‘PDO can’t represent indigents in deportation cases’

The Public Defender’s Office has no legal authority to represent indigent persons in deportation cases, according to Superior Court associate judge David A. Wiseman yesterday.

Wiseman ruled that without a clearer mandate, he must conclude that the PDO is not authorized by statute to appear on behalf of respondents in deportation proceedings before Commonwealth courts.

It is evident, the judge pointed out, that PDO is charged with the duties of providing subsidized legal assistance and counseling to those who are in need, but is not permitted to appear in CNMI courts on behalf of anyone except a defendant who is facing criminal charges.

Wiseman discussed the issue in his decision related to the CNMI government’s deportation cases against Rodriguez Suka, Johnny Albert, and James Kintaro.

In the same order, the judge granted the Attorney General’s Office’s motion to quash PDO’s appearance in the deportation cases against Suka, Albert, and Kintaro, who are all citizens of the Federated States of Micronesia.

Wiseman ordered the three respondents to appear in court on Oct. 9, 2008, at 1:30pm to explain why they should not be deported.

The AGO, through assistant attorney general Kathleen Busenkell, had moved to prevent PDO’s appearance and participation as counsel for the three respondents.

The issue was heard before Wiseman on Aug. 28, 2008. Assistant public defender Richard Miller attempted to enter an appearance on behalf of the respondents.

PDO claimed that the AGO lacks standing to pursue its objection of PDO’s entry of appearance. PDO asserted that AGO has no stake or interest in whether or not the PDO helps the defendants.

In his order, Wiseman said that, given the broad constitutional mandate of the AGO to represent the Commonwealth in all legal matters, it is not unreasonable to interpret the AGO’s general mandate as to ensure the law of the Commonwealth is properly implemented.

Wiseman said such an interest in ensuring that the law is followed and that agencies exercise only that power conferred to them by statute or constitutional law is sufficient to establish a stake in the outcome of this case and standing for the AGO.

The AGO maintained that the PDO’s powers are limited to appearing on behalf of criminal defendants, and their services should not extend to respondents in a deportation proceeding.

By contrast, PDO insisted that its statute mandates representation of all indigent persons requiring legal assistance, including respondents who are subjects of deportation proceedings.

But Wiseman said it is beyond dispute that immigration matters, particularly deportation hearings, are civil proceedings.

Citing previous court rulings, Wiseman said PDO does not have the authority to offer legal representation to respondents in deportation proceedings under the statute because deportations are purely civil matters.

Though he acknowledges that the plain language of the statute is broad, Wiseman said it still fails to endow or mandate PDO with powers or responsibilities to appear on behalf of respondents in a deportation proceeding.

He said his construction of the statute does not address the question whether the PDO has the authority to provide a respondent who is the subject of deportation proceedings legal assistance outside of court appearances.

Wiseman said he simply concludes that the PDO is without authority to appear in court on behalf of immigration respondents who are the subject of deportation proceedings.

In this case, Wiseman said, each respondent has been convicted of offenses that make the respondent deportable under CNMI law. Accordingly, the Commonwealth has sought deportation of the respondents.

At any hearing they may have, Wiseman said, the court will have only two issues to determine: whether the respondents are subject to the immigration statutes of the CNMI and whether the respondents have indeed been convicted of the offenses that would make them deportable from the Commonwealth.

“No assistance or presence of counsel will be able to present a viable defense to these grounds for deportation, if such information is properly established at the deportation hearing by the government,” he said.

Should the respondents wish to attack their underlying criminal convictions, Wiseman said, the participation of the PDO will likely be validated.

“However, here, constitutional due process rights will not be implicated even if respondents are not provided counsel at the government’s expense,” he said.