Mariano Angkel Shiano was supposed to leave the CNMI aboard the 9 p.m. flight after being ordered removed by the Saipan Immigration Court on May 3, 2011.
Attorney Stephen Woodruff filed a petition for writ of habeas corpus on behalf of his client, Shiano, in federal court on Tuesday afternoon.
In his temporary stay order, designated federal Judge David A. Wiseman said the court needed for additional time to consider the application for the writ.
“The status of nationals of Freely Associated States in the United States is most appropriately characterized as a sort of de jure nonimmigrant second class lawful permanent resident,” Woodruff said.
Shiano’s “situation is precisely the kind of case that screams for an exercise of discretion, yet [the Department of Homeland Security] and the immigration judge refused to even engage in an exercise of discretion. Legally erroneous failure to exercise discretion is open to inquiry by writ of habeas corpus notwithstanding the fact that the actual granting of relief is ‘not a matter of right under any circumstances, but rather is in all cases a matter of grace,’ ” Woodruff argued.
Throughout Shiano’s removal proceedings, Woodruff said DHS has been in possession of his client’s passport.
Inspection of Shiano’s passport would reveal that he was admitted to the United States as recently as 2004, Woodruff said.
“DHS has failed or refused to make [Shiano’s] passport available to him and, even more importantly, to the immigration court,” Woodruff said.
On July 1, 2011, Immigration Judge Dayna Beamer denied Shiano’s request for a stay of removal proceedings with a motion to reopen “due to criminal conviction history.”
The charging document informed Shiano that under Immigration and Naturalization Act Section 212 (a)(2)(B), he is “an alien who has been convicted of two more offenses (other than purely political offenses) for which the aggregate sentences to the confinement actually imposed were five years or more.”
The immigration judge added that “a criminal conviction cannot be collaterally attacked in immigration proceedings.”
Shiano said because the Immigration and Naturalization Act did not apply in the CNMI at the time of his conviction, “applying the INA now would have an impermissible retroactive effect.”
Beamer, in her footnote, said: “This argument is without merit. It would be illogical to conclude that all convictions in the CNMI before Nov. 28, 2009 could never render any alien inadmissible to the United States, (or removable from the United States), while a conviction from anywhere else in the United States, or the world, could.”
Shiano is currently detained at the CNMI Department of Corrections facility under the authority of the U.S. Department of Homeland Security’s Immigration and Customs Enforcement.
Woodruff told the federal court that Shiano’s detention and impending removal is based on “an impermissible retroactive application of law and misinterpretation and misapplication of…the Consolidated Natural Resources Acts of 2008…and violations of substantive and procedural due process.”
Named respondents were Gerald Zedde in his official capacity as supervisory detention and deportation Officer, Saipan ICE; Beth Limrick, in her official capacity as acting supervisor, enforcement and removal operations; and Arnold K. Seman, in his official capacity as acting commissioner of CNMI Department of Corrections.
Woodruff said his client was convicted of seven misdemeanors in the CNMI Superior Court based on plea agreements between Dec. 2, 1997 and Aug. 30, 2007.
The aggregate sentence imposed within the meaning of INA Section 212 (a)(2)(B) for these seven offenses were “just barely five years, the bare minimum sufficient to support a Section 212 (a)(2)(B) charge assuming all the convictions are cognizable,” Woodruff said.
Shiano’s actual time served for these sentences was only 97 days, Woodruff added.
Shiano has no criminal history subsequent to the May 8, 2008 enactment of CNRA, or the Nov. 28, 2009 extension of the territorial reach of the INA to include the CNMI, Woodruff went on to say.
On Feb. 15, 2010, the U.S. Department of Homeland Security initiated removal proceedings against Shiano in immigration court.
