July 28, 2010

"The Court thus finds a likelihood of irreparable harm to the interests of the United States that warrants preliminary injunctive relief." 
Judge Susan Bolton

One day before the Arizona anti-immigration law was scheduled to go into effect, Judge Susan Bolton of the U.S. District Court of Arizona has blocked the most controversial provisions of S.B. 1070, the state's controversial law.  The provisions that are blocked by the preliminary injunction include: requiring verification of immigration status, arrest for failure to carry immigration papers, making it illegal for an illegal immigrant to solicit work, and allowing a warrantless arrest for a potentially removable alien.  These provisions are all preempted by federal immigration law according to the order.

Hopefully, the preliminary injunction will be a wake up call, and Arizona will stop it's fight to implement this discriminatory and preempted law.

From the Order:
Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law: 
Portion of Section 2 of S.B. 1070 A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person
Section 3 of S.B. 1070 A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers 
Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work 
Section 6 of S.B. 1070 A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States. 
The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest. The Court therefore issues a preliminary injunction enjoining the enforcement of the portion of Section 2 creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).
The United States Attorney General and 6 organizations including pro-immigrant groups, the American Bar Association, and the American Civil Liberties Union sued Arizona and Governor Janice to block the law.  The U.S. Commonwealth of the Northern Mariana Islands (CNMI), known for its own dysfunctional system that allows for the oppression and abuse of foreign workers, joined Republican Attorney Generals from nine states in supporting the Arizona law.  The CNMI recently passed a law that has preempted and unconstitutional provisions that mirror Arizona's unconstitutional provisions.

 In her order, Judge Bolton stated:
"In Hines, the Supreme Court found that, 
where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations."
According to this order, provisions within the CNMI labor laws, both P.L. 15-108 and P.L. 17-1 should  be challenged.  The CNMI took their  local immigration law and recodified it under their local labor law after federal immigration was applied to the CNMI.  They also added some provisions that conflict with and are preempted by federal law.  The governor's "special counsel," Howard Willens, clearly outlined the scheme in his comment to the Department of Homeland Security.  This won't fly according to today's ruling:
The current federal alien registration requirements create an integrated and comprehensive system of registration. See id. (finding that the Alien Registration Act, the precursor to the current alien registration scheme, created a “single integrated and all embracing system” of registration); 8 U.S.C. §§ 1201, 1301-06 (providing federal registration requirements and penalties). While the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for state action that impacts aliens, De Canas, 424 U.S. at 358, the Supreme Court has also evaluated the impact of the comprehensive federal alien registration scheme and determined that the complete scheme of registration precludes states from conflicting with or complementing the federal law. Hines, 312 U.S. at 66-67. 
Section 3 attempts to supplement or complement the uniform, national registration scheme by making it a state crime to violate the federal alien registration requirements, which a state may not do “inconsistently with the purpose of Congress.” Hines, 312 U.S. at 66-67; see also A.R.S. § 13-1509(A). While Section 3 does not create additional registration requirements, the statute does aim to create state penalties and lead to state prosecutions for violation of the federal law. Although the alien registration requirements remain uniform, Section 3 alters the penalties established by Congress under the federal registration scheme. Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration. See Hines, 312 U.S. at 67. As a result, the Court finds that the United States is likely to succeed on its claim that Section 3 is preempted by federal law.
Since CNMI's law, P.L. 17-1 does create additional alien registration requirements it absolutely clear that it is preempted by federal law.

For months the INCIS and the Federal Labor Ombudsman have been telling the CNMI foreign workers and the employers that umbrella permits cannot be revoked, and no foreign worker is required to register with the CNMI Department of Labor. The CNMI AG and DOL have defiantly challenged the federal agencies and federal law and attacked the federal officials who back the federal law's supremacy clause.

The judge also ruled that "... the Court finds that Plaintiff is likely to succeed on its claim that Arizona’s new crime for working without authorization, set forth in Section 5(C) of S.B. 1070, conflicts with a comprehensive federal scheme and is preempted." This should apply similarly to CNMI laws that attempt to deny business licenses from employers who employees have not registered with DOL as well as some other provisions.

