Federal court temporarily stops deportation of habitual offender

The federal court has temporarily stopped the deportation of a citizen of the Federated States of Micronesia who is a habitual offender after the petitioner filed a court action.

U.S. District Court for the NMI designated judge David A. Wiseman on Tuesday ordered that Mariano Angkel Shiano’s removal from the CNMI be stayed pending further court order.

Wiseman issued the order after Stephen C. Woodruff, counsel for Shiano, filed a petition for writ of habeas corpus in connection with his detention pending removal.

Shiano is currently in immigration detention at the Department of Corrections under authority of the U.S. Department of Homeland Security, Immigration and Customs Enforcement.

Shiano was scheduled to depart on July 5, 2011, at 9pm.

In issuing an order for temporary stay of removal, Wiseman said the court needs more time to consider Shiano’s application for the writ.

According to Woodruff, Shiano, an FSM citizen residing on Saipan, is married to a Japanese national. The two have a 14-year-old U.S. citizen son who was born on Saipan.

Between Dec. 2, 1997, and Aug. 30, 2007, Shiano was convicted of seven misdemeanors in the Superior Court.

Woodruff said Shiano has no criminal history subsequent to the May 8, 2008, enactment of the Consolidated Natural Resources Act (federalization law) or the Nov. 28, 2009, extension of the territorial reach of the INA to include the CNMI.

Shiano was placed on deportation proceedings by DHS on Feb. 15, 2010. On May 31, 2011, an immigration judge ordered that Shiano be deported.

The immigration judge later denied Shiano’s motion to stop his deportation.

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

“The status of nationals of Freely Associated States in the United States is most appropriately characterized as a sort of de jure nonimmigrant second class lawful permanent resident,” Woodruff said.

Shiano’s situation, he said, is precisely the kind of case that “screams for an exercise of discretion,” yet DHS and the immigration judge refused to even engage in an exercise of discretion.

“Legally erroneous failure to exercise discretion is open to inquiry by writ of habeas corpus notwithstanding the fact that the actual granting of relief is not a matter or right under any circumstances, but rather is in all cases a matter of grace,” the lawyer said.

Woodruff said throughout Shiano’s deportation proceedings, DHS has been holding his passport.

“Inspection of petitioner’s passport would reveal that he was admitted to the United States as recently as 2004,” he added.