AGAIN: U.S. Immigration Law Preempts CNMI Local Laws

June 5, 2014

It was refreshing to read that Attorney Steven Pixley agreed that CNMI labor and immigration laws are preempted by federal law.  The question is when are the federal officials to take action on enforcing that. Why hasn't the U.S. Attorney Office of the CNMI filed a case?

Back in 2010 when U.S. Attorney General filed cases against Arizona and other states for attempting to preempt federal immigration law, I appealed to Holder to ask him to take the same action against the CNMI.

Apparently the CNMI is off the radar of the US Department of Justice. Clearly, the Obama Administration seems to regard the constitutional rights of the residents, nonresidents and business owners on U.S. soil as an afterthought.  Out of sight, out of mind?

Here are some comments that attorney Steve Pixley made concerning the CNMI's continual preemption of U.S. law, as quoted by the Saipan Tribune:

"The Department of Labor cannot sanction employers for, among other things, not filing a “declaration” with Labor’s Citizen Job Placement Section because federal preemption prevents the enforcement of Commonwealth immigration related laws and regulations." 
 “Under the concept of federal preemption, a state generally cannot enforce additional or auxiliary regulations relating to the employment of aliens, the registration of aliens, etc.” 
“Where the federal government has enacted a complete scheme of regulations and has therein provided a standard for 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.” 
“The federal government has enacted extensive regulations regarding the CW-1 immigration designation as well as the employment of aliens in the Commonwealth.” 
“The Department of Labor’s enforcement of auxiliary laws and regulations cannot withstand preemption scrutiny."   
“The U.S. government has broad, undoubted power over the subject of immigration and the status of aliens.”
Pixley was hired to represent Kanoa Resort. The CNMI Department of Labor filed a case against the business for not filing an online declaration announcing an open job position. The unconstitutional CNMI law requires CNMI employers to post a statement on the CNMI DOL website stating why each applicant was not hired.

Pixley stated that federal law preempts the CNMI labor law. No such action has to be taken by a CNMI business, regardless of the law, which is unconstitutional.

The CNMI DOL has been filing cases and fining businesses for not meeting their unconstitutional regulations, including a regulation demanding that CNMI businesses must maintain a 30 percentage of U.S. citizen employees in their workforce. 

A poker establishment was fined $2,000 for not responding to the CNMI DOL online job vacancy announcement requirement. Here is a link to an administrative order directing a construction company to pay a $2,000 fine. Both businesses should not have to pay the fines. Both should file a case in federal court questioning the constitutionality of the law. When found unconstitutional as the Arizona law was, then DOL should be made to repay every business it fined. 

The real question should be why hasn't the USDOJ  filed a case to prove that the law is unconstitutional, just as Eric Holder did with Arizona and other state laws.

In 2010 when the Fital-Siemer-Willens team wrote CNMI P.L. 17-1 to establish CNMI labor rule, I argued that the law was unconstitutional and was preempted by federal law.

In the post, Alien Registration?, I wrote:

The CNMI DOL announced that it will enforce P.L. 17-1's most obnoxious provision, which requires aliens to register with the local labor department. P.L. 17-1 states that any alien who fails to register or carry the alien registration with them could face a fine, jail time or both.

Sound familiar?  Think Arizona. The very same racist and unconstitutional provisions that District Court Judge Susan Bolton questioned in the Arizona law, are mirrored in the evil CNMI law.

Where are the CNMI attorneys to defend the rights of the foreigners? Where is the United States Department of Justice?  The federal officials were notified about the proposed law in my January 2010 comment to DHS. In July 2010, I again wrote to federal officials about the unjust law, P.L. 17-1 and asked for the U.S. Department of Justice to take action. Are they waiting for the hosts countries to create an international uproar about the human and civil rights abuses of their citizens residing in the CNMI before they act? 
On March 10, 2010 in the post, Take a Stand Against PL 17-1, I appealed for people to write to officials and the press to take a stand against this blatantly unconstitutional law. It is not to late to take a stand!

In President Obama Sues Arizona I predicted that the US would also sue the CNMI since PL 17-1 mirrored the unconstitutional Arizona laws. How naive of me to think official or elected leader with power in the US would give a damn about the rights of people in the far away Marianas!

In the July 28, 2010 post, Ruling on Arizona Immigration Law Issued, I wrote:

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 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. 

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. 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.
In the post, Provisions in PL 17-1 Are Unconstitutional, I wrote:
Federal Ombudsman Pamela Brown told a gathering of foreign workers and business owners that PL 17-1 is unconstitutional. The Marianas Variety reported:
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.  
“It’s preempted under what we call the supremacy clause,” she said, adding that the law is “unconstitutional.”
In an April 4, 2010 post, Office of the Attorney General, I referenced a Saipan Tribune article (The link to the article is broken since the paper changed to a new online format):
In an interview with Saipan Tribune, Buckingham said he testified in support of the administration-proposed omnibus immigration bill that Gov. Benigno Fitial recently signed into Public Law 17-1.

