DOJ: Aliens with past crimes in the CNMI are deportable

The U.S. Congress clearly intended that aliens who have past crimes in the CNMI would be inadmissible and are thus deportable, according to the U.S. Department of Justice.

DOJ’s senior litigation counsel Theodore W. Atkinson asserted that the statutory language of the Consolidated Natural Resources Act of 2008 (federalization law) reflects Congress’ clear intent that the provisions of the Immigration and Naturalization Act would be applied retroactively with respect to aliens in the CNMI.

Atkinson made the argument on behalf of Immigration and Customs Enforcement official Gerald Zedde and ICE acting supervisor Beth Limerick, who are named respondents by Mariano Angkel Shiano in his petition for writ of habeas corpus.

Zedde and Limerick, through Atkinson, filed a motion to dismiss Shiano’s petition.

Shiano, a citizen of the Federated States of Micronesia who is a habitual offender, has been declared removable by the Immigration Court.

Shiano is currently in immigration detention at the Department of Corrections under authority of the U.S. Department of Homeland Security’s ICE after the federal court temporarily stopped his deportation pending further court order.

Shiano’s lawyer, Stephen C. Woodruff, pointed out that Shiano has no criminal history following the May 8, 2008, enactment of the federalization law or the Nov. 28, 2009, extension of the territorial reach of the INA to include the CNMI.

Citing precedent, Woodruff said the U.S. Supreme Court condemned precisely the kind of retroactive application of the law as is involved in Shiano’s case.

In response to the petition, Atkinson pointed out that Shiano—who was never admitted to the U.S. under the INA—was deemed an alien seeking application for admission at the time he was placed in removal proceedings.

“As the immigration judge properly concluded, the act of seeking admission is inherently prospective in nature. Thus, the INA was not applied retroactively to Shiano in any event,” Atkinson said.

Second, Atkinson said, even if Shiano were correct that the INA is being applied retroactively with respect to his criminal convictions, Congress intended such retroactive application. He said the language of the statute applying the INA to the CNMI reflects Congress’ intent to apply the removal provisions, even for past offenses.

“To interpret the statute otherwise would be to embrace the anomalous result Shiano seeks—a veritable “free pass’ for aliens who committed removal offenses but who would escape the immigration consequences of those offenses simply because they occurred before the INA was applied in the CNMI,” Atkinson said.

Third, the lawyer said, even if the court determines that the CNRA cannot be construed as reflecting Congress’ intent to apply the provisions retroactively, there is nothing impermissibly retroactive about removing Shiano based on his criminal offenses, because Shiano cannot claim that he relied on a “right” or “benefit” that he is now being deprived of on the basis of his criminal offenses.

“In any event—and this fact proves ultimately fatal to Shiano’s retroactivity claim—Shiano’s convictions rendered him removable under the law of the NMI prior to the application of the INA,” he said.

Atkinson said that Shiano’s crimes made him removable at the time he committed them.

Atkinson also pointed out that the U.S. District Court for the NMI lacks jurisdiction over Shiano’s challenge to his removal order because he failed to exhaust his administrative remedies.