‘Has continuously resided in the United States’: Deferred action and the CNMI

“[T]he following provisions of the constitution of the United States will be applicable within the Northern Mariana Islands as if the Northern Mariana Islands were one of the several States: . . . Amendment 14, Section 1.”-Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Section 501(a)

“[H]ow could the CNMI be treated as a State without being treated as being in the United States? No State governed by the Constitution of the United States exists in a realm outside the realm comprehended by the United States.” -Sabangan v. Powell (9th Circuit, 2004)

DHS Secretary Janet Napolitano’s June 15, 2012, memorandum, “Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children,” formalized a policy of “deferred action” with regard to enforcement of the immigration laws against many of the people who would have benefitted from the DREAM Act, which has stalled in Congress again and again. The Executive Branch has acted where the Legislative Branch has been unwilling, or unable, to act.

Let us say at the outset of this article that we applaud the new policy. It is grounded in the same concepts of individual and group fairness and justice that welcomed Bruce’s grandparents to the United States when they fled unbearable conditions in Russia, the Ukraine, and Poland, and that welcomed Maya as a refugee child after the collapse of the Hungarian Revolution. The new policy is the right thing to do, and is way overdue.

The question immediately arose whether the deferred action policy benefits any young people in the CNMI, with no clear consensus. Our initial, reluctant analysis was that few people would meet the residential requirement (which we discuss below). Before the federal takeover of CNMI immigration, less than three years ago, the only aliens residing in the CNMI who were considered to be “inside” the U.S. for immigration purposes were the immediate relatives of U.S. citizens. For the most part, those immediate relatives were not undocumented when they arrived in the CNMI, and were (or became) qualified for green cards. Bruce was interviewed, and said so.

Other attorneys disagreed. So we decided to take another look. In our practice, we try to advise clients as to what the law is, not what it should be, or what it might become. Still, there are some intriguing possibilities.

The deferred action requirements

Keep in mind that deferred action is a form of prosecutorial discretion, a kind of administrative grace. We need to start with the requirements for deferred action, exactly as stated in the Napolitano memo, with our emphasis on the critical provisions:

* came to the United States under the age of 16;
* has continuously resided in the United States for at least five years preceding the date of this memorandum and is present in the United Sates on the date of this memorandum;
* is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States:
* has not been convicted of a felony offense, a significant misdemeanor office, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety; and
* is not above the age of 30.

The full text of Secretary Napolitano’s deferred action memo is available on the dhs.gov website, at http://tinyurl.com/7f3sblp. There is a very good USCIS fact sheet at http://tinyurl.com/7tr2g58.

What do ‘To the United States’ and ‘In the United States’ mean?

If you substitute “CNMI” for “United States” in the first two deferred action criteria, then it is clear that the new policy would benefit a good many young people who may have no other path to a valid immigration status. But can we do that?

A. When was a CNMI resident “in the United States” under the Covenant?

Those of us who practiced immigration law in the CNMI prior to Nov. 28, 2009, had to learn when, and for what purposes, a CNMI person or company could be considered to be “inside” the U.S., despite the fact that the federal courts considered the CNMI to be a U.S. territory. Covenant Section 506, for example, provided that aliens who lived in the CNMI and were the immediate relatives of U.S. citizens also living here (or only absent temporarily, such as members of the armed forces or students) would be considered to be “inside” the U.S. for immigration purposes. That meant that quite a few aliens qualified for, and obtained U.S. permanent residence. By contrast, CNMI businesses were considered “foreign,” and we assisted managers and executives transferred to Guam businesses (which were considered “U.S.” businesses) to obtain green cards on the basis of transfer from a foreign company to a related U.S. company. Permanent residents who lived in the CNMI but were not the immediate relatives of U.S. citizens also living here were in danger of revocation of their green cards; in fact, the Consolidated Natural Resources Act contains a special provision curing any such overstays by permanent residents.

Following these rules, the only CNMI residents who could be considered “inside” the U.S. prior to Nov. 28, 2009, were U.S. citizens and their immediate relatives. If this is the only analysis, then of the young people otherwise qualified for deferred action relief, only the immediate relatives of U.S. citizens can argue plausibly that they “came to the United States” before turning 16 and-because Nov. 28, 2009, is less than three years ago-that they have “resided continuously in the United States” for at least five years preceding June 15, 2012, the date of the Napolitano memo.

B. An unconventional analysis: The 14th Amendment and the Sabangan case

Is the conventional, Covenant-based “inside-outside” analysis the only possibility? Maybe not. As we noted in the quotes at the beginning of this article, Covenant Section 501(a) imports the Fourteenth Amendment, Section 1 of the U.S. Constitution into the governing law of the CNMI, “as if the Northern Mariana Islands were one of the several States.” In Sabangan v. Powell (2004), the Ninth Circuit Court of Appeals held that because the Covenant imported the Fourteen Amendment, Section 1, all children born in the CNMI beginning 11am on Jan. 9, 1978, were U.S. citizens by birth.

Sabangan was about citizenship by birth in the CNMI, not residence, removal or deferred action. But it is interesting to note that the Sabangan court concluded-almost, it seems, assumed-that because Section 1 of the Fourteen Amendment applied to the CNMI as if the CNMI were itself a State, the Sabangan plaintiffs were “born in the United States” and therefore U.S. citizens. As quoted above, the court asked, “[H]ow could the CNMI be treated as a State without being treated as being in the United States? No State governed by the Constitution of the United States exists in a realm outside the realm comprehended by the United States.”

By the same token, we can ask, “why can the CNMI be treated as a State for purposes of birth in the United States, and not for purposes of determining residence in the United States?”

You can read the full text of Sabangan at http://tinyurl.com/82plkd5; it’s less than three pages, in double column format.

The Napolitano memo states its rationale in stirring language:

Our Nation’s immigration laws must be enforced in a strong and sensible manner. They are not designed to be blindly enforced without consideration given to the individual circumstances of each case. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language. Indeed, many of these young people have already contributed to our country in significant ways. Prosecutorial discretion, which is used in so many other areas, is especially justified here.

We couldn’t say it better.

The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.