“I recommended to the governor that he sign it. I respect that others may have a different opinion and I am grateful to live in a country where we can respectfully disagree,” the AG said.
In her recent blog, Doromal said P.L. 17-1 appears to be the CNMI government's blatant attempt to maintain its “broken local system and control over the disenfranchised underclass.”
Another Unheard No More! post details how then CNMI AG Buckingham was among 8 Republican who filed a amici curiae brief to support Arizona's unconstitutional law.  Buckingham was always on the wrong side of justice.
I'll be speaking to some officials in Washington, DC in the coming week. I really want to take their pulse and see if they are still alive.

Is the Obama Administration and  the US Congress ever going to take real action to push legislation to end the plight of the CNMI nonresidents by granting them permanent residency status? What action will be taken to correct problems related to the CNMI-Only Guest worker Program? Will they push for more funding to the U.S. Department of Justice, US Attorney Office and US Department of Labor in the CNMI so more personnel can be hired and more action can be taken to correct injustices such as those related to the unconstitutional law, PL 17-1?


Anonymous said...

CNMI governor Mr. Eloy Inos and Washington DC rep Mr. Kilili may think that an extension of CW-1 faulty program will benefit CNMI many ways. This idea will bring disaster after December 31, 2019. USDOL stated, “Education fees given by USCIS to CNMI government can be used to train unemployed U.S worker, lawful permanent resident and unemployed CW-1 workers”. CNMI government is taking lead to replace foreign workers by U.S workers with the money provided by a faulty CW-1 program. This is discriminatory. Are the secretaries of U.S department of labor and U.S department of homeland security and U.S department of Justice aware of this? CW-1 program can be considered as racist program administered by USCIS because Federal government are not fully aware of who these CW-1 workers are and their dedications to develop and improve CNMI economy. It is so shameful for federal government not to uncover what is going on in CNMI. Are they always blind? Keep your eyes open!

Anonymous said...

What is really interesting on this issue of the extension is that, according to an article, the Feds state that there are not enough numbers of "US" workers in the NMI at this time to take up the slots of the CW if they leave. This includes all of the total n umbers that are of work age.
Yet the CW numbers will be reduced annually.
And NOW a big push (again)is on for training local workers.
What makes the Feds (or anyone) expect the workforce to actually grow in the NMI over the next five years?

First, even with the upcoming increase in minimum wages will not inspire any workers to work for the private sector.
The local wages have to be at least parallel with the Govt. wages.
Even if the wages are the same in the private sector this still will not motivate any local worker.
The majority of the jobs in the private sector are service or tourist related.
As has been stated by many, these jobs local will not work at as there is a "stigma" associated with them. These workers will be looked down upon and taunted by their peers.
Until the wages, benefits AND WORK ETHICS are instilled in our people thing will remain the same regardless of how much "training" is available.
You cannot make these people go to any type of job training. Especially when they don't want to go or finish school.

Over the years I have watched many get high paying jobs and leave after a short time.
Case in point; A local took over a service station and made announcement, that he was going to hire all locals and pay a higher wage than minimum (at that time min. was $3.05) He hired and paid the gas station attendants $5.00 an hr. Few showed up for work on time, after first paycheck most did not return until broke.
The cashier could not count so he hired a CW. The rest could not be counted on to show up. after much turnover in the first 4 months he finally hired all CW.

IBB site, both in Saipan and in Tinian. They hire locals as "equipment operators" they train them on the site. The pay is around $14 per hour.
Most do not show up on time and cause much overtime due to that is a 24 hr operation and many do not show up fr shift or they make "deals" with another to not show up so the other person gets the overtime with the night differential pay.
There is also much turnover. Same goes with other jbs at the site including maint. and yard personnel including gate guards that were hired buy the operating company.

Another Const. company was paying $8.50 (Min was also $4.05) per average plus since he was giving a housing allowance to the CW he also gave a housing allowance to the local hires and also paid for Staywell insurance for all of his workers. He employed about 50% and better local workforce. But still had a high constant turnover rate.With most no shows or being late and also leaving the job once clocked in.
The list can go on and on.

AND where are the current planned new investments going to get workers? Now and later.
For the construction phase they will have to use Guam or US companies.
But Guam has shortage also.
For the personnel to man these hotels they may be able to get from the other places usch as Palau and other FSM.

Anonymous said...

Great comments!

Anonymous said...

Great comments!

Yourway Migrations said...

The United States L1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employee from its foreign operations to the USA operations for up to seven years usa immigrations. The employee must have worked for a subsidiary, parent, affiliate or branch office of your US company outside of the US for at least one year out of the last three years.