More on the CNMI vs Feds Fight

March 18, 2010


The forum on foreign worker issues sponsored by the Society for Human Resources Management CNMI demonstrated that neither the CNMI, nor the Federal Government would back down from their positions regarding who has the authority over the foreign workforce. The CNMI government claims that DOL still has authority until November 27, 2011, while the federal position is that the federal government has had authority over the foreign workforce since November 28, 2009.

Labor Ombudsman Pamela Brown told the audience that she recommended that they follow the federal position. The Saipan Tribune quoted Ms. Brown as urging people with questions to contact their legal consuls, saying "Case law is clear."

Ms. Brown and David Gulick, district director of the USCIS, maintain that employment of aliens is a federal matter and that is the U.S. government's position. Brown clarified DOL's authority:
  • The CNMI Department of Labor's role is now the same as any other state labor department, including enforcement of state minimum wage and enforcement of any contract they had approved.
  • Training citizens and providing employment services to citizens.
As I pointed out numerous times, no state has authority over the foreign workforce, which is linked to federal immigration.

Attorney General Edward Buckingham, speaking on behalf on the local government, claimed that DOL maintains the authority to "revoke umbrella permits and impose conditions on employment."

Brown disagreed. From the Saipan Tribune:
Brown reiterated the federal government's position that the CNMI lost jurisdiction over any alien employment effective Nov 28, 2009.

“You have to remember that umbrella permits basically didn't just provide authorization to work. They extended entry permits so, because labor and immigration has been so wrapped together in the CNMI, that seems to be the source of confusion,” she added.

Buckingham encouraged nonresidents and employers to still comply with the conditions of their umbrella permits and to proceed to the CNMI Department of Labor for issues related to the umbrella permit, so as not to jeopardize their status.

But Brown said after Nov. 28, 2009, it is up to the federal government to decide what benefits to grant people. “We've determined that those benefits include work authorization until Nov. 27, 2011,” she said.
It's really a silly argument that the highest legal official of the CNMI makes. He claims that nonresidents and employers should continue to go to DOL for "issues related to the umbrella permit, so as not to jeopardize their status." As an attorney he must know that only ICE has the power to deport foreign nationals, and they are following the federal position which holds that the umbrella permits are recognized until November 27, 2011.

From the Marianas Variety:
Buckingham recognized that the removal of foreigners on the islands now solely rests on the U.S. Department of Homeland Security’s law enforcement unit, the Immigration and Customs Enforcement, or ICE.

Even if the CNMI government revokes umbrella permits, their holders cannot be removed because ICE adheres to the federal government’s interpretation that they can legally stay on the islands until Nov. 27, 2011 unless they have been convicted of crimes.

“The umbrella permits provide unrestricted employment authorization in the CNMI,” said Gulick who has 31 years of experience in U.S. immigration matters.
It was revealed by David Gulick that the final regulations on the transitional worker program would be released "this year." The sooner, the better. There will continue to be confusion until the CNMI stops their fight.

The Saipan Tribune alluded that the matter may have to be settled in court.

First CNMI Governor Comments
Dr. Carlos S. Camacho, the CNMI's first governor recommends that the Fitial Administration work with the federal government. The Marianas Variety quotes the former leader:
Camacho said there is no use fighting federalization at this point but there is still always time to have productive talks with the U.S. authorities.

“I think the CNMI government and the people should cooperate with the feds. Take advantage of the time. Maintain continuous communication with the feds. The U.S. has its own laws. We have to understand that,” he said.

The former governor said there is still hope for the CNMI to get what it wants to help revive its tourism-based economy which is driven by a foreign-labor force.

Camacho said the focus now is to empower locals to be productive members of the CNMI’s economy.
Still Going To DOL
The Marianas Variety reported that foreign workers are still reporting to DOL for such things as temporary work authorizations and transfers. One guest worker stated, "Let them throw their money away instead of listening to the federal officials."

