They do not agree on the scope of authority to the U.S. and the limitations of authority on the CNMI.
We have no precedents to guide us. But we have the law and our own common sense. With that in mind, I write to say that I disagree with the CNMI Attorney General’s opinion and the CNMI government’s actions in the power struggle.
The CNRA explicitly pre-empted admission and removal of aliens from the CNMI. Thus, we now have federal immigration status here; there is no longer any “Commonwealth immigration status of aliens.”
The Attorney General’s opinion states that the CNRA expressly provides that the Commonwealth immigration status may continue during the transition period, but that statement is inaccurate. The CNRA provides protection from removal and authority to work for those who had such CNMI status on the transition effective date, but it does not “continue” the CNMI alien status. No such status now exists. There can be no CNMI administration of such status.
The CNRA protects those who had such CNMI status on “the transition effective date” from removal for the period of time for which they were granted lawful admission by the CNMI. If they were authorized to work on the transition effective date, they shall be considered authorized “by the Secretary of Homeland Security” to be employed until “the expiration of the alien’s employment authorization under the immigration laws of the Commonwealth” or Nov. 27, 2011, whichever is earlier. Both the length of their admission and the authorization to work is determined at the transition effective date.
USCIS has stated that it recognizes the umbrella permit as lawful CNMI admission through Nov. 27, 2011. USCIS also recognizes the umbrella permits that authorized employment as doing so. This authorization by the USCIS is the respect and protection mandated by the CNRA and provides the CNMI with a stable labor pool during this transition. The CNMI government’s action, in contrast to what it claims it wants, is disrupting the stability of the labor pool and the labor situation in the CNMI.
Nowhere in the CNRA does it say that the CNMI can retroactively change the period of time for which aliens were granted admission or retroactively change authorization to work.
Nor can the CNMI now take actions that fall within the sphere of immigration. The U.S. District Court in the Fitial challenge to federalization of immigration already acknowledged that alien labor falls within immigration. So now, admission, including all of the conditions related to that admission like authorization for employment, and removal are governed by federal law administered by federal officials, not CNMI law administered by CNMI officials.
The CNMI says that aliens with umbrella permits might not have been able to stay for the full two years if they didn’t comply with certain CNMI labor requirements; so, it argues, the CNMI should continue to be allowed to enforce those requirements.
The CNRA does not say this. It does not suggest this. The clarity of the “transition effective date” as the date upon which rights and privileges are determined contradicts this interpretation.
Furthermore, the CNRA expressly gives the U.S. control over the transitional worker program, making it clear that it is the U.S. that is to administer labor and immigration issues during the transition, not the CNMI. It would conflict with the CNRA’s transitional worker program administered by the U.S. to allow the CNMI to continue to administer its own alien worker program during the transition.
Even more clearly, the CNRA expressly states that the Secretary of Homeland Security is deemed to have authorized employment for those aliens present and authorized by the CNMI on the transition program effective date; how can the CNMI now revoke the Secretary of Homeland Security’s authorization to work?
The CNMI wants to do something different than what the U.S. is doing in the very field that the federal law CNRA deals with — alien labor. The U.S. transition program for alien labor clearly puts this power with the U.S. government. Under the U.S. Supremacy Clause, the federal law pre-empts the CNMI’s laws. The Secretary of Homeland Security is deemed to have authorized the employment of aliens as of the effective date of the transition period (Nov. 28, 2009). The CNMI can’t revoke the Secretary of Homeland Security’s authorization for employment. It can’t pass laws or take administrative action now that effect status of any alien or add burdens not contemplated by the U.S. Congress.
The real shame in all of this is the harm caused by the CNMI’s unwillingness to be fair and rational in the transition to US immigration. Granted they didn’t want U.S. immigration; but now is the time to realize that we have U.S. immigration. The lawsuit has been lost. The Covenant allows U.S. immigration. Both the CNMI government and the U.S. government are our governments. They now need to work together. The U.S. is willing to do so.
Our CNMI government’s refusal to turn over data, the verbal attacks on U.S. officials, the waste of limited CNMI resources by litigating and continuing to press untenable positions is all very seriously harmful to our community. And for employers trying to do business and alien workers here by permission — both caught in the midst of this kerfuffle, the harm is not just lost wages and lost profits, but also stress and worry and uncertainty.
JANE MACK
San Vicente, Saipan
