‘NMI immigration laws on IRs punitive in nature’

An Immigration Division hearing officer has found the CNMI’s recently adopted immigration laws to be “punitive in nature” when it comes to revoking or denying the entry permit applications of immediate relatives.

Linn H. Asper, Immigration’s Administrative Hearing Officer, said the division must provide clear and convincing evidence of fraud before revoking or denying the renewal of an IR entry permit.

“To rule otherwise would allow the division to deprive people like [Muhammad Saiful Islam] of valuable rights and subject them to the severe penalty of deportation based on appearances rather than on facts,” said Asper in his order that reversed the Immigration Director’s decision to deny the renewal of Islam’s IR entry permit.

The hearing officer ordered Immigration to process the renewal of the IR permit of Islam, a Bangladeshi national who is married to Cornelia Panuelo, a citizen of the Federated States of Micronesia.

Cornelia left Islam on Saipan when she went to Arizona in 2004 to work as a caregiver. She has not returned to the CNMI since then.

According to Immigration records, Islam, an alien worker, married Cornelia in November 2001. At the time of their marriage, Islam was 28 years old, while Cornelia was 47. Islam had worked in the CNMI since 1994, while Cornelia had lived on Saipan since 1977.

After their marriage, the couple lived together in a rental house in San Roque and maintained a normal marital relationship until 2004. The couple did not acquire any real property or significant personal property during their marriage. They have no children.

In 2004, the couple decided that Cornelia should travel to Arizona to take a job because she was not able to find satisfactory employment on Saipan after their marriage.

As an FSM citizen, Cornelia could travel freely to the continental U.S., but Islam was not eligible for admission to the U.S. mainland.

In June 2004, Cornelia left Saipan. In Arizona she works as a caregiver to the elderly, earning about $1,300 a month, plus room and board at her work location.

The couple occasionally correspond with each other for birthdays and holidays. They maintain regular weekly telephone contact.

Soon after her arrival in Arizona, Cornelia became very ill. She incurred almost $30,000 in uninsured medical costs. Her need to repay the medical expenses and her desire to establish residency in order to become a U.S. citizen has extended her stay in Arizona.

Cornelia has financially assisted Islam from time to time by sending him money through Western Union transfers from Arizona to Saipan.

Islam renewed his IR entry permit for two years after Cornelia moved to Arizona. The Immigration director, however, denied his 2006 renewal application in April 2007 for alleged violations of Immigration law and regulations.

Islam, through counsel Joe Hill, appealed.

Asper presided over the hearing at the Immigration Office last Feb. 3. Assistant attorney general Kate Busenkell and deputy Immigration director Antonio Sablan appeared for Immigration. Islam and Hill were present. Cornelia testified at the hearing by telephonic connection.

In his order, Asper said this is a case involving questions of first impression regarding recently adopted CNMI changes to immigration laws and regulations.

Title 3 Section 4372 of the Commonwealth Code gives the Immigration director the authority to deny the renewal of an entry permit. The director can deny the renewal if he or she “determines that there are substantial grounds to believe that the application or entry permit was based on fraudulent grounds, or that the applicant made material misrepresentations on the application.”

Asper said these factors, supplemented by others adopted by regulation, make up a long list designed to distinguish genuine marriages from “sham” marriages.

The rules, Asper said, focus on personal contact before the marriage; knowledge of each other’s background, beliefs, practices and habits; marital indicators such as having children, filing taxes together, owning property or bank accounts jointly; and most importantly in Islam’s case, living together in the same residence.

The immigration statutes in question, although not criminal laws, “are punitive in nature,” Asper said.

Asper said Immigration does not seriously contend that Islam’s marriage was fraudulent in its inception.

“Perhaps they would not have married if it were not for the immigration advantages presented. At the hearing, it was established that the couple shared a bona fide married life until Cornelia left in 2004,” he said.

The hearing officer noted that the ultimate issue in the appeal is whether or not the separation of Islam and his wife show that “the circumstances indicate that the spouses do not intend to share the same residence.”

Immigration pointed to the extended absence of Islam’s wife and the failure to Islam and Cornelia to visit each other or to maintain joint accounts or file joint tax returns as evidence of their lack of intent to share the same residence.

At the hearing, Asper said, the couple provided reasonable explanations for their continued separations.

The need to earn money to pay off medical expenses alone justified Cornelia’s extended stay in the U.S., the hearing officer said.

Asper said the uncontested evidence leads to the conclusion that the circumstances of the separation of the spouses do not indicate an intention to end the marriage or to fraudulently continue it.