Only hearing officers Barry Hirshbein and Jerry Cody are hearing cases. Deputy Secretary Kaipat defiantly maintains that DOL has the authority to oversee the foreign workforce until November 27, 2011, even though the federal government issued clear statements and Q & As to clarify that the DOL lost that authority last November.

The Bottom Line
The CNMI can throw mud at federal officials, issue false statements, and write conflicting Q & A sheets, but it won't change the reality, which is that the CNMI lost control over foreign employment issues on November 28, 2009. Zaldy Dandan, editor of the Marianas Variety succinctly addresses this with a short no nonsense statement (emphasis is mine):
There is no longer uncertainty regarding the umbrella permit.

The U.S. Department of Homeland Security has already explained where it stands regarding this document and because CNMI immigration is under federal control, DHS’ announcement is the only one that counts. All issues regarding the hiring of foreigners in the CNMI are now federal matters and only DHS can deport nonresidents.

The CNMI government, to be sure, can throw a hissy fit but it cannot enforce its labor and immigration rules that have been preempted by the relevant provisions of U.S. P.L 110-229 — the law of the land whose validity has been upheld by a federal court in D.C. The CNMI government, in other words, is now acting like a police officer wannabe without a badge, without a gun and without jurisdiction.

The Fitial administration, clearly, cannot move on. But it has to. It’s over. Its continued insistence on an authority it no longer has and cannot enforce is bad for business, literally. It is affecting the operations of companies that are struggling in this horrible economy. Indeed, employers of guest workers fear that they may be harassed by the CNMI government if they ignore its whining.
Ms. Brown urged those who have a valid entry permit, but not an umbrella permit to visit the Federal Ombudsman's office.

32 comments:

Anonymous said...

The problem with Pam Brown's statement that "case law is clear" is that there isn't any case law on this issue.

This dispute arises out of the federalization law. That is a new law and there has been only one case involving it. The dispute in that case was over the validity of the law, and the court ruled that the law is valid.

The dispute now, therefore, is over the meaning of this valid law.

That issue has never been addressed by any court, anywhere, at any time. You can look at other decisions in other cases about other laws, which might be similar in some way and thus might provide some guidance, but in the end all that will do is enable you to make an educated guess, which, like all guesses, might be wrong.

The bottom line is that cases interpreting other laws, or other issues about this law, do not and cannot provide certain answers to THIS dispute. It raises what the courts call "a case of first impression."

Of course, the courts may end up agreeing with Pam's position. They have not done so yet, however, and she should stop trying to give people the impression that they have.

from 1 noni to another said...

Hey noni above, at least Pam signs here names to her statements and speaks on the record. Most anti-federalization supporters mask their economic logic as noni.

MALOU BERUECO said...

ms. wendy, i am upset!....why rabby & ronnie needs to ask another forum from CNMI DOL?...i read it in mvariety today!...i posted my comment there!...
is rabby & ronnie still confused?
STOP PATRONIZING CNMI DOL!!!!!!!!!!!!!

Wendy said...

Hi Malou

I don't blame you! just got off of the phone with Rabby and he said he was misquoted and they are NOT inviting DOL to the forum. I agree with you - why entertain people who clearly are trying to create confusion and rake in money from the employees and employers when they have no legal standing to do so?

If I could go to the forum I would ask these questions:

1. Can the guest workers file a class action lawsuit against the CNMI government?

2. Can the guest workers get their money back -all of the fees that they have paid to DOL since November 2009? What do they have to do to collect the fees that DOL had no authorization to charge?

3. Can the foreign nationals ask for an injunction against DOL to stop performing foreign employment activities? Or could the federal government do this?

Melberlin said...

Then this is a deadlock! no progress or advancement is existing in possibility until there is (or are) actual case(s) that everybody to watch who will pull ahead. What would be then the particular course of action intended to achieve a result? Whose going to handle a case if there are any; if a judge is from fed then (s)he will adopt the fed version and vice versa if the cnmi???.
For now we will just comply to both side's version of requirements and it is very expensive and unfortunate to those spending money and time if it is not necessary to go to DOL.
The first "victim" or employers/employees caught in the middle of this hullabaloo are those with contract expired sooner and be the test case, if they don't comply to the other...

Saipan Writer said...

Anon 1 is correct that there is no decision on this particular controversy.

But that doesn't make the CNMI goverment's position rational or supportable. It doesn't make Pam Brown's assessment wrong.

The CNRA says that the Secretary of Homeland Security is deemed to have authorized the employment of aliens permitted to work by the terms of the CNMI immigration law as of the transition effective date. The CNMI DOL can't now reasonably and lawfully expect it has the power to revoke the employment authorization of the DHS Secretary. They can't reasonably expect to have authority to revoke permits under CNMI "immigration" law when that law has clearly been pre-empted.

The authority of aliens to work in the CNMI is now a matter of federal immigration law. The CNMI/Fitial administration's refusal to acknowledge lacks good faith and is unreasonable.

But, I think we will spin around this controversy until 11/27/2011. The courts won't be able to resolve this quickly enough, especially given appeals.

The Fitial administration gets something out of this uncertainty and power tussle. I'm not sure what, but it is to their advantage in some way. (or else they wouldn't do it)

Wendy said...

Merberlin:

There is only a deadlock if foreign workers and their employers continue to go to DOL! The federal government has had authority over immigration and the foreign workforce since November 2009. Period.

Anyone who goes to DOL is throwing his/her money away. It is not necessary. There can be NO consequences. USCIS has stated that the CNMI DOL can revoke the permits, but they will ignore that revocation! Do you seriously believe the federal government will issue Q & As and have their spokesperson (Pam Brown) make statements and then they (federal government) would actually deport persons who followed their advice? It won't happen.

malou berueco said...

melberlin:
if i got your comment right, i do not agree...
the only confusion now is about the revocation date.
feds already stated they will not revoke umbrella permit, unless the holder of that permit committed crime...then you will be subject for deportation...
cnmi dol said, we will revoke your permit on the date stated there in case you didnt report back to us (feds said we dont need to report back to cnmi dol)...cnmi-dol they will revoke if the gw will not be able to find job (the feds said, U.P.entitled us to look for employment & work till nov.27, 2011 using the U.P.)
cnmi-dol said, if we revoke your permit, we will refer you to feds (dhs/ice)...the dhs/ice will only deport holder of UP permitted if we committed crime...what crime we will commit if we just didnt go to cnmi-dol?...based on feds, we didnt commit crime...and ice will not deport us for not just reporting on the revocation date...
ahhhhh.....this is tiring & seems a very longgggggggg & HARD transition to others!...
federalization, we asked for it we got it!!!now, why dont we follow them????

Anonymous said...

Can the CNMI disobey a federal court order or a federal law (CNRA)? There does not need to be a lengthy court trial. The federal government can take action now. Fitial better back off.

Anonymous said...

"Training citizens and providing employment services to citizens."

This is will be very important for US Citizens living in the CNMI. Under WIA US Citizens can receive the necessary training to get high paying jobs. The Federal Government has clearly stated that contract worker numbers will be down to zero by 2014 (?)

This allow ample time for young US Citizens to get high quality training through WIA.

Anonymous said...

"Training citizens and providing employment services to citizens."

This is will be very important for US Citizens living in the CNMI. Under WIA US Citizens can receive the necessary training to get high paying jobs. The Federal Government has clearly stated that contract worker numbers will be down to zero by 2014 (?)

This allow ample time for young US Citizens to get high quality training through WIA.

Anonymous said...

Wendy

What was Pamela Brown's stance on Federal takeover of labor and immigration during her AG days under then Gov Juan Nekai Babauta?

Pam said...

My referral to "case law" was on the issue of whether the CNMI can impose any of its "procedures" for hiring aliens in the CNMI by threatening sanctions. Federal courts have consistently held that only the Federal government can determine who is illegal and only it can impose criminal or civil sanctions on any employer found to have knowingly and intentionally employing such an illegal alien. Pam Brown, US Labor Ombudsman

Melberlin said...