Regarding Section 6 of S.B. 1070 that "provides that an officer may arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States,” Judge Bolton stated:
Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a “distinct, unusual and extraordinary” burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66. The Court thus finds that the United States is likely to succeed on the merits in showing that A.R.S. § 13-3883(A)(5), created by Section 6 of S.B. 1070, is preempted by federal law.
Read Judge Bolton's Order here.

The fact that Arizona even passed such a discriminatory law, the fact that CNMI has an even more discriminatory law than Arizona's, and the fact that other states are considering implementing their own racist laws should sound an alarm in Congress.  While the preliminary injunction can be viewed as a victory, no real victory will be realized until the passage of comprehensive immigration reform.  The members of the U.S. Congress must act on this now!

The CNMI's Law Must Be Challenged

The CNMI government, led by Governor Benigno Fitial, challenged  P.L.110-229, the Consolidated Natural Resources Act of 2008, which applied federal immigration laws to the CNMI.  That move was an attempt to maintain control of the broken local system where thousands of foreign workers have been abused and exist as a disenfranchised underclass in a two-tiered system. In November 2009, the federal court ruled that there was no basis for the challenge and dismissed the CNMI's complaint. Even though the lawsuit failed, the fight continues. The CNMI government has taken a confrontational stance to resist federalization and is using innocent foreign nationals as pawns in their retaliatory game.

The current CNMI program that stands as a barrier to social justice and economic prosperity continues, even with the passage of the CNRA, because the federal government has not taken action to stop the CNMI from preempting federal law. A tug of war between the CNMI and federal governments is being fought now with innocent foreign workers, other non-citizens and employers being caught in the crossfire of the battle between the two governments.

Before the transition period began on November 28, 2009, the CNMI government issued "umbrella permits" to the foreign contract workers and all categories of aliens in the CNMI. The "umbrella permits" allowed aliens who were in the Commonwealth before the transition period to remain legally in the CNMI for the two year maximum allowed under the CNRA or until November 27, 2011. The CNMI government stated that these permits would provide security and stability for the foreigners including the contract workers, investors, long-term business owners, immediate relatives of nonresidents, and students for the stated two-year period.

The “umbrella permits” are regarded as evidence of lawful presence and authorization to work under CNMI laws, and the federal government recognizes these permits as an extension of the expiration date of those who have CNMI-issued entry permits. Therefore, according to the federal government, all aliens who were issued an umbrella permit may remain in the CNMI and may work in the CNMI until November 27, 2011.

The Federal and CNMI governments have conflicting opinions on the conditions and authority of these "umbrella permits." The CNMI government claims that the CNRA only preempted the admission and removal of aliens, but not internal matters including alien workers' ability to work in the CNMI. The CNMI government argues that the "umbrella permits" were issued under the CNMI’s ongoing authority over the terms and conditions of employment of foreign workers in the CNMI. The CNMI Department of Labor, which has been a corrupt and negligent body regarding rights of the foreign contract workers, claims that it maintains authority and control over the “umbrella permits,” including the right to revoke them for a violation of any conditions that it may impose for maintaining valid permits.

The federal government (USCIS and ICE), regards these permits as evidence of lawful presence, and has stated that pursuant to the CNRA, holders of "umbrella permits" may reside in the CNMI until the expiration of the permit on November 27, 2011, even if the CNMI government has revoked the permit. It is unclear what the CNMI government would do after revoking a permit because it no longer has the authority to remove any foreigner.

The power struggle between the CNMI and federal governments escalated with the passage of CNMI law, P.L. 17-1. On March 22, 2010, the Immigration Conformity Act of 2010 amended P.L. 15-108, the Commonwealth Employment Act of 2007, and on June 1, 2010 CNMI P.L. 17-1, the Employment Rules and Regulations (ERR) went into effect. Human rights advocates, foreign contract workers and attorneys have opposed provisions within the laws that deny foreign contract workers constitutional rights. The laws are also in conflict with P.L. 110-229, the CNRA, which authorizes a federally administered CNMI-only guest worker program and applies U.S. immigration law to the CNMI.  The final DHS regulations for this program are scheduled to be released in September 2010.

