Relief from removal: Outside experts, and a very brief overview

“Removal” is the nice, neutral word currently used instead of the uglier-and more realistic-traditional term “deportation.” With Nov. 28 only two weeks away, the fear of removal is looming larger and larger in many people’s minds. This is especially true after a couple of non-CNMI immigration attorneys, one a recognized immigration expert in California, telecoptered in via various media. Many of the things these attorneys are reported to have said are absolutely correct: every alien in the CNMI who may be facing removal has an absolute right to due process. There are a number of defenses to removal and strategies on when and how to use those defenses. Although there will no mass roundups no matter how many rumors there are to the contrary (and no matter how many misguided statements by misguided local officials), it is certain that there will be a lot of removal cases brought before the Immigration Court, enough to seriously strain the legal resources currently available to the public. And those legal resources are small: few CNMI attorneys handle immigration matters, and fewer still are involved in removal cases.

But some of these experts’ statements betray a lack of familiarity with facts and conditions on the ground here in the CNMI. While CNMI attorneys may not have the same depth of experience in removal proceedings as these outside attorneys, by the same token, neither of these experts has experience with the transition mandated by the Consolidated Natural Resources Act (“CNRA”, aka the “federalization law”) and the way that transition has played out so far, day by day and month by month. Neither expert has spent the past three and a half years meeting with the people most affected by the CNRA, in large groups, as families and as individuals. Neither can be familiar with the former CNMI immigration scheme (and its deportation statute, modeled on U.S. law), and how the CNMI scheme still affects the transition to U.S. immigration law. We understand that the California practitioner expects to visit the CNMI very soon. We hope that he will meet with us; we think the exchange of information and ideas will be mutually beneficial for our clients.

For the rest of today’s column we will very briefly describe some of the most common defenses to removal and the anticipated strains on the local legal system.

Defenses to removal (deportation): A short list 

The most common forms of relief from removal are waivers of inadmissibility, excludability and removability, cancellation of removal, suspension of deportation, adjustment of status, asylum and withholding of deportation, legalization and registry, and voluntary departure. Not all are presently available in the CNMI.

Keep in mind that the statutes, regulations, defenses to removal and the resulting case law fill volumes. Today’s column merely scratches the surface, with the broadest possible descriptions.

1. What relief from removal is not available in the CNMI, or is available to very few? 

-Asylum. The CNRA specifically prohibits asylum claims from being brought in the CNMI until January 2015. The authors of the CNRA instead mandated that the CNMI government’s nonrefoulement refugee process that existed prior to Nov. 28, 2009, should continue until such time as asylum becomes available to persons in the CNMI. Under the CNMI process, individuals could apply for CNMI-only refugee status using United Nations refugee standards, and several CNMI assistant attorneys general were trained in the process, and as hearing officers. “Nonrefoulement” means that although people claiming to be refugees would not receive any permanent form of immigration status, they would be allowed to remain in the CNMI and would not be returned to their countries of origin.

Unfortunately, and notwithstanding the federal mandate that the program continue, the CNMI quietly terminated the program sometime before the 2009 transition date. Applicants for protection against refoulement, whose cases were not yet adjudicated, were left to an uncertain fate. We recently learned that these files are now with USCIS.

-Cancellation of removal. Cancellation of removal comes in two flavors: for lawful permanent residents, or LPRs, and for non-LPRs. We believe that this form of relief, which was highlighted by the outside experts with whom we started this column, will be of limited utility in CNMI removal cases.

(a) For LPRs. An LPR facing removal is eligible for relief from removal if she or she has been an LPR for at least five years, has resided continuously in the U.S. for seven years before removal proceedings are brought, has not been convicted of an aggravated felony, and is not otherwise inadmissible to the U.S. Certain groups are ineligible for this form of relief. There are a number of factors that can favor relief, including family and community ties, hardship, good moral character, and a laundry list of others. Negative factors include bad character, criminal record, immigration violations, and the basis of the government’s case.

(b) For non-LPRs. Non-LPRs must show physical presence in the U.S. for at least 10 years prior to the removal case, good moral character, etc. We are not going to detail the list, because it is our opinion that very few non-LPRs currently in the CNMI can show 10 years in the U.S. Persons in the CNMI have been “in the U.S.” for immigration purposes only since Nov. 28, 2009, with the exceptions set out in Section 506 of the Covenant: U.S. citizens and their immediate relatives, to whom the full INA already applied once the citizenship sections of the Covenant went into effect, on Nov. 4, 1986.

There are individuals in the CNMI-chiefly people who qualified as immediate relatives of U.S. citizens who never became LPRs-who may make a claim to 10 years of continuous residence in the U.S. through the operation of Section 506. We cannot think of any other classes of people to whom this qualification might apply. We did consider the Sabangan decision, which held that notwithstanding the citizenship sections of the Covenant, persons born in the CNMI between Jan. 9, 1978, and Nov. 4, 1986, were declared U.S. citizens by operation of the 14th Amendment of the U.S. Constitution. But Sabangan does not directly deal with the immigration laws of the U.S., and we think it is inapplicable to aid a cancellation of removal defense.

Cancellation of removal for non-LPRs requires a showing of “exceptional and extremely unusual hardship”-a very difficult standard to meet-that removal would create for the applicant’s U.S. citizen spouse, children, or parents.

