U.S. Department of the Interior Office of Insular Affairs
STATEMENT
Statement
of
David B. Cohen
Deputy Assistant Secretary of the Interior
for Insular Affairs
Before the
Senate Committee on Energy
and Natural Resources
Regarding
S. 1634,
The Northern Mariana Islands
Covenant Implementation
Act
July 19, 2007
Mr. Chairman and members of the Committee, thank you for the opportunity to
testify on S. 1634, the Northern Mariana Islands Covenant Implementation Act. I
come before you today wearing at least two hats: As Deputy Assistant
Secretary of the Interior for Insular Affairs, I am the Federal official that
is responsible for generally administering, on behalf of the Secretary of the
Interior, the Federal Government’s relationship with the Commonwealth
of the Northern Mariana Islands (CNMI). I also serve as the President’s
Special Representative for consultations with the CNMI on any matter of mutual
concern, pursuant to Section 902 of the U.S.-CNMI Covenant. In fact,
I was in Saipan in March for Section 902 consultations with CNMI Governor Fitial
and his team. I was also in Saipan in June with Secretary Kempthorne
as part of his visit to U.S.-affiliated Pacific island communities.
Under the Covenant through which the CNMI joined the U.S. in 1976, the CNMI
was exempted from most provisions of U.S. immigration laws and allowed to control
its own immigration. However, section 503 of the Covenant to Establish
a Commonwealth of the Northern Mariana Islands in Political Union with the
United States of America (P.L. 94-241) explicitly provides that Congress has
the authority to make immigration and naturalization laws applicable to the
CNMI. Through the bill that we are discussing today, Congress is proposing
to take this legislative step to bring the immigration system of the CNMI under
Federal administration. We believe that any federalization of the CNMI’s
immigration system must be flexible because of the CNMI’s unique history,
culture, status, demographic situation, location, and, perhaps most importantly,
fragile economic and fiscal condition. Additionally, we would need appropriate
time to address a range of implementation issues as there are a number of Federal
agencies that would be involved with federalization. In testimony before
this Committee earlier this year, I offered, on behalf of the Administration,
five principles that we believe should guide the development of any federalization
legislation.
In previous testimony before this Committee and others, I have described at
length the impressive amount of progress that the CNMI has made to improve
working conditions there since the 1990s. As I have said repeatedly,
the CNMI should be congratulated for this progress. We do not believe
that the CNMI gets the credit that it deserves for the progress that it has
made. However, serious problems continue to plague the CNMI’s administration
of its immigration system, and we remain concerned that the CNMI’s rapidly
deteriorating fiscal situation may make it even more difficult for the CNMI
government to devote the resources necessary to effectively administer its
immigration system and to properly investigate and prosecute labor abuse. I
will begin my statement with an overview of concerns that make a compelling
case for federalization.
Need for an Effective Screening Process
The CNMI is hampered by the lack of an effective pre-screening process for
aliens wishing to enter the Commonwealth. Under the Immigration
and Nationality Act (INA), before traveling to the continental United States,
aliens must obtain a visa from a U.S. consular officer abroad unless they are
eligible under the Visa Waiver Program or other legal authority for admission
without a visa. Carriers are subject to substantial fines if they board
passengers bound for these parts of the United States who lack visas or other
proper documentation. All visa applicants are checked against the Department
of State’s name-checking system, the Consular Lookout and Support System
(CLASS). With limited exceptions, all applicants are interviewed and
subjected to fingerprint checks. After obtaining a visa, an alien
seeking entry to these parts of the United States must then apply for admission
to an immigration officer at a U.S. port of entry. The immigration officer
is responsible for determining whether the alien is admissible, and in order
to do so, the officer is supposed to consult appropriate databases to identify
individuals who, among other things, have criminal records or may be a danger
to the security of the United States. The CNMI does not issue visas,
conduct interviews or check finger prints for those wishing to travel to the
CNMI, nor does the CNMI have an equivalent to CLASS. Furthermore, CNMI
immigration inspectors determine admissibility under CNMI law rather than federal
law. The CNMI does have its own sophisticated computerized system for
keeping track of aliens who enter and leave the Commonwealth. A record
of all persons entering the CNMI is made with the Commonwealth’s Labor & Immigration
Identification and Documentation System, which is state-of-the-art. However,
that is not a substitute for comprehensive pre-screening by Federal government
authorities. In a post-9/11 environment, and given the CNMI’s location
and the number of aliens that travel there, we believe that continued local
control of the CNMI’s immigration system presents significant national
security and homeland security concerns.
