undertake
in the short term to address the current economic and fiscal conditions
in the CNMI.
Answer. In the first instance, the Government of the CNMI is
responsible for economic and fiscal conditions in the CNMI. Currently,
the Governor of the CNMI is cutting the local government's revenue
outlook and cutting compensation paid to government employees. More
fiscal belt-tightening will be in order. In the long-term, the CNMI
will benefit from this austerity by gaining a more lean government.
At present, options for Federal aid to the CNMI are limited. For
fiscal year 2007, the CNMI received approximately $11 million for
capital improvement projects and $891,000 in technical assistance
funding. These funds help cushion the currently contracting CNMI
economy, and are intended to aid in building a foundation to make the
CNMI an attractive place for future investment.
In the last six years, a major initiative of the Office of Insular
Affairs in the economic sphere has been the organization of three
business opportunity conferences in Washington, D.C., Los Angeles, and
Honolulu. and the organization of business opportunity missions to
U.S.-affiliated islands in the Pacific and Caribbean. A fourth business
opportunity conference recently concluded in Guam. Besides U.S.
mainland and Pacific participation, Interior marketed the conference in
East Asian nations. All of the U.S.-affiliated Pacific islands were
showcased, including the CNMI, and a number of conference participants
traveled the short distance to the CNMI to view opportunities there in
person. We believe that the Interior conferences arc the most effective
way to attract economic attention to the U.S.-affiliated islands.
Question 7. Please provide the Committee with a cost estimate for
implementation of this bill including a breakdown of the cost estimate
for each department and agency, and the task(s) for which they would he
responsible. Please then describe the anticipated source of funding to
cover each of the cost elements, such as fees, existing appropriations,
or new appropriations.
Answer. The Administration has no calculated cost estimates for
implementation of the bill by Department and agency based on the tasks
for which they would be responsible, and considers it premature to do
so at this time.
Appendix II
Additional Material Submitted for the Record
----------
July 12, 2007.
Senate Committee on Energy and Resources, 304 Dirksen Senate Building,
Washington, DC.
Dear Chairman Bingaman: I am requesting that the attached statement
be included in the Congressional Record as testimony for the July 19,
2007 Senate Hearing on the U.S. Commonwealth of the Northern Mariana
Islands. I am unable to attend the hearing because I am a foreign
contract worker in the U.S. Commonwealth of the Northern Mariana
Islands.
Sincerely,
The Undersigned CNMI foreign contract workers.
Attachment.--Statement of The Foreign Contract Workers of the U.S.
Commonwealth of the Northern Mariana Islands
s. bill 1634--the northern mariana islands covenant implementation act
Dear Chairman Bingaman: We are foreign contract workers in the
United States Commonwealth of the Northern Mariana Islands (CNMI). We
have lived and worked in this community for 5, 10, 15, or 20 or more
years. We have served the community as nurses, security guards,
technicians, mechanics, accountants, engineers, farmers, domestic
workers, entertainers, construction workers, fishermen, hotel workers,
garment workers, restaurant workers, office staff, and other positions.
We were invited here to work and have contributed much to the
community. We are the threads that hold the economic fabric of the CNMI
together.
We make up the majority of the population in the CNMI, but we have
no vote. We pay taxes and many of us have social security and Medicare
taxes taken from our pay, yet most of us will never receive those
benefits. We are often victims of criminal acts, but we cannot serve on
juries. We are voiceless.
The illegal alien workers in the mainland United States have had
their voices raised by the U.S. Senate who created a bill to raise
their status. As legal nonresident workers also laboring and living on
U.S. soil don't we deserve to have our voices raised by the United
States Senate also? An estimated 3,000 of us are documented as having
United States citizen children who have lived in the CNMI all of their
lives. Presently, we have no way to be United States citizens
ourselves. Once we have completed with our contracts we are forced to
return to our home countries. How will we be able to provide our U.S.
citizen children with education, healthcare, and nutrition?
We do believe CNMI is not only a part of the U.S., but is really
U.S. soil. As workers, we have seen that the U.S. Constitution is not
followed here in the CNMI. We do not understand this. The U.S.
Constitution states that all residents of the United States are treated
equally and given freedom, liberty, and the pursuit of happiness. The
CNMI and United States are one country, but has two systems--one
democratic and one that supports indentured servitude and refuses to
enforce U.S. law.
We need to have federalization of U.S. immigration laws. For years
we have suffered with an insecure status and are in the islands only as
indentured servants. Many of us have been victims of illegal
recruitment and labor and human rights abuses. Many of us had labor
cases that have never been resolved, back wages never recovered, and
criminal attacks never prosecuted. We were told that the United States
was a democracy, but we do not live in a democratic society here. We
urge you to pass legislation that would federalize immigration and help
us to achieve the stability and United States citizenship we deserve.
______
Statement of Wendy L. Doromal, Human Rights Advocate
Thank you for the opportunity to express my views to the Senate
Committee on Energy and Natural Resources, which has jurisdiction over
matters affecting territories of the United States. From 1984 to 1995 I
lived and worked as a teacher in the U.S. Commonwealth of the Northern
Mariana Islands (CNMI). I witnessed appalling labor and human rights
abuses of contract workers who came from their homelands to work in the
United States. They came from the Philippines, China, Bangladesh,
Nepal, India, Sri Lanka, Russia, Pakistan, and other Asian countries.
They sold their land, houses, and businesses to pay up to $7,000 in
recruitment fees for a chance to live the American dream. But too many
of these workers lived a nightmare instead. In 1993, I wrote a report
that detailed the labor and human rights abuses in the CNMI and offered
solutions. It was submitted to CNMI officials, to selected U.S. members
of Congress, congressional committees, and the U.S. Departments of
Labor, Justice and State.
My family left the islands in 1995 due to threats and terrible
harassment that came about because of our human rights work on behalf
of these victims. I testified before the Senate Energy and Natural
Resources Committee in May 1995 and submitted an updated report on the
status of the guest workers and problems with the CNMI labor and
immigration laws.
Before I left the CNMI, I promised the workers that I would
continue to appeal to U.S. government leaders to extend United States
minimum wage, immigration, labor and customs laws to the CNMI. I am
ashamed to tell you that 12 years after I made this promise I continue
to plead with U.S. government officials to fulfill this promise and
finally put an end to the abuses and systemic corruption, and to give a
voice to the foreign contract workers. That is why I am in the CNMI
this month to evaluate the current status and conditions of the foreign
contract workers.
The United States Congress has known about the seriousness of the
labor and immigration problems in the CNMI for two decades. Although
there have been attempts over the years to enact effective reform
legislation, ultimately the Congress has failed again and again its
responsibility to ensure human rights and enforce U.S. law on United
States soil. Legislation is long overdue, and S. 1634 offers some
solutions to the existing problems. With needed revisions, it could be
effective in addressing ongoing problems in the CNMI.
The United States needs to have one cohesive immigration policy for
the United States mainland and its territories to ensure just treatment
of guest workers and immigrants, to provide security for its borders,
and to guarantee that the democratic values of our nation are upheld on
U.S. soil. The current CNMI immigration policy has led to serious
problems not only for the CNMI, but also for the security and
reputation of the United States.
economic and social consequences
Under the Covenant between the CNMI and the United States, the CNMI
was given local control of its immigration with the CNMI leaders
claiming they did not want to become a minority in their land similar
to Hawaii. However, under the locally controlled immigration system,
the CNMI has welcomed the cheap labor and essential skills provided by
thousands of guest workers. The indigenous people in the CNMI have, by
conscious choice, become the minority in their small island nation.
Census figures reveal that the nonresident worker population has
grown from 3,709 or 22% of the total population in 1980, to 39,089 or
56% of the total population in 2000. Today there are an estimated
84,000 people in the CNMI and only 20,000, or one-third of the adult
population, can vote. The last time guest workers with no voting
privileges or political rights outnumbered the citizens on U.S. soil it
was called slavery.
There are other dire consequences of the population explosion. The
2000 census revealed that the CNMI has a 46% poverty rate. It is most
likely much higher than that today. Furthermore, according to
statistics and recent news articles, of the 8,373 households in the
CNMI, 2,735 or 32.66% are on food stamps, with two-thirds of the
islands' children receiving federal assistance. U.S. citizens make up
80% of the public sector workforce with the higher paying salaries,
while nonresident workers make up 80% or more of the private sector
workforce where the salaries are much lower, starting at the minimum
wage of $3.05 an hour. In fact, the minimum wage of $3.05 is not a
living wage for the residents or the nonresident workers.\1\ Workers
have told me that they do not have enough food and cannot afford
electricity on their meager wages. Hours for many of the overseas
workers have been cut from 40 hours to 32 hours weekly so their meager
incomes have been further reduced.
---------------------------------------------------------------------------
\1\ President George W. Bush signed into law on May 25, 2007
legislation that will raise the minimum wage in the CNMI to the U.S.
level over a period of time.
---------------------------------------------------------------------------
Other problems are associated with the influx of huge numbers of
foreign contract workers. The rapid and enormous increase in population
over the years has resulted in the decay of the infrastructure and
decline in the quality of public services including the school system,
health care, electricity, and water. CNMI government offices are not
fully staffed, including the CNMI Department of Labor. The huge backlog
of unresolved labor cases has been blamed on the lack of personnel
including trained inspectors and case hearing officers. Other
indicators of the failing economy are witnessed in the government
enacted austerity holidays cutting government workers' hours, the
failure of the government to be able to contribute to the CNMI
government retirement fund, and delays in issuing tax rebates.
problems for families of u.s. citizen children
A significant number of U.S. citizens in the CNMI are children of
nonresident worker-parents. The Dekada Movement conducted a survey in
March 2007 \2\ and registered an estimated 1,813 U.S. citizen children
with over 2,173 or more nonresident worker-parents of U.S. citizen
children who were born in the CNMI.\3\
---------------------------------------------------------------------------
\2\ Dekada Statistics Table is attached.
\3\ Boni Sogana, the President of Dekada, told me that not all
nonresident workers registered their children, and he estimates that
the survey actually reflects less than half of the actual U.S. citizen
children with foreign parents.
---------------------------------------------------------------------------
There are numerous problems for nonresident worker-parents of U.S.
citizen children, and for the children themselves. Nonresident parents
have difficulties obtaining visas and travel documents to accompany a
U.S. child to Hawaii or the mainland for emergency surgery or treatment
for serious medical conditions. A Bangladeshi professional who worked
for the World Bank, the United Nations, and the CNMI government stated
that both of his sons were scholars in the CNMI. When it came time to
compete and represent the CNMI in a school competition on Guam,
immigration laws prohibited the nonresident parents from travelling
with their U.S. citizen children.
A Nepalese worker told me that although his one-year-old U.S.
citizen daughter would most likely qualify for food stamps and
Medicaid, he would not go to the offices to apply because other workers
have had so much difficulty qualifying. Filipino worker-parents said
they indeed had difficulties with the six-page application, and felt
that there was discrimination with processing paperwork. Two women
stated that they are not offered assistance in completing forms. There
are no translators at the offices. One guest worker said that it was
common knowledge that priority is given to the local population, and
applications of U.S. citizen children with nonresident parents find
their way to the bottom of the pile. In fact, one woman stated that she
made five trips to the offices over a six-month period trying to
qualify for assistance, then gave up and withdrew her application.
Guest workers who have expired contracts must repatriate to their
home countries with their U.S. citizen children. Many of them have
lived and studied in the CNMI for all of their lives. The parents told
me that they worry continually about not being able to provide adequate
education, healthcare, food, and other necessities for their children
if they are deported to their third world countries where there are few
opportunities to prosper. Furthermore, the workers expressed that to
find a job in their country would be nearly impossible, and if they
were lucky to find one, the salary back home would not be enough to
support their families. How does the U.S. Congress morally justify the
possible exile of thousands of U.S. citizens who are innocent children?
A guest worker couple that has been in the CNMI for 27 years has
three U.S. citizen sons, two of who are presently in the U.S.
military.\4\ One of the young men has recently returned from a tour of
duty in Iraq. The parents of these young men have lived legally on U.S.
soil longer than they have lived in their homelands. It does not seem
right that they can give their sons to the U.S. military to fight for
democracy, yet they have no pathway to become U.S. citizens themselves.
Clearly the nonresident parents of U.S. children must be granted U.S.
citizen status.
---------------------------------------------------------------------------
\4\ Carmelita G. Ramos' statement to the Senate Committee is
attached.
---------------------------------------------------------------------------
healthcare
Medical expenses can put extreme hardship on individuals and
families. While sponsoring employers are liable for a guest workers'
healthcare, they are not liable for the healthcare of children. A visit
to the emergency room for one guest worker's child resulted in a bill
just over $400, equivalent to two week's pay. A hospital stay for
another child was over $1,000. A Nepalese guest worker apologized for
his front tooth, which had decayed. He could not afford the dental work
to repair the tooth that was reduced to a short rotting stub, and his
employer has not paid for the dental procedure.
Workers whose employers are not willing to bear their healthcare
costs or who are out of a job agreed that most try to treat themselves
or their U.S. citizen children using herbal remedies or over the
counter medications because they cannot afford the expenses of a
physician. Two Filipino guest workers stated that they are diabetic,
but cannot afford the medication so they watch what they eat. Another
stated that since he lost his job he couldn't afford to buy medication
that was prescribed for his high blood pressure. A recent newspaper
article stated that a guest worker received expired medication at the
Commonwealth Health Center pharmacy.\5\ There are major implications
for the overall well being of the guest workers, their U.S. citizen
children and the general community with the current practices of
healthcare.
---------------------------------------------------------------------------
\5\ Marianas Variety, ``CHC Gives Alien Worker Expired Medicine'',
by Emmanuel T. Erediano, July 6, 2007.
---------------------------------------------------------------------------
labor problems
There are numerous labor problems that guest workers face with the
main one being nonpayment of wages. Attorneys and guest workers told me
that there is a rush to deport workers even though they have valid
outstanding labor complaints, and are not in violation of laws. Often
the CNMI Department of Labor resolves outstanding labor cases
administratively, but not justly. Workers have related that they are
told to sign a release stating that they will accept dismissal of their
labor case before they will be allowed a transfer to another employer.
Once they are issued a transfer authorization, they must locate a new
employer within 45 days. If they cannot find another employer (and it
is nearly impossible with the current economy in ruins), then they must
return to their homeland.
Other workers have stated that after they receive a CNMI
Administrative Order on their labor case, the case is considered closed
by the CNMI Department of Labor. However, the majority of the workers I
met with stated that they never received the back wages that they are
owed, whether they were owed a few hundred dollars, or tens of
thousands of dollars. For example, I met with four workers on July 15,
2007, from Rota whom I assisted with labor cases in 1993, fourteen
years ago. None had their cases resolved; none have received thousands
of dollars of back pay owed to them. Even if the CNMI Department of
Labor considers their cases closed, the workers do not. One man told
me, ``My case will be closed when I receive the money the boss owes
me.'' There is a pervasive lack of enforcement for unpaid awards. Under
the CNMI Labor Code, the CNMI Attorney General's Office can go into
court to enforce awards, but it rarely has. Too often the judgments and
administrative orders from the CNMI Department of Labor are nothing
more than meaningless sheets of paper.
One guest worker I interviewed, Francisco, handed me a file of
paperwork and stated that he is owed over $25,000 by the now closed
Business Protection Services, which was owned by the Former CNMI Chief
of Police, Antonio Reyes. In 1996, the U.S. Department of Labor ruled
in favor of the employees ordering that Reyes pay back wages. The
employer filed bankruptcy. Francisco received only a couple of checks
in 12 years and found other employment, but recently has found himself
without work. The CNMI Department of Labor expects him to find a new
employer within 45 days or he must leave the CNMI without his pay. He
asked me why the U.S. Department of Labor did not sell his former
employer's land or assets to pay the workers. Why he was being
punished, but his employer was free to enjoy his life. I had no answers
for him, but perhaps the Senators could respond to why he and hundreds
of others are in this position. There needs to be a law that bankruptcy
cannot be the cause of discharging a labor case in the CNMI.
Frustration in collecting wages can be witnessed in the case of
workers attempting to get back pay from the now defunct Island Security
Services owned by Joaquin V. Deleon Guerrero, son of the late CNMI
Governor Lorenzo Guerrero. Ten years after filing initial labor
complaints, the employees still have not received back wages totaling
$108,931, even though a judgment was issued demanding that the employer
pay this amount and an additional identical amount in liquidated
damages.\6\ I met with two of the former guards, Sisenando and George,
who are owed $4,686.62 and $7,246.52 respectively. They told me when
they went to the department to collect the wages they were told that
their powerful employer had hired an attorney to appeal the decision,
even though he had admitted at mediation that he did owe the employees
the back wages. Now the men have up until next week to find a new
employer before their temporary work authorizations expire.
---------------------------------------------------------------------------
\6\ Marianas Variety, ``Employer ordered to pay $216K for 83
workers' back wages, fines'', by Haidee V. Eugenio, June 13, 2007.
Saipan Tribune, ``Security firm told to pay 82 workers $216K'', by
Ferdie de la Torre, June 14, 2007.
---------------------------------------------------------------------------
Recent articles in the CNMI newspapers, and pages of documents I
received from guest workers have revealed that hundreds of workers from
all job categories are owed thousands of dollars in back pay.
Typically, workers cannot collect the wages and struggle each day
looking for a new employer, trying to find enough to eat, and meet the
basic necessities of life. Additionally, multiple workers have
complained that in addition to income tax, social security and Medicare
are deducted from their paychecks. It is unlikely that more than a
small amount of workers will ever collect social security or Medicare
benefits. There is taxation without representation for the majority of
the CNMI workers.
We saw the tragic consequence of what can happen when a guest
worker learns that there will be no back wages paid and deportation has
been ordered. In April this year, Buddhi Lal Dhimal was told he must
leave the CNMI even though he was owed around three thousand dollars
from his former employer. The desperate Nepalese set himself on fire
outside the CNMI Department of Labor Offices. He died weeks later at a
hospital in Manila. I met with his daughter, Pabrita, two times this
week.\7\ She states that their family in Nepal is in deep grief and
they are in dire straits without his income. She would like the
employer to pay the money owed to her father so she can send it to her
family in Nepal. Certainly this horrific case illustrates the urgent
need for reform.
---------------------------------------------------------------------------
\7\ Pabrita Lal Dhimal's statement and newspaper clippings are
attached.
---------------------------------------------------------------------------
The workers said that all of them know that once they leave the
CNMI, there is little or no chance of recovering the money owed to
them. The CNMI government does not prosecute employers who owe money to
workers, and there are few consequences for abusing an employee or
violating CNMI labor law. In fact, although violating businesses are
barred on paper from hiring new workers, the employers manage to find
loopholes to get new recruits. A mere change in the business name or a
transfer of the business to another family member will allow the
business to continue. New recruits will be hired and the cycle will
repeat.
In general, the guest workers are treated like commodities, like
coconuts. They can be consumed, tossed aside, and replaced with a new
one. the guest workers cited example after example of non-enforcement
of local and federal labor laws. Implementation of U.S. immigration
laws will prevent abuses.
immigration problems
Entry permits and paperwork for workers are delayed. For example,
three Bangladeshi workers from a security company have been asking for
their entry permits for months. Their employer submitted the paperwork
and fees in February this year. When the workers inquire at the CNMI
Immigration Division they are told to return next week. The following
week they return to be told the same thing. Others are informed that
their papers are not complete even though they are. Hundreds of workers
on island now have not received their entry permits. Without the entry
permit the guest workers are not allowed to leave or return to the
CNMI. The guest workers use the entry permits as their form of
identification for banking and other purposes.
Last month the CNMI Attorney General submitted a proposal to amend
regulations regarding entry permits for immediate relatives of non-
aliens and immediate relatives of aliens.\8\ The CNMI government is
proposing a change in status for Freely Associated States (FAS)
citizens' relatives. The amendments to current CNMI immigration policy
will treat alien relatives of FAS citizens as guest workers. The
proposal also establishes requirements for immediate relatives of
United States Citizens including: a time frame for applying for status
as an immediate relative and income requirements for the U.S. citizen
to be able to sponsor an immediate relative. Under the proposed
legislation, widows or widowers of U.S. citizens may keep their
immediate relative status only if they were widowed two or more years
after the marriage.
---------------------------------------------------------------------------
\8\ Commonwealth Register, Volume 29, Number 06, June 18, 2007.
---------------------------------------------------------------------------
I interviewed Khondaker Rahman who has been married to a Chuukese
woman for years and is raising five stepchildren in addition to one of
his own. He stated that the proposed legislation will force him to lose
his job and he will no longer be able to provide for his family. I also
interviewed five other FAS immediate relatives. One Filipino man has
been married to a Chuukese woman for over 12 years. He owns an
automotive repair shop and said the regulations will prohibit him from
owning his business if their status is changed to that of a guest
worker. Three taxi cab drivers also feared that the change in status
would result in the end of their only means of income. One Bangladeshi
who has been married for five years to a FAS citizen and has two
children said, ``I just want to be able to provide for my family. I
love my family.''
The current CNMI immigration policies do not reflect the democratic
principles of the United States, and do not support the values on which
this country was founded.
non-prosecuted criminal acts
In 1994 my family was the target of criminal acts and hate crimes
including assaults, having our tires slashed, and threats of rape and
death against my oldest daughter and myself. A total of nine criminal
complaints were filed, including two for assault by the Rota Liaison of
then Governor Froilan C. Tenorio. Not one arrest was made even after
months of requesting prosecution. I have over a dozen files of police
complaints from foreign nationals. Only two were prosecuted.
Four of the workers I met with this week had been assaulted, and
they filed police complaints. Not one of the assailants were arrested.
A Bangladeshi man said an off-duty policeman assaulted him, yet was
never charged for the crime. Four men bearing 2x4 boards beat two
Filipino guest workers at their house. The victims recognized the
assailant in a store, and alerted the police. The man was released and
still no action was taken. The victims stated that they went to the
police station repeatedly and were told that the detective was not
there and no one could help them. One of the men who was beaten has a
fractured hand. As a carpenter, he is unable to work because he can no
longer lift a hammer.
The U.S. Department of Justice should investigate the non-
prosecution of hundreds of filed criminal complaints made by U.S.
citizens and guest workers. The need for increased funding for the U.S.
Departments of Justice and Labor in the CNMI is apparent and crucial if
justice is to be served in the islands. Too often citizens and guest
workers are denied justice and due process in the CNMI.
Workers reported that there are moneymaking scams everywhere.
Workers are paying $1,500 or more to agencies who have vacant job
slots. Then papers are processed in the CNMI Department of Labor
without contracts and complete applications, according to the workers.
