Ninth Circuit CNMI Immigration Ruling

May 3, 2011

The Ninth Circuit Court of Appeals reversed the criminal conviction of three Chinese aliens who were charged with attempting to enter Guam from the CNMI by boat.

In February 2010, U.S. District Court Judge Alex Munson ruled on the motion by three of the twenty-four charged on January 5, 2010 with attempting to enter the United States illegally. Attorneys for defendants Yong Jun Li, Shi Guang Li and Wei Kun Zhong asked for the case against their clients to be dismissed. The attorneys argued that "because the CNMI is a part of the United States for immigration purposes their travel was within the United States and cannot be deemed "illegal entry."

Judge Munson disagreed, citing the fact that the CNRA provides for a transition period to U.S. immigration which is currently in effect. From his Order:

Defendants rely on the CNRA in arguing that the CNMI is now a part of the United States for immigration purposes and travel between Saipan and Guam cannot be considered "illegal entry." However, the CNRA provides a transition period (that we are currently in) wherein, among other exceptions, the United States asylum laws do not apply within the CNMI and certain aliens may be legally present in the CNMI that would not otherwise be admissible in the United States. 48 U.S.C. §§ 1806(a)(7), (b)-(e). As such, although the CNRA seeks to eventually make the CNMI "a part of the United States for immigration purposes," the transition period exceptions require the conclusion that the CNMI is not yet fully a part of the United States for immigration purposes. Accordingly, Defendants' motions to dismiss are DENIED.
The Ninth Circuit Court disagreed stating:
"Because both the CNMI and Guam are parts of the United States, and an alien does not “enter[ ] the United States” for purposes of the criminal statute 8 U.S.C. § 1325(a)(1) when traveling from one part of the United States to another, even if when doing so she or he passes through international waters, Defendants did not violate the statute by attempting to travel by boat from the CNMI to Guam."
The decision makes it clear that the CNMI is under U.S. immigration law.   It also makes it clear that "entry" would  mean coming from a foreign port . The opinion states, "It remains the case that an alien traveling from one part of the United States to another does not “enter the United States” at the end of the voyage simply by virtue of having traveled through international waters in the course of that trip."

Aliens in the CNMI and other territories have already "entered the United States" according to the opinion.

The opinion states that the criminal charges should be dismissed. However, this does not mean that aliens can travel between the CNMI and Guam. Although aliens entering Guam from the CNMI may not face criminal charges, they could be deported or removed back to their "home country."

Read the Opinion: