DOI Assistant Secretary Tony Babauta Visiting CNMI

March 23, 2010

U.S. Department of Interior Assistant Secretary for Insular Affairs Tony Babauta is visiting Guam and the CNMI again this week. I imagine he was scheduled to be in Guam for President Obama's trip that was cancelled last week.

Hopefully, he will be speaking to CNMI leaders to explain the position of the federal government concerning authority over the foreign workforce and immigration. Several issues need to be cleared up including the fact that the federal government now has authority over the foreign workforce, the fact that the federal government recognizes umbrella permits as being valid until November 27, 2011; the new law, PL 17-1 in which the CNMI attempts to switch immigration duties, authority and powers to the CNMI DOL; and the fact that the DOL will not give the federal officials direct access to the LIDS and BMS systems data bases.

They're back
Two of the senators from Guam who backed Resolution 80 that helped to convince the House Committee on Natural Resources to yank the grandfathering provision from the CNRA are once again weighing in on CNMI foreign worker status.

Speaker Judith T. Won Pat and Senator Judith Guthertz appear to have been speaking with Mr. Babuata on these matters. The Pacific Daily News reported that the Interior official would be meeting with Guam lawmakers. Mr. Babauta accompanied President Obama's chief environmental advisor, Nancy Sutley to several other meetings on Guam yesterday.

Today the Marianas Variety reported:
Two key senators here say the U.S. should be cautious when making decisions regarding the status of CNMI guest workers in the Northern Marianas because it will also have an impact on Guam...
...Sen. Judith P. Guthertz, another Democrat, said the CNMI’s case is complicated and needs thorough analysis.

Guthertz, the assistant majority leader and chairwoman of the Committee on the Guam Military Buildup and Homeland Security, said there is no doubt that long-term guest workers should be given consideration.

But she said the indigenous people of the CNMI should first be consulted about this issue.

She said the leaders of the CNMI and the people themselves should have a say on who can stay on their islands.

She also believes that it’s not right to deny long-term guest workers the opportunity to stay on the islands with their U.S. born children.

The CNMI, she noted, still needs guest workers for its tourism-based economy.

The CNMI currently hosts an estimated 16,000 documented foreign workers.

An official in Washington, D.C., who declined to be identified, said Guam’s position is similar to the CNMI’s.

“They are in favor of allowing the guest workers to remain in the CNMI, but without giving them improved status,” the official said.
For her part, Senator Won Pat suggested that the CNMI foreign workers would "be valuable in Guam to help with the military buildup."

I find some of the remarks insensitive and even ignorant. Guthertz claimed, "The leaders of the CNMI and the people themselves should have a say on who can stay on their islands." Well, they did have a say. They allowed the workers' contracts to be renewed for years and even decades. The guest workers were responsible for building the CNMI. They lived and worked in the CNMI for decades. The time to grant them federal status is long overdue.

Supporting the guest workers to remain in the CNMI, but without status is an admission that they support a broken system that promotes a disenfranchised underclass where foreign workers are considered replaceable commodities, and not viewed as future citizens.

By granting status to the long term foreign contract workers, the U.S. would end the debate and power struggle between the local and federal governments that has negatively affected the employees, employers, business owners and the economy since the CNRA was passed.

We saw how Guam nativist rights organizers joined forces with CNMI leaders and opponents of anti-federalization in 2007. In October 2007 the Guam Legislature passed Resolution 80, which has been credited as one reason that the provision granting status to long-term guest workers was removed from the bill.

The hastily passed resolution, led by Guam Senator Judith Guthertz, was seen by many as a discriminatory statement wrapped in suppositions and fact-less rhetoric. It claimed that if CNMI long-term guest workers were given status they would overburden Guam and Hawaii. The resolution was passed on the same day the hearing was held with little input from the community and was done in the same timeline as visits to Guam from CNMI officials opposed to status and work by Fitial's lobbyists in Washington, DC. (Read more about Guam's influence at this post.)

We can expect to see the anti-status groups and officials in the CNMI, and those in Guam to once again join hands and forge partnerships to suppress the long term foreign workers' rights and deny the advancement of social justice.

Kaipat on Data Systems
DOL Deputy Secretary Kaipat admitted in a Marianas Variety interview that the CNMI is only sharing exit information from the BMS with federal officials on a day to day and a case-to-case basis. The CNMI Department of Labor has been hostile to releasing or sharing information with federal officials in the past. The federal government wants the local system to be linked to theirs, but the CNMI predictably is resisting. It is another way that they can hold on to the local system and maintain control.

In February 2010 a sixteen page report on CNMI Immigration and Border Control Databases was released to U.S. Senator Jeff Bingaman (D-NM), Chair of the Senate Committee on Energy and Natural Resources. The report emphasizes the fact that the federal government has no direct access to the LIDS data system that was paid for with a $1.5 million federal grant form the Department of Interior's Office of Insular Affairs.

