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    Tuesday, December 11, 2018-7:51:16P.M.

     

     

     

     

     

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NMI Supreme Court affirms marriage fraud conviction

(CNMI Judiciary) — On Dec. 5, 2018, the local Supreme Court issued its opinion in Commonwealth v. Mohammad A. Bashar, 2018 MP 11.

The Court affirmed Mohammad A. Bashar’s conviction for marriage fraud pursuant to 3 CMC § 4366. Bashar sought the Supreme Court’s review after the trial court issued its Order Denying Defendant’s Second Request to Set Aside His Plea and Vacate His Conviction and Sentence and Order Denying Defendant’s Request for Reconsideration.

Bashar has lived in the Commonwealth of the Northern Mariana Islands since 1997, marrying in March of 2009. Bashar was charged with marriage fraud later in March of 2009; he pled no contest to the charge in February of 2011. His conviction made him subject to removal.

Around  this  time,  control  over  immigration  law  shifted  to  from  the  local  to  the  federal government. Congress enacted the Consolidated Natural Resources Act of 2008, prescribing the application of federal immigration law to the Commonwealth. The CNRA became effective in the Commonwealth on November 28, 2009. In response to the federal government’s assumption of immigration responsibilities, the Commonwealth enacted Public Law 17-1. Applying retroactively to November 28, 2009, the law repealed many of the Commonwealth’s statutes dealing with immigration functions,  including  the marriage  fraud  statute.  Public  Law 17-1  contained a  savings  clause  which governed, in part, proceedings instituted under prior law.

The local Supreme Court reviewed  Bashar’s conviction. It first determined that because Bashar’s marriage fraud prosecution was a proceeding instituted under prior law, Public Law 17-1 would operate to preserve Bashar’s conviction so long as Commonwealth law remained applicable to his prosecution after November 28, 2009. The high court, however, determined that Congress had explicitly expressed an intent to preempt local law on the date of the CNRA’s enactment. As a result, the high court turned to the doctrine of retroactivity to determine whether the CNRA should apply to Bashar’s marriage — an act that occurred prior to its enactment. Because a federal conviction for marriage fraud carries a penalty of up to five years imprisonment, a $250,000 fine, or both, while the Commonwealth penalty for marriage fraud was up to five years imprisonment, a $2,000 fine, of both, application of federal law to Bashar had the potential of subjecting him to a more severe punishment. As such, applying federal law to Bashar’s prosecution would have an impermissible retroactive effect.

As  a  result,  the  NMI Supreme  Court  deemed  application  of  Commonwealth  law  to  Bashar’s prosecution proper, affirming his conviction.

The court’s full opinion is available at  http://www.cnmilaw.org/supreme18.html.