Other workers are paying local residents to sponsor them on paper even
though no job exists. They want the opportunity to remain in the CNMI
with the hopes of collecting money owed from former employers. Locals
and other scam artists are profiting at the expense of desperate
workers.
retaliation and discrimination
While criminal cases of nonresident workers go unresolved, CNMI
Crime Stoppers advertisements in the newspaper and on television urge
the public to turn in an illegal alien to collect up to $1,000. Workers
said the advertisements are another way that the CNMI government tries
to shape up before a Congressional hearing to convince Congress they
can control their own immigration. The bankrupt CNMI government may
have a difficult time coming up with money for those who turn in
``illegals'' to Crime Stoppers.
Workers spoke of job retaliation for speaking out and for belonging
to Dekada, or to The Human Dignity Act Movement. One leader was told he
would not have his contract renewed because he was active in The Human
Dignity Act Movement. The president of a Filipino organization did not
have his contract renewed. His employer chastised him for helping
workers and speaking out. He believes that was the cause of his
nonrenewal. Another Filipino guest worker said that the workers live in
a climate of fear. They know that they risk not being renewed if they
complain or stand up for their rights.
The indigenous Taotao Tano group has vocally opposed
federalization, attacking the guest workers and the Dekada Movement
though letters to the editor and public protests. They lined the
streets this month holding signs that read, ``Go home, this is our
land.'' Bishop Thomas Camacho denounced the actions in a pastoral
letter. That was read in Catholic churches in the CNMI on Sunday, July
8, 2007.
Nonresident-worker parents of U.S. citizen children complained of
discrimination at federally funded programs such as Head Start and
public assistance such as food stamps and Medicaid. They reported being
sent to the back of the line or having applications put on the bottom
of the pile.
The CNMI House of Representatives on June 25, 2007 unanimously
passed H.B. 15-38, The Commonwealth Employment Act of 2007, which is
now pending in the CNMI. The bill calls for guest workers to leave the
CNMI for six months after they have worked in the CNMI for three
consecutive years. This type of legislation, like similar bills
introduced previously, has the intention of limiting the possibility of
long-term residency that could qualify guest workers for a pathway to
citizenship. The Saipan Chamber of Commerce, business owners, and
nonresident workers oppose the legislation, for different reasons. Most
people believe the bill was introduced to give the U.S. Congress the
impression that the CNMI was instituting reform on its own, to win
votes in the CNMI mid-term election on November 3, 2007.
Scores of Filipino workers showed me letters from the Equal
Employment Opportunity Commission (EEOC) stating that they had been
victims of discrimination at the L&T garment factory owned by Willie
Tan. The workers has their contract renewed, but later were given
letters of termination because of a reduction of workforce. They stated
they were discriminated against because they were ``old, pregnant, or
Filipinos.'' The terminated Filipino workers were replaced by Chinese
workers who would not complain if they were not paid for the overtime
hours they worked.
lack of legal representation for guest workers
Many guest workers and several attorneys that I interviewed said
that there was a lack of attorneys willing to accept labor,
immigration, and criminal cases. Generally, guest workers cannot afford
to hire attorneys to represent them and their cases remain unresolved.
Although some attorneys take cases pro bono or are willing to lose
money to represent guest workers, there are far too many guest workers
in need of legal representation, and far too few attorneys to take
their cases. For many, justice is not within their grasp. I recommend
that the federal government provide funds to Micronesian Legal Services
specifically to be used by destitute guest workers.
national security
With the present threat of terrorism, the need for one consistent
immigration policy to secure our borders is critical. We need to close
the open Pacific door where illegal aliens enter from China and other
Asian countries. This was outlined in the 1998 Commonwealth of the
Northern Mariana Islands (CNMI) Labor and Human Rights Abuse Status
Report that was prepared by myself and a team of investigators on
behalf of the Clinton Administration and submitted to this committee,
and in the 2002 Security Report from the United States Attorney for the
Districts of Guam and the Northern Marianas. A recent publication
detailed the multi-million dollar human smuggling business and the fact
that the CNMI's visa waiver program, which includes Chinese citizens,
serves as a backdoor to the United States.\9\ Since the late 1990's
hundreds of Chinese have been smuggled by boat from the CNMI into Guam.
A July 2007 article in the Marianas Variety details the capture of the
latest boatload of Chinese who were rescued from their disabled vessel
off the coast of Guam.\10\
---------------------------------------------------------------------------
\9\ Asia Times, ``China's Third Wave, Part 3: A How-to Guide for
Fleeing China'', by Bertil Lintner, April 19, 2007.
\10\ Marianas Variety, ``Coast Guard Brings 12 Passengers Back to
CNMI'', by Trina San Augustin, July 2, 2007.
---------------------------------------------------------------------------
Furthermore, the 2002 U.S. Department of Justice security report
highlighted problems associated with the presence of the Chinese Triad,
Japanese Yakuza, Korean mafia and Russian mafia in the CNMI. The report
states, ``Gambling, prostitution, drugs, money laundering and the
exploitation of the large segments of the alien population are fully
orchestrated by these organizations.''
In testimony at the February 8, 2007 hearing before this committee,
Ambassador F. Haydn Williams stated, ``The CNMI does not have the
institutional capacity to adequately pre-screen or screen persons
entering the Commonwealth. Border control is an inherently sovereign
function and in the present threatening world security environment and
the reach of global crime syndicates, the responsibility for protecting
the nation's borders in the CNMI should be in the hands of the Federal
government.''
federalization of immigration is vital
At the House Resources Committee Hearings in 1999, Nicolas M. Gess,
Associate Deputy Attorney General of the U.S. Department of Justice,
and Bo Cooper, General Counsel of the Immigration and Naturalization
Service of the Department of Justice, testified to the necessity for
the immediate implementation in the CNMI of the Immigration and
Nationality Act. In 1999 a bipartisan bill, S. 1052, calling for the
implementation of the Immigration and Nationality Act with some
exceptions and a transitional period was introduced in the Senate and
passed unanimously on February 7, 2000. However, it was blocked from
consideration in the House due to documented efforts of lobbyists and
House members. At the February 8, 2007 hearing before this committee,
Ambassador F. Haydn Williams, one of the negotiators of the CNMI
Covenant, stated, ``I believe the CNMI will be greatly aided by the
discipline, the orderliness, and the long-term benefits that will flow
from the extension of U.S. immigration laws to the Commonwealth of the
Northern Mariana Islands.'' I concur with his position.
There are some major elements that effective federal immigration
and labor legislation should include. They are:
Granting an unobstructed pathway to U.S. citizenship to
guest workers who had been working lawfully in the CNMI for at
least five years as of January 1, 2007 and/or have been working
lawfully in the CNMI for at least five years as of the date the
legislation becomes law;
Granting a pathway to citizenship for the immediate
relatives of the guest workers who acquire U.S. citizenship
under this legislation;
Granting immediate U.S. citizenship to parents of the U.S.
citizen children in the CNMI on the date the legislation
becomes law;
Federalizing all CNMI immigration and visa programs, whether
they are work or tourist.
Requiring future foreign guest workers to complete exit
interviews to ensure they have no unsettled labor and/or
criminal cases; and
Properly funding and staffing the U.S. Departments of
Justice and Labor in the CNMI to ensure the safety and human
rights of guest workers and the community.
The present system of labor and immigration under CNMI rule truly
does not support the values on which this country was founded. There
should be no place on U.S. soil where a majority of the people who pay
taxes, work, and contribute to the good of their society and community
have no voice in affairs that directly affect them. The majority of the
adult population cannot serve on juries, but are routinely victims of
criminal acts or may be prosecuted for crimes. They have no vote and no
voice in the affairs of the government and the community in which they
live. Where in a democratic society would the government endorse and
perpetuate a disenfranchised underclass that makes up the majority of
the population?
The current CNMI labor and immigration system violates provisions
of the United Nations Declaration of Human Rights. The time to
implement and enforce federal minimum wage, immigration, labor and
customs law in the CNMI is clearly overdue. I believe that legislation
is crucial and should be embraced by a united Congress in support of
democracy, human rights and justice. I urge you to act now.
Never under any condition should this nation look at an
immigrant as primarily a labor unit. He should always be looked
at primarily as a future citizen.--Theodore Roosevelt.
Attachment 1
DEKADA SURVEYED STATISTICS--GUESTWORKERS W/ U.S. BORN CHILDREN IN CNMI
[SURVEYED MARCH 11-16, 2007]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Years Worked in CNMI Ages of Children
--------------------------------------------------------------------------------------------------- Total
Nationality Total Less 5 11-15 16-20 21-30 5 Yr. 11-15 16-21 Children
Yrs. 6-10 Yrs. Yrs. Yrs. Yrs. Below 6-10 Yrs. Yrs. Yrs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Filipino....................... 1,647 131 317 523 426 250 422 462 371 131 1,386
Chinese........................ 392 93 169 113 17 ......... 226 73 16 ......... 315
Korean......................... 125 15 28 50 18 8 40 30 6 2 78
Bangladesh..................... 5 ......... 8 6 2 ......... 2 4 ......... ......... 6
Nepalese....................... ......... ......... ......... ......... ......... ......... ......... ......... ......... ......... .........
Japanese....................... 4 ......... ......... 2 1 1 ......... 3 ......... ......... 3
Thailand....................... ......... 5 20 10 5 ......... 20 5 ......... ......... 25
------------------------------------------------------------------------------------------------------------------------
Total.................... 2,173 ......... ......... ......... ......... ......... ......... ......... ......... ......... 1,813
--------------------------------------------------------------------------------------------------------------------------------------------------------
Attachment 2.--Prepared Statement of Carmelita G. Ranas
My name is Carmelita G. Ranas
I been in Saipan in 26 years I been Paying my US tax. I have 2 Son
US Marine in US Navy. 1 Son Serving in iraq for 7 month I want visit.
my Son in america. but I cannot because im not a US. citizens. I hope
Please Federal. the Saipan because. many People abuse. here my Self I
have my good Job an my tree children all US Citizens I hope Saipan.
Federal
Thang you very much,
Carlemita. G Ranas.
Attachment 3.--Prepared Statement of Rito Doca
I am Rito Doca popularly known by my group and my friends as
(Ronnie), a Filipino citizen. At present I am the President of one of
the biggest Filipino association here in Saipan, Commonwealth of the
Northern Mariana Islands. The Pilipino Contract Workers Association,
Inc. (PILCOWA) I am here in Saipan since 1989, it means to me of 18
years of working contineously. I have my family of six (6) childrens
all born here and are U.S. passport holders. My eldest daughter was
suffering from disability after she undergone a special procedure in
her throat and other parts of her body at an early age because she was
born six (6) months premature and is in constant need of medical health
care services.
Shaping the behavior and character traits of our kids. Without our
close supervision as the parents, there will be rampant juvenile
delinquency. And if the parents of these U.S. citizen kids will be sent
home because we are not able to find employment, our kids will be
greatly influenced by the negative factors such as alcoholism, drug
addiction and others. With the move to federalize the immigration
system or to just change the immigration status of longterm guest
workers, we can stay in the island with our kids.
Attachment 4.--Prepared Statement of Pabitra Dhimal
July 18, 2007.
I am Pabitra Dhimal daughter of Mr. Buddhi Lal Dhimal. Today I am
going to write about my dad problem & difficulties in the Saipan.
My dad came Saipan at 1997 and stay Saipan 10 years. I told my dad
to make me come at Saipan so he make someone to sponsor me and finally
I come to Saipan. It is almost 2 years that I am in Saipan but when I
came first time to Saipan I found him very suffering and having hard
time. My dad when he came first time he started to work as a mason for
one year. But where my dad working the company didn't pay his back
wages. So now he has labour case pending. Than after one year he got
chance to transfer in another employer. So again he started to work but
still than also he waiting for the money so that when he get it he can
go back to his country. His back wages was $5,000 and $2,000 from the
two employers but the labour don't wants to give the money. They give
him hard time so now its already 10 years he wants to go back to
country and to have the money but still they not yet collect the the
money. This time my dad permit is almost finish so he planned to go
have the money and go back but the labour still don't want to give back
his money. These time he cannot get chance to work because of his
permit so he is jobless even I was also jobless too. So that time me
and my dad suffering a lot. We follow plenty times in the labour but we
only get hard time. Me and my dad use to stay in a small room--my dad
he used to sleep in the floor and me at the bed--we both of us don't
have job and my dad he cannot work because of his permit neither the
labour give the money nor they give authority to work so its really
very very hard time for us. In order to look for the job my dad used to
drop me at several places to apply for the job by the bicycle even
though the day time sun is very hot.
Due to the abuse, neglegiancy and misbehave of the labour and hard
time given by them makes too much suffer and it makes him to burn
himself in the department of labour. Now my dad is no more, he pass
away but I am still at Saipan I married over here but than also its
very hard for me to remember those days and to lose my dad. But still
now the labour not yet pay my dad wages. I hope that if the labour can
pay back the wages it gona be a big support for his family. Who used to
depend on my dad.
At last I want to give some of his document paper of his pending
and not yet pay back his money. So I would like to request you that
please if you can help me to get my dad back wages.
Pabitra Dhimal.
Attachment 5.--Article From Saipan Tribune, Wednesday, April 25, 2007*
---------------------------------------------------------------------------
* Photos and captions have been retained in committee files.
---------------------------------------------------------------------------
man sets himself on fire
By Ferdie de la Torre, Reporter
Learning that he is to be deported back to his country, a jobless
Nepalese man set himself on fire along the hallway of the Department of
Labor in San Antonio yesterday morning.
Police said Buddhi Lal Dhimal, 49, poured flammable liquid on his
body and set himself on fire before a Labor enforcement officer outside
the Labor Enforcement Office.
Dhimal was taken to the Commonwealth Health Center. He sustained
second and third degree burns on his body. He will be taken to an off-
island hospital for further treatment.
Witnesses said no other person was injured and the fire did not
spread after Labor officers pushed Dhimal to the floor and sprayed him
with a fire extinguisher.
The incident, which happened at 8:45 am, prompted Labor and
Immigration officials, employees and some customers to evacuate the
building.
Department of Public Safety spokesperson Lei Ogumoro said the man
became agitated after he was informed he was to be deported.
Ogumoro said the person had a bottle of flammable liquid and a
cigarette lighter. Witnesses said Dhimal started shouting and poured
the liquid on his body and ignited his lighter.
Labor Secretary Gil M. San Nicolas said that, according to Labor
investigator Jeffrey Camacho, Dhimal was calling him to step out of the
office.
``But Jeff was kind of. did not feel comfortable so. he [Dhimal]
poured something on himself. It's not like gasoline; it was in a
container,'' San Nicolas said.
The official said that Labor investigators Frank Aguon and Jeffrey
Camacho held Dhimal down to stop the fire.
``Jeff was shouting to get the fire extinguisher,'' San Nicolas
said.
``Lucky he did not have a gun and starting shooting. [With] people
nowadays, we don't know how they think and what they are thinking,''
San Nicolas said.
San Nicolas said Jeffrey Camacho was the investigator for Dhimal's
case. Dhimal had gone to see him regarding his repatriation ticket.
``[Dhimal] was calling Jeff out but. as Jeff was walking out toward
the hallway, that's when Mr. Dhimal poured what appears to be gasoline
on himself and lit himself,'' San Nicolas said.
He said he was on his way to the office when a staff called him and
informed him of the incident.
Occupational Safety and Health Administration consultant Rey Deleon
Guerrero said he was in the restroom when he heard the voice of a man
``in a hostile stage.''
Deleon Guerrero said there were eight to nine other customers at
the Enforcement Section at that time.
``He [Dhimal] was shouting on his way out. I was right in the
middle when he was pushed to the floor as he was engulfed in flames..
We have to pin him down because he was engulfed in flames. We tried to
cover him but at the same time we requested for the fire extinguisher
to be operated. It was just a matter of seconds,'' Deleon Guerrero
said.
Police and medics were then called.
Deleon Guerrero said the evacuation procedure was orderly as no
panic occurred.
``I was there to calm everybody down,'' he said.
San Nicolas said he will call the DPS commissioner and ask if it is
possible to have a temporary officer assigned at Labor and Immigration.
``We just want to make sure that anyone entering the building does
not have any weapons or lighters with them,'' San Nicolas said.
He said it was the first such incident that happened in the CNMI.
He said he is going to issue a written policy similar to what airports
require--that visitors or customers should have no lighters and other
dangerous items with them.
Attachment 6.--Article From Saipan Tribune, Wednesday, April 25, 2007
what had happened to dhimal?
By Ferdie de la Torre, Reporter
Buddhi Lal Dhimal, a Nepalese security guard, has been on Saipan
since 1997 and was once arrested in 2006 for allegedly overstaying in
the CNMI.
Court and Labor records show that the Division on Immigration filed
two deportation cases against the 49-year-old Dhimal, but those were
subsequently dismissed in March 2006 at the government's
recommendation.
Records indicate that Dhimal first worked on Saipan as a mason at
Asia Pacific Investment Corp. in 1997. He then became a kitchen helper
for Marianas Hotel Services Co. from 1999 to April 2003.
In July 2003, he started work as a security guard for Seasonal Inc.
The following year he transferred to L&T International Corp. as a
security guard. His work permit expired on Aug. 19, 2005.
After the deadline passed in October 2005, Dhimal approached the
Labor director and asked for an extension for him to seek a new
employer. He was informed that no extension would be given.
On Oct. 24, 2005, Immigration investigator Richard T. Lizama filed
a deportation case against Dhimal.
In early November 2005, the Nepalese guard asked Osmani Gani, owner
of Lucky Security Service, to provide him work. Gani agreed and
employed him as a security guard at the Cha Cha Junior High School in
Kagman.
Dhimal started work on Nov. 5, 2005, as a Cha Cha security guard.
On Jan. 17, 2006, though, Immigration agents arrested him at the
school, for reportedly working without a permit and remaining in the
CNMI without lawful status.
The following day, Immigration investigator John Peter filed
another deportation case against the respondent. Peter stated in court
papers that Dhimal admitted he was working illegally for Gani. Dhimal
had explained that Gani had promised him that he would process the
labor papers.
On March 1, 2006, Superior Court associate judge David A. Wiseman
dismissed Dhimal's two deportation cases upon the government's
recommendation.
Then assistant attorney general Ian Catlett stated that the
respondent has been cooperating with Immigration authorities and will
be permitted to normalize his immigration status within 45 days.
In July 2006, Dhimal filed a labor complaint against Gani, alleging
that the employer failed to pay his wages and committed other
violations.
Dhimal was not able to find a new job within the 45-day deadline.
Labor conducted an investigation and issued its determination,
notice of violation, and notice of hearing.
The Labor director found that Dhimal should be reimbursed for his
unpaid wages. The director also determined that both parties should be
sanctioned for violating the Nonresident Workers Act by engaging in
unauthorized employment.
The Labor director recommended that Dhimal be denied transfer
relief.
On Dec. 18, 2006, Labor administrative hearing officer Jerry Cody
ordered Gani to pay Dhimal $1,012.04 in unpaid wages, plus liquidated
damages for a total award of $2,024.08. But Cody denied Dhimal's
request for transfer and ordered him to depart the CNMI.
Cody determined that both Dhimal and Gani violated the Nonresident
Workers Act by conducting employment without authorization or permit
from the Labor director.
Gani, who was barred earlier in 2006 from hiring nonresident
workers in the CNMI for filing false information, was sanctioned again,
this time for engaging in unlawful employment.
Labor found that in early November 2005, Dhimal asked Gani to
provide him work so that he could support himself. During the two-month
employment, Gani paid him $690 in wages. However, he worked many
regular and overtime hours for which he was never compensated.
Cody rejected Dhimal's argument that he was misled by Gani into
working illegally.
In denying him transfer, Cody cited that complainant was already
granted transfer relief before but failed to file in a timely transfer
application.
Cody noted that the AGO already granted Dhimal six additional
months in 2006 to find a new employer. Despite being granted such
opportunities, Cody said, the guard did not file a transfer
application.
Dhimal did not appeal Cody's order.
Attachment 7.--Article From Marianas Variety, Wednesday, April 25, 2007
ex-l&t worker sets himself on fire
By Haidee V. Eugenio, Variety Assistant Editor.
A FORMER security guard who was ordered to leave the CNMI and was
trying to get a repatriation ticket set himself on fire in the hallway
of the Department of Labor yesterday morning, setting off a fire alarm
that led to the evacuation of personnel and their clients.
It was the first time that an incident like this has happened at
the Labor office. Buddhie Lal Dhimal, 49, was a security guard at L&T
International Corp. up to Aug. 19, 2005 before he was illegally
employed by Lucky Security Service from Nov. 2005 to Jan. 2006.
Yesterday, he poured a flammable liquid on himself and used a
lighter to set it on fire after getting the attention of the labor
investigator handling his labor case at around 8:45 a.m.
``He was heard saying he didn't have anything to eat anymore,
moments before setting himself on fire. It was scary for a lot of
people in the building,'' said one of the tenants in the Afetnas
Building which houses the Labor and Division of Immigration offices.
Dhimal sustained second and third-degree burns on his body and was
rushed to the Commonwealth Health Center, according to Department of
Public Safety spokeswoman Lei Ogumoro.
No other person was seriously hurt in the incident apart from the
minor bruises sustained by one of the labor investigators who helped
put out the fire before emergency medical service and fire personnel
arrived at the scene.
Labor Secretary Gil M. San Nicolas said he would ask the Department
of Public Safety if police officers could be detailed temporarily at
Labor to make sure that people coming to the office do not have any
contraband like flammable liquids, lighters, guns or other weapons that
may harm personnel and clients.
He recognized, however, that Labor--just like any other government
agency--is in financial crisis and can't afford to hire a private
security firm to guard the premises.
``But I cannot compromise safety . . . In my 19 years here at
Labor, this is the first time that something like this has happened. I
am not going to take this lightly and wait until something happens
again,'' San Nicolas said.
Labor and Immigration services were disrupted yesterday due to the
fire and the evacuation of the building.
San Nicolas ordered a temporary closure of the Labor office until
12 noon. Labor reopenned at 1 p.m. yesterday.
DPS's Ogumoro, in a report yesterday afternoon, said the man,
``after learning that he was to be deported to his place of origin . .
. became disgruntled and set himself on fire.''
``An investigation showed that the person had a bottle of flammable
liquid and a cigarette lighter which he used to set himself on fire,''
said Ogumoro.
The police are investigating the incident.
`We saved his life'
The incident happened in a hallway outside the Labor Enforcement
Section office on the second floor of the Afetnas Building, next to the
Immigration office.
San Nicolas said Dhimal went to see labor investigator Jeffrey
Camacho regarding a repatriation ticket around 8:45 a.m.
``When he entered the door, he called Jeff but Jeff felt
uncomfortable. When Jeff went out into the hallway, Mr. Dhimal poured
what appeared to be gasoline on himself and then lit it on fire,'' said
San Nicolas.