The CNMI Department of Labor has released little data that they have collected from their LIDS system, the revised LIIDS system. (See these posts for more information on the CNMI DOL's refusal to share essential data and campaign to maintain the broken local system: Fitial Administration Grasping to Retain Broken Local System, More On CNMI Statistics and Data, DOL's 10th Interim Report: Hidden Data and Statistics, Questions About the CNMI Department of Labor, and Hidden Data)

The GAO report indicated that the federal government sent a letter to the governor requesting information on the LIDS system and the Border Management System (BMS) (Emphasis added):
The LIDS and BMS databases have remained in the CNMI’s control during the CNMI’s transition to U.S. immigration law, and as of January 2010, the U.S. government’s direct access to information in these databases had not yet been established.
On July 1, 2008, a senior DHS official sent a letter to the Governor of the CNMI requesting a broad range of documents that included information on the current CNMI system for recording and documenting the entry, exit, work authorization, and authorized conditions of individuals staying in the CNMI. DHS also requested any repositories of fingerprints, photographs, or other biometric information included in the system.
On August 19, 2008, the office of the Governor of the CNMI responded to the letter by providing an overview of the BMS system, describing the security of the system, the data input and output, and the immigration system’s history in the Commonwealth. The document notes that BMS collects photographs through passport readers but states that the CNMI does not maintain any repositories of fingerprints or other biometric information to share with DHS.
In September 2009 the CNMI government suggested that data would be shared for a fee. Perhaps they forgot that the system was paid for by the federal government. From the report: (emphasis added)
On September 15, 2009, the CNMI government issued a draft protocol for implementing U.S. immigration law that, among other things, proposes to allow the U.S. government restricted access to information contained in LIDS and BMS, for a fee and in exchange for comparable information. Specifically, the CNMI protocol envisions the following:
•DHS and the CNMI will engage in a two-way data exchange, with DHS providing flight entry data and the CNMI providing information from its immigration records (LIDS and BMS).
•The CNMI will provide access to CNMI immigration records that DHS formally requests via an appropriate document and within a reasonable time frame.
•The CNMI will consider privacy protections in making information available to the U.S. government.
•The CNMI expects to recover the cost of generating and producing any information requested by DHS.
As of January 2010, the U.S. government had no direct access to LIDS and BMS and had no arrangements in place to obtain direct access, according to U.S. officials.9 The CNMI government has provided DHS access to the information stored in LIDS and BMS on a case-by-case basis.
CNMI has assigned one point of contact to respond to all DHS data inquiries, such as inquiries for verification of an individual’s immigration status. Since the United States assumed control of immigration and border security in the CNMI on November 28, 2009, the CNMI government has continued to maintain and update LIDS and BMS.
CNMI Customs officers now collect information to update BMS with data on entries and departures from Commonwealth airports and seaports. Computers and passport readers, previously used by CNMI immigration, have been installed at airport customs inspection stations, and data from customs declaration forms are used to update the system.
The report states that the current system and the fact that the CNMI government provides one point of contact for information could compromise security and investigations. From the report:
ICE stated in its technical comments relying on one CNMI point of contact to verify immigration status for individuals subject to department investigations is insufficient and could compromise security for ongoing operations. ICE noted that because DHS operates 24 hours per day, 7 days per week, the CNMI point of contact cannot be responsive to all of the department’s needs. ICE officials said that it is imperative for the department to have direct access to the CNMI data systems in order to perform the department’s mission with maximum efficiency.

USCIS suggested in its technical comments that pertinent CNMI immigration information should be integrated into their existing systems: the Computer Linked Application Information Management System (CLAIMS 3 and 4)10 and the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT).11 In the interim, LIDS and BMS databases should be installed as stand-alone systems in Honolulu, Guam, and Saipan for USCIS adjudications access. Staff from USCIS’s California Service Center should also have access to, and be trained in the use of, LIDS and BMS.
The CNMI government needs to turn over all records to the federal government and release control of the LIDS and BMS systems to appropriate federal agencies or allow the systems to be connected.

The CNMI government needs to relinquish control over the foreign nationals and abandon their ill-conceived idea of foreign national identification cards.

The CNMI government needs to admit that the federal government has authority over the immigration permits and stop threatening to revoke umbrella permits.


electric chair lawyer said...

What Interior might say is helpful, but the people who really need to "clear up" the situation are DHS and, in particular, USCIS!

Once USCIS issues regulations, any inconsistent CNMI law is preempted.

Until then, the CNMI is actually on pretty solid legal ground.

USCIS has had since May 8, 2008 to work on these regulations. Apparently the CNMI system is not so easy to replicate or modify as one might think.

Also, the CNMI still has control of its own customs, as does Guam. So the CNMI has every right to retain its border control system and databases. The CNMI has been very generous in offering to share whatever the feds ask for as needed, when needed, case-by-case. That is the same access the feds give to the CNMI, even though most states have direct access to some databases.

Wendy said...

electric chair

Yes, I agree the DHS and USCIS need to get the final regulations out, and the sooner, the better.

Do you know if the systems on Guam are coordinated by the federal government, the Guam government or both? Maybe the same arrangement could be adopted in the CNMI. What's important is that the information is immediately available as the GAO reported.

Anonymous said...

Guam needs to butt out!

Anonymous said...

