Provisions in PL 17-1 are Unconstitutional
















Labor Ombudsman Pam Brown speaking at a meeting earlier this year.

June 27, 2010

Federal Ombudsman Pamela Brown told a gathering of foreign workers and business owners that PL 17-1 is unconstitutional.  The Marianas Variety reported:
“It’s preempted under what we call the supremacy clause,” she said, adding that the law is “unconstitutional.”

When the federalization law was implemented on Nov. 28, 2009, the former CNMI attorney general said U.S. immigration law was extended to the commonwealth.

She said the CNMI government will be held liable for anything that it implements contrary to the federalization law.

In the consultation meeting at the American Memorial Park Visitor Center, she encouraged nonresident workers to coordinate with her office if they are being harmed, harassed and abused, causing them to lose employment.

Brown said her office knows some attorneys who can assist in preparing and filing complaints against the CNMI government.

She reiterated that the parole-in-place status can be granted to foreign nationals in the CNMI without umbrella permit or whose work permits have expired before the new visa categories are available to them under federal immigration law.
Some provisions of PL 17-1 including the alien registration, were relabeled from immigration law to a new classification under labor law. Relabeling an immigration law as a labor law does not mean it is no longer an immigration law.

Brown spoke at the American Memorial Park Auditorium in an attempt to clarify some misinformation and distortions concerning new federal laws, parole in place and the limited role of the CNMI Department of Labor.

21 comments:

Anonymous said...

Yes, Pam Brown can speak as the Ombudsman. But this is a legal issue. Where is the legal position of the Department of Interior and its counsel? Why so silent? Of course Pam knows that a law is presumed valid unless declared void by a court of law. Until then, her comment is just opinion and she has been known to be wrong, just like Willens and Siemer as well as Maya.

Everyone knows that PL 17-1 is defective in many ways. So it is just a matter of time.

Anonymous said...

Thank goodness the Ombudsman continues the tradition of that office to speak plainly to the workers about such issues. If we had to wait for the D.C. lawyers, we'd be waiting a long time, just as we've waited for regulations on CNMI transitional workers.

Anonymous said...

I agree with you 4:43 a.m. anon.

Be good or bad, we want the regulations known.

Anonymous said...

For private counsel to bring some sort of lawsuit against the CNMI's implementation of Public Law 17-1 based on federal pre-emption, before USCIS even promulgates any CW visa regulations, would be inviting sanctions against those attorneys under Federal Rule of Civil Procedure Rule 11.

Plus, how long would it take to collect against the CNMI given the dearth of money in the Commonwealth Treasury?

The only reason the CNMI is not in involuntary bankruptcy (two or more creditors not being paid) is that bankruptcy does not apply to sovereign states and territories -- only to municipalities and other instrumentalities of states and territories (where the states and territories have authorized by law their municipalities and instrumentalities to so file, which hasn't been done in the CNMI).

Anonymous said...

3:33 The first time the CNMI charges an alien or puts him in jail for not registering as an alien, there will be a lawsuit and the attorneys will not be sanctioned. The object will not be to collect money, but to kill the illegal provisions.

Pam said...

One point that is important but did not apparently warrant media coverage is that many aliens are being advised by one local attorney that it is okay to simply glue their passport photo to an umbrella permit that CNMI DOL issued without a photo. Apparently in the waning days of CNMI immigration control, DOL began issuing umbrella permits without photos with the promise to replace them with one bearing photo. However, this was not done. This local attorney with very close ties to the volunteer labor hearing officer expected to be provided new ones for his clients. When refused, he simply advised his clients to glue their photos on the umbrella permit and wrote an accompanying letter stating that his client should not be penalized for filing a court case against DOL. Many of these letters and falsified umbrella permits have surfaced at my office. Any alien who presents such an altered immigration document to any Federal official can be proseduted for lying to an agent of the US; immigration fraud; document fraud, etc. These crimes would likely be considered crimes of moral turpitude and could be used to bar the alien from the US or be the basis for removal of the alien.

Pamela Brown
Federal Ombudsman

Anonymous said...

That's a different story than some sort of amorphous declaratory relief action or other complaint that seemed to be indicated by the remarks of Pamela S. Brown.

Anonymous said...

ok, now all of this is muddled. one lawyer is advising his clients to violate the law? no one wants to sue labor because PL 17-1 is illegal. and Pam is declaring PL 17-1 is illegal. this is terrible confusion for workers and employers.

the us attorney should sue to strike that PL 17-1 down as illegal and be done with it.

Anonymous said...

A lawsuit by the USAO against the CNMI before USCIS promulgates any CW visa regulations would be a guaranteed loser.