The police have yet to determine whether the fluid was lighter
fluid, charcoal lighter or gasoline.
He said Labor personnel were concerned that Dhimal might also
splash them with a flammable liquid and then set them on fire too.
``That didn't happen but the point here is that they were
uncomfortable because his behavior was hostile, kind of angry at
something,'' said San Nicolas.
Despite their concerns, Camacho and a fellow labor investigator,
Frank Aguon, and other labor personnel immediately came to Dhimal's
rescue when he was engulfed in the flames.
San Nicolas said Aguon tried to bring Dhimal down and cover him in
order to put out the fire. Ray Quichocho, another Labor employee, used
a bag while Aguon went to get the fire extinguisher.
``Labor personnel basically saved his life,'' said San Nicolas.
Ray Guerrero, from the CNMI OSHA Consultation Program Office, said
the fire activated the fire alarm system in the building.
``Standard procedure requires that, once the alarm is activated,
people evacuate the building and they did,'' Guerrero said.
He said Dhimal ``was in much pain.''
``I saw him . . . he was rolling on the floor while we were getting
the fire extinguisher . . . He was shouting. The guy was in so much
pain,'' said Guerrero.
Manny Domingo, a Labor employee, said he and his colleagues could
see the blaze from across the hall and thought it was ``an electrical
fire.''
Domingo, Israel Deleon Guerrero and other Labor personnel were
wearing gas masks to protect themselves from the fumes which were still
lingering on the second floor of the building by 11 a.m. Personnel were
seen cleaning the hallway after the incident.
``It was scary, with recent shooting incidents in the news. I
though the man had a gun,'' another Labor employee said.
Arrested, order to depart CNMI
Labor Hearing Officer Jerry Cody ordered Dhimal to depart the CNMI
no later than 30 days from the date of the Dec. 18, 2006 order he
issued for engaging in unlawful employment with Osman Gani doing
business as Lucky Security Service.
In that order, Cody ordered the former employer of record, L&T
International Corp., to provide a repatriation ticket for complainant's
departure to his original point of hire.
The labor hearing officer also asked the director of Labor to
assist in obtaining a repatriation airline ticket from L&T
International Corp.
It is not known what took so long for Dhimal to finally get a
ticket.
Moreover, Cody said in his five-page order in December that as it
anticipated that Lucky Security Service would not pay the award of
$2,024.08 to Dhimal for back wages, unpaid overtime and liquidated
damages, Dhimal could make application under Public Law 11-66 for the
recovery of this award.
``In that event, the Collections Unit is requested to assist
complainant in obtaining any funds available under Public Law 11-66 for
satisfaction of this award,'' said Cody.
Dhimal previously worked as a security guard at L&T International
Corp. under a nonresident worker permit that expired on Aug. 19, 2005.
He failed to find a transfer employer after the 45-day deadline, by
Oct. 2, 2005.
After the deadline passed, Dhimal approached the office of the
director of Labor requesting an extension. No extension was granted
pursuant to regulations.
In early November 2005, Dhimal approached Osman Gani doing business
as Lucky Security Service and the company employed Dhimal as a security
guard at the Cha Cha Junior High School in Kagman from Nov. 5, 2005 to
Jan. 17, 2006.
On Jan. 17, immigration officers arrested Dhimal at the work site
for working without a permit and remaining in the CNMI without lawful
status.
``The parties had no permit or authorization for the above-noted
employment. Therefore, the employment was in violation of the
Nonresident Workers Act . . .'' said Cody.
Subsequent to Dhimal's arrest, the Attorney General's Office had
granted Dhimal six additional months in 2006 to find a new employer but
he failed to find one.
San Nicolas yesterday said the administrative order stands, and
Dhimal did not file an appeal.
``The best thing we could do is to help him with his repatriation
ticket,'' said San Nicolas.
Attachment 8.--Article From Marianas Variety, Friday, May 11, 2007
ex-l&t security guard who burned himself still at chc
By Emmanuel T. Erediano, Variety News Staff.
THE former L&T security guard who set himself on fire at the
Department of Labor a few weeks ago is still under observation at the
Commonwealth Health Center's intensive care unit on a ``day-to-day''
basis, according to his daughter.
Pabitra Dhimal, 21, said her 49-year-old father, Buddhi, is
recuperating from second and third degree burns and has developed lung
problems since being admitted to CHC following the incident that took
place in the labor department's hallway on April 24.
Pabitra Dhimal, who works at 99 Cents Supermart, said that
attending physicians cannot tell her exactly how long it will take her
father to recover.
She said her father, who was still on a respirator Wednesday night,
could not open his eyes and was being fed through a tube directly into
his stomach.
Pabitra Dhimal said she heard from hospital staffers that once her
father's condition gets a little bit better he may be flown to the
Philippines for further treatment.
She was told that CHC is waiting for the patient's lung conditions
to improve.
Buddhi Dhimal suffered second degree burns to the neck, face and
arms as well as third degree burns to the chest.
Pabitra Dhimal said she never had any idea that her father could do
such a thing.
She said she was asleep when her father left home on that fateful
day.
The day before the incident, she heard him saying that he had again
failed to see the people he had to meet at the labor department.
She said her father kept going back to Labor to inquire about a
temporary work authorization and money awarded to him since he lost his
job a year ago.
Pabitra Dhimal, a management student in Nepal, said she is now
beginning to find out why her father had discouraged her several times
from following him to Saipan.
The eldest of four children, Pabitra Dhimal said she insisted that
she wanted to work on Saipan so that she could stand on her own feet
and help her father send money to her mother and three siblings.
She said she kept insisting until her father finally agreed to
bring her to Saipan in Oct. 2005.
But months after she landed a job here, her father lost his,
leaving her no choice but to stay with him.
She said her father never stopped looking for a new job..
A firm had promised her father a job and when this did not
materialize, her father decided to return to Nepal.
This was why he kept returning to Labor to inquire about the $5,000
owed him by his former employer, Asia Pacific Investment Corp.,
pursuant to a Labor order.
Pabitra Dhimal said she has to comfort her mother who cries over
the telephone every time she calls home.
Attachment 9.--Article From Marianas Variety, Friday, May 11, 2007
disturbing
By Bruce Jorgensen, Kabul, Afghanistan.
THE sad experience of Ms. Babitra Dhimal's father typifies what
transpires when governments and government officials fail to disclose
to CNMI nonresident workers particularly, and the CNMI public
generally, their basic human rights--in this case, their rights to
seek/obtain asylum, refugee, and torture protection from both the CNMI
and federal governments via either the commonwealth's current albeit
legally defective refugee procedures, or the more protective procedures
enacted by the federal government throughout the rest of the country.
Had Mr. Dhimal known or been apprised of these rights during the
past 10 years--as these rights have been fully known to current/former
CNMI and federal officials--he could have sought asylum/refugee/torture
protection, rather than being subject to the CNMI's always malfeasant
bureaucracy at the Department of Labor.
Do some checking. There's a reason that the feds several years ago
precluded folks who are Nepalese citizens from entering Guam--that
reason, I'm told, being that folks from Nepal were entitled to and did
in fact seek political asylum./refugee/torture protection upon entry to
Guam thereby precluding their return to Nepal.
This in turn derived from the recognition of Nepal's raging civil
war throughout the past decade.
Ditto this outcome as to Mr. Dhimal, should he/his daughter opt to
seek asylum/refugee/torture protection in the CNMI via either the
CNMI's defective procedures or via the federal procedures which, in
turn, would likely require suit being filed in the U.S. court on
Saipan.
Equally disturbing--what some perceive to be not only a wholesale
lack of sympathy toward a man driven to alight himself afire in order
to draw attention to his government malfeasant-plight, but the
hardhearted, abjectly mean-spirited derision of folks like Saipan
Tribune columnist Bruce Bateman.
No sympathy or public remorse for Mr. Dhimal, yet a legion of
letters debating things like animal welfare and rights as to veterinary
medicine . . . a pretty sad commentary on the CNMI, some might contend.
Absolutely shameful that apparently nobody in the BenTan
administration, nobody in the MattTan AG's office, nobody in the CNMI
Guma In Hustisia, and nobody in the so-called CNMI Bar Association, has
stepped forward to offer this fellow and his family some fundamental
legal advice. If they won't help them, then I will . . . from thousands
of miles away.
The word is ``refoulement''--it kicks in the instance Mr. Dhimal
and/or his daughter request asylum/refugee/torture protection, and it
means that they cannot be repatriated by the CNMI or U.S. governments
to their country of origin once they've requested asylum/refugee/
torture protection, which, in turn, perhaps is why the CNMI wants to
ship this poor fellow off to the P.I. ASAP.
Attachment 10.--Article From Saipan Tribune, Tuesday, May 29, 2007
`dhimal was awarded $9k but got only $1.2k'
By Ferdie de la Torre, Reporter.
Two Labor administrative orders had awarded Nepalese security guard
Buddhi Dhimal a total of $9,984.08 but he received only $1,256.65,
according to Department of Labor counsel Dorothy Hill.
Hill, an assistant attorney general, told Saipan Tribune that the
$1,256.65 Dhimal got was only for the 1998 case and that Labor is
intending to take appropriate action to collect the $2,024.08 awarded
him in the 2006 case.
Hill explained that in the first case, the Labor director brought a
compliance agency case in 1998 on behalf of Dhimal and 10 other
employees against Asia Pacific Investment Inc.
Dhimal used to work as a mason for the defunct Asia Pacific.
Hill said the Labor administrative hearing office issued an order
on Feb. 16, 1999, finding the Asia Pacific Investment liable to pay
Dhimal $1,988 in wages for work not provided and $5,172 for improper
deductions.
She said Labor failed to collect against Asia Pacific Investment
apparently because the company filed for bankruptcy.
However, the lawyer said, Labor did secure payment on the labor
bond for Dhimal. Hill said the bond company gave Dhimal a $1,256.65
check in May 1999.
In January 2006, Dhimal, with the assistance of the Ombudsman's
Office, filed an application to receive money from the Worker's Relief
Fund.
``Under the law governing this fund, Public Law 11-66, wages
ordered by a final order of the department that are uncollected may be
paid to a worker only upon departure from the CNMI,'' Hill said.
Hill said Labor began processing the request, but then Dhimal
changed his mind and decided he did not want to depart the
Commonwealth.
``Accordingly, he was not paid any amounts from the relief fund.
Had he not changed his mind, he would have been eligible to receive
$3,000 from the fund,'' the counsel said.
In the second case, Dhimal filed a Labor case against Osmar Gani,
owner of Lucky Security Service, in July 2006. Hill said Dhimal filed
the case after he was arrested for working without lawful status for
Lucky Security Service.
``Prior to filing the complaint, it appears that Mr. Dhimal
cooperated with Immigration investigators and as a result, they
deferred action on his deportation four times, the last expiring on
Aug. 25, 2006,'' she said.
The Labor administrative hearing office issued an order on Dec. 18,
2006, awarding Dhimal $2,024.08 in unpaid wages and liquidated damages.
Because he was working without lawful papers for Lucky Security,
Dhimal was not granted transfer relief and was directed to depart the
CNMI in 30 days.
The hearing officer also noted in the order Dhimal's right to file
an application for unpaid wages under the Worker's Relief Fund if the
employer did not timely pay his wages.
Hill said Gani has not paid Dhimal as directed under the order so
the matter has been referred to Labor's Collection Unit.
``Because Mr. Dhimal was working without a labor contract, there is
no bond to be tapped,'' Hill said.
On April 24, the 49-year-old Dhimal poured kerosene on his body and
set himself on fire along the hallway of Labor. He sustained second-
and third-degree burns on his body and face. He remains in serious
condition at the Commonwealth Health Center's intensive care unit.
It was his 21-year-old daughter, Pabitra Dhimal, who disclosed to
Saipan Tribune that aside from the $2,024.08 Gani owes her father, Asia
Pacific Investment also owes him over $5,000.
Attachment 11.--Article From Marianas Variety, Tuesday, May 29, 2007
dhimal dies at rp hospital
By Emmanuel T. Erediano, Variety News Staff.
The former L&T security guard who set himself on fire at the
Department of Labor died after he was transferred to a Philippine
hospital on medical referral, according to his daughter.
Pabitra Dhimal, 21, said the Commonwealth Health Center called her
at 10 a.m. yesterday to inform her of her father's death.
Pabitra said her father, Buddhi Dhimal, 49, was transferred to St.
Luke's Hospital in Quezon City, Metro Manila at 3:30 p.m. on Saturday.
Prior to his departure, Buddhi Dhimal underwent hemodialysis
treatment due to kidney problem that developed while he was confined in
the intensive care unit of CHC.
Pabitra Dhimal said she was having a hard time deciding whether she
would call their home in Nepal to tell her mother about the sad news.
She said her mother may not be ready to hear it.
She said she has been telling her mother that her father's
condition was getting better because that was what CHC told her before
her father was flown to the Philippines.
``I can't call her right now--I don't know what I am going to tell
her,'' Pabitra Dhimal said while trying to hold back her tears.
She said she will have to ask CHC and St. Luke's to furnish her
with copies of the documents pertaining to her father's condition prior
to his death.
She said she needs to see the post-mortem from the Philippine
hospital, and the doctors' findings at the time her father was brought
out of CHC.
According to Pabitra Dhimal, CHC promised to give her today all the
information she needs.
Since her father only had a one-way plane ticket, his remains will
either be flown to Nepal or back to Saipan.
She said she was told that if her father would be sent back to
Saipan, he would have to be buried here.
She said she still could not make a decision.
``They always told me he was getting better, but now they tell me
he passed away,'' she said.
Buddhi Dhimal never regained consciousness since he set himself on
fire at the Department of Labor where, prior to the incident, he had
been going back in hopes of getting his repatriation ticket and the
money due to him from the company that hired him illegally after L&T
did not renew his contract.
Pabitra Dhimal said her father was wrapped with gauge, from his
face all the way down to his legs, when she last saw him at the Saipan
airport.
``I wanted to see his face but he was covered with gauge. It was
all over the body,'' she said.
Pabitra Dhimal, who works at the 99 Cents Supermart in Garapan, is
now her family's remaining breadwinner. Her mother, Kutuli is jobless
and she has three other siblings back in Nepal.
Attachment 12.--Article From Saipan Tribune, Thursday, May 31, 2007
family wants dhimal's body flown to nepal from manila
By Ferdie de la Torre, Reporter.
The family of Buddhi Lal Dhimal wants his remains to be flown
straight to Nepal from Manila, instead of it being brought back to
Saipan.
Dhimal's daughter, Pabitra Dhimal, told Saipan Tribune that her
mother wants the body to be brought to Nepal instead of it being
returned to Saipan.
Pabitra, who works as a cashier at 99 Cents in Garapan, said she
called home on Tuesday to inform her family about her father's death.
Home for the Dhimals is Duhabi-4 Sunsari in Nepal.
She said she first talked to her 11th grade sister and explained to
her what had happened.
``She started crying and crying. The my mother talked to me and she
too started crying,'' Pabitra said.
Pabitra said the Commonwealth Health Center had informed her that
they only have a one-way ticket for her father, so his remain should
either come back to Saipan or go on to Nepal.
If the body is flown first to Saipan, the CNMI government will not
be able to shoulder the expenses for its repatriation to Nepal, which
means that it will have to be buried here.
Pabitra said she remains confused whether she will go home to
attend her father's funeral or if she will just stay here because of
her work.
Pabitra is the eldest of four children. Her mother is a housewife.
The youngest is only an 8th grader. Except for Pabitra, all the
children and their mother are staying in Nepal.
A CHC medical staff escorted Dhimal on Saturday night to Manila
where he was treated at St. Luke Hospital. On Monday at 3:20 am CNMI
time, he passed away.
The 49-year-old Dhimal poured kerosene on his body and set himself
on fire at Labor on April 24, 2007. He sustained second- and third-
degree burns on his body and face.
Public Health Secretary Joseph Kevin Villagomez on Tuesday said
they are still waiting for the medical report from St. Luke's Hospital
to know exactly what caused Dhimal's death.
Attachment 13.--Article From Marianas Variety, Tuesday, July 17, 2007
dhimal's daughter, husband to join fas rally
By Emmanuel T. Erediano, Variety News Staff.
PABITRA Dhimal, the daughter of the former L&T security guard who
burned himself at the Department of Labor last April out of frustration
and died a month later, will join the rally of the Freely Associated
States citizens opposed to a proposed amendments to immigration
regulations that will restrict the employment opportunities of their
spouses. The amendments are expected to take effect tomorrow.
``It's unfair for us,'' says, Pabitra Dhimal, 21, who is married to
a Palauan and works as a cashier at a store in Garapan.
She said she and her husband will join the rally because ``we don't
like this kind of changes in our status.''
Her husband is now jobless, and since her father died, she is the
only breadwinner of her family in Nepal.
The eldest among four children, she has to send money to her
jobless mother while stretching the budget for her and her husband
here.
Going back to Nepal cannot be her option, she said, adding that she
would lose her job once the amended immigration rule takes effect.
She said it is unfair that wives and husbands will end up ``broken-
hearted'' just because one of them can no longer stay to work here.
``Plenty people will be against it,'' Pabitra Dhimal's husband
said, adding that ``we have to fight against those amendments.''
He said if the new rule makes life harder for him and his wife,
``I'm going to bring her with me to the U.S. She's not going to go back
to Nepal.''
One of their neighbors, who identified herself only as Rashid, is
also a Palauan and is married to a Bangladeshi for almost six years
now.
Rashid, who said she works as a cook, said the proposed new rule
``is going to affect relationships, and will create bigger problems--
thank God we don't have a child.''
Dhimal Pabitra said the CNMI government appears to be not
interested in informing the people to be affected by its proposed new
rule.
They said it is unfair that they were not given enough time to
comment on the issue.
______
Sisters of the Good Shepherd,
The National Advocacy Center,
Silver Spring, MD, July 18, 2007.
Hon. Jeff Bingaman,
Chairman, Senate Committee on Energy and Natural Resources, 304 Dirksen
Senate Building, Washington, DC.
Dear Chairman Bingaman: Thank you for holding a hearing to receive
testimony on S. 1634, The Commonwealth of the Northern Mariana Islands
Covenant Implementation Act of 2007. The National Advocacy Center
appreciates the Committee's efforts to address the situation in the
CNMI and requests that the following documents (attached) be included
in the written hearing record in general support of the legislation:
Statement of the National Advocacy Center of the Sisters of
the Good Shepherd on S. 1634, The Commonwealth of the Northern
Mariana Islands Covenant Implementation Act of 2007 (PDF)
Karidat--List of Trafficking Victims (Excel spreadsheet)
These documents provide information on human trafficking cases in
the CNMI and offer some suggestions for strengthening the legislation.
Should you or any committee members have any questions regarding
the information in the documents, please feel free to contact Sr. Carol
McClenon in our office.
Thank you again for this opportunity to share our concerns.
Sincerely,
Alison L. Prevost,
Lobbyist.
Attachment 1.--Statement of the National Advocacy Center of the Sisters
of the Good Shepherd
On behalf of the Sisters of the Good Shepherd and the victims of
human trafficking served by Good Shepherd programs and affiliates
throughout the world and particularly in the Commonwealth of the
Northern Mariana Islands, the National Advocacy Center of the Sisters
of the Good Shepherd appreciates this opportunity to share our thoughts
and concerns about S. 1634, The Commonwealth of the Northern Mariana
Islands Covenant Implementation Act of 2007. The National Advocacy
Center of the Sisters of the Good Shepherd represents sisters and
programs in 22 states, the District of Columbia, Saipan, and the Virgin
Islands. We also collaborate with the Sisters of the Good Shepherd's
NGO office in consultative status with the Economic and Social Council
and with the Good Shepherd International Office for Justice, Peace and
Solidarity in Mission in Rome.
Following the Good Shepherd mission of reconciliation and reaching
out to people, especially women and girls who are marginalized by
society, Good Shepherd Sisters, Associates, Lay Collaborators, and
Volunteers throughout the world have been engaged in efforts to combat
human trafficking and assist trafficking victims for many years. The
Good Shepherd connection to the Commonwealth of the Northern Mariana
Islands began in 1999, when Sr. Mary Stella Mangona was sent by her
Provincial Superior to investigate reports of human trafficking and
determine if the Sisters could provide assistance or intervention. Sr.
Stella continues to work in the CNMI with the Community Guidance Center
providing counseling services to both the local and immigrant
populations and conducting outreach and educational services related to
domestic violence, human rights advocacy for non-resident workers, and
trauma recovery and empowerment for victims of human trafficking and
sexual assault. She submitted testimony related to her experience and
concerns about labor abuses and trafficking for the committee's
oversight hearing on February 8, 2007.
Sr. Carol McClenon joined Sr. Stella in Saipan in 2003 to work at
Karidat, a non-profit social services agency affiliated with the
Catholic Church--the local equivalent of Catholic Charities. Sr. Carol
worked at Guma' Esperansa--House of Hope--with Lauri Ogumoro, who also
testified before this committee in February. Sr. Carol's work was
initially with women and children who had been affected by domestic
violence and sexual assault, but beginning in 2005 also came to include
work with victims of human trafficking into the CNMI. Since September
2005 until recently, Sr. Carol, at the request of Bishop Tomas A.
Camacho of the Diocese of Chalan Kanoa, who had become aware of the
growing number of incidents of trafficking coming to the attention of
law enforcement and victim service providers, also served as a special
liaison to the diocesan office on the topic of human rights in the
Diocese, which encompasses all the islands in the CNMI. She worked
closely with Sr. Stella Mangona, Lauri Ogumoro, and K.E. (a trafficking
survivor), the delegation sent by Bishop Camacho, in their preparation
for the committee hearing February on labor and immigration issues in
the CNMI. Sr. Carol joined the National Advocacy Center staff in June
2007, but remains in close contact with the CNMI. The Sisters of the
Good Shepherd remain committed to anti-trafficking work in the CNMI and
have recently missioned Sr. Miriam Phan to Saipan to assist with victim
services and translation.
Drawing from these connections, the National Advocacy Center offers
this statement in general support of the proposed legislation, S. 1634,
but with some reservation and suggestions for improvement. Knowing that
the government of the CNMI opposes this legislation creates some
difficulty for us as those we work with rely on some measure of
government cooperation to assist the victims they serve. However, the
continuing prevalence of human trafficking on the CNMI necessitates a
stronger response than has yet been provided.
During the February 2007 testimony, the members of Bishop Camacho's
delegation (and Sr. Carol, as one of his consultants) did not take a
position on the hotly-debated topic commonly known on the Islands as
``Federalization.'' They merely supplied information which had been
requested about clients with whom we worked and for whom we advocated.
At that time, delegation members still cherished some hope that the
local government was truly interested in human rights and would make
reforms for the purpose of creating a more just society and greatly
reducing the incidents of human trafficking and labor law violations.