Wendy/Malou,
I did not say that FEDS will issue Q&As again; it is the CNMI that I said to re-issue a Q&A again that they are now yielding to the control of feds (I believed they won't either).

Also about my comments on this deadlock is just basing on what other employers reaction during the forum that some will still going to DOL; and still today after the forum DOL still go back to business as usual; so there's a deadlock.

Pam said...

Actually, Gov Babauta's stance was, and had always been, that the CNMI should get its own act together on Immigration and stop needless actions that benefit only a handful of employers. Under Babauta, I was tasked with cleaning up DOL and Immigration even before I was the AG. I was also tasked with establishing a transparent, cooperative relationship with not only the Congressional oversight committees but also with Federal enforcement agencies. It was Babauta's administration under my chairmanship that established the refugee protection program in compliance with US treaty obligations. No one ever argued such a position as is now being advanced by the Fitial team nor would they since it is not supported by law.

Pamela Brown
US Labor Ombudsman

TAGLISH said...

This fight should come to end the soonest possible. This brings nothing but confusion and more hardship to common people. Both CNMI and Federal should realize that this fight prolongs the misery not only of foreign nationals but the poor native people of CNMI. We, the common people, foreign or not are in the midst of this fight. To those CNMI and Federal officials, please don’t prolong this misery! Feds should see that foreign workers have been in this norm of slavery for very long years and that people here has adopted this CNMI system in which I think can’t be changed by simply talking. In the long absence of Feds, people here has been controlled and been scared of retaliation of CNMI officials. I hope that Feds will educate the people more about their rights, make the people feel the difference now that Feds are here. Federal officials must show their authority over and above these CNMI officials at least on this particular issue first.
Could the Federal do something to stop CNMI officials undermining them?

Saipan Writer said...

Wendy/Pam, You're not quite right, or you're right but you're not saying everything on the subject that is relevant.

There is presently a split in the circuits about the power of states to act in alien labor matters; in particular, the 9th circuit (Por La Causa...) has held that Arizona's law was okay--it provided that it would revoke business licenses of employers with unauthorized employees; it also mandated that the authorization for employment be done through the federal system of e-verify.

The 10th circuit recently disagreed (case decided in 2/2010), saying only the feds can decide who is authorized for employment; states can't do that even if they are trying to use the federal data for the determination.

So all of the cases do clearly show that the federal system is the basis for who is authorized for employment, but there is a split as to who makes the call based on that data; and at least in the 9th circuit, states can use that data for state sanctions--even if you don't call those civil or criminal, but licensing sanctions.

just a point of interest.

But none of these say you can have a separate set of state laws that establish conditions different than federal law for employment authorization of aliens...

Anonymous said...

Can somebody tell me what's the purpose of the Umbrella Permit? Is it for Immigration purpose or for Employment purpose? Because if it's for Immigration purpose, then the CNMI-DOLI is no longer in the position to change/revoke/renew the Umbrella permit after Nov. 27, 2009 because after that date, the CNMI Immigration is already under the control of the Federal. NOW TELL ME, What's there to be CONFUSED OF?

yho r. villavicencio said...

it seems that employers do not realize that they have the power to make cnmi dol back off by following the advise of ms. Pam's office. will cnmi dol "remove" all alien workers if their employment contracts are not processed through their office? think people, think...

Wendy said...

Anonymous 4:45

I did not post your comment about Pam Brown. Come out and identify yourself and I will.

Wendy said...

Merberlin

I don't see it as a deadlock. The federal government has the authority over immigration and foreign labor and the CNMI government is defying them to try to maintain their program and fill their coffers. My point is that foreign workers and employers do NOT need to go to DOL to keep filling out unnecessary papers for unneeded permits. They do not need to continue to pay the DOL their fees for the unnecessary papers either. It is their choice to go there. They were already told by the federal government, who is in charge now, that they do not need to go to DOL.