Provisions of P.L. 17-1 give authority to the CNMI government to revoke “umbrella permits,” which are recognized by the USCIS and federal government as valid permits under federal law until November 27, 1010. Another provision requires a CNMI non-citizen to repatriate because of medical reasons. Especially troubling is the provision that orders all foreign nationals and their family members who have been in the commonwealth for 90 days or more to register with the local CNMI Department of Labor for the purpose of receiving a Foreign National Identification Card. The provision requires that any person over the age of 18 "shall keep their identification card in their possession or control at all times." Failure to comply with the provision could result in a fine of $500, imprisonment of up to 90 days, or both.  It appears that the law applies to any non-citizen within the CNMI including those who possess a Federal visa.

The law provides that any employer who employs a non-citizen worker without going complying with procedures set forth in P.L. 17-1 may be sanctioned $2,000 per non-citizen employee and be barred from further employment of non-citizens.

 The law attempts to maintain control over immigration functions by recoding CNMI immigration law to make it fall under labor law. Additionally, the law raises equal protection concerns because it contains a provision stating that the percentage of U.S. citizen employees, U.S. legal permanent residents and special CNMI legal residents employed by a business must equal the percentage of U.S. citizen, legal permanent resident and CNMI legal resident workers in the private workforce.

There are provisions in the law that provide for searches and “inspections.”  The CNMI Department of Labor (DOL) officials have stated that they will be inspecting businesses, and may be going house to house to insure that all non-citizens register with the CNMI Department of Labor (DOL) to obtain a Foreign National Identification Card.

The law also creates several new “work permits” including a Service Provider Permit that allows non-citizens, who have lived in the CNMI for ten years or more, to work for more than one employer if the non-citizen meets certain “conditions.” The conditions include: registering at DOL and paying $300 to obtain a Foreign National Identification Card; providing “clearances” from the CNMI Department of Finance and the Commonwealth Health Center to verify that the non-citizen has no outstanding government debts; and posting a $3,000 cash bond payable to the CNMI. Supporters of the CNMI government, including attorneys, are circulating notices of this new “status” in various languages. Federal law already allows for holders of "umbrella permits" to work legally in the CNMI for multiple employers. This appears to be another ploy to manipulate and control the foreign workforce while filling the empty CNMI coffers on the backs of the foreign contract workers.

The judge's ruling today confirms that key provisions within the CNMI "labor" law are preempted by federal law. The law must be challenged.

Photo by Joshua Lott/Reuters

Disclaimer: This is not a legal blog. No opinion or statement should be perceived as legal advice. All posts are the opinion of the author or contributors who are expressing their First Amendment Rights.


Anonymous said...

Obviously, PL 17-1 should be challenged but no one is willing to do it. Unless it gets challenged in court and declared invalid, the CNMI DOL continue to implement it and creates confusion to some employers and employees.

Anonymous said...

This district court ruling, while not binding on another district court judge, makes a preemption challenge to CNMI law more likely to succeed, although this ruling may ultimately be appealed to the Ninth Circuit or U.S. Supreme Court.

However, the CNMI has been claiming it has residual authority until November 28, 2011 under the express provisions of federal law (the CNRA), something Arizona never had.

This distinction would be rendered moot if USCIS simply issues some preemptive CW regulations. Maybe that is what everyone is waiting for.

Wendy said...

Anonymous 7:56

The DHS announced a few months ago that the CW regulations would be published in September 2010, or in about 30-60 days from now.

Anonymous said...