This hope was based on experiences of collaboration with individuals in
various government agencies who worked valiantly as investigators,
prosecutors, and hearing officers trying to implement laws and reduce
an old backlog of labor cases. Here we would particularly like to
mention the assistance provided by Assistant Attorney Generals Kevin
Lynch and Dorothy Hill, although there were also many others.
The National Advocacy Center and our contacts on the CNMI had hoped
that following the hearing, higher-ranking members of the CNMI
administration would use the occasion to explore the concerns about
human trafficking being brought to their attention and to add
credibility to their commitment to ongoing reform. Unfortunately, such
has not been the case. The current CNMI administration continues to
employ the term ``alleged abuses'' to imply that reports made by victim
services providers and human rights advocates about the problem of
trafficking in the CNMI are exaggerated, fabricated, or based on
speculation. This is troubling, because such reports stem from
documented cases which were mostly referred by local government
agencies themselves, or by Federal agencies such as the F.B.I. and the
Office of the Federal Ombudsman.
Over the past two years, 43 victims of human trafficking into the
CNMI have been referred to Karidat, including 9 victims in the 5 months
since the hearing in February. Attached to this statement is a
spreadsheet providing more detailed information on these cases. The
most recent case referred to Karidat in June may involve an additional
16 victims, possibly including one minor. To understand the extent and
continuing prevalence of the problems, one need only compare Karidat's
current caseload with its own projections of the number of victims it
would serve under the Department of Justice grant (to provide services
to pre-certified victims of human trafficking) it applied for and
received in December of 2006. In the grant application, Karidat
projected it would serve 50 victims during the three-year grant period.
However, since the grant began in December, Karidat has already served
to 39 human trafficking victims--in just the first six months of the
grant.
Unfortunately, in many of these cases investigations languish and
victims are held in limbo. Rather than wait for government action, some
victims have chosen to return to their home countries without
restitution. Moreover, despite evidence of abuse, rumors abound that
the victims are only making allegations in order to receive ``T'' visas
(though many were not even aware of such visas when they sought
assistance) and in some cases have delayed the certification of
trafficking victims, which would provide them access to needed social
services as they attempt to rebuild their lives.
Representative of these problems and the government's unwillingness
to investigate and take action against labor abuses is the story of
three female immigrant workers previously employed by the now defunct
Benny's Place in Garapan. Promised jobs as waitresses in the CNMI, upon
arrival the women were forced to wear skimpy clothes, were subjected to
touching by patrons and forced to perform lewd acts with customers. In
addition, the women were often forced to clean the homes of their
employers, were illegally confined to their barracks, and were not paid
promised wages. The three women filed a labor complaint in May 2005,
but it wasn't until March of this year that their case was granted a
hearing and they were identified as victims of human trafficking and
referred to Karidat for assistance. While the employers were ordered by
the Labor administrative hearing officer to pay back wages and damages
to the victims, the criminal investigation also requested by the
hearing office has yet to be acted upon by the Attorney General's
Office, despite evidence of additional labor violations by the same
employers from a labor hearing earlier in March of this year.
More detailed information about this particular case can be found
in two attached news articles from the Saipan Tribune and the Marianas
Variety. Of additional concern to the National Advocacy Center in this
case and others is the lack of a victim-centered approach as required
by federal anti-trafficking legislation. In addition to having to wait
two years before receiving a hearing and needed assistance, the Saipan
Tribune article reports that the women themselves were fined for Labor
violations that were the direct result of their having been trafficked.
Understandably, the government of the CNMI wishes to rehabilitate
its tarnished international reputation, but as Sr. Stella Mangona noted
in her testimony, this desire has led to a defensive posture by the
government, which downplays and refuses to address continuing problems.
Quoting Sr. Stella, ``[This] climate is not conducive for productive
dialogue and search for systemic solutions to serious and ongoing
problems.'' The insistence of the government that it has identified and
fixed all of its immigration problems in the face of continuing abuses
unfortunately demonstrates the unwillingness of the current
administration for true self-reform and perpetuates a corrupt system
that prevents people of good will who are working to end abuses from
realizing justice.
For these reasons and in solidarity with the victims of human
trafficking and labor abuses, the National Advocacy Center of the
Sisters of the Good Shepherd believes that federal involvement has
become necessary and supports the framework for reform outlined in S.
1634. However, we hope that amendments will provide greater clarity to
the legislation in the following areas:
In all areas regarding immigrant workers, workers' rights
and specific references to applicable U.S. labor protections
should be included and an appeals process for workers should be
outlined, lines of accountability for addressing abuses and for
worker redress should be made explicit, and penalties for
employers found in violation of fair labor and immigration
regulations should be spelled out;
It should be made explicit that all U.S. anti-trafficking
laws and penalties apply to the CNMI and sufficient funding for
enforcement, investigation/prosecution of trafficking and labor
abuse cases and victim services should be provided. Technical
assistance and training should also be provided to all
employees within the new federally administered immigration
system on how to recognize, screen and serve victims of human
trafficking. Given the prevalence of human trafficking within
the region, a funding set aside for regional training/technical
assistance for all federal immigration and customs officials
should be included.
The legislation should include clarifications to Violence
Against Women Act and provide directions for the yet to be
released regulations for the ``U'' visa to ensure that
immigrants to the CNMI have the right to self-petition for
relief if they are victims of domestic violence, sexual
assault, or other forms of violence.
Negotiations and cooperative agreements with sending
countries should be considered to prevent continued recruitment
fraud and falsification of documents;
In both the GAO and local government reports mandated by the
Act, information on efforts to combat human trafficking and the
prevalence of trafficking should be required.
The above provides a basic outline for the improvements to the
legislation that the National Advocacy Center believes are necessary,
but we stand ready to work with the committee in its efforts to craft a
bill that ensures that all workers on the CNMI are treated with
justice, dignity, and respect and that abusive employers and government
systems themselves are held accountable.
Understanding the economic difficulties facing the CNMI, the
National Advocacy Center is yet grounded in Catholic Social Teaching
which states that the beginning, the subject and the goal of all social
institutions is and must be the human person and that the economy
should be at the service of the people and not the other way around. In
the United States Conference of Catholic Bishops' pastoral letter,
Economic Justice for All, this fundamental principle is summarized
eloquently:
The basis for all that the Church believes about the moral
dimensions of economic life is its vision of the transcendent
worth--the sacredness--of human beings. The dignity of the
human person, realized in community with others, is the
criterion against which all aspects of economic life must be
measured.
All human beings, therefore, are ends to be served by the
institutions that make up the economy, not means to be
exploited for more narrowly defined goals. Human personhood
must be respected with a reverence that is religious. When we
deal with each other, we should do so with the sense of awe
that arises in the presence of something holy and sacred. For
that is what human beings are: we are created in the image of
God (Gn 1:27). #28
Given the documented and continuing problems within the CNMI, the
National Advocacy Center strongly believes that a new approach to
immigration and labor regulation, grounded in the fundamental dignity
of every person and respect for human rights, is necessary. We commend
the Committee on Energy and Natural Resources and its staff for their
work to bring justice to the CNMI and Senators Akaka, Murkowski,
Cantwell, and Inouye for the introduction of S. 1634. We hope that its
passage will provide desperately needed change to the CNMI and create a
responsive government system that will be proactive in addressing and
preventing abuses. Thank you again for this opportunity to share our
concerns.
Addenda
De la Torre, F. (2007, March 30). Two owners of defunct club told
to pay $120K. Saipan Tribune. Retrieved July 17, 2007 from http://
www.saipantribune.com/news- story.aspx?newsID=67034&cat=1.
Three alien workers who were hired as waitresses under false
pretenses were coerced into performing acts of a sexual nature
and were restricted to their barracks. One of the employers was
also found to have submitted false documents to the CNMI
Department of Labor and even to the Philippine government.
As a result, Labor yesterday held the owners of the defunct
Benny's Place in Garapan liable to pay a total of $110,000 in
wages and damages to the three waitresses and sanctioned one
owner to pay $10,000 for numerous violations of law.
Labor administrative hearing officer Barry Hirshbein ordered
Bienvenida C. Camacho and her former husband, Felipe SN
Camacho, to pay $49,496 to Marites A. Aurelio, $30,607.40 to
Ronna D. Santo Domingo, and $30,357.40 to Rosalina C. Oliva.
The awards were for unpaid wages, restriction/overtime
payments, contract damages, liquidated damages, health
examination payments, health certificate reimbursement,
processing fee reimbursement, airfare reimbursement, and
housing reimbursement.
Hirshbein said Mrs. Camacho is solely sanctioned in the sum
of $10,000. Her alter ego, Michelle Corp., was also ordered to
pay $1,000 in sanction.
Hirshbein permanently barred Mrs. Camacho and Michelle Corp.
from employing nonresident workers in the CNMI.
He noted that while the business operation was conducted in
Mr. and Mrs. Camacho's name, it was Mrs. Camacho who made all
the business decisions.
The three workers were given 45 days to seek new employers.
But they were each ordered to pay a $250 sanction for violating
Labor laws such as failing to report unapproved changes to
their contracts and accepting commissions not provided for in
the contract.
`The evidence in this case is overwhelming. Mrs. Camacho
flagrantly violated numerous provisions of the Nonresident
Worker Act and Alien Labor Rules & Regulations,' Hirshbein
said.
He pointed out that Mrs. Camacho's testimony lacked any
credibility whatsoever.
`Fraud and deceit permeate every aspect of her business
activities,' the hearing officer said.
Hirshbein noted that by her own admission, Mrs. Camacho
submitted false documents to the Philippine government and that
evidence supports a finding that she also filed false documents
to CNMI Labor.
He also noted that there is strong evidence of tax fraud by
reporting wages that were not paid; by not reporting
commissions as salaries; and by failing to report the
employer's share of ladies' drinks as income.
At the hearing, Aurelio, Santo Domingo and Oliva were
represented by attorney Mark Hanson. Mrs. Camacho came with
counsel Reynaldo Yana, and Mr. Camacho was represented by
Stephen Nutting.
On May 23, 2005, the three filed a labor complaint against
the Camachos and Michelle Corp.
The workers alleged that respondents failed to pay hourly
wages; altered the terms of their employment contract; failed
to pay overtime; improperly restricted them to their barracks;
and made unlawful deductions from their wages.
The three stated that they were recruited in the Philippines
as waitresses but when they arrived on Saipan they learned that
their duties would be different.
Aurelio and Oliva testified that Mrs. Camacho instructed them
to engage in intimate contact with patrons.
Hirshbein determined that `the weight of the evidence is
overwhelmingly in favor of complainants.'
Early this month, Labor administrative hearing officer
Herbert D. Soll also found Mrs. Camacho and Michelle Corp.
liable to three employees of their defunct Tagpuan Nightclub in
Garapan for unpaid wages, `training wages' and wages for
reduced hours.
Soll also ordered the respondents Michelle Corp. and Mrs.
Camacho to reimburse the workers for house rental, utility
payments, processing fees, and medical fees.
The total award was over $6,000 in that case.
Eugenio, H. (2007, March 30). Alien workers say they were forced to
perform sexual acts. Marianas Variety, Vol. 35 No. 11. Retrieved July
17, 2007 from http://www. mvariety.com/calendar/march/30/frontpage/
front01.htm.
LABOR Hearing Officer Barry Hirshbein has asked the Attorney
General's Office to investigate a possible case of human
trafficking involving at least six alien workers who were
brought here as waitresses but were allegedly coerced by their
former employers into performing sexual acts with bar
customers, in addition to other possible criminal violations.
The workers were also not paid their hourly wages or
overtime, were illegally confined in their barracks, and had
illegal deductions made from their wages, among other labor
violations.
On Wednesday, Hirshbein issued a 27-page administrative order
awarding $110,000 in wages, damages and liquidated damages to
nonresident workers Marites A. Aurelio, Ronna D. Santo Domingo
and Rosalina C. Oliva.
Three of their former co-workers, who testified in the labor
case, also suffered the same abuses from the employers.
Hirshbein imposed a $10,000 sanction against the employers:
Bienvenida C. Camacho, Felipe SN. Camacho and Michelle Corp.
who owned Benny's Place.
Mrs. Camacho managed the bar and was named as the primary
responsible party in these abuses.
The workers testified that their employers would not pay
their wages and overtime if they didn't perform `acts of a
sexual nature.'
`The evidence in this case is overwhelming. Respondent
Bienvenida C. Camacho flagrantly violated numerous provisions
of the Nonresident Worker Act and the Alien Labor Rules and
Regulations,' Hirshbein said.
In some instances, Mrs. Camacho instructed the workers to fly
from the Philippines to Hong Kong and then depart Hong Kong for
Saipan as `tourists' to avoid the Philippine Overseas Labor
Office's requirements of authenticated contracts.
The workers were hired by the employers as waitresses for
Benny's Place, but once they reached Saipan, their duties `were
very different.'
The workers testified that Mrs. Camacho instructed them to
`engage in intimate contact with patrons including hugging,
kissing, touching the customers' genitals and allowing
customers to fondle them.'
`Mrs. Camacho brought these workers into the CNMI under false
pretenses,' said Hirshbein. `In addition to the other possible
criminal violations suggested by this case, the hearing officer
recommends that the Office of the Attorney General determine
whether there was a violation of the Anti-Trafficking Act of
2005.'
Hirshbein said Mrs. Camacho's `testimony lacked any
credibility,' and that `fraud and deceit permeate every aspect
of her business activities.'
By Mrs. Camacho's own admission, she submitted false
documents to the Philippine government to hire the workers.
Mrs. Camacho also submitted false documents to the CNMI
Department of Labor based on the evidence, said Hirshbein.
`There is strong evidence of tax fraud by reporting wages
that were not paid; by not reporting commissions as salaries;
and by failing to report the employer's share of ladies drinks
as income,' said Hirshbein.
The workers were restricted to their barracks during non-
working hours, and were required to sign payroll records under
threat that they would not receive the commission payments but
these payroll records did not reflect the actual amount they
receive as wages. The wages were much lower than what was in
the contract, and were subject to illegal deductions.
In the order, Hirshbein said nonresident worker Marites A.
Aurelio is entitled to receive $49,496 for unpaid wages and
overtime, liquidated damages, contract damages for unexpired
term, health examination payments, and processing fee
reimbursement.
Ronna D. Santo Domingo is entitled to a total of $30,607.40,
while Rosalima C. Oliva, $30,357.40.
Hirshbein also permanently barred the respondent employers
from employing alien workers in the CNMI.
VICTIMS OF HUMAN TRAFFICKING
Identified in the Commonwealth of the Northern Mariana Islands Served by Guma' Esperansa/Karidat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Intake Referral Criminal Civil
GE Case # Date Initials DOB Country Type Source Case # Case # LE Certification T-Visa Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
S05-019...................... 5/7/ LRJ 11/28/ China Labo DPS 05-004787 USDC-05- AGO Certified grante T-3 Visa
2005 2006 r 00048 d granted for
son
(derivative
applicant)
S05-048...................... 9/27/ LT 12/15/ P.I. Sex AGIU 05-0311B na AGO Certified grante Moved to the
2005 1981 d United States
2/1/2007
S05-049...................... 9/27/ KE 9/3/1983 P.I. Sex AGIU 05-0311B na AGO Certified grante Moved to the
2005 d United States
2/11/2007
S06-004...................... 3/9/ AA 1/7/1989 P.I. Sex AGO 06-098 CAC-06- AGO Precertified filed
2006 002-01
S06-005...................... 3/9/ EH 11/16/ P.I. Sex AGO 06-098 CAC-06- AGO Precertified na returned to
2006 1986 002-01 P.I.
05/25/06
S06-006...................... 3/9/ SR 11/21/ P.I. Sex AGO 06-098 CAC-06- AGO Precertified filed
2006 1987 002-01
S06-007...................... 3/9/ AS 10/1/ P.I. Sex AGO 06-098 CAC-06- AGO Precertified filed
2006 1987 002-01
S06-008...................... 3/9/ JB 10/31/ P.I. Sex AGO 06-098 CAC-06- AGO Precertified filed
2006 1982 002-01
S06-009...................... 3/9/ CM 6/2/1985 P.I. Sex AGO 06-098 CAC-06- AGO Precertified filed
2006 002-01
CM06-001..................... 3/28/ KA 4/25/ P.I. Sex AGO 06-098 CAC-06- AGO Precertified filed
2006 1988 002-01
S06-013...................... 4/9/ RD 3/14/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified filed
2006 1986 AGIU 002-01
S06-014...................... 4/9/ MV 8/4/1980 P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified filed
2006 AGIU 002-01
S06-015...................... 4/9/ JM 10/31/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified pendin left program 4/
2006 1986 AGIU 002-01 g 19/06,
returned to
GE
1/12/07
S06-016...................... 4/9/ RP 1/31/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified na returned to
2006 1986 AGIU 002-01 P.I.
12/23/06
S06-017...................... 4/9/ RC 10/17/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified pendin left program 4/
2006 1984 AGIU 002-01 g 19/06,
returned to
GE
1/12/07
S06-018...................... 4/9/ MDLC 6/24/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified filed
2006 1984 AGIU 002-01
S06-019...................... 4/9/ SA 1/12/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified na left program 4/
2006 1987 AGIU 002-01 19/06,
returned to
P.I date
unknown
S06-020...................... 4/9/ AG 5/30/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified filed
2006 1982 AGIU 002-01
S06-021...................... 4/9/ BC 6/29/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified na left program 4/
2006 1982 AGIU 002-01 19/06,
returned to
P.I. date
unknown
S06-022...................... 4/10/ CG 7/27/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified filed
2006 1985 AGIU 002-01
S06-023...................... 4/10/ JM 12/3/ P.I. Sex AGO/DPS/ 06-098 CAC-06- AGO Precertified filed
2006 1983 AGIU 002-01
CM006-002.................... 5/26/ JDC 9/16/ P.I. Sex AGO 06-098 CAC-06- AGO Precertified filed
2006 1984 002-01
S06-051...................... 12/4/ LG 12/7/ China Sex Ombudsma charges CAC-06- Ombud Precertified na returned to
2006 1976 n pending 162-12 China
3/10/2007
S06-052...................... 12/4/ CS 11/26/ China Sex Ombudsma charges CAC-06- na Precertified na returned to
2006 1973 n pending 162-12 China
3/10/2007
S06-053...................... 12/4/ XC 7/3/1974 China Sex Ombudsma charges CAC-06- na Precertified na returned to
2006 n pending 162-12 China
2/7/2007
S06-054...................... 12/4/ XZ 5/18/ China Sex Ombudsma charges CAC-06- na Precertified na returned to
2006 1975 n pending 162-12 China
3/10/2007
S06-055...................... 12/4/ SY 1/24/ China Sex Ombudsma charges CAC-06- na Precertified na returned to
2006 1987 n pending 162-12 China
2/7/2007
S06-056...................... 12/4/ XZ 10/20/ China Sex Ombudsma charges CAC-06- na Precertified na returned to
2006 1987 n pending 162-12 China
1/23/2007
CM07-003..................... 1/12/ SC 7/30/ P.I. Sex Labor 06-098 CAC-06- pendi Precertified pendin
2007 1984 002-01 ng g
CM07-004..................... 1/12/ EM 6/22/ P.I. Sex Labor 06-098 CAC-06- pendi Precertified pendin
2007 1984 002-01 ng g
CM07-005..................... 1/12/ MS 1/3/1982 P.I. Sex Labor 06-098 CAC-06- pendi Precertified pendin
2007 002-01 ng g
CM07-006..................... 1/12/ EM 12/20/ P.I. Sex Labor 06-098 CAC-06- pendi Precertified pendin
2007 1983 002-01 ng g
S07-005...................... 2/6/ PZ 1/2/1974 China Sex AGIU charges CAC-06- na Precertified na returned to
2007 pending 162-12 China
3/10/2007
S07-012...................... 3/27/ XLL 8/19/ China Sex FBI 50HN19664 ........ pendi Precertified pendin Trafficker
2007 1972 ng g arrested by
FBI in
federal
custody
CM07-07...................... 4/10/ MA 1/28/ P.I. Sex Private charges L.C.No.0 pendi Precertified pendin
2007 1968 Attorne pending 5-168 ng g
y
CM07-08...................... 4/10/ RO 8/13/ P.I. Sex Private charges L.C.No.0 pendi Precertified pendin
2007 1982 Attorne pending 5-168 ng g
y
CM07-09...................... 4/10/ RSD 10/14/ P.I. Sex Private charges L.C.No.0 pendi Precertified pendin
2007 1982 Attorne pending 5-168 ng g
y
CM07-10...................... 4/11/ CM 5/24/ P.I. Sex co- charges L.C.No.0 pendi Precertified pendin
2007 1984 victim pending 6-081 ng g
S07-014...................... 4/20/ LFA 10/15/ China Sex Labor ongoing L.C.No.0 pendi Precertified ...... Trafficker
2007 1972 investigat 7-022 ng arrested in
ion Guam on
smuggling
charges
S07-015...................... 4/20/ FXQ 7/30/ China Sex Labor ongoing L.C.No. pendi Precertified ...... Trafficker
2007 1965 investigat 07-21 ng arrested in
ion Guam on
smuggling
charges
CM07-010..................... 5/29/ ATB 1/7/1986 PI Sex co- ongoing ........ pendi Precertified pendin
2007 victim investigat ng g
ion
S07-027...................... 6/7/ RLD 12/30/ PI Sex friend referred to ........ ..... ............. ...... Victim reports
2007 1985 DPS, AGIU 16 women
locked in,
some minors
--------------------------------------------------------------------------------------------------------------------------------------------------------
GE=Guma' Esperansa, Type=Type of Human Trafficking, DPS=Department of Public Safety, AGIU=Attorney General's Investigative Unit, AGO= Attorney General's
Office, Ombudsman=Federal Ombudsman's Office, Labor=CNMI Department of Labor, LE=Law Enforcement Endorsement, USDC=United States District of the NMI.
______
Interview of Attorney Bruce Lee Jorgensen
for distribution--though unedited
u.s. v. cnmi (saipan) asylum crisis
March/April 2005--PART 1 OF A 4-PART INTERVIEW SERIES
U.S. vs. CNMI Asylum: U.S. More Advantageous Lawyer Explains
Explaining that CNMI-situated persons remain entitled to seek
asylum/refugee/torture protection from the U.S. Government, as well as
the CNMI Government, lawyer Bruce Lee Jorgensen--who filed the first
CNMI asylum lawsuits successfully, on behalf of 50 or so persons
between 1999 and 2002, in the U.S. District Court on Saipan--emphasized
that protections available under the U.S. system are far more
beneficial to CNMI-situated persons than under the CNMI's new system
which Jorgensen characterized as ``rather flawed'' and ``perhaps well-
intentioned, but nevertheless legally defective, and constitutionally
violative, in multiple respects''. ``The upshot'', Jorgensen said, ``is
that any and every CNMI-situated person who considers seeking asylum/
refugee/torture protection--Falun Gong adherists, Catholic
practitioners, women facing persecution for `one-child-policy'
violations, Tiannamon Square activists, Timil separtists, and others,
who originate from the Peoples' Republic of China, Myanmar, Nepal, Sri
Lanka, Iran, or other regimes characterized as `totalitarian' and/or
stricken by civil war, for example--should apply for protection from
the U.S. Government by obtaining, completing, and submitting an
application for asylum/refugee/torture protection to the U.S.