Human Trafficking
While we congratulate the CNMI for its recent successful prosecution of a
case in which foreign women were pressured into prostitution, human trafficking
remains far more prevalent in the CNMI than it is in the rest of the U.S. During
the twelve-month period ending on April 30, 2007, 36 female victims of human
trafficking were admitted to or otherwise served by Guma’ Esperansa,
a women’s shelter operated by a Catholic nonprofit organization. All
of these victims were in the sex trade. Secretary Kempthorne personally
visited the shelter and met with a number of women from the Philippines who
were underage when they were trafficked into the CNMI for the sex industry. As
you can imagine, he found their stories heartbreaking. The State Department
estimates that a total of between 14,500 and 17,500 victims are trafficked
into the U.S. each year from many places in the world. This estimate
includes not only women in the sex trade, but men, women and children trafficked
for all purposes, including labor. Assuming a CNMI population of roughly
70,000 and a U.S. population of roughly 300 million, the numbers above suggest
that human trafficking is between 8.8 and 10.6 times more prevalent in the
CNMI than it is in the U.S. as a whole. This is a conservative calculation
that most likely makes the CNMI look better than it actually is: The
number of victims counted for the CNMI includes only actual female victims
in the sex trade who were served by Guma’ Esperansa. This is being
compared with a U.S. estimate of human trafficking victims of both genders
that is not limited to the sex trade. In an apples-to-apples comparison,
the CNMI’s report card would be worse. We note that most of the
victims that have been served by Guma’ Esperansa were referred by the
CNMI government (as a result of referrals from the Federal Ombudsman to local
authorities). However, it is clear that local control over CNMI immigration
has resulted in a human trafficking problem that is proportionally much greater
than the problem in the rest of the U.S.
A number of foreign nationals have come to the Federal Ombudsman’s office
complaining that they were promised a job in the CNMI after paying a recruiter
thousands of dollars to come there, only to find, upon arrival in the CNMI,
that there was no job. Secretary Kempthorne met personally with a young
lady from China who was the victim of such a scam and who was pressured to
become a prostitute; she was able to report her situation and obtain help in
the Federal Ombudsman’s office. We believe that steps need to be
taken to protect women from such terrible predicaments.
We are also concerned about recent attempts to smuggle foreign nationals,
in particular Chinese nationals, from the CNMI into Guam by boat. A woman
was recently sentenced to five years in prison for attempting to smuggle over
30 Chinese nationals from the CNMI into Guam. With the planned military
buildup in Guam, the potential for smuggling aliens from the CNMI into Guam
by boat is a cause for concern.
Refugee Protection
We have very serious concerns about the CNMI government’s administration
of its refugee protection system, which was established pursuant to a Memorandum
of Agreement signed by former Governor Juan Babauta and me in 2003 with the
financial support of the Office of Insular Affairs. Establishing a refugee
protection system in the CNMI was important to the U.S. because of our concerns
regarding U.S. compliance with international treaties to which the U.S. is
a party, including the 1967 United Nations Protocol Relating to the Status
of Refugees and the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. Even though the CNMI for the most
part is not included in the Immigration and Nationality Act, the U.S. is obligated
to ensure that aliens in the CNMI are not returned to their home countries
if there is a sufficient risk under the Convention Against Torture or the Refugee
Protocol that they will be tortured or persecuted there.