USCIS is certainly taking their sweet time in developing the CW regs, aren't they? Public Law 110-229 has only been on the books since May 8, 2008 -- almost 26 months ago.

Twenty-six months to draft implementing regs? Come on.

Federalization: We didn't ask for a slow walk.

Anonymous said...

I wonder if Fitial suing the feds had anything to do with slow walk?

Anonymous said...

The regs don't have anything to do with PL 17-1. The law is unconstitutional on its face, and promulgation of the regs is not necessary to show that the feds have 'occupied the field' of immigration law.

Anonymous said...

The 903 Lawsuit certainly shouldn't have had any delay on regulation drafting.

Litigation is handled by DOJ. Regulations are prepared by USCIS.

Fortunately, no federal official has ever tried to blame their inexcusable neglect and delay of assigned duties on the CNMI. If USCIS were to point fingers at the CNMI, it would be proof positive of federal incompetence.

DHS has not fallen to the level of “drama” and gamesmanship practiced by the pro-federal sycophants and guest worker status dreamers here in the CNMI. The USCIS delay is simple bureaucratic inertia.

Anonymous said...

Anonymous 9:38 AM,

Clearly, as DHS, the USAO, and the CNMI well know, the U.S. has not completely “occupied the field” with respect to the first two years of the Transition Program.

See Pub. L. 110-229, CNRA, § 702(a), ’6(e)’, 122 Stat. 754, 858-60, codified at 48 U.S.C. § 1806(e).

Lawful admission on the Transition Program Effective Date (Nov. 28, 2009) remains subject to conditions imposed by CNMI law and regulation absent USCIS or other federal regulations to the contrary.

Anonymous said...

Correction: only PREVIOUSLY IMPOSED conditions are recognized as valid. New laws like PL 17-1 have no force or effect, as all local laws dealing with the entry and exit of aliens, are superseded by federal law. The CNMI may not impose new conditions for employment of aliens, and may not jail or deport them for failing to comply with any new requirements.

Anonymous said...

The "previously" requirement is nowhere written in law or regulation.

CNMI permits have always had requirements that could change in the future, such as when imposed by a hearing officer. Otherwise, there would be no transfers to a new employer not "previously" approved.

If USCIS writes a regulation barring CNMI modification of conditions, it will have the force of law. Until then, there is no such law.

Anonymous said...

Pamela S. Brown is wrong about federal prosecution for those who glue a photo to their umbrella permit.

No prosecutor in her right mind would file such a case; good-faith reliance on counsel would be an absolute defense.

Yes, Pam is right that foreign national workers shouldn't do that, and it could have adverse consequences on future immigration applications. Yes, Pam is correct that the lawyer gave out bad legal advice.

She is also correct that the Parole-in-Place applications in response to wild status rumors are merely bogging down the system for those who really need it.

But the policy positions and recommendations given out by Pamela S. Brown and the Ombudsman's Office sometimes border on hysteria or extreme reaction to current events, rather than a proactive, deliberative approach which would better serve guest workers.

Above all, the Department of the Interior does not control or speak for DHS (USCIS) or DOJ (USAO). Pam's various pronouncements should be viewed from that perspective.

Wendy said...

Anonymous 7:05

Where does it say anything about Pamela Brown making a statement on gluing photos to umbrella permits? I am sure such an act is totally illegal!

There is no hysteria from the ombudsman's office. In fact, that office is an oasis in a desert of misinformation and BS from CNMI officials and the CNMI DOL. As a federal official, Pamela Brown speaks for the federal government. I am sure she is in constant touch with all agencies including her own -DOI, and DHS, USCIS, DOJ and others.

Anonymous said...

Wendy,

Pam's concern about glued-on photos was made two days ago at 8:04 AM, eleven comments up from yours.

No one can deny that she is committed to her work.

Wendy said...

Anonymous 8:26

Thanks! How did I miss that? Isn't it amazing that an attorney would give such incredibly bogus advice to the workers? Thank goodness for the ombudsman.

Anonymous said...

Reliance on advice of counsel is not an absolute defense. At best, evidence of such reliance (testimony of the idiot attorney confirming he gave such advice) would be a factual issue for the jury. If the jury thinks it is unreasonable for the defendant to have followed such advice, they may convict.

Anonymous said...

If this attorney is advising innocent aliens to violate the law, then he/she should be disbarred. So you people who are writing about him/her need to do something and start protecting the island from scammer attorneys who rip off innocent people. Is this jerk charging the people for this bogus advice? MAKE HIS/HER NAME PUBLIC AND DISBAR!

For the record, alien go to the federal ombudsman and not DOL and not bogus scammer attorneys! The federal ombudsman is free.