Government, even before, and whether or not, they have applied, or
intend to apply for, or have been denied, similar protection from the
CNMI Government.'' And for queries from prospective applicants
regarding asylum/refugee/torture protection from the U.S., Jorgensen
suggests that persons contact an interested and knowledgeable group of
advisers at an e-mail address [email protected] guidance
and suggestions.
Jorgensen's remarks were elicited during a series of
extraordinarily candid interviews recently, via satellite
communication, in which Jorgensen agreed to familiarize this reporter,
with: (1) some of the reasons that U.S. asylum/refugee/torture
protection is far more beneficial and preferable to CNMI-situated
persons than the CNMI's new system; (2) the perceived deficiencies
plaguing the CNMI's new asylum mechanism; (3) the legal/practical
obstacles involved when seeking asylum/refugee/torture protection; (4)
the historical background from which asylum/refugee/torture emerged,
during 1999-2003 in the CNMI, as an issue finally confronting the
Federal and CNMI Governments in the courts here, to the vivid
consternation of prior administrations and their leaders--including the
means and opportunities by which prior CNMI administrations had over a
15-year-period failed to recognize, minimize, and/or timely resolve
asylum/refugee/torture protection issues now so visible and problematic
in 2005; (5) the lengths to which suppression/distortion of
information, coupled with intimidation and swift retribution, were
brazenly concocted, invoked, orchestrated, and meted out by Government
officials--in tacit efforts to dissuade CNMI situated persons from
learning the existence of, and timely seeking, these asylum/refugee/
torture protections while in the CNMI; and, in ensuring that adverse,
retaliatory, and/or punitive consequences would swiftly be directed at
the few CNMI lawyers possessing the temerity, scruples, compassion, or
conscience to meaningfully assist prospective CNMI-situated persons
entitled to seek asylum/refugee/torture protection from the Federal and
CNMI Governments; (6) underlying political considerations which gave
rise to and have perpetuated this dilemma; and, (7) helpful hints,
information, encouragement, and resources, for use by CNMI-situated
persons interested in seeking asylum/refugee/torture protection,
including prospective lawyers for representation, anticipated costs,
and potential tactics.
``If you want a portrayal as `The Answer Man' '', Jorgensen
offered, ``then here are some relatively simple details, facts, and
suggested answers, pertaining to relatively simple issues, which issues
have been made to appear complex for whatever reasons, by the conduct
of prior CNMI administrations. This conduct, in turn, giving rise to
the irrefutable disgrace of the so-called `leadership' in these prior
administrations, to the unfortunate but irrefutable detriment of the
current Babauta administration, and to the unbridled dismay of world
leaders and international human rights observers who, unfortunately but
quite reasonably, have come to view the CNMI's human rights record, in
the context of asylum/refugee/torture protection, as dismally
substandard, under any conceivable pretext of mandatory U.S. treaty
compliance, past or present.''
(1) U.S. vs. CNMI--Why U.S. Asylum/Torture Protection Is Better
``The fundamental basics which come into play, immediately upon the
filing a request for asylum/refugee/torture protection'' Jorgensen
remarked ``can be summarized by considering the primary two
consequences: first, the applicant may ordinarily not be returned to
his or her country of origin until the application is processed and/or
adjudicated if necessary; and, second, the applicant may remain in the
host country or a country other than the applicant's country of
origin.''
``By submitting an application for U.S. asylum/refugee/torture
protection, to U.S. Government authorities, the applicant not only
obtains protection from `refoulement'--the fancy term for being sent
back to a country of origin--but opens the door to the possibility that
the applicant might be able to remain indefinitely not only within the
CNMI, but also to remain indefinitely within the United States itself,
that is Guam or the Mainland U.S. After all, we know from pleadings
filed in the U.S. court a few years back, that some of the so-called
Tinian Boat People were interviewed on Tinian for U.S. asylum/refugee/
torture protection, by U.S. officials sent to Tinian for that purpose,
and were later transported from Tinian to Carbondale, Illinois. This,
of course, the governments have kept relatively hush-hush over the
years, citing irrationalities like `confidentiality', `security',
`privilege', and `national' concerns.''
``And of course, while this will almost certainly require
applicants to band together and file a lawsuit, or for one applicant to
file what is termed a `class-action' lawsuit, this route provides
exponentially more protection for an applicant. Here are just a few
reasons why that is so:
the applicant seeking U.S. asylum/refugee/torture protection
may ordinarily not be forced to the country of origin after
filing until the application procedure/adjudication are
completed;
the applicant seeking U.S. protection may stay in the CNMI
or--if past asylum proceedings on Tinian and Guam are used as
precedent--might in all likelihood be permitted to enter Guam
or the Mainland U.S. pending application/adjudication
completion;
the U.S. application procedure is quite time-consuming,
often lasting years, meaning that `refoulement' to a country of
origin must be delayed during this time;
the persons tasked with processing, determining, and
adjudicating U.S. applications are U.S. Government officials--
meaning, in turn, that they are not subject to CNMI political
whim, CNMI political allegiance, or the CNMI legislative-merry-
go-round-laws which typify the current CNMI House (consider,
for example, the seemingly-weekly modifications to laws
involving the CNMI's Garment Industry);
the U.S. officials are hired and trained in accordance with
U.S. law, are accountable under U.S. laws prohibiting
misconduct like corruption, have undergone U.S. background
investigations, and are U.S. monitored administrators and
judicial officials tasked with processing/adjudicating U.S.
applications;
the U.S. courts--particularly the U.S. District Court on
Saipan--are intimately familiar with the legal, equitable, and
practical issues raised by effect of submitting to the U.S.
Government an application for asylum/refugee/torture
protection, have provided relief to past applicants, and have
been generally sympathetic to applicants' plights;
the CNMI courts have been not only unsympathetic in the
past, but have exhibited outright hostility towards the notion
of asylum itself, and towards lawyers who have assisted in the
attempted processing of asylum/refugee/torture protection
claims on behalf of persons indefinitely incarcerated by DOLI
under the auspices of the CNMI Judiciary;
the U.S. applicant has redress not only in the U.S. District
Court on Saipan, but in the U.S. Appellate Courts, while the
CNMI applicant is limited to review by the CNMI's courts whose
judges are politically appointed;
the U.S. application procedure requires no fee or payment to
accompany the Application;
the CNMI's system reportedly prohibits all persons from
seeking CNMI asylum/ refugee/torture protection unless and
until there first exists a CNMI order by which an applicant is
to be subjected to deportation by the CNMI (meaning nobody can
apply until the CNMI says they are to be deported by the
CNMI)--while, under the U.S. system, no deportation order is
required, and anyone can submit, at any time; an application
for U.S. asylum/refugee/torture protection;
the CNMI's system reportedly punishes applicants whose CNMI
applications are denied, by requiring those persons to be
deported from the CNMI--while, under the U.S. system, such a
deportation is not automatic, so a person might continue
working in the CNMI even if a U.S asylum/refugee/torture
protection request is either pending or has been denied;
the U.S. system ordinarily frowns upon `secret' proceedings,
while the use of `secret' or so-called `sealed' hearings
appears to be prevalent with respect to CNMI immigration
matters--as seen, for example, by review of the CNMI court's
calendar showing four `sealed' hearings this week;
the asylum/refugee/torture protections arise due to U.S.
Treaty obligations--which obligations preceded and are
therefore in no manner connected to the CNMI's present control
over immigration--which obligations arose long before the CNMI
was itself established and are derived from human rights
guarantees made by the U.S. Government, not the CNMI
Government, to all other treaty signatories; and,
the U.S. courts have ample experience dealing with class
action, multiple-person, and Federal claims against the U.S.
Government, respecting wholly federal treaty matters and
protections assured, not by the CNMI, but by the U.S.
Government itself.''
U.S. vs. CNMI Asylum Part 2: Who Let Us Down? What Can Be Done?
During the Spring of 1999, former Marianas Variety reporter Ruth
Tighe \1\ wrote a series of articles \2\ detailing the plight of at
least 379 so-called ``Tinian Boat People'' who, attempting to enter
U.S. soil via boats headed from the Peoples Republic of China to Guam,
were diverted by the U.S. personnel, who then guided the boats--with
their hundreds of illegal PRC citizens--to Tinian.\3\ There, as later
disclosed in files at the U.S. Court on Saipan and by the CNMI media,
these illegals were permitted to seek asylum/refugee/torture
protection, made available by effect of U.S. Treaty obligations binding
upon the U.S. and, by effect of the Covenant, also binding upon the
CNMI. The applications were provided by U.S. personnel flown to Tinian,
where these U.S. officials interviewed the applicants, later
transporting some of the applicants, by chartered jet, to Honolulu,
Seattle, and Illinois, with some of them ending up in New York.\4\
---------------------------------------------------------------------------
\1\ Tighe later wrote for the Saipan Tribune newspaper, controlled
by CNMI Garment Factory mogul Willie Tan, including columns by Tighe
under the ``On My Mind'' moniker.
\2\ Tighe's articles included those published April 23, 1999, June
19, 1998, May 28, 1999.
\3\ That hundreds entered was documented in a June 3, 1999 Saipan
Tribune article titled ``DOLI slams INS . . .''. Stating, in parial
excerptst: ``This brings to 379 the number of undocumented Chinese
nationals who are still staying in a tent city in the Northfield area
of Tinian island''; ``After the hearings were conducted in the United
States, the Chinese were released with some of them transferring to as
far as Honolulu while the others ended up in underground garment
factories in New York''; and, ``INS [from the U.S.] made a decision to
divert the illegal Chinese . . . to Tinian . . . after it brought an
entire boatload of undocumented Chinese to Seattle . . . on a chartered
jet.''
\4\ Id.
---------------------------------------------------------------------------
The initial reaction from the CNMI Government, via then-Governor
Pedro P. Tenorio's appointee DOLI Secretary Mark Zachares (an
attorney), was kneejerk: outraged indignation, finger-pointing blame at
the Feds, and shortsighted blunder. ``This is the same [U.S.]
administration that called our [CNMI] immigration . . . to be against
American values'' was a quoted remark. The CNMI also ``criticized the
inability of federal authorities to make swift decisions on what to do
with'' the persons seeking asylum/refugee/torture protection, before
lecturing the Feds that ``This is the same [U.S.] administration that
talks about human rights and taking care of people.''\5\
---------------------------------------------------------------------------
\5\ Id.
---------------------------------------------------------------------------
This shortsightedness by the Teno Administration had been pointed
out nearly a year earlier, to these same CNMI officials, by the CNMI
media. As one reporter wrote during June 1998: ``Is anyone in the CNMI
paying attention to where this path may lead? Is anyone in the U.S.? .
. .'' [t]here are the thousands of foreign workers already in the CNMI,
many of whom are doubtlessly also desirous not only of escape from
their own country but also of the [asylum/refugee/torture] freedoms
offered in the United States. With a mechanism established for
providing `asylum,' the CNMI faces considerable risk . . . of being
swamped with [persons] eager to take advantage of those freedoms.''\6\
And, even before then, CNMI officials knew full well of the ticking-
asylum-time-bomb and its negative implications for the CNMI: for
example, they had forewarning by effect of a footnote included in a
U.S. District Court opinion written around 992--the name of which
escapes me at the moment \7\--as well as the successful efforts by at
least two CNMI-situated persons during the early/mid 1990s--Bruce Sui
from China and Mohammed Kamal Hossain from Bangladesh--to seek asylum/
related protections from the U.S. Government.\8\
---------------------------------------------------------------------------
\6\ June 19, 1998 On My Mind by Ruth L. Tighe.
\7\ The opinion, issued by U.S. District Court Judge Alex R.
Munson, was reportedly researched and written by Judge Munson's then-
law clerk, Gregory Baka who later, after being hired as one of several
Assistant U.S. Attorneys employed on Saipan, astonished many by taking
the position that CNMI-situate persons are entitled to no right of
asylum/refugee/torture protection from the U.S., despite its exclusive
Treaty authority over and for the CNMI, simply because no procedural
mechanism had been put into place by the Feds. Prior to Baka's tenure
as Judge Munson's law clerk at the U.S. District Court on Saipan,
attorney Bruce Lee Jorgensen held that position.
\8\ The lurid details of Messrs. Sui's and Hossain's respective
ordeals, were published in an article titled ``Sweatshop 'Til You
Drop'' by Ben Jacklet, which can be viewed as a 2-part Feature at
theStranger.com (Vol. 8 No. 25 March 11-17, 1999). The article detailed
the involvement by Catholic Social Services and two Americans, Phil
Kaplan and Wendy Doromal, painting an extremely unflattering portrayal
of the CNMI garment industry, its connections to the Preston Gates &
Ellis lobbyist/law firm and PGE's premier lobbyist Jack Abrahamson (now
being grilled by U.S. officials concerning his links with Tom DeLay of
Texas/Enron/Bush fame) to whom the CNMI paid millions for lobbying
against a proposed U.S. takeover of CNMI immigration in the mid-1990s
reportedly orchestrated at the insistence of former CNMI Governor
Froilan Tenorio in tandem with CNMI Garment Industry insiders such as
Beningno Fitial (now head of the CNMI House of Representatives--termed,
by many in the CNMI, ``the Garment House on Capitol Hill''). The
response was CNMI-wide outrage, denial, and denunciation aimed at
Doromal, Kapalan, the article, and its contents. And intensified
lobbying to the tune of millions in payments by the CNMI (some of which
later were determined to have constituted unlawful CNMI public
expenditures). Of course, the facts on which the article was predicated
were deemed false within the CNMI community, including the refusal to
believe claims by a CNMI-situated woman named Tu Xiao Mei (who helped
an ABC 20/20 News team research an investigative report, critical of
the CNMI's garment industry, televised during 1998) whose CNMI boss,
she explained, had ordered her to have an abortion and fired her when
she refused. And given this history, it is noteworthy that both Former-
Governor Froilan Tenorio, and current Speaker of the CNMI's ``Garment
House on Capitol Hill'', are candidates seeking election during 2005 as
the CNMI's next Governor.
---------------------------------------------------------------------------
Some of those person who were, in fact, paying close attention,
included prospective asylum/refugee/torture protection applicants on
Saipan--many employed in CNMI garment factories--along with attorney
Bruce Jorgensen, some colleagues, and then-CNMI-Washington
Representative Juan N. Babauta. In a July 27, 1999 interview, later
published by the Variety, Jorgensen explained that all CNMI-situated
persons from totalitarian countries, including the thousands of Peoples
Republic of China (``PRC'') nationals employed in Saipan's garment
industry, could apply for asylum/torture/refugee protection from the
U.S., thereby urging the Teno administration to refrain from permitting
additional PRC nationals from entering the CNMI for garment employ. The
next day, the CNMI leadership seemed to heed the warning, with Zachares
announcing a total ban on entry permits for PRC nationals. And
asserting--either mistakenly or falsely--that ``[i]t is impossible to
claim that you fear persecution in your native country when you're a
[CNMI] contract worker.''\9\
---------------------------------------------------------------------------
\9\ July 29, 1999 Marianas Variety and Saipan Tribune (as reported
by Anence France Presse in US Immigratin News July 30, 1999.
---------------------------------------------------------------------------
But the Teno administraton quickly reversed course, with the ban
quickly lifted, and the garment industry thereby permitted to continue
gaining entry to the CNMI for the 15,000 or so garment industry workers
now here. All of whom, as Jorgensen had painstakingly cautioned,
constituted prospective asylum/refugee/torture protection seekers who,
upon application in the CNMI, could not then be deported to their
countries of origin unless and until their application/adjudication
process was completed--and with no such U.S. or CNMI processing
mechanism in operation.
Having learned of this policy shift, Jorgensen successfully filed
the first series of CNMI asylum lawsuits--civil numbers 99-0046, 00-
0005, and 02-0023--in the U.S. District Court on Saipan. And while the
settlement terms remain confidential, Jorgensen says there is ``nothing
surprising about the fact that, in the aftermath of settlement, the
CNMI created its own asylum/refugee/torture mechanism seemingly
designed to minimize, sidestep, hamper, discourage, scuttle, and derail
efforts by CNMI-situated persons--including those foolishly brought in
by garment factories after we had unequivocally established and
asserted the fact of asylum protections for such workers--to seek the
far more beneficial protections available under Federal Law from the
U.S. by way of the Federal Courts, than the minimal protections offered
by the CNMI's recently-implemented system.'' Characterizing the new
CNMI system as ``fraught with legal and practical shortcomings'',
Jorgensen also discussed responsibility/liability issues.
As to who should bear the responsibility arising by consequence
from asylum/refugee/torture applicants, Jorgensen did not hesitate:
``The full responsibility has always been, and remains, that of the
United States Government whose treaties, including these human rights
treaties, have placed this burden upon the CNMI general public. That is
what the Covenant's relavant provisions require, no ifs, ands, or buts.
U.S. Treaties mean U.S. responsibility. And that means a U.S.
application/processing/adjudication procedure, like the one invoked
seven years ago on Tinian, with U.S. funding, U.S. employees. And with
transfer to U.S. soil of persons seeking asylum--to Honolulu, Seattle,
Illinois, or New York--just as those from Tinian were so transferred.''
Relative to the economic/social burdens inflicted upon the CNMI as
a result of these U.S. human rights/treaty obligations, Jorgensen is
equally emphatic: ``One key here revolves around the term
`foreseeability'. Before 1998, the garment industry might have argued:
`Gee golly, nobody knew these employees we brought into the CNMI, and
will keep bringing here, from totalitarian regimes like China, could
seek asylum/refugee/torture protecton thereby preventing the CNMI from
sending them home.' But that changed, both with the public warning we
provided in July 1999, and then with the lawsuits later filed on my
clients' behalf. Then-Washington D.C. Representative Juan N. Babauta
was astute enough to understand this, and to see it through when he was
elected Governor. You see, once the lawsuits were settled by the
Babauta administration, there could be no argument--from the garment
factory owners and principles, their SGMA flunkies, the Garment Speaker
of the House, or his minions on Capitol Hill--that they did not forsee
the consequences. And since damages which are proximately caused to a
person or persons--like the CNMI general public--by the breach of a
duty which is foreseeable may be recovered from the persons/entities
who caused these foreseeable damages, it's easy to see who should pay,
and pay alot. By way of voluntary contribution, private civil
litigation, Article X Section 9 litigation by a `private attorney
general', or litigation initiated by the CNMI government itself. These
damages, of course, should be paid by garment factory principals and
their cronies, who remain in the CNMI. And that just might be on the
horizon, via litigation initiated by the CNMI or private persons, if
the Garment House on the Hill does not now seek to exempt these
garment-folks from this liability in yet another weekly-round-robin-
legislative session.''
U.S. vs. CNMI Asylum Part 3: CNMI Law Defective/Related Obstacles
Defective CNMI Asylum Law
``Simply put, the asylum/refugee/torture protections available to
persons in the U.S. and territories like Guam--being more readily
available to a wider group of persons than permitted under the CNMI's
new scheme, with more beneficial consequences, far less likelihood of
political/legislative whim or interference, and administered by U.S.
personnel trained by the U.S. and held accountable under U.S.
corruption/related laws--leave no question that the CNMI's asylum
system is both legally and practically defective in multiple
respects'', said attorney Bruce Jorgensen during a recent interview.
``Please consider some of the following circumstances which suffice to
explain this conclusion:
``First, the U.S. procedure for asylum/refugee/torture protection
submission, processing, and adjudication, if not made readily available
on a wholly equal basis--that is, to every person entitled to
protections implicit in the U.S. Government's agreement to enter into
and abide by these treaties--would violate equal protection and due
process rights guaranteed by effect of the U.S. Constitution, as well
as U.S. laws barring discrimination based on locale.''
``Second, there appears scant authority which might permit a U.S.
state, territory, or commonwealth, to usurp from the U.S. Government,
the oversight, regulation, and compliance with the U.S. Government's
international obligations, rights, or responsibilities--whether arising
by treaty or otherwise. Consider it this way: if the State of Florida
was concerned about losing Federal funding as a consequence of
thousands of Cuban and Haitan nationals coming to and seeking asylum in
Florida, would Florida be permitted to initiate and administer itself
an asylum program more restrictive than the U.S. asylum system?
Certainly not. This is what Federal obligations are all about.
Similarly, if the CNMI is concerned about losing control over CNMI
immigration as a consequence of thousands of Chinese nationals being
permitted to enter the CNMI and seeking asylum, the CNMI may not be
permitted to initiate/administer an asylum program more restrictive
than the U.S. asylum system in violation of U.S. constitutional
safeguards requiring equal protection and process. And the CNMI
Government's lawyers are certainly aware of this fact and must have
explained it to their bosses by now, especially having been reminded of
it most recently in the CNMI v. U.S. case, involving submerged lands
around the CNMI, which the CNMI being represented by DOLI lawyer James
Livingstone lost on February 24, 2005.\10\ The U.S. Ninth Circuit Court
went to great pains to explain this scenario. Consider some of the
court's language, for instance: `Article 1 [of the Covenant]
establishes that the United States has ``complete responsibility'' for
and authority with respect to matters relating to foreign affairs';\11\
`The paramountary doctrine draws its authority from the inherent
obligations placed on the sovereign governing entity to conduct
international affairs and control matters of national concern . . . The
Covenant unquestionably places these powers and obligations in the
United States';\12\ `There is no indication . . . that the United
States contemplated a permanent divestment of the paramount rights that
the United States would obtain upon assuming sovereignty [under the
Covenant]';\13\ `As the paramountcy cases established, that state
interest is inferior to the federal rights.';\14\ and, `Laws passed by
the CNMI legislature to the contrary are inconsistent with the
paramountcy doctrine and are pre-empted by federal law.'\15\
---------------------------------------------------------------------------
\10\ CNMI v. U.S., Slip Opinion No. 03-16556 (9th Cir. Feb. 24,
2005).
\11\ Id. at 2189 (1st full paragraph).
\12\ Id. at 2195 (2d full paragraph).
\13\ Id. at 2199 (2d full paragraph).
\14\ Id. at 2200 (1st full paragraph).
\15\ Id. at 2203.