Under the Memorandum of Agreement, the CNMI has established its own refugee
protection system with the assistance of U.S. Citizenship and Immigration Services
(USCIS) acting as “Protection Consultant.” In this role,
USCIS assisted the Commonwealth in drafting regulations and forms, trained
all staff for the program, provided quality assurance review prior to a decision
on all cases, and performed background checks on all applicants. The
two-year performance period during which the duties of the Protection Consultant
were enumerated in the Memorandum of Agreement terminated in September 2006. USCIS
and the CNMI have yet to enter into a subsequent instrument to delineate the
assistance that USCIS has offered to provide to the CNMI, because of lack of
response by the CNMI to USCIS’s requests for cooperation.
Most recently, the Chief of the Asylum Division, U.S. Citizenship and Immigration
Services, Department of Homeland Security, inquired about a group of cases
which were of concern to the U.S. Government due to evidence of efforts by
a foreign government to improperly interfere in those cases.
Astonishingly, the CNMI Attorney General refused requested information and
accused the Department of Homeland Security and the Department of State of
attempting to “unbalance the scales of justice” by inquiring about
these cases and by expressing concerns about evidence of foreign attempts at
interference.
The CNMI Attorney General’s failure to distinguish between possible
foreign attempts to improperly influence a refugee protection proceeding within
the U.S. and attempts by the relevant U.S. agencies to monitor and protect
the integrity of a refugee protection program which impacts U.S. compliance
with its international obligations raises serious doubts about the CNMI’s
capacity to adequately carry out the refugee protection program. It is
particularly troubling that such a posture is being taken by the CNMI Attorney
General, the official who ultimately supervises the refugee protection hearing
officers and to whom refugee protection decisions are appealed. With
this uncooperative stance from the CNMI, there is no way for the Federal Government
to address its very serious concerns and confirm that the U.S. remains in compliance
with important international treaty obligations. The concerns that we
have about the CNMI Attorney General’s letter are very serious and would
not be mitigated if the CNMI were to issue decisions in the pending cases that
the U.S. Department of Homeland Security found to be appropriate given the
facts and applicable law.
The circumstances described above present the Federal Government with a dilemma: If
the Federal Government cannot verify that the CNMI is administering its refugee
protection program in a manner that accords with U.S. compliance with international
treaty obligations, then extending the protections available under U.S. immigration
law to cover aliens in the CNMI may be the only way to ensure that compliance. However,
making aliens in the CNMI eligible to apply for protection in the U.S. is a
potentially serious problem if the CNMI maintains control over its immigration
system and continues to determine which aliens, and how many, are able to enter
the CNMI. Under that scenario, the U.S. could be required to provide
refugee protection to aliens who have been admitted to the CNMI through a process
controlled not by the Federal Government, but by the CNMI. The U.S. would
be subjecting itself to potential costs and other consequences for decisions
made by the CNMI. This is a strong argument in favor of Congress
taking legislative action, as contemplated under Section 503 of the Covenant
(P.L. 94-241), to take control of the CNMI’s immigration system.
Recommended Changes to this Bill
The above are some of the factors that have led us to conclude that the CNMI’s
immigration system must be federalized as soon as possible. We believe
that S. 1634 is generally sound legislation that embodies the concept of “Flexible
Federalization”—that is, federalization of the CNMI’s immigration
system in a manner designed to minimize damage to the CNMI’s fragile
economy and maximize the potential for economic growth. We also believe
that S. 1634 reflects the principles previously spelled out by the Administration
as those that should guide the federalization of the CNMI’s immigration
system. Therefore, the Administration supports the Northern Marianas
Covenant Implementation Act, subject to the following:
- Long-term
Status to Temporary Workers. At this time, the Administration
is evaluating the specific provisions granting long-term status to temporary
workers in the CNMI in light of the Administration’s immigration
policies. We look forward to working with Congress on this important
issue.
- Protection from Persecution and Torture. Consistent with the
general transfer of immigration to Federal control on the transition period
effective date, the bill should clarify that U.S. protection law, including
withholding of removal on the basis of persecution or torture, would apply
and be administered by Federal authorities beginning on the transition period
effective date. However, given the uncertainties inherent in changing
the CNMI immigration regimen, we recommend that extension of the affirmative
asylum process under section 208 of the INA to the CNMI be delayed until
the end of the transition period. We would also recommend a provision
requiring the CNMI to maintain an effective protection program between date
of enactment and the transition period effective date.