I hope Mr. Babauta tells the governor to back off but I got a feeling even if he does the governor won't listen.

yho r. villavicencio said...

i think that is something you can bet on - that the the governor won't listen.

it is all up to the employers to not to go to cnmi dol and send a clear message.

if it is just guest workers who keep on shouting at the top of our lungs in protest, nothing will change. even when feds release statements, it is just ignored. only the employers can do the job of letting cnmi dol that enough is enough.

electric chair said...

No, Guam doesn't have any exit control for their customs system (and I don't know about entry control), because it really isn't needed.

What the CNMI is doing is pushing the envelope, converting its immigration system to a "customs" one to maximize negotiating leverage.

Nowhere else in the U.S. is there an exit border control system, as they have in numerous other countries such as Japan (and of course most former communist nations). That is one of the true advantages the CNMI liked to tout in the pre-federalization debate days.

The CNMI system was borrowed largely from Australia, with DOI grant funding, of course. But as a matter of law, grants belong to the grantee, not the grantor, and the CNMI has a vested property interest that cannot be taken away from the CNMI without just compensation -- by the U.S. Congress or anyone else.

I don't think either side wants to get into a lawsuit over this though, and Interior would be wise not to get confrontational.

Anonymous said...

I thik that Mr. Babauta will tell the governor the same thing that Pam Brown told the entire world.

yho r. villavicencio said...

cnmi dol should not focus on how to regulate the alien workers alone. find other ways to even up the playing field in job hirings without prejudice to any nationality. if you say that there is a lot of qualified locals out there then it would be easy for them to compete for jobs if all applicants are offered or are able to demand pay and benefits commensurate to the businesses' need. under fed policies as stated by ms. Pam and the USCIS, employers have a free hand. let them have the final say on who to hire and how to proceed with their business plans. this is where the cnmi labor should function within the context of protecting the workers by regulating conditions that would protect ALL workers. there is regulating and monitoring to do to ensure that FLSA provisions and other relevant laws are observed.

in other countries, you need to work your way up and build up your marketability to be able to rise up the ladder. it is not fair to employers to be forced to hire locals just to be able to hire alien workers who can help them realize profit. what pride is there if you are just another "expense" item and not an asset? competing for a job and holding on to that job motivates an individual to perform better and become a contributing member of the community.

i think it is time to focus on a more productive approach. in the midst of all these debates, stress and anger is running high and it is in some ways pushing the economy further down.

just my two cents.

Anonymous said...

Electric chair:

Fine. The databases belong to the CNMI. So the feds can go pound sand, even though the CNRA says the CNMI has to give up the databases. How do you think DHS and ICE will respond?

They could deny entry to any new alien workers, tourists, business visitors, students, or any alien. Period. Without the databases, the feds can't tell if the new visitors are security risks, were here previously, denied entry or deported.

They could deny LOTS of CNMI only work permits, since without the databases, they will not be able to tell how many workers are needed in what jobs. That will hurt local businesses and there will be lots of unemployed alien workers.

They could insist on all aliens coming to the CNMI adhering strictly to the INA when there is no special exception provided for by the CNRA, instead of liberally granting advanced parole and other discretionary relief.

Are you starting to get the picture? WE WORK WITH THE FEDS, THEY WORK WITH US! It's the island way, bra'. Go along to get along.

Wendy said...

Anonymous 6:05

Thank you for your response. It seems the CNMI is like the kid on the playground that says, "if I'm not the pitcher I'm taking my ball home and no one will play."

How many years has the CNMI kept their data secret thinking it would prevent action on a May 2010 report?

Everything this administration does is about power and maintaining control of the broken system. Their actions may hurt them in the end.

Captain said...

One option for the Feds to handle this admin.and get it in line,is, since they (NMI) think that the Chinese and the Russian tourist bring so much into this "economy" is to "cut" the visa waiver and have them (visitors) get a visa. Then slowly start to cut more things from this NMI involved with Fed funding.
Let these "clowns" explain to the people why this is happening.

electric chair said...

This sort of implied threat by the feds, if they were ever to adopt the response suggested at 6:05, is exactly what leads to the problem in CNMI-federal relations.

The federal government has no business in "punishing" a U.S. Territory. That is simply outrageous. Fortunately, most federal officials are simply not that vindictive and immature, though the former Ombudsperson did make that sort of threat about cutting off Russian and Chinese visas as retaliation for the Covenant Section 903 litigation.

It is some of the feds who are acting like children, Wendy! No one should threaten our fellow citizens based on geography or the policy positions of their elected leaders! That is what is really over the line.

The CNMI has a good faith basis to say it is complying fully and in good faith with every sentence of the CNRA.

All DHS, USCIS, CBP have to do is ask for whatever information they want, and the CNMI promptly complies. That is full adherence to the CNRA.

What the feds should do is their job -- write the regs, and provide the same census services in the territories they do everywhere else in the country. At least progress is being made on the health care front.

Federal bureaucrats need to remember that they are civil servants -- not the rulers of their service population.

Saipan Writer said...

In case you missed it, the new P.L. 17-1 has a bit about collecting fees for data from its systems that isn't published. The fees are supposed to be sufficient to recover allocated costs, etc.