---------------------------------------------------------------------------
``Third, under the U.S. system, all persons may apply for asylum/
refugee/torture protection, whether or not a deportation order has been
issued. The CNMI's law, requiring such an order, is consequently more
restrictive in violation of U.S. equal protection/due process
constitutional obligations.''
``Fourth, the U.S. system provides U.S. employed administrators,
judges, and the like, who have undergone U.S. training, U.S. security
screening, and other U.S. requirements, having no political, family,
economic, or similar obligations to the CNMI or persons/businesses
situated within or connected to the CNMI. The CNMI's scheme does not
provide these protections, so there arise, yet again, instances of
equal protection/due process/discrimination by which CNMI-situated
persons are subjected, while those in the U.S. are not.''
``Fifth, the U.S. system inherently subjects U.S. personnel within
the system to federal corruption standards, with federal criminal
punishment and non-parole jail sentences for violation, while the
CNMI's system does not. Again, this affords U.S. situated persons far
greater protection and benefit than is available to those in the CNMI,
in violation of equal protection, due process, and discrimination
prohibitions.''
``And Sixth--perhaps most importantly--is that persons seeking
protections respecting asylum/refugee/torture under the U.S. system,
have been already permitted to go from the CNMI to Honolulu, Seattle,
Illinois, and elsewhere in the U.S. itself, while those seeking help
from the CNMI will only be permitted to stay in the CNMI.''
``It really boils down to this: the U.S. Government may not opt to
provide greater treaty protection to one group of people, and lesser
treaty protection to another group of people, where the obligations to
protect arise from treaties with which the U.S. exercises full and
exclusive treaty duties, obligations, and sovereignty. The Feds may not
and must not be allowed to discriminate against and provide lesser
protection for persons situated within the CNMI. This is not a CNMI
immigration matter, but a U.S. treaty matter, of human rights and jus
cogens (international common/customary law)--do away with the INS, do
away with DOLI, do away with TSA and post-9/11 Orwellian law, and the
U.S. still has these treaty obligations. And with no double-standards
or preferential treatment permissible, to the detriment of CNMI-
situated people.''
``The U.S. may not pick and choose which protections they may or
may not provide to the CNMI. Birth in the CNMI, for example, confers
U.S. citizenship. The U.S. may not change that by deciding, for
example, that only birth on Guam will suffice for U.S. citizenship. Nor
would the U.S. heed the contention that, since the Feds give CNMI-
situated persons diminished asylum/refugee/torture protection rights,
then persons in the CNMI may refuse to register for prospective
military service.''
``Whether there might also rise a challenge, on the basis that the
Garment House on Capitol Hill seem to change the CNMI's laws as often
as their socks, might be interesting as well. Certainly, the unstable
nature of the CNMI's laws respecting DOLI and the garment industry,
would give rise to equitable considerations substantiating the flawed
nature of the CNMI's asylum scheme.''
Related Obstacles
Beyond the flawed nature of the CNMI's new mechanism, it was also
pointed out that obstacles likely awaiting CNMI-situated persons
seeking U.S. asylum/refugee/torture protection, included U.S.
resistance, and CNMI political concerns.
``The U.S. Government is not likely to voluntarily provide the
procedural mechanism required to fulfil these treaty obligations if the
past is any indication. U.S. officials employed by the INS and
stationed on Saipan, for example, refused to accept the completed I-589
and I-590 forms submitted to them on behalf of my clients, reputedly on
the advice of former Assistant U.S. Attorney Gregory Baka,'' Jorgensen
mentioned. ``So a lawsuit or series of lawsuits, filed in the U.S.
District Court on Saipan, will probably be necessary--either by an
individual, a group of individuals, or by way of what is called a
`class action' lawsuit. But this process might be expedited, for
example, by seeking only what is called `declaratory relief' and/or a
`consent decree'. And, of course, anyone seeking protection, who
participates as a party in such a suit, would seek from the U.S. Court
a protective order preventing their deportation until the lawsuit is
resolved, which is the type of protection made available to my clients,
by the U.S. court, in earlier cases ultimately settled.''
This stubbornness on the part of the U.S. is not surprising with
respect to asylum in the CNMI, however. As recent experience shows
``this is the same U.S. Government which, through its U.S. officials,
went to extraordinary lengths in an effort to deprive the privileges of
U.S. citizenship and U.S. passport possession to the small group of so-
called `Stateless People' recently on Saipan. And there, as in this
instance, the Feds adopted as part of their defense the tactics of
delay, legal wrangling in court, and the like, aimed at frustrating and
discouraging the persons entitled to the rights they finally attained
only by suing the U.S. and prevailing in the Federal Court system. This
as, all the while, U.S. officials on Saipan and elsewhere routinely,
but mistakenly, opined that these folks had no substantial likelihood
of success, and that the U.S. would prevail. And like they are now
doing with the Dekada folks.''
Then there are the CNMI's politics. ``Many in the CNMI fear that,
if U.S. treaty/refugee/asylum protections are provided to CNMI-situated
persons, then the Feds will take over the CNMI's immigration control.
First off, this does not appear likely, as it takes a Congressional law
to accomplish a takeover. But more importantly, many people including
myself believe that a U.S. takeover would be in the CNMI's best
interests for a wide range of reasons: the U.S. would have to hire
hundreds of U.S. immigration employees, almost certainly from the CNMI,
who then would be paid by the U.S., and would receive U.S. funded
benefits/COLAs/per diems/retirement/fixed expenses/equipment/vehicles/
airplanes/patrol vessels/resources/training/travel, all courtesy of the
U.S. Government's pocketbook--translating into substantial cost savings
to the CNMI Government's payroll, expense, and retirement systems. And
then the CNMI-situated persons seeking asylum/refugee/torture
protection would be able, during the application process, to depart the
CNMI for Guam or--as have many Guam-situated seekers--for the the U.S.
Mainland. But perhaps most importantly, in the culture of `finger-
pointing' and `blame-avoidance' which typifies U.S./CNMI relations, the
tables would finally be turned against routine U.S. criticism of the
CNMI's untenable immigration situation, as the CNMI's immigration woes
are almost certain to persist--by virtue of foreign laborers having
come to be expected as an institutional necessity to CNMI development--
with the result of U.S. control being the CNMI's ability to finally
point the accusatory finger-of-blame at the U.S., while avoiding U.S.
repercussions, as immigration problems most certainly arise to plague
the CNMI in the future.''
U.S. v. CNMI Asylum Part 4: CNMI Court Hostility; Help For Asylees
``The U.S. Constitution controls, as the Supreme Law, over any and
all treaties binding by effect of a two-thirds U.S. Senate vote, over
laws enacted by the U.S. Congress, over laws enacted by the CNMI
Legislature, and over all administrative `agreements' or
`understandings' by and between U.S. and CNMI officials. The U.S.
Supreme Court controls all interpretation of the U.S. Constitution by
effect of the Court's rulings. And the Court made crystal clear with
the 1950's case Brown vs. Board of Education of Topeka Kansas, and has
emphatically reiterated since then, that the disparate notion of
`Separate But Equal' treatment of persons entitled to the full
protections of the U.S. Constitution is wholly unlawful.'' This,
explained lawyer Bruce Lee Jorgensen, is the unavoidable obstacle
precluding U.S. and CNMI officials from preventing CNMI-situated
persons from seeking and obtaining U.S. asylum/torture/refugee
protections far more beneficial, to these seekers, than those similar
but less beneficial protections ostensibly available under the CNMI's
recently enacted legislative scheme. ``And while these Government
officials have attempted, and continue, to devise systems by which this
fact of U.S. Constitutional Supremacy is circumvented, the U.S.
Judiciary, if called into play by the filing of federal lawsuits on
these seekers' behalf, will not let this happen,'' Jorgensen reassures.
``Fixation on the Covenant--the agreement by which the CNMI was
established as a U.S. Commonwealth--as the focal point of asylum/
refugee/torture protections, tends to obfuscate this fact of the U.S.
Constitution reigning supreme. Because the Covenant is, in the end, not
a U.S. Treaty presented to and ratified by two-third of the U.S.
Senate, but merely a run-of-the-mill law, enacted by the U.S. Congress.
There it is: a mere federal law codified in the U.S. Code. And a law,
consequently, whose terms and application--like any other U.S. law,
regulation, administrative ruling, or official `agreement' or
`understanding'--must wholly comport with the U.S. Supreme Court's
denunciation of, and prohibition against, `Separate-But-Equal'
treatment of persons entitled to the full protections of the U.S.
Constitution, as are persons physically situated in the CNMI who have
arrived within the CNMI by any means, lawful or otherwise. So any
fixation should be redirected at the outset, away from the Covenant,
and pointed instead directly at the U.S. Constitution as the Supreme
Law.''
``Neither the U.S. Constitution, nor the Covenant, permit U.S. and
CNMI officials from ignoring this Supremacy Doctrine. One result is
that neither U.S. nor Federal officials may enact laws, or implement
formal/informal `agreements' or `understandings', which effectively
impose, upon CNMI-situated persons, standards/procedures which are more
stringent or less beneficial, than those standards/procedures/benefits
made available to U.S. Mainland-situated person, or to persons situated
35 miles away from the CNMI's southernmost island (Rota) on the U.S.
Territory of Guam. Beyond the Constitutionally violative nature of such
a scheme, consider just one of the practical inequities which might
otherwise result: persons from totalitarian regimes like the Peoples'
Republic of China (`PRC') who unlawfully enter Guam and seek asylum/
refugee/torture protection are granted full U.S. protection, permitted
to remain indefinitely, and freed pending disposition to travel
anywhere in the U.S. or its territories; while persons from this same
PRC totalitarian regimes who have lawfully been permitted to enter the
CNMI and seek asylum/refugee/torture protection are denied U.S.
protection and deported, despite the fact of application not of a
`similar' U.S. treaty, but the exact same treaty as binding on Guam?
And so illegal entrants are rewarded while legal entrants are penalized
by application of standards/procedures/benefits conferred by the exact
same treaties?!?''
Jorgensen later alluded to historical background by way of
explaining further. ``Think of an umbrella or a shield. Both used for
protection. Well during the 1940s and later, long before the CNMI was
created in tandem with the U.S., there was offered to the U.S. by the
International Community an `umbrella' or `shield' in the form of
various asylum/refugee/torture protections. One umbrella. One shield.
And upon accepting this `umbrella/shield', the U.S. agreed to use the
`umbrella/shield' to provide asylum/refugee torture protections to all
persons falling within the ambit of U.S. Constitutional rights. Next
came the 1950's and the Brown decision. `Look' said the U.S. Supreme
Court, `you can not have use separate, different, school buildings, one
to educate the White boys and girls, and one to educate the Black boys
and girls. None of this ``Separate-But-Equal'' nonsense. You must use
the same building because we have determined that equal right and due
process clauses of the U.S. Constitution bar this ``Separate-But-
Equal'' pretext.' Well this, of course, meant as well that the U.S. was
and remains limited to using one, and only one `Treaty Umbrella', one
and only one `Treaty Shield', which must be made equally available to
protect all entitled to U.S. Constitutional rights--no `Separate-But-
Equal' umbrellas or shields allowed.''
``Now along came the 1970s, with the U.S. approaching the folks on
Saipan, Tinian, and Rota--and vice versa--and the U.S. folks saying:
`Look, the U.S. is willing to sign this Covenant, and to make this
Covenant into U.S. law, if you specifically agree as part of this
Covenant that you are and shall remain prohibited from owning your own
`Treaty Umbrella'/`Treaty Shield' but, instead, agree to use
exclusively the `Treaty Umbrella'/`Treaty Shield' already possessed by
the U.S. No substitutions, no alternatives, no `Separate-But-Equal'
umbrellas/shields, no bigger umbrellas/shields, no smaller umbrellas/
shields. The CNMI must agree to use the one and only U.S. provided
`Treaty Umbrella'/`Treaty Shield'. And, by the way, the CNMI must
further expressly agree that all provisions of the U.S. Constitution
relating to equal protection/due process, as well as the U.S. Supreme
Court's interpretation of these U.S. Constitutional protections, shall
be binding upon and within the CNMI.''
The CNMI people, in essence, said ``O.K. We'll agree to that in
exchange for the extraordinary benefits the U.S. has agreed to give us,
like: automatic U.S. citizenship; birth within the CNMI conferring U.S.
citizenship; unrestricted rights to enter/reside/work/buy land anywhere
in the U.S.; more per-capita federal spending, within the CNMI, of tax
money paid by U.S. Mainland residents, than anywhere in the 50 U.S.
states themselves; no taxation upon persons within the CNMI payable to
the U.S Treasury; the exclusive right for `persons of NMI descent' to
own land in the CNMI to the exclusion of all other U.S. citizens; full
control over CNMI immigration subject to U.S. takeover upon enactment
of any U.S. laws permitting takeover; no worries over military defence
which the U.S. shall provide via the U.S. Coast Guard, Navy, etcetera--
basically all of the benefits and few of the burdens of U.S.
affiliation. And in exchange, we in the CNMI agree to restrict CNMI-
situated persons to use of only the U.S. single `Treaty Umbrella'/
`Treaty Shield'. No mini-umbrellas/shields, no partial umbrellas/
shields here. The `whole nine yards' ''. And so this agreement, called
the Covenant, was enacted--not as a U.S. Treaty by a two-third Senate
vote, but as a simple U.S. law subject to all U.S. Constitutional
protections respecting equal protection/due process and the U.S.
Supreme Court's interpretative enforcement of these protections via the
Supremacy Clause.
``And so we have this single `Treaty Umbrella/Shield' provided by
the Covenant. And the U.S. Supreme Court's prohibition against
`Separate-But-Equal' treatment to all persons granted equal rights/due
process/equal protection by effect of the U.S. Constitution including
all persons in the CNMI. Now may the U.S. Congress or the CNMI
Legislature, by law or by `agreement' or by `understanding' limit,
ignore, circumvent, or prohibit application or availability of any
portion of these Constitutional protections to persons in the CNMI--
such as persons from totalitarian regimes seeking asylum/refugee/
torture protection from the U.S. while physically present in the CNMI?
No--at least not lawfully. Neither the he U.S. nor the CNMI may
lawfully say, in essence: `Well, the folks on Guam and in the U.S.
Mainland can use 100 percent of this one ``Treaty Umbrella'' we own,
and may receive 100 percent protection/benefit from this one ``Treaty
Shield'' we own; but the folks in the CNMI may only use 40 percent of
the ``Treaty Umbrella'' and receive 40 percent protection/benefit from
the shield.' Because any such policy/procedure, whether enacted by U.S.
law, CNMI law, or U.S./CNMI official `agreement'/`understanding' would
itself be not worth the paper upon which it is written because it is
violative of the Supreme Law guaranteed by the U.S. Constitutional
protections as to equal protection/due process. Neither the U.S. nor
the CNMI may let Guam/U.S. Mainland residents use the entirety of this
single `Treaty Umbrella'/`Treaty Shield', while limiting persons in the
CNMI--the Westernmost of any U.S. Commonwealth--to only the Western
quadrant of this `Treaty Umbrella'/`Treaty Shield'. And think of
another practicality--does application of U.S. law used by the U.S., in
effect as a `Sword', depend on where persons are physically situated?
No, if you violate a U.S. law making criminal drug dealing which you
committed in Florida, and you go to the CNMI after your dealings, you
are hauled into the U.S. Court in the CNMI under U.S. domestic law
enacted by the U.S. Congress to face the consequences.''
``And so,'' Jorgensen paused, ``none of this is a surprise or
revolutionary. There is no Rocket Science involved. No intellectualism
requiring an Einstein geneology. Goodness, if a `Dolt' like me can
understand this, than the intellects heading the CNMI's Judiciary five
years ago, like the CNMI's attorneys back then, certainly understood
this.''
Why, then, was the simmering issue not fully and finally resolved
five or more years ago? And why, too, did the CNMI Governments of the
1990s, under former Governors Froilan Tenorio and Pedro Tenorio, and
with knowledgeable CNMI legislators like House Speaker Beningo Fitial
in control, not only fail to restrict the number of PRC nationals
entering the CNMI but, rather--well aware of this dire scenario,
overwhelmingly detrimental impact, and imminent demise of the CNMI's
garment industry come the subsequent Babauta administration--opt
instead to permit thousands upon thousands more PRC garment workers
(estimated at 15,000 or so) entry for employ in the CNMI's garment
industry now in the throes collapse on Saipan? ``Perhaps,'' Jorgensen
surmised, ``the fellows then heading the CNMI Judiciary, and the highly
paid in-the-know attorney then employed to counsel the CNMI--like
Herbert Soll, Mark Zachares, Robert Goldberg, and David Sosebee--were
playing checkers rather than chess with the issue. Focused on emotions,
personalities, on what they perceived as their source of immediate
irritation, rather than focusing more professionally on the big picture
at hand. Kind of like having anger and vengeful thoughts cloud and
interfere with objective reason. Or like playing a game of pool, and
looking only at the cue ball and a single target-ball, rather than
looking all 16 balls and where they are situated on the table. Or,
maybe, they simply lacked the backbone, impartiality, or political will
to timely, rationally, equitably, or lawfully deal with the long range
asylum/refugee/torture protection issue, in lieu of directing
hostility, discouragement, retribution, and attempted intimidation, at
who and what they perceived to be the irritant--while foolishly hoping
that this tactic would, in turn, have a `chilling effect' on the few
pro-rights lawyers and lay persons willing to become and remain
involved, while making the irritant, and the ultimate problem, either
disappear under the carpet, or go away forever.''
CNMI Judiciary: Failure/Lost Confidence/Hostility/Retribution
Pressed to document what some perceive, and previously
characterized by Jorgensen, as the CNMI Judiciary's hostility or
vindictiveness regarding the asylum/refugee/torture protection issue,
and respecting those attorneys and others asserting asylum/refugee/
torture claims for protection between 1999 and 2002, Jorgensen cited
historical background, multiple lawsuits, and related proceedings
documented in records located in the U.S. Court/Saipan, the CNMI
Superior Court, quasi-judicial entities including the CNMI and Hawaii
bar associations, and other materials.
``Now bear in mind, that CNMI Judiciary insiders, like the CNMI
judges and attorney/law clerks of the 1990's, had first glimpsed the
imminent CNMI asylum headaches more than 10 years ago, during the early
1990's. Just as the CNMI Judiciary was the first venue in which came to
light the so-called `Article XII' real estate claims \16\ which gave
rise to protractive, vexatious, litigation during the late 1980's and
into the 1990's, with the effective destruction of the CNMI's
previously-vibrant economy in its wake, and the resulting insistence by
CNMI leadership at that time--folks like Former CNMI Governor Froilan
Tenorio and longtime CNMI House Speaker/member Benigno Fitial \17\--
that a CNMI Garment Industry reliant nearly exclusively upon a labor
force of Peoples Republic of China nationals should be vastly and
swiftly expanded, to its year 2003 level of 15,000 or so foreign
workers, as a principal means of `improving' the CNMI economy ruined by
Article XII claims barred after only after this ruin had occurred. And
in both instances--both the looming asylum matter and the Article XII
land claims, the CNMI Judiciary had first crack and best opportunity at
providing immediate, rational, lawful, and equitable solutions to these
relatively simple issues. But instead, these CNMI judges of the
1990's--many still there or CNMI-employed--did just the opposite. And
as a clearly foreseeable consequence, both the number and scope of
asylum claims, like Article XII claims before them, have dramatically
increased, mushroomed, and escalated, to the point where the CNMI's
present leadership, headed by Governor Juan Babauta, now has been
forced into dealing with a crisis respecting asylum/refugee/torture
protection, which crisis was thrust upon his administration not only by
predecessors like former CNMI Governors Froilan Tenorio and CNMI House
Speaker Benigno Fitial, but equally if not exponentially-more-so by the
CNMI Judiciary which, with a few exceptions,\18\ failed dismally in its
many, many, many opportunities during the 1980's and 1990's to avoid
the unequivocally and forseeably detrimental impact of these asylum and
Article XII issues on the CNMI General Public.''
---------------------------------------------------------------------------
\16\ The CNMI has its own constitution which, at Article XII,
restricts ownership of land to ``persons of Northern Mariana Islands
(`NMI') descent'' meaning, essentially, that persons of NMI descent may
lease their land pursuant to 55-year leases to others, but not sell the
land. This, in turn, means that persons of NMI descent may travel 100
or so miles south to Guam, a U.S. Territory, and purchase land from
their cousins or uncles, or go to the U.S. Mainland and buy land from
Statesiders, but these same Guamanians and Statesiders, like all
others, may not purchase land within the CNMI--only lease the land for
55-year terms. During the 1980's, massive investment was infused into
the CNMI by way of property leases by persons of NMI descent to
Japanese, U.S., Asian, Australian, and other investors. Land values
skyrocketed and so, apparently, did greed. Persons who had leased their
properties, then saw the investors profit either by subsequent
development like hotel/residential construction, or subleasing to
others, for profit. And so a legal theory revolving the so-called
``resulting trust'' theory was devised by a few attorneys, including
Theodore Mitchell, in an effort to reclaim the property leased by the
original owners of NMI descent, who naturally wanted also to keep the
lease payments they had received. Never mind that some of the lawyers
closely involved in the underlying transactions later became judges
with the CNMI Judiciary with some on the bench even today. The lawsuits
were entertained by the CNMI Judiciary for years and years. And then
for more years when CNMI advocates of this reclamation, seeing the
writing on the wall by virtue of the right then to appeal CNMI trial
court rulings through the U.S. Court system, prevailed upon the CNMI
Legislature to create their own CNMI Supreme Court, with many of these
same CNMI judges aboard. Naturally, the litigation went on and on given
life by this new CNMI Supreme Court. And so the investors said ``Good-
bye'' to the CNMI in droves, astounded not only by the fact of the
claims, but even more so by perceived complicity of the CNMI Judiciary
in not only entertaining the claims, but effectively protracting
matters for years on end, thereby applying the death knell not only to
multimillion-dollar-commercial investors, but scores of local residents
not of NMI descent who simply wanted to build family homes on leased
real estate in the CNMI. With outrage and fierce repercussion from the
international business community which, ever since, generally has
viewed CNMI investment as a highly speculative endeavour. Japan Air
Lines' headache with the Nikko Hotel property on Saipan is just one
example.
\17\ As previously mentioned in passing, at n.8 above, Tenorio
(CNMI Governor between 1993 and 1997) and Fitial (longtime CNMI House
or Representative member, perennial employee/promoter and/or
beneficiary of Saipan garment-industry-magnate Willie Tan, and current/
longtime Speaker of the CNMI House of Representatives dubed the
``Garment House'' by many) have announced their candidacies for
election as the CNMI's next Governor, to be decided in Fall 2005
elections. Key/longtime friends of the CNMI's garment industry, they
were at the CNMI helm as events relating to initial requests for
asylum/refugee/torture protecton, by CNMI-situated persons, came to
insiders' knowledge during the early-mid 1990's, as described
previously here, e.g., in the text at n. 8, and in the lurid orderal of
Messrs. Sui and Hossain published in an article titled ``Sweatshop 'Til
You Drop'' by Ben Jacklet, which can be viewed as a 2-part Feature at
theStranger.com (Vol. 8 No. 25 March 11-17, 1999).
