By Bryan Manabat
[email protected]
Variety News Staff
ATTORNEY Cong Nie has asked the federal court to order prosecutors to explain why they seek to dismiss the case against his client, Jianbing Zhao, who was indicted for obstructing his deportation from the Commonwealth of the Northern Mariana Islands.
Zhao was indicted under 8 U.S.C. § 1253(a)(1)(C) for preventing or hampering his removal.
Assistant U.S. Attorney Garth Backe last week moved to dismiss the indictment without prejudice, meaning the case could be refiled. Backe said that “after a thorough review of its evidence and the applicable law, [the U.S. government] does not believe it can prove its case beyond a reasonable doubt.”
Nie objected, arguing prosecutors failed to explain why they could not prove the case or whether they intend to reindict Zhao.
“If the [U.S.] government has decided to no longer prosecute Mr. Zhao for the alleged offenses in this case, it does not say so in its motion,” Nie said. “If, to the contrary, the [U.S.] government does intend to reindict Mr. Zhao in the future, then its Rule 48(a) motion would essentially be a way to avoid having the court decide the case-dispositive legal issue raised in Mr. Zhao’s objections to the proposed jury instructions and risk an acquittal at trial.”
Nie said granting the motion would amount to giving the U.S. government an indefinite continuance. “Using a Rule 48(a) motion as a pretext to obtain an otherwise unavailable continuance is a clear act of bad faith,” he added.
He argued that the U.S. government’s stated reasons were inadequate, saying they do not allow the court to perform its role under the “leave of court” requirement in Rule 48(a) to prevent misuse of prosecutorial discretion. At a minimum, Nie said, the U.S. government should disclose whether it is seeking dismissal with the intent to reindict Zhao at a later date.
The District Court for the Northern Mariana Islands initially scheduled Zhao’s jury trial for Nov. 18 but reset it to Feb. 3, 2026, after the defense objected to the U.S. government’s proposed jury instructions, saying they mischaracterized Zhao’s legal status.
Zhao contends he was “paroled” into Saipan under the CNMI visa waiver program in 2015 and was never formally admitted to the United States. His attorney argued the statute cited by prosecutors applies only to aliens admitted under 8 U.S.C. § 1227(a).
The U.S. government conceded Zhao was never admitted but maintained the statute still applies. Backe cited a recent Eleventh Circuit decision, United States v. Doe, which held that admission is not a prerequisite for prosecution under § 1253(a)(1). He warned that if Zhao’s objection is sustained, the government may be unable to proceed.
“A ruling prior to trial will save court time and resources,” Backe wrote, adding that the U.S. government may seek a stay, appeal, or dismissal depending on the outcome.
The dispute centers on whether the phrase “member of any of the classes described in section 1227(a)” includes inadmissible aliens like Zhao. The defense argues it does not, while prosecutors say excluding such individuals would lead to “absurd results” and undermine the statute’s purpose.
Chief Judge Ramona V. Manglona has scheduled a hearing on the U.S. government’s motion to dismiss for Dec. 23 at 1:30 p.m.
Bryan Manabat was a liberal arts student of Northern Marianas College where he also studied criminal justice. He is the recipient of the NMI Humanities Award as an Outstanding Teacher (Non-Classroom) in 2013, and has worked for the CNMI Motheread/Fatheread Literacy Program as lead facilitator.