Suspension of Deportation. A successful suspension of deportation application results in LPR status for the applicant. Because the initial requirement is continuous physical presence in the U.S. for at least seven years, we think its application will be limited to the same possible class of individuals-in terms of duration of presence in the CNMI-as cancellation of removal. The other requirements are good moral character and a showing of “extreme hardship” to the applicant’s U.S. citizen or LPR spouse, children, or parents if the applicant is removed. It is worth noting that cancellation of removal and suspension of deportation can only be granted to 4,000 individuals in any one fiscal year (Oct. 1 to Sept. 30) in the entire United States.

-Registry. Aliens of good character who have resided continuously in the U.S. since before Jan. 1, 1972, who are not otherwise deportable and potentially eligible for citizenship, may be registered as LPRs. We see this as a very limited form of relief because (a) there are very few aliens who have been in the CNMI that long (and remember that most Trust Territory citizens present in the CNMI on Nov. 4, 1986, became U.S. citizens), and (b) those aliens who have been here since before Jan. 1, 1972, who remain aliens, cannot claim to have been “in the U.S.” for the requisite period of time.

2. So what relief from removal is available?

-Adjustment of status. Other than simple dismissal and termination of a removal case, adjustment of status is the best possible result. There may be many grounds of eligibility for adjustment of status. We have had success with this defense, in that a removal case was recently dismissed against a client of ours, after USCIS (in a normal, non-immigration court interview) approved her husband’s I-130 petition for her as his wife. The immigration prosecutor then obtained a dismissal, and our client will soon have a second USCIS interview, to adjudicate her I-485 application to adjust status.

-Withholding of deportation (aka withholding of removal). Withholding of removal is similar to asylum and requires similar grounds (summarized as “a well-founded fear of persecution”) but unlike asylum it is not barred by the CNRA, and we are aware of CNMI cases where it has been successfully argued. Withholding of removal is found in the Immigration & Nationality Act under the heading, “Restriction on Removal to a Country Where Alien’s Life or Freedom Would be Threatened.”

Asylum is preferred over withholding of removal for several reasons: Asylum leads to a grant of LPR status, and withholding of removal does not; a grant of withholding of removal requires a specific order of removal; it only prohibits the government from removing the alien to one particular country. Several groups-generally speaking, past persecutors, serious criminals and security risks-are barred from obtaining withholding of removal.

-Waivers of excludability and deportability. Many grounds of inadmissibility or deportability, which are the bases for removal cases, can be overcome by an appropriate waiver application. We have had successful waiver applications within the context of USCIS applications, and all we will say here is that they are a technical area of law requiring a lot of work from both attorneys and clients.

-Voluntary departure. Voluntary departure is only available to individuals who can show good moral character, are not deportable for “aggravated” reasons, and who agree to pay for their own tickets. This is a last-resort relief, but the removal respondent must determine that it is the only way, early in the process. If you have no defense to removal, and the immigration judge asks whether you will buy your own ticket or you want to government to pay your airfare, you are being given the choice between voluntary departure and removal. The upside? Voluntary departure is not removal, and the voluntarily departed are usually not barred from re-entering the U.S., assuming they can show they are admissible upon later application for admission. The downside? The voluntarily departed are gone.

Scarce legal resources

The outside experts’ message, as reported in the media, is that aliens who may face removal proceedings should fight rather than just go home. That’s a decision each affected alien must make for himself or herself, and only after getting good advice about his or her particular case.

Which brings us to another serious problem. As the California expert rightly pointed out, without some kind of funding, a lot of the removal defense work is going to take pro bono work-pro bono publico means “for the public good”-because of the scant economic resources of the people most likely subject to removal proceedings.

As noted above, there are relatively few members of the CNMI Bar Association who handle immigration matters, and fewer handling removal cases. Micronesian Legal Services has been doing commendable work in this area, but the MLSC attorneys are stretched, and cannot ignore the other kinds of cases they are mandated to take. Maya has established an Immigration Section of the CNMI Bar, but the membership of the section is still small. To make matters worse, although the private attorneys in the CNMI Bar are only between 17-18 percent of the entire CNMI Bar membership, they are required to take 100 percent of the Superior Court’s appointed cases in criminal and some domestic matters. The burden on private attorneys has been heavy-Bruce once had a criminal case that required nearly 200 hours of his time, just for one example; the Bar and the Courts have spent years working on solutions, but nothing has yet been finalized.

What does that mean? It means that if there is a serious increase in removal cases, it may be hard for people to find legal representation. Respondents in removal cases are entitled to be represented by attorneys of their own choice-and but at their own expense. Because removal cases are not considered “criminal,” despite the harshness of the result, there is no constitutional right to appointed counsel.

The bottom line

We don’t think there will be any form of roundup, or massive institution of removal cases. Nor will USCIS send notices to appear to everyone who has been denied parole in place (a particularly vicious rumor that is apparently making the rounds). There is no “master list” of people deemed removable on Nov. 28. As a result of the recent “Morton memo,” Department of Homeland Security has directed that ICE-Immigration and Customs Enforcement-concentrate on serious criminals and threats to national security first before proceeding to removal cases for ordinary citizens.

That doesn’t mean that ordinary, law-abiding but removable individuals won’t come to the attention of ICE. A professor Bruce studied under, in the late, lamented Graduate School of Criminology at Berkeley, once likened criminal activity to a radio. The louder it is, the more people hear and pay attention to it. That works for removal, even if removability is not a form of crime. So if you think you might be removable, don’t draw attention to yourself. Stay under the radar, and be sure to fix those broken taillights before you go out at night.

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 HYPERLINK “mailto:editor@saipantribune.com.” editor@saipantribune.com.