\18\ One such exception, in Jorgensen's view, might be Timothy H.
Bellas, who in his capacity as a CNI Superior Court Judge, had the
courage to issue a March 15, 2000 Order Granting Temporary Restraining
Order And Expedited Hearing (For Publication) on behalf of Juyel
Ahmed--the asylum/refugee/torture applicant jailed jailed indefinitely
throughout the 20 preceding months, between July 1, 1991 and March 15,
2000 in the CNMI's ``Goldberg Gulag'' immigration detention center as
documented in Judge Bellas' order at p.2--in CNMI Superior Court
Special Proceeding No. 00-0101A, Juyel Ahmed v. Major Ignacio Celis
et.al. But even Judge Bellas was unwilling to address Ahmed's claim to
asylum/refugee/torture protection--basing Ahmed's release, instead,
upon Constitutional prohibitions respecting indefinite jail terms of
detention, as noted at page 2 of the order--leaving Ahmed to seek
immediate asylum/refugee/torture protection against deportation by the
CNMI (then set for March 16, 2000) from the U.S. down the road. And not
long afterwards, Bellas was gone, having been rejected by CNMI voters
for retention to the CNMI Judiciary's bench.
---------------------------------------------------------------------------
``And so, the first asylum/refugee/torture protection claim was
filed, during Fall of 1999 as Civil Action No. 99-0046, as a civil
lawsuit in the U.S. District Court for the Northern Mariana Islands on
Saipan, after a Peoples' Republic of China (`PRC') citizen named Rui
Liang, who had been previously shot with a gun by PRC soldiers as he
protested against the PRC government at Tiannamon Square, was detained
on Saian at the detention centre operated by DOLI but referred to
during that period as the `Goldberg Gulag','' said Jorgensen. ``And the
second, Civil Action No. 00-0005, was also filed in the U.S. Court
during the mid-February of 2000.''
``Now bear in mind, that no advance-plan or pre-set agenda existed
regarding the filing of these Federal lawsuits. A shot had been fired
across the CNMI's bow a few months earlier--with the publication of the
fact that CNMI-situated persons were entitled to seek the full extent
of U.S. Treaty-obligated asylum/refugee/torture protections while in
the CNMI, the CNMI's head-lawyer Mark Zachares denied this but then
immediately sealed the CNMI's borders to further entry by PRC
nationals, only to reverse this short-lived policy right away. And more
importantly, my law practice had been whittled down to just a few
cases, due to my intended permanent departure from the CNMI during Fall
1999, where my wife had moved in anticipation of giving birth to our
first son on November 15, 1999. So my bags were packed, with the CNMI
nothing but a memory in the rearview mirror, we thought.''
``But then along came Mr. Liang, whose plight was disclosed to me
by former CNMI-attorney John Chambers, in whose office my belongings
were being stored in a makeshift preparation for my departure from the
CNMI. And so Mr. Liang needed legal help respecting `asylum' and, there
being no other CNMI-situated lawyers willing to step up and confront
the CNMI Government--out of concerns of reprisal many claimed--I agreed
to help and filed the first U.S. Court case, 99-0046.''
``A few months later, with Mr. Liang still locked away by the CNMI,
a note was handed to me as I visited Mr. Liang at the internment
prison. The note was provided by person who, like Mr. Liang, was
imprisoned there. And the note was from Juyel Ahmed who, under the
auspices of the so-called `Goldberg Gestapo' had seen fit to lock this
man, Juyel Ahmed, away for 20 months--from July 1, 1998 until we
secured his release on March 15, 2000--with no rights to counsel,
visitation, ad nauseam.\19\ This the result of Mr. Ahmed's staunch
refusal during this 20-month period, to cooperate with Mr. Goldberg's
threats and extensive efforts to have Mr. Ahmed deported to his country
of origin, where Mr. Ahmed had been subjected to politically-motivated
tortures including having his face placed into boiling water, having
his feet sliced open, and having sand put into his sliced feet, while
incarcerated by his government in that country.''\20\
---------------------------------------------------------------------------
\19\ The length of incarceration and related conditions were
partially, and mildly, detailed in the Superior Court order described
at footnote 18 above. For much greater detail, and insight as to
atrocities inflicted upon Mr. Ahmed first as a political prisoner in
his country of origin, then later as described in allegations made
against then-CNMI Assistant Attorney General/DOLI attorney Robert
Goldberg (which allegations Goldberg never denied under oath before the
U.S. Court/Saipan) pertaining to Ahmed's 20-month stretch in the Gulag
on Saipan, reference should be made to the declarations submitted by
Mr. Ahmed under penalty of perjury, as exhibits to the complaints filed
on his behalf in the U.S. Court/Saipan, Civil Action No. 00-0005. For
strategic/practical reasons, claims asserted versus Goldberg and his
boss Mark Zachares--also an attorney, and then Secretary of the CNMI's
Department of Labor and Immigration--were later dismissed without
opposition or appeal by Jorgensen/Ahmed. Yet a few years later, after
Goldberg departed the CNMI and sought admission to the Bar of the State
of Hawaii during 2004, none of multiple CNMI-situated lawyers
contacted, would furnish documentary evidence of similar conduct/
allegations against Golberg, see e.g. the U.S. Court/Saipan ruling in
the Gorromeo case (where Goldberg/Goldberg purported to justify
warrantless searches of persons/property) the Office of Disciplinary
Counsel of the Hawaii State Bar Association--as a consequence of which
Goldberg, almost certainly the most often-sued-lawyer in the history of
CNMI-employ, with almost-certainly the highest-per-lawyer CNMI
Government payout for being sued, has now been permitted to engage in
the practice of law on the Island of Kauai in the State of Hawaii.
\20\ Mr. Ahmed's graphic description of these torture sessions at
the hands of government officials in his homeland, and the subsequent
deprivations to which he was then subjected at Mr. Goldberg's
instruction while in ``the Gulag'' on Saipan, are extensively detailed
under penalty of perjury in the first several documents appended as
Exhibits to the complaints filed on Mr. Ahmed's behalf in Civil Action
No. 00-0005, U.S. District Court for the Northern Mariana Islands, on
Saipan.
---------------------------------------------------------------------------
``Since Mr. Ahmed had not been permitted to have visitors, or use
the telephone, or consult a lawyer, his note to me pitifully begged
that he be permitted to seek representation, release, and asylum/
refugee/torture protection, and that I assist him in this endeavor.''
``Now bear in mind that between the few months which had passed--
between the filing of the first case on Mr. Liang's behalf, around
September 1999, and the filing of the second case, during mid-February,
2000--there had been threats and intimations of physical violence made
against myself and my wife. These we reported to the FBI Office on
Saipan, where we later met with an FBI agent and detailed some of the
facts. On another occasion, I was told by a CNMI-lawyer that while
observing his son's baseball game on Saipan, that he had been
confronted by Saipan Garment Manufacturing Association President
Richard Pierce, who had angrily blurted out: `Does Jorgensen have a
deathwish!?!' ''
``Yet during this same period of six-months-or-so, between
September 1999 and February 2000, there were also a few CNMI-situated
persons offering `pat-on-the-back' type encouragement, though primarily
in hushed-private-encounters. You see, they also were concerned about
retaliation/retribution, merely for being seen with me.''
``And many, many, prospective clients interested in seeking asylum/
refugee/torture protection, were referred to me during this same
period. One source of these referrals, according to many of these
prospective clients, was CNMI-situated attorney Pamela Brown, who was
then employed as U.S. Ombudsman on Saipan. And Ms. Brown's husband,
Mark Blackburn, was one of the few people kind enough, during this
period, to approach me in a Saipan restaurant, introduce himself, and
voice his appreciation for my efforts on behalf of these persons
seeking human rights protections. And, as the world turns, around six-
months into the CNMI Administration headed by present Governor Juan
Babauta, Ms. Brown was appointed the CNMI's Attorney General Attorney
General. Around mid-2001 after Governor Babauta's initial appointee--
CNMI Attorney Robert Torres, previously employed as a lawyer for the
U.S. Government's Immigration and Naturalizaton Service, I am told--
inexplicably resigned his appointment as CNMI Attorney General.
Needless to say, from the moment of Ms. Brown's appointment, onward
through today, she has not returned a single one of my telephone calls,
including those in which I left messages requesting return calls along
with my contact numbers, on her direct-line answering machine at her
office.''
``Meanwhile, my personal circumstances had also changed
drastically. My newborn son, who arrived on November 15, 1999, could
use a little fatherly-attention it seemed. Together with my wife, the
whole family had moved to Palau--leaving the personal threats,
intimidation, and threatened reprisals behind, and leaving me alone on
Saipan. With no office. Until soon-to-be-departing CNMI lawyer V.K.
Sawhney offered me the use of his office.''
``Well it being apparent that no other CNMI-situated lawyers would
help these people, I opted to extend my CNMI stay, for just a few
months, we anticipated. And ironically, it was during this several-
month period during early 2000, that a series of events--originated and
apparently conceptualized by by then-CNMI Judiciary officials, CNMI
attorneys, and the CNMI Legislature in an effort to hasten my CNMI
departure, with vindictive retribution the game-plan--which ultimately
caused me to remain in the CNMI, and to be retained as counsel in these
proceedings, until their final disposition during the Summer of 2003.
Because, had this vindictive retribution not transpired, the entire
matter of asylum/refugee/torture protection might have been swept under
the rug by the U.S. and the CNMI--I was one step from leaving, for
good, when this `CNMI-Brain-Trust' came after me and, unwittingly,
inflamed the issue exponentially. With `Yours Truly' not only still
around, but poised to file yet another lawsuit--which occurred on May
22, 2001, in the U.S. District Court proceeding Jiang v. CNMI, et.al.,
Civil Action No. 02-0023.''
``Digressing back to mid-February 2000, and Mr. Ahmed's 20-month
internment at the `Goldberg Gulag'. There being no CNMI-licensed
attorneys interested in or willing to assist Mr. Ahmed, I agreed to
help him in the U.S. District Court on Saipan, where, I have been fully
licensed to practice law since 1986.''\21\
---------------------------------------------------------------------------
\21\ Admission to practice law before the U.S. District Court for
the Northern Mariana Islands, through the late 1980's, was permitted--
as in many U.S. District Courts in the States--where an applicant had
been admitted to practice law in one of the 50 States of the United
States. And since Jorgensen had earlier taken and passed the Hawaii Bar
Examination, and been admitted to practice law in all Hawaii state and
federal courts, he was duly admitted to practice before the U.S. Court
on Saipan. As well as the High Court of the Trust Territory of the
Pacific Islands, the Republic of Palau (Belau), and the United States
Court of Appeals for the Ninth Circuit.
---------------------------------------------------------------------------
``You see,'' Jorgensen explained regarding CNMI attorney/court
admissions, ``like many present/past CNMI Justices and Judges, present/
former CNMI Attorney Generals, CNMI Assistant Attorney Generals, CNMI
hearing officers, and other attorneys--among them, I am told, such
unforgettable luminaries as Justice Alexandro C. Castro, former CNMI
Attorney General Herbert Soll, former CNMI Attorney General Sebastian
Aloot, former CNMI Attorney Acting Attorney General Maya Kara, former
CNMI Secretary Mark Zachares, former CNMI Assistant Attorney General/
DOLI Prosecutor Robert Goldberg (throughout the majority of his CNMI-
employment), legions of CNMI-employed attorneys past/present (who are
supposed to be the best around since they represent the CNMI public
most closely), former CNMI Supreme Court Justice Pro Tem Larry Lee
Hillblom (co-founder of DHL Worldwide Express), roughly 20 or 30 of the
principal attorneys involved in the Hillblom case during that time, and
many other lawyers--I have opted not to complete the CNMI Bar
Examination required to seek full admission to practice before the CNMI
Judiciary.\22\ And I remain staunchly resolute, staunchly opposed to
the notion of taking this exam, and unapologetic for this, for a
variety of very good reasons. These reasons include my firm, oft-
publicized, unabated, and quite discouraging perception that the CNMI
Judiciary, during 1999 and 2000, engaged in unlawful, unethical, and
impartial activities and misconduct. Like the retention of interest-
income during Spring 2000, which interest-income was owned by persons/
entities including the Estate of late DHL co-founder Larry Lee
Hillblom--an estate conservatively valued at U.S. $800 million--to
which persons/entities the CNMI Judiciary owed broad fiduciary duties
breached by the CNMI Judiciary in trying to keep for itself this
interest-income.\23\ Like the issuance of a CNMI Judiciary order during
mid- or late-1999, as this Hillblom Probate matter wound towards final
disposition in Spring 2000, by which the CNMI Judiciary out-of-the-blue
purported to rescind the pro hac vice admissions of 20 or 30 or more
non-CNMI-lawyers admitted years earlier to participate in the Hillblom
case--and who had already irrevocably invested enormous amounts of
time/costs/resources into this representation--unless they coughed-up
payments to the CNMI Judiciary of an outrageously exorbitant $5,000 fee
per attorney by the end of the month.\24\ Like orders during Spring
2000 awarding $400,000 or so in `bonus' payments to the CNMI
Judiciary's own Special Research Attorney Diane Bergstrom, former CNMI
Supreme Court Justice/CNMI Superior Court Judge Pedro Atalig, and
Atalig's longtime acquaintance Diego Mendiola \25\ appointed as
`Special Administrator' or something official-sounding by the CNMI
Judiciary, which payments were apparently to be made out of Estate
assets owned by the Estate \26\ and Heir Claimants over which the CNMI
Judiciary had jurisdiction and resulting fiduciary obligations to
protect. And I will not even begin to discuss the creation, funding,
and subsequent activities of the so-called `Charitable Trust'
established for creation/perpetuation of the CNMI Judiciary's `law
library', named something like the `Larry Lee Hillblom Memorial Law
Library', reportedly also funded with Estate assets and then headed by
various court favourites--the names I heard were, again, of Pete
Atalig, Diego Mendiola, Alex Castro, and others, but no follow-up was
conducted. With the exception, perhaps, of follow-up by columnist Ruth
Tigh, who suggested or intimated that naming the CNM Judiciary's law
library after a paedophile as she viewed Hillblom to be, whose Estate
vigorously contested paternity/support claims by his four illegitimate
children from their respective four mothers who gave birth in their
teens, and/or where significant Estate assets were purportedly diverted
to establish this Trust and subsequent activities by its members, might
appear somewhat disconcerting, in the sense of fiduciary/impartiality
judicial conflicts--on the order, I suppose, of the anomaly of using
funds from the Estate of Pablo Escobar--Columbia's drug baron hunted by
the U.S. in the early 1990's--to fund and establish of an Anti-Drug
Monument next to the U.S. Supreme Court with trustees from the Court
itself in charge. Or, maybe, like using White Supremist funds to erect
a Civil Rights monument to the Ku Klux Klan under control a judicially-
created board of trustees. A spectre like that--especially if
established and funded by Estate assets to which the CNMI Judiciary
itself owed a duty of protection--might be quite inappropriate, Ms.
Tighe seemed to indicate.''.
---------------------------------------------------------------------------
\22\ The CNMI Judiciary was originally comprised of the
Commonwealth Trial Court with appeals heard by the Appellate Division
headed by a three-member panel including the Judge of the U.S. District
Court for the Northern Mariana Islands along with two of his designees
as Appellate Justices. This changed when, during 1989, the CNMI
Legislature--in the midst of so-called Article XII real estate claims--
created a CNMI Supreme Court. Along with a name change for the trial
court, the CNMI Judiciary then was transformed into the Superior Court
of the Commonwealth of the Northern Mariana Islands (``CNMI Superior
Court'') at the trial court, and the CNMI Supreme Court. At this stage,
all CNMI Supreme Court rulings were appealable directly to the U.S.
appellate system, via the United States Court of Appeals for the Ninth
Circuit. This appellate jurisdiction was then divested a few years ago.
Meanwhile the CNMI Judiciary has constructed for itself a judicial
centre carrying 3 names: ``House of Justice'', ``Imwal Aweewee''
(Carolinian Language), and ``Guma Husticia'' (Chamorro Language)--
interestingly, some have noted, the term ``Guma'' in the Tagalog
language predominant in the nearby Republic of the Philippines, means
``Rubber''; and so, it is not uncommon for CNMI-situated foreigner
laborers from the Philippines to speak of the ``Rubber-Stamp-Justice-
Center'' when discussing CNMI labor, immigration, or judicial goings-
on. And fortunately for the foreigners, there remains, on Saipan, the
U.S. District Court for the Northern Mariana Islands having federal
civil and criminal jurisdiction, including jurisdiction over admiralty
and bankruptcy matters, and with a Judge appointed by the U.S.
Government following extensive background, competence, and related
examination.
\23\ This unlawful conduct, in turn, constituted the grounds upon
which I Jorgensen then prepared and filed a lawsuit on March 27, 2000,
on behalf of CNMI attorney/guardian ad litem James E. Hollman--titled
Hollman v. CNMI and designated Civil Action No. 00-00012--in the U.S.
Court/Saipan, in which Hollman prevailed upon determination by the U.S.
District Court/Saipan that the CNMI law, upon which the CNMI Judiciary
had premised its claim to entitlement of these funds and resulting
misconduct reportedly vis-a-vis then-CNMI Superior Court Presiding
Judge Edward Manibusan, was in fact unconstitutional, of no force/
effect, and therefore unlawful, as substantiated on appeal by the CNMI
to the United States Court of Appeals for the Ninth Circuit.
\24\ This transpired during 1999 as the probate matters involving
the Estate of former DHL co-founder Larry Lee Hillblom--which Estate
was conservatively valued at U.S. $800 million--was winding down in
Hillblom, Probate No. 95-626, CNMI Superior Court.
\25\ Atalig and Mendiola, like Supreme Court Justice Alexandro
Castro who presided over much of the Hillblom proceedings (designated
Special Proceeding No. 95-626 in the CNMI Superior Court), originate
from the CNMI island named Rota, located roughly 125 miles southeast of
Saipan, and 30 miles north of Guam. Numbering around 2,000 inhabitants
before the CNMI was formally established 20 years ago, it would be
appear highly unlikely that Atalig, Mendiola, and Castro were not
longtime, childhood, friends and relatives. Other family ties included
persons/entities designated/retained/paid for performing related
services including Pedro Atalig's brother Antonio Atalig (a CNMI
attorney), Pedro Atalig's sister Benita Atalig Manglona (a CNMI
accountant), and extended een ven to the court-reporting service used
(reportedly owned by a female relative of both CNMI Supreme Court Chief
Justice Juan Demapan and his co-Justice Alexandro Castro).
\26\ These ``bonus'' payment orders reportedly directed payments
totalling U.S. $400,000 or so to former CNMI Supreme Court Justice
Pedro Atalig, a Special Research Attorney ordered hired by the court
(whose salary was reputedly also paid, ultimately, from costs deducted
from Estate assets), and Diego Mendiola who served in a related
capacity appointed by the court--perhaps a type of ``Special
Administrator''.
---------------------------------------------------------------------------
``Now given these circumstances, my conclusion remains today as it
was during February 2000 with Mr. Ahmed's case: completing and passing
the CNMI Bar Exam would place me squarely under the figurative thumb of
the CNMI Judiciary which has itself a less than admirable history with
a proclivity--particularly during 1999 and 2000--towards unethical,
unlawful, misconduct and with a retaliatory bent towards any lawyer who
stands up and says this before the CNMI Judiciary or publicly or in
papers filed with a Saipan court. No admission to practice before the
CNMI Judiciary for me, thank you very much--I will stick to using my
admission before the U.S. District Court when litigating on Saipan.''
``And so, when there was filed the initial documents, in the CNMI
Superior Court, seeking Mr. Ahmed's release from CNMI detention at the
`Goldberg Gulag', such as the initial Application seeking issuance of a
Writ of Habeas Corpus filed February 24, 2000 in the CNMI Superior
Court, and the Supplement to this Application filed February 28, 2000,
my name did not appear as his counsel because I was not admitted to
practice law on his behalf before that court. Rather, those two
documents were lawfully signed by me in the same manner that CNMI law
permits any person--whether or not a lawyer--to sign for someone who,
like Mr. Ahmed, was locked up in jail and therefore was unavailable or
prevented from signing this Application himself. That is, in full
accordance with and as expressly permitted by then-CNMI law set forth
in the CNMI's Commonwealth Code \27\--which law was specifically cited
to the Superior Court judge at the outset within both the original
Application filed February 24 and the Supplement filed February 28. And
bear in mind what is--or at least from an objectively reasonable CNMI
Judiciary's perspective what should have been--the infinitely-more
important concern here: Not who signs or files what document with what
particular court, which is really a matter of `form over substance' in
the context of a fellow locked away by the CNMI, and there held
incommunicado for 20 months while denied access to legal
representation; But, most importantly the immediate presentation to the
CNMI Judiciary of an Application seeking Mr. Ahmed's release to enable
him to obtain, complete, and file an application seeking U.S. asylum/
refugee/torture protection, the mere filing of which then would
automatically preclude Goldberg, the CNMI Judiciary itself, and all
others, from having Mr. Ahmed deported to his country of origin.''
---------------------------------------------------------------------------
\27\ Jorgensen explained that the relevant law was either 6 CMC
section 7102 or 7 CMC section 7201 or both.
---------------------------------------------------------------------------
``The CNMI Judiciary's response? Astonishment? Outrage?
Indignation? Yes, absolutely! But not at Mr. Ahmed's plight. Freedom
for Ahmed after 20 months lockup in the Gulag? Nope. No freedom for Mr.
Ahmed. Not then. Rather, outrage, indignation, retaliation, and
vilification directed, not one iota at the CNMI officials involved, but
instead squarely pointed at Mr. Ahmed's counsel--`Yours Truly'--for
having the backbone to bring all of this to light in the hallowed
`Halls of CNMI Justice', with the local media reporting this publicly!
And, presumably, with around 15,000 CNMI-situated PRC nationals, then
employed in the `Pride of the CNMI', its garment industry, suddenly
sitting up, looking at a newspaper article or television report about
this publicly-disclosed asylum/refugee/torture protection from the
U.S., and saying to themselves: `You mean, we can do that too?!?' ''.
``Well, not until the U.S. Court became involved was Mr. Ahmed's
release \28\ ensured by the CNMI Judiciary. And even then--following
Mr. Ahmed's release by order of then-CNMI Superior Court Judge Timothy
Bellas on March 15, 2000 \29\--it was noted in Judge Bellas' order that
the CNMI intended to deport Mr. Ahmed the very next day, March 15,
2000. This, of course, the same CNMI which claimed, in justification of
Mr. Ahmed's 20-month detention at the Gulag, an absolute inability
throughout those 20 months to accomplish the bureaucratic paperwork
necessary to deport Mr. Ahmed!''.