Wendy said...

Taglish

You made some good points. It is the fear of retaliation that keeps people going to DOL. They ruled that office with intimidation and threats, and used fear to control the foreign workforce. Their mantra was, "You will be deported." Now that they lost that ability, it has changed to, "We will revoke your permits." Those who fear DOL need to remember that they have no power to deport and the federal government has said that they will not recognize any revocation of the permits.

I like your last question: "Could the Federal do something to stop CNMI officials undermining them?" Since the Fitial Administration's latest game is hurting employers, the foreign workforce, and the economy the federal government certainly needs to exert their power.

Anonymous said...

Jane:

You are right about the 9th and 10th Circuit courts being split on whether states can affect the licenses of businesses that employ alien workers; however, in both of those cases the alien workers were undocumented, and in neither case was there a criminal or civil sanction. In our case, the workers are legal, having had employment status previously conferred upon them and expressly recognized by the federal government. I don't see much of any issue here. There is NO case where a state law has been upheld which sanctions an employer of legal alien workers permitted by the Feds. The doctrine of preemption is quite clear. The CNMI has NO POWER to regulate alien workers who have federal authorization to work. NO POWER. NONE.

Anonymous said...

The only way the federal government really needs to "exert its power" is by issuing the long-delayed regulations!

The feds can talk all they want to about what they plan to do, intend to do, and will do. Some employers may choose to rely on that, others will hedge their bets.

Only when the USCIS Contract Worker regulations have been issued and become effective will they have the force of law.

Until then, the feds, the CNMI, employers, and employees must make their own best decisions based on available information.

It is hard to "obey the law" when it hasn't even been written yet.

Anonymous said...

who is melberlin as all of his comments are pointless, scattered, and have no merit.

Wendy said...

Anonymous 5:52 I am not sure what comments you are referring to, but I certainly disagree with you. Merberlin is a loyal reader and friend, and his views and comments are welcome here.

Melberlin said...

To Anon 5:52,
Still no answer from Wendy's question what comments you are referring to? so you posted a comment to hit and run? Tell me who you are and I tell you who is melberlin. I think I have an idea who you are, but do I care?

I might be one of many who are confused to the present situation so that's why I am scattered.

But anyway, thanks for reading my comments.

Anonymous said...

Melberlin is one of the most sensible, smartest contributors in this blog. He shares a lot of intelligent views and opinions and ideas to be pondered. I may not always agree of what he is saying (so far,I have not disagreed yet), but his writings are definitely not senseless. Whoever you are, you might be talking to yourself in the mirror.
I want to personally meet Melberlin and shake hands with him/her.

Melberlin said...

To Wendy and Anon 9:57pm;
Thank you very much to you. Just like everybody else, including Jesus Himself, there is always one disagree with you, but I admit willingly.

Anyway Anon 5:52 AM although I can see you roaming around that time on 3/20 (the only person commented on that hour) and after you comment above you postage another comment in the other blog disagreeing with me by defending a commenter that I disagreed with... just a guess anyway no offense.

But I understand what your comments there and it's good... I am only shooting issues not the messenger. God bless you!

Anonymous said...

sencelessness

"Then this is a deadlock! no progress or advancement is existing in possibility until there is (or are) actual case(s) that everybody to watch who will pull ahead. What would be then the particular course of action intended to achieve a result? Whose going to handle a case if there are any; if a judge is from fed then (s)he will adopt the fed version and vice versa if the cnmi???.
For now we will just comply to both side's version of requirements and it is very expensive and unfortunate to those spending money and time if it is not necessary to go to DOL."

Melberlin said...

Anon 5:48
Huh?
Can pell correctly your "sencelessness" above before you comment on others LOL!

Anonymous said...

Guest workers can't vote and would be well advised to let more educated citizens plead their case like Wendy, Pam, the teacher, and Captain. These 4 are not only smart and clever, but they have integrity that people asking for something free do not.

Commentors poor logic or comical conclusions don't help workers.