Well, this just lets the Feds do what they do so well...nothing. Of course, I could be wrong. They might decide to in fact do something like create a...guest worker program. The CNMI already has one of those. However, if it were a Federal guest worker program the workers here would qualify and they might be able to become a guest worker in the US. Anyway, this will probably go the Supreme Court before it's ironed out. Don't get me wrong, I don't blame the illegal aliens (except the ones that are committing crimes, other than just the crime of being illegal). I guess I would do the same thing. I blame the US Government for not taking care of this years ago. I don't blame Obama...yet. Except for the lawyers actually directly involved, I don't think anyone at the Federal level should be high-fiving. Celebrate when you actually fix the problem instead of celebrating successfully preventing someone else from doing your job. Until then the illegal workers are just going to have to live in the shadows and pick up the scraps.

Anonymous said...

Wendy: I noticed that over the years you have often poked fun at the Governor's many “Special Assistants” (including “Special Counsel”), asking what makes them so “special” and why they seem to be so numerous.

This is simply a function of designation by regulation, statute, or the CNMI constitution. See, e.g., N.M.I. Const. Art. III, § 22 (Special Assistant for Women's Affairs).

Anonymous said...

I don't understand how the federal cw transitional visa regulations would make the umbrella permit moot. The CNMI is saying that they can impose restrictions on the umbrella permit, the federal officials are saying they cannot. Most employers will wait until the last minute to file the new cw transitional visas and the umbrella permit issue will still be in effect for over a year.

Wendy said...

Anonymous 10:38

Is putting the term "special" in quotations poking fun? Yes, I realize some titles have the word "special in them -like third level assistants to the president, but I do think the title is sometimes amusing considering who some of these "special" people are. The term reminds me of the sarcastic saying, "Well, isn't that "special?" Or aren't you "special?" I had no idea these "special" positions were legislated. Does that include the "special" counsel, the "special" assistant for political affairs, the "special" advisor to the governor for education, "Special Advisor to the Governor's office, Geothermal Energy, and six other "special" assistants? See here. Thanks for the information.

Anonymous said...

noni 7:56am,

you constantly come on here and speak of the lack of regulations from the federal government regarding workers here in the CNMI yet you fail to admit to or recognize that the federal government DID issue regulations addressing the foreign workers in transition in the NMI. do a bit of research and you may find out that the lack of those regulations being in place right now was the doing of BEN FITIAL and his lawsuit trying to stop the implementation of 110-229. it had no such effect but a side argument they made caused a judge to suspend the regulations that the Feds has released. so if you are mad that there are no current regulation on the books till September of 2010 then you may want to slap Ben around a bit.

Anonymous said...


what is even more sad is that long listing of ridiculous special assistance is still not fully complete. the governor has many other special assistants and counsels that are not even listed there.

this government reeks and the commentor @ 10:38am trying to justify the stench is either part of it or just insane.

Wendy said...

Anonymous 11:30 Perfectly said -thank you.

Wendy said...

Anonymous 11:35

When the term "special" is put in the title assigned to some of these people, it's an oxymoron, isn't it?

Anonymous said...


"But a federal judge issued a preliminary injunction two days prior to federalization, preventing DHS from implementing the regulations on Nov. 28"

when BEN lost the war he took a final stab and added to the suit to get the regulations put on hold.

the time that has past since then is being used by the feds to ensure that the CNMI gets the time they asked for to comment on regulations concerning workers.

as good ol' Ms. Kim stated:

“The additional comment period will give others a chance to provide DHS with information for use in the rule-making process. The administration urges all affected persons and businesses to take advantage of this opportunity to assist DHS in promulgating a practical and workable rule that will not further damage the Commonwealth’s economy,”.

so from where i sit, your complaint should lie with Ben or better yet you should not complain at all about the time between then and the issuance date and you should not fault the feds for failure to release regs. using that as an argument to justify local immigration control now is down right idiotic.

Anonymous said...

The CNMI can claim it has "residual authority" or a claim to the moon, but that won't make it so. No regulations need to be issued by the federal government in order for the CNMI's labor laws regarding alien workers to be superseded and pre-empted; the CNRA did that already. You will find no mention of "residual authority" or any suggestion that the CNMI retains any authority over aliens in the CNRA.

Anonymous said...

Noni 10:41 AM said . . .