---------------------------------------------------------------------------
\28\ This involvement arose by way of Ahmed's inclusion as a
Plaintiff in Civil Action No. 00-0005, U.S. District Court for the
Northern Mariana Islands, initially filed February 9, 2000 on behalf of
17 new clients. These did not include Ahmed, who became an additional
claimant, named as Plaintiff in this 00-0005 proceeding, shortly
afterwards, when Jorgensen received the note smuggled to Jorgensen via
another person from Ahmed in prison. Ahmed's then became the lead name
in that proceeding's caption, which had originally been filed on behalf
of the 17 or so others. Following Ahmed's joinder in this suit, a
conference was convened in the U.S. Court chambers by Chief Judge Alex
R. Munson, at which parties' counsel were clearly apprised of the
direction the proceedings were likely headed. Jorgensen attended this
conference along with CNMI counsel.
\29\ Ahmed v. Major Ignacio Celis et.al., Special Proceeding No.
00-0101A, CNMI Superior Court, March 15, 2000, Order Granting Temporary
Restraining Order And Expedited Hearing.
---------------------------------------------------------------------------
``Now Judge Bellas appeared to have at least read and considered
the merits underlying the Habeas Corpus Application submitted for Mr.
Ahmed on February 24, 2000, and the Supplement filed four days later,
on February 28, 2000. This much could be gleaned, at that time, from
the subsequent March 15, 2000 order commanding Mr. Ahmed's release, in
which Judge Bellas specifically referred to the CNMI Superior Court's
previous order dated March 9, 2000, which denied the February 24/28
Habeas Corpus request''.
``But what could not be gleaned from Judge Bellas' order then, or
from prior and subsequent CNMI Superior Court documents on public file
in Ahmed's case before the CNMI Judiciary, was that Judge Bellas' boss,
the CNMI Superior Court's Then-Head-Honcho--Presiding Judge Edward
Manibusan--had also read and taken keen interest in the February 24/28
Habeas Corpus Request signed by me on Mr. Ahmed's behalf as
unequivocally permitted by specific CNMI law cited in those documents.
But this interest on the part of the CNMI's Presiding Judge, as much
later-after-the-fact discovered, bore little if any relation to the
facts, legal merits, or equitable considerations furnished to the
entire CNMI Judiciary \30\ and so crucial to Mr. Ahmed's plight. And
far more to do with the rather unseemly--if not utterly seedy--side of
the outlook and priorities, made institutionally clear to CNMI
attorneys and the CNMI Public by the CNMI Judiciary and the CNMI House
of Representatives, in tandem with the CNMI's Office of the Attorney
General. All emanating, that is, from Judge Manibusan's immediate
reaction both to CNMI-situated persons seeking asylum/refugee/torture
protection, and far more vindictively at the lawyer--yours truly--who
dared to publicly come forward and represent these asylum-seekers in
the year 2000.''
---------------------------------------------------------------------------
\30\ That both the CNMI Superior Court and the CNMI Supreme Court
were provided this information is also a matter of public record by
effect of publicly-filed pleadings--Judge Bellas' March 15, 2000 order,
for example, make express reference to the CNMI Superior Court's
previous order dated March 10, 2000, the March 10, 2000 notice by which
the March 9, 2000 order was then appealed to the CNMI Supreme Court.
See, Ahmed v. Major Ignacio Celis et. al., Special Proceeding No. 00-
0101A, CNMI Superior Court, Order Granting Temporary Restraining Order,
at p. 2 enumerated paragraph 7 (noting that an appeal to the CNMI
Supreme Court had been filed March 10, 2000 with the CNMI Supreme
Court).
---------------------------------------------------------------------------
``And what was Presiding Judge Manibusan's reaction? This `keen
interest'? This `immediate reaction' by Judge Manibusan which,
disgracefully, was not disclosed to me--not EVER by Judge Manibusan,
the other CNMI Judges, the Attorney General and his assistant attorneys
involved, and not by anyone else until a year or more later?''
``Well this luminary of the CNMI Judiciary--now, incidentally, the
recently-elected President of the CNMI's Bar Association--submitted to
this same CNMI Bar Association of which I was not a member, a letter
dated March 1, 2000.\31\ Now this was just 24-hours, one single day,
after the filing of the supplement to Ahmed's initial application filed
3 days earlier, on February 24, 2000.''
---------------------------------------------------------------------------
\31\ The letter, written on Superior Court of the Commonwealth of
the Northern Mariana Islands letterhead, and an official seal below
which appeared the words ``EDWARD MANIBUSAN PRESIDING JUDGE'', WAS
ADDRESSED TO Elaine Paplos, Chair, Disciplinary Committee, NMI Bar
Association, P.O. Box 7917 SVRB, Saipan, MP, and signed by Presiding
Judge Manibusan above the signature line ``Edward Manibusan Presiding
Judge''. And who was this Ms. Paplos? Why a CNMI-employed attorney,
reportedly working at that time as an Assistant Attorney General with
the CNMI's Office of the Attorney General opposing Ahmed's release and
arguing for his continued detention.
---------------------------------------------------------------------------
``And to whom was this letter from the CNMI's Presiding Judge
Manibusan sent? Why to Elaine Paplos, an attorney then-serving as
`Chair' of the CNMI Bar Association's `Disciplinary Committee'. Of
course, the letter omitted mention of the fact that Ms. Paplos was also
a CNMI-employed attorney. Apparently employed, that is, by the CNMI's
Office of the Attorney General which, via Assistant Attorney Generals
Robert Goldberg--of `Goldberg Gestapo/Goldberg Gulag' fame--and David
Sosebee and Herbert Soll, were actively and vociferously contesting
Ahmed's request for release from 20-month detention, while purporting
to justify the absurdly-gross length of indefinite incarceration.''
``In this March 1, 2000 letter, Judge Manibusan maintained that the
February 24, 2000 and February 28, 2000 submissions filed on Mr.
Ahmed's behalf, and bearing my signature as permitted by law, `appear
to constitute the practice of law by someone [Bruce Jorgensen] not
admitted to practice before this court' for the ostensible purpose of
`a determination by the disciplinary [CNMI Bar Association's]
committee.' Again, let me emphasize--this was with no notice to me, no
notice to Mr. Ahmed, no disclosure by the CNMI Office of the Attorney
General or its attorneys--Ms. Paplos, Mr. Sosebee, Mr. Goldberg, or
Herbert Soll, and no notice by Presiding Judge Manibusan. And no
knowledge by me until a year or so later.''
``As this March 1, 2000 ethics-attack launched without notice to
me, another circus was concocted, this time in tandem with Benigno
Fitial, former and current Speaker of the CNMI House of
Representatives--more commonly termed the `Garment House' for its
reputed propensity to rubber-stamp CNMI legislation deemed appropriate
for the benefit of the CNMI's garment industry.''
This circus began unfolding on March 14, 2000--the day before Mr.
Ahmed was to be released from the Gulag--with the March 14, 2000
adoption of CNMI House Resolution Number 12-32, signed by Fitial but
written by others.\32\ Fitial, himself termed the `Garment Speaker' by
CNMI-folks-in-the-know, who had zero prior dealings with me, suddenly
issued this Resolution calling on the Office of the CNMI Attorney
General's office to `investigate' my purportedly `unauthorized'
practice of law apparently in representing Mr. Ahmed, and for filing
and later winning a lawsuit in the U.S. Court which prevented the CNMI
Judiciary from keeping, for itself, the many hundreds-of-thousands-of-
dollars in income-interest earned on the Hillblom Estate funds ordered
transferred from U.S. Trust or other reputable international financial
institutions to a CNMI-situated bank for `administration' by the CNMI
Judiciary via Presiding Judge Manibusan.''\33\
---------------------------------------------------------------------------
\32\ The CNMI House Legal Counsel, at that time, Stephen MacKenzie,
soon departed the `Legislative Circus' under Fitial, and now practices
law in the State of Vermont. Resolution 12-32, though reportedly
drafted by MacKenzie, was conceptualized by others. Guess who?
\33\ This attempt to keep interest-income was, in turn, the result
of legislation authored by the CNMI House, which legislation Presiding
Judge Manibusan had then sought to implement, by way of a notice
advising the CNMI General Public that if no objections were received,
the law permitting the CNMI Judiciary to keep these funds itself would
take effect. Any member of the CNMI General Public could submit any
such objection--in writing. But only one of the 30-plus lawyers
involved in the Hillblom probate, indeed only one person at all,
objected--that being attorney Bruce L. Jorgensen. This was done by way
of a letter, written by Jorgensen to the CNMI Judiciary in Jorgensen's
capacity as counsel for Guardian ad litem James E. Hollman in a
Hillblom-related proceeding before the U.S. Court/Saipan (where
Jorgensen is admitted to practice). This letter, it was later claimed,
further evidenced Jorgensen's alleged `unauthorized practice', despite
the fact that Jorgensen was admitted in the U.S. Court, was correct,
and then filed on March 27, 2000, and won, a civil lawsuit, Hollman v.
CNMI, Civil Action No. 00-0012, U.S. Court/Saipan, declaring this
interest-income-grab-legislation unlawful.--during which period, Judge
Manibusan, himself, delivered to the U.S. Court, before final
disposition had occurred, a check totalling several thousand dollars as
repayment of the interest-income withheld by the CNMI Judiciary from
Jorgensen's client, Vo Minh Tan, via his Guardian ad litem Hollman.
Whether the CNMI Judiciary kept for itself from other Hillblom claimant
or parties before the court, or returned to them, funds withheld by
Presiding Judge Manibusan and his personnel under guise of this
unlawful CNMI law, remains uncertain. What is known, however, is that
interest-income being generated on the Hillblom Estate assets--
conservatively estimated at U.S. $800 million--was massive, reportedly
amounting to hundreds-of-thousands-of-dollars each month.
---------------------------------------------------------------------------
``And so this Fitial-Resolution-Circus opened a second-prong of
this attack, in which Presiding Judge Manibusan became even more
inextricably intertwined. And next on this front came--you guessed it--
the CNMI's Office of the Attorney General lawyers. Up stepped Assistant
AG David Sosebee, commonly known as `Jollibee', who penned off a quick
letter to Alex R. Munson, the Chief Judge of the U.S. District Court on
Saipan.
[Sic] to rescind my admission to practice there, which request was
denied and deemed inappropriate the next day by U.S. Judge Alex R.
Munson.''
``The next CNMI-sanctioned kicker? Well, what was left? How about a
`Wrongful Termination' of one of their longtime CNMI-employed
attorneys? The attorney in question, a friend then-serving as CNMI
Department of Commerce Hearing Officer--who prefers anonymity--was
perceived by mere association as being a `Jorgensen Sympathizer', that
is, a CNMI-employed-attorney believed to have empathy towards my
activities on behalf of Mr. Ahmed and/or other CNMI-situated persons
seeking asylum/refugee/torture protection, and their pitiable plight.
And to hold in well-deserved disdain the activities engaged in by
Goldberg and his cohorts. And then further to make this clear in a
letter referring to Goldberg as a `nebbish' who `could not get
[romantically involved] in a female prison, to which Goldberg, and his
colleagues in the CNMI Office of the Attorney General who enabled his
misdeeds--by way of a self-appointed `PC-Patrol' or something,
ostensibly took phenomenal umbrage--never bothering with the accuracy
or aptness of this description given the matters at hand. And viewing
with far less umbrage, apparently, Goldberg's emphatic declarations, to
the attorney-in-questions and others, in public on Saipan,\34\ that
Goldberg intended to use his CNMI-bestowed-authority over Immigration/
Detention to ensure, lawfully or otherwise, that a Muslim Imam then
enroute to the CNMI would be denied entry, regardless of any laws
involved, because of Goldberg's fanatically-anti-Muslim views--which
statements, and oft-exhibited-anti-Muslim-extremism, by Goldberg, led
ultimately to his being finally subpoenaed to testify under oath,
during Summer 2003, at which point the lawsuits--by then, 3 different
lawsuits \35\ consolidated into one proceeding involving 50 or so CNMI-
situated persons seeking asylum/refugee/torture protedtion--were
swiftly disposed of by `Global Settlement', with the Defendants
demanding confidentiality of settlement terms.''
---------------------------------------------------------------------------
\34\ These declarations were uttered, by an irate-sounding
Goldberg, to the attorney-in-question, to Jorgensen, and to others
present, at a Saipan-situated restaurant. Aware of the serious
implications suggested by effect of these declarations, as well as
Goldberg's frequently-displayed extremist-opposition-to-any-person-
Muslim, no public reference or disclosure of the declarations was made
at the time of this `PC-Patrol' attack on, and vilification of, the
attorney-in-question. But he, too, was subpoenaed in order to describe
Goldberg's statements, anti-Muslim rhetoric, and anti-Muslim
activities, via deposition testimony, during 2002, just before
settlement.
\35\ In addition to the Civil Action No. 99-0046 and 00-0005
proceedings, a third lawsuit was filed during May 2002, designated
Civil Action No. 02-0023, in the U.S. Court/Saipan.
---------------------------------------------------------------------------
``Well this CNMI-employed lawyer had the misfortune of having his
employment contract come up for renewal in the midst of Spring 2000.
Needless to say, this man's contract was not renewed. And only a short
while ago, and only when he successfully sued the CNMI Government, was
he rehired and provided monetary compensation for the CNMI's wrongful
termination of his employment.\36\ In hindsight though, perhaps he is
lucky that Goldberg and his cohorts never instituted `Thought Crime'
laws, or focused more than passing attention on the types of atrocities
inflicted upon the Chinese populace by their government--like Mao Tse
Tung's `Re-Education Camps' to which, had the notion occurred to then-
CNMI-lawyers to create these camps in tandem with the CNMI's
immigration Gulag, this poor fellow would almost certainly have been
relegated.''
---------------------------------------------------------------------------
\36\ This attorney, James E. Hollman, was represented in this
lawsuit by CNMI lawyer G. Anthony Long. Mr. Hollman had earlier
fulfilled his guardian ad litem duties, on behalf of a minor/child heir
claimant in the Hillblom probate, as Plaintiff in the previously-
documented Hollman v. CNMI, Civil Action No. 00-0012, civil lawsuit
described at notes 22 and 31 above filed March 27, 2000 in the U.S.
Court/Saipan.
---------------------------------------------------------------------------
``And so, around came May 18, 2000. Mr. Ahmed was by then out of
the Goldberg Gulag, thanks solely to the U.S. Court/Saipan, which had
also thwarted the Jollibee's and the Garment Speaker's bad intentions
towards me. But to their credit respecting attempted retribution, the
day ended with newfound retaliation--the filing of a lawsuit against me
by the CNMI's Office of the Attorney General--that is, I suppose,
Jollibee and Herbert Soll--designated Civil Action No. 00-0255, in the
Superior Court lawsuit. Before what CNMI Judge? Why, before CNMI
Presiding Judge Edward Manibusan, the same fellow who just a few weeks
earlier had filed the secret March 1, 2000 request for a
`determination' as to whether my prior activities--including both my
efforts on Mr. Ahmed's behalf and my asserting in Hollman v. CNMI the
unlawfulness of the CNMI Judiciary's intent to keep for itself the
Hillblom interest-income--constituted `unauthorized practice of law'
''.
``And some memorable `judging' did Judge Manibusan perform. He
apparently deemed by act of magic the CNMI's application for `entry of
default' to be a `motion for default judgment'. Which I learned by way
of a December 21, 2000 headline newspaper article he granted. The
newspaper having received notice of this ruling--reportedly by
transmittal of a copy of his order by his then-assistant Tina
Pangelinian--while my attorney and I were left to receive notice by
reading the newspaper after publication. This, in turn, gave rise to
additional interests.''
``First of interest, this cost me a job previously tendered to me
in the Republic of Palau, to which my family and I had relocated
earlier that year. The tender was revoked, which revocation made
express reference to the default judgment issued by Judge Manibusan
against me.''
``Second of interest, was the apparently unlawful nature of the
default judgment itself. Signed by Judge Manibusan, the order purported
to preclude my practice of law not only before the CNMI Judiciary--
where I was not and did not wish to be admitted--but to further
preclude my practice of law, in any new lawsuits before the U.S. Court/
Saipan. Mind now, the fact that Judge Manibusan still had not--nor did
he ever--disclose to me the fact of his March 1, 2000 letter requesting
a `determination' of my activities from the CNMI Bar. How this
Presiding Judge might have convinced himself that he saw no
impropriety, impartiality, or conflict-of-interest in all of this,
remains a curiousity?!?''
``Luckily, somebody in the CNMI Bar's Disciplinary Committee,
determined that my actions described in Judge Manibusan's secret letter
of March 1, 2000 did not constitute the unauthorized practice of law.
This determination, however, was not disclosed until August 13, 2001,
17 months after Judge Manibusan's submission.''
``Meanwhile, the U.S. Court on Saipan determined that Judge
Manibusan's order prohibiting me from taking on new U.S. Court cases
was not worth the ink used to write it. This was emphasized in a series
of hearings including one on April 6, 2001. But this did nothing to
change the minds of those in Palau who earlier had rescinded my job
offer.''
``Needless to say, few CNMI attorneys wanted to be seen in my
general vicinity, let alone work cases with me in fear of the CNMI's
wrath. And so when approached to represent yet another CNMI-situated
PRC national desperately seeking asylum/refugee/torture protection on
Saipan, few lawyers would even discuss the prospect of serving as my
Saipan-situated `local counsel' then required by U.S. Court rules. This
poor woman, named Xiu Ying Jiang, had fled PRC after being physically
forced by PRC government officials to undergo a sterilizaton preventing
her from having any more children, as depicted in graphic photographs
of Ms. Jiang's resulting scars. No CNMI lawyer would help as she had no
money, she was prevented by the CNMI from lawfully working, and other
lawyers had been exposed the the CNMI Judiciary's `chilling effect'--as
in, `If you help these asylum-people you just might get what Jorgensen
got'.''
``The one fellow willing to help was a young lawyer, named Joseph
Arriola. Several years earlier he had served as Judge Manibusan's law
clerk. But he also bore the distinction of nexus to me, having
demonstrated the audacity to help me by serving as my lawyer before
Judge Manibusan in defense of the `unauthorized practice' allegations
against me.''
``And so Mr. Arriola stepped in as my `local counsel', suit was
filed on Ms. Jiang's behalf, and the U.S. Court/Saipan provided
immediate, equitable, injunctive relief. This, despite the CNMI's
arguments, for instance, that Ms. Jiang's two minor children should not
be permitted to attend school while seeking asylum within the CNMI,
which Judge Munson rebuked.''
``The Jiang suit was filed on May 22, 2002. CNMI retribution was
again swift. For his assistance, the CNMI rewarded Mr. Arriola with a
lawsuit, in which the CNMI sued him for assisting in the unauthorized
practice of law--that is, for helping me to help Ms. Jiang who already
had prevailed on equitable issues. This lawsuit was filed in the CNMI
courts, of course, on August 6, 2002, titled CNMI v. Arriola. And this,
despite the CNMI being fully aware of Judge Munson's reiterations, time
and again during Spring 2001,\37\ that I remain to practice law and
file new lawsuits in the U.S. Court/Saipan.''
---------------------------------------------------------------------------
\37\ Transcripts of Judge Munson's remarks in these proceedings
including one of significance on April 6, 2001, attended by CNMI
lawyers, may be obtained from the U.S. District Court/Saipan court
reporter--Ms. Sanae Schmull--referencing the lawsuit designated U.S.
District Court for the Northern Mariana Islands Civil Action No. 00-
0017 and titled CNMI v. Jorgensen, which proceeding was removed to the
U.S. Court from the CNMI Superior Court where the action originated May
18, 2000 and was designated CNMI Superior Court Civil Action No. 00-
0255.
---------------------------------------------------------------------------
``Somewhere during that period, it was also disclosed that then-
CNMI Attorney General Herbert Soll had also filed a complaint,
asserting `unauthorized practice of law' by me, with the Hawaii State
Bar Association, of which I am a longstanding member. After
considerable investment of time gathering and submitting relevant
materials, this complaint, too, was deemed to be unfounded. In fact,
during this review, it was suggested that these activities by the CNMI
Judiciary and CNMI attorneys be submitted to Reader's Digest magazine
for inclusion in a `That's Outrageous' feature.''
``Now, you asked for documentation of what I have characterized as
the CNMI Judiciary's hostility regarding the asylum/refugee/torture
protection issue, and respecting myself and other attorneys willing to
assert asylum/refugee/Torture claims for protection between 1999 and
2002? I hope the above has sufficed.''
PART 4 TO BE CONTINUED.
______
14 July 2007 Message of Inquiry Re. Guam-CNMI Asylum/Refugee--
U.S. Conduct
Bruce--Here's a question for you (to draw on your greater
repository of legal knowledge and expertise in this area). If a
disabled boat is rescued by the U.S. Coast Guard in Guam waters filled
with foreign nationals with no documents in their possession, and who
originated on Saipan where they may, or may not, have lawful
immigration status, is the Coast Guard free to transport them back to
Saipan and turn them over to CNMI authorities?
This may be what happened with regard to a recent incident here.
See Coast Guard assists disabled vessel (Saipan Tribune, 6/29/07) and
12 rescued from stranded vessel (Saipan Tribune, 6/30/07).
Three of the 12 individuals on the boat are now being prosecuted
under CNMI law. The other nine have been released and may, or may not,
be subjected to deportation proceedings. The three being prosecuted are
the ones the CNMI would deem the most culpable: the boat captain and
two alleged organizers of the attempted smuggling operation who
(unusually and ironically) are accused of planning and attempting to
smuggle themselves, as well as the others, into Guam.
I observed the preliminary hearing, which presented facts somewhat
differently than the news stories. The hearsay evidence given in the
preliminary hearing was that the vessel was picked up up drifting 20
miles off Guam. The position at the time the distress call was made was
not clear, neither was the length of time the vessel drifted. The news
account suggests that the vessel was located soon after the call was
made and the location fixed as 20 miles off Guam at that time.
In any event, 20 miles off Guam is well within the contiguous zone,
a principle purpose of which is to extend jurisdiction for purposes of
control of alien smuggling.
The boat captain radioed the U.S. Coast Guard on Guam for help,
saying ``Illegal aliens on board. We are all surrendering.''
I do note that the Law of Convention says States ``may exercise
control'' and authorizes exercise of control both to prevent as well as
punish immigration violations. Taken alone, this language could be said
to authorize apprehension of aliens in the contiguous zone and removal
to a landmass outside U.S. immigration jurisdiction.
What do you think?
Regards,