- Authority of the Secretary of Homeland Security. In general, it
is important that the Secretary of Homeland Security have sufficient authority
and resources to effectively administer the new responsibilities that would
be undertaken under the bill. Improvements to the bill in this regard
would include ensuring that the Secretary has full authority in his discretion
to designate countries for the new CNMI visa waiver program (giving due consideration
to all current CNMI tourist source countries); and providing the necessary
fiscal and operational authority to conduct all necessary activities in the
CNMI.
- Visa Waiver. As noted above, it is essential that the
Secretary of Homeland Security, in consultation with the Secretary of State,
have full authority to make visa waiver decisions in the national interest
We would also recommend consideration of authorizing integration of the proposed
CNMI visa waiver with the Guam visa waiver program as a possible means of
increasing the value of these programs to those jurisdictions, such as, for
example, allowing visitors qualifying for both programs a combined 30 days,
with a maximum stay of 21 days in either territory.
- Employment-Based Visas. The bill would authorize the Secretary
of Homeland Security to establish a specific number of employment-based visas
that will not count against the numerical limitations under the Permanent
Alien Labor Certification (PERM) program, if the Secretary of Labor, after
consultation with the Governor of the Commonwealth and the Secretary of Homeland
Security, finds exceptional circumstances with respect to the inability of
employers to obtain sufficient work-authorized labor. We would recommend
that this provision be removed from the bill as unnecessary because the CNMI
will have an uncapped temporary worker program in the 10-year transition
period.
- Conforming and Technical Amendments. We would like to work
with Congress on a number of other conforming, technical and other amendments
necessary to fully effectuate the transfer of responsibilities and effectively
administer and integrate the CNMI-specific programs with the INA. For
example, the CNMI should be added to the definitions of “State” and “United
States” in section 101 of the INA.
Conclusion
We point out, however, that one of this Administration’s principles
for considering immigration legislation for the CNMI is that such legislation
should be carefully analyzed for its likely impact in the CNMI before
we implement it. We have also urged that such analysis occur expeditiously:
the need to study must not be used as an excuse to delay. We understand
that the Senate has requested an analysis of the provisions of S. 1634. We
applaud the Senate for taking this step, and urge Congress to carefully consider
the results of this analysis in the continued development of this legislation.
It is important to remember that S. 1634 deals with a unique situation, and
hence does not establish any precedents that are relevant to the discussion
of national immigration reform. S. 1634 is designed to bring under the
ambit of Federal immigration law a territory that generally was not previously
subject to Federal immigration law. Accomplishing this transition without
causing severe economic disruption requires special transitional provisions
that take into account the reality that CNMI society has been shaped by immigration
policies that vary significantly from Federal immigration policy. Because
CNMI society has evolved in a unique manner under unique circumstances, it
would not be prudent to apply immigration policy designed for the 50 states
to the CNMI in a blanket fashion with no transition mechanisms. The special
transitional provisions contained in this bill are designed to move CNMI society
from one set of governing principles to another in a manner that minimizes
harm to CNMI residents.
Finally, Mr. Chairman, we again point out that the people of the CNMI must
participate fully in decisions that will affect their future. As I have
said in the past, a better future for the people of the CNMI cannot be imposed
unilaterally from Washington, D.C., ignoring the insights, wisdom and aspirations
of those to whom this future belongs. Although the Administration supports
S. 1634, subject to the suggestions outlined above, we are concerned about
the message that would be sent if Congress were to pass this legislation while
the CNMI remains the only U.S. territory or commonwealth without a delegate
in Congress. At a time when young men and women from the CNMI are sacrificing
their lives in Iraq in proportions that far exceed the national average, we
hope that Congress will consider granting them a seat at the table at which
their fate will be decided.
Thank you.
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