I don't understand how the federal cw transitional visa regulations would make the umbrella permit moot. The CNMI is saying that they can impose restrictions on the umbrella permit, the federal officials are saying they cannot. Most employers will wait until the last minute to file the new cw transitional visas and the umbrella permit issue will still be in effect for over a year.

Emphasis added. Federal officials can "say" whatever they want. It doesn't carry the force of law until it is put into a regulation.

The residual authority comes from the fact that pursuant to the CNRA, USCIS and ICE give validity to CNMI permits through November 28, 2011. Those permits are subject to conditions under CNMI law. The only way to absolutely, positively preempt those conditions is through regulation. A lawsuit might result in a ruling that the CNMI law is preempted. Or it might not.

Certainty or uncertainty? Regulation or lawsuit? Process of definite duration (once published) or a much longer judicial proces?

What will DHS choose?

Blaming DHS delay on Fitial's Covenant Section 903 lawsuit is nothing more than crude scapegoating. Notably, DHS has never done so, just some bitter Unity Marchers who got what they asked for. The feds have known for almost 2-1/4 years now that they needed to write some regs! Their dilatory action is not attributable to Uncle Ben.

Indeed, the current Arizona lawsuit may delay, yet again, the CW regs.

Anonymous said...

Nor does it retain some "vestigial authority" as argued by prominent "immigration" column/ad campaigners.

Anonymous said...


missing people. on first glance where is richard peirce and peter etche?

i'm sure there are more.

Anonymous said...

Yeah, I don't know why Siemer and Willens and their spokesmen keep repeating the tired lie that because the Feds recognized that workers who were given umbrella permits prior to the transition period effective date were here legally as of that date and could work, that that somehow confers some authority on CNMI DOL. It does not.

Anonymous said...

EMPLOYMENT AUTHORIZATION.—An alien who is lawfully present and authorized to be employed in the Commonwealth pursuant to the immigration laws of the Commonwealth on the transition program effective date shall be considered authorized by the Secretary of Homeland Security to be employed in the Commonwealth until the earlier of the date—

‘‘(A) of expiration of the alien’s employment authorization under the immigration laws of the Commonwealth; or
‘‘(B) that is 2 years after the transition program effective date.

Consolidated Natural Resources Act, Pub. L. 110-229, CNRA, § 702(a), ’6(e)(2)’, 122 Stat. 754, 859, codified at 48 U.S.C. § 1806(e)(2) (emphasis added).

So it is indisputable that Congress has COMMANDED that unless allowed to remain under an existing U.S. immigration visa category or new temporary federal guest worker program, foreign nationals can stay no longer than their “authorization under the immigration laws of the Commonwealth.” Congress has spoken. This is clear as day. And “authorization under the immigration laws of the Commonwealth” includes any conditions imposed by CNMI law.

If any aspiring plaintiffs' lawyer wants to quibble in federal court before Judge Tydingco-Gatewood about “residual” or “vestigal” authority, go ahead. The plain language of a federal statute is not a “Big Lie” as some would-be advocate keeps repeating ad nauseum, but the very reason DoJ has not acted and is unlikely to act.

The very simple way of avoiding such an embarassing loss in federal court would be for USCIS to issue their regulations, including a provision flat-out accepting the Umbrella Permits for a full two years and declining to recognize any post-TPED CNMI modifications.

As the Draft USCIS Memo (Admin. Alternatives to Comprehensive Immig'n Reform) -- linked by Wendy four posts more recently than this thread -- illustrates, USCIS knows how to get creative with policy and regulations if they want to.

But they have to do it! Written statements about what USCIS plans to do lack the force of actual regulations.

And every competent member of the bar who has studied the issue knows it. Too bad some former Unity Marchers keep repeating their same old, tired, anti-Fitialite refrain on the pages of this blog.

Your energies would be a lot better spent convincing USCIS to issue regulations or grant Parole in Place (PIP) than planning frivolous lawsuits and tilting at windmills.

Anonymous said...

until the US decides to act, CNMI law is the only law in the land.

Anonymous said...

in your dreams anon above!!!! in your dreams!!1