liqiang gu petitioner eric h. holder, jr., attorney ... · appeals (bia) had jurisdiction of...

C.A. No. 13-72936

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIQIANG GU

Petitioner

v.

ERIC H. HOLDER, Jr., Attorney General

Respondent

ON PETITION FOR REVIEW OF A DECISION AND ORDER

OF THE

BOARD OF IMMIGRATION APPEALS

Agency No. A087-957-069

PETITIONER’S OPENING BRIEF

Stephen C. Woodruff

Counsel to Petitioner

P. O. Box 500770

Saipan, MP 96950

Tel.: +1 (670) 989-2797

Fax: +1 (808) 356-1349

Email: [email protected]

____________________________________________________________

RESTRICTED Case: 13-72936, 12/30/2014, ID: 9364877, DktEntry: 14-2, of 83

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................... iii

STATEMENT OF JURISDICTION ............................................................ 1

Jurisdiction of the Agency .................................................................. 1

Jurisdiction of the Court ..................................................................... 1

Timeliness of Petition ......................................................................... 2

DETENTION STATUS ................................................................................ 2

STATEMENT OF THE ISSUES ................................................................. 2

STATEMENT OF THE CASE .................................................................... 6

Nature of the Case .............................................................................. 6

Course of Proceedings and Disposition Below .................................. 6

STATEMENT OF FACTS ......................................................................... 11

SUMMARY OF ARGUMENT .................................................................. 18

ARGUMENT .............................................................................................. 20

I. REMOVABLITY WAS ERRONEOUSLY SUSTAINED BASED

UPON AN ERRONEOUS ASSIGNMENT OF THE BURDEN OF

PROOF TO PETITIONER .............................................................................. 21

A. The Immigration Judge erroneously assigned the burden

of proof to Petitioner Gu ....................................................................... 21

II. PETITIONER’S MEMBERSHIP IN THE CLASS DESCRIBED IN

48 U.S.C. § 1806(E)(1)(A) BARS HIS REMOVAL ......................................... 24

A. Petitioner Wu was a member of the 48 U.S.C. § 1806(e)(1)(A) class

when served with the NTA and when he was ordered removed by

the Immigration Judge .......................................................................... 25


ii

B. DHS cannot properly circumvent the Congressional prohibition of

removal through the artifice of an 8 U.S.C. § 1182(a)(7)(A)(i)(I)

charge. ..................................................................................................... 26

C. Use of 8 U.S.C. § 1182(a)(7)(A)(i)(I) to remove Petitioner

flies in the face of Congressional purpose and intent ......................... 27

D. Mr. Gu is entitled to special transitional relief under the CNRA

and USCIS policy ................................................................................... 31

III. EXCLUSION OF ALIENS IN THE CNMI FROM ELIGIBILITY

FOR ASYLUM VIOLATES THE FIFTH AMENDMENT ......................... 32

IV. PETITIONER’S TESTIMONY AND EVIDENCE WAS SUFFICIENT

TO ESTABLISH ENTITLEMENT TO WITHHOLDING OF REMOVAL,

AND, IN ANY EVENT, THE BIA FAILED TO CONDUCT A

MEANINGFUL REVIEW OF PETITIONER’S TESTIMONY

AND EVIDENCE AND PROVIDE A REASONED DECISION ................. 35

V. EXERCISE OF PAROLE AUTHORITY BY IMMIGRATION JUDGES

AND THE BOARD OF IMMIGRATION APPEALS IS NECESSARY

TO ACCOMPLISHMENT OF THE TRANSITION TO FEDERAL

IMMIGRATION CONTROL IN THE CNMI CONSISTENT WITH

EXPRESSLY STATED CONGRESSIONAL MANDATES ........................ 37

A. Petitioner Gu is entitled to special transitional relief under

the CNRA and USCIS policy ................................................................ 40

B. No legal bar has been identified to the exercise of parole authority

necessary to an effective transition as part of the administrative

review process ......................................................................................... 40

VI. THE BIA’s SUMMARY DISPOSITION OF PETITIONER GU’s

APPEAL VIOLATED DUE PROCESS AND CANNOT STAND ............... 41

CONCLUSION ........................................................................................... 42

STATEMENT OF RELATED CASES ...................................................... 44


iii

TABLE OF AUTHORITIES

Page(s)

U.S SUPREME COURT CASES

Adarand Const. v. Pena,

515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995) ..................................... 34

Bolling v. Sharpe, 347 U.S. 497 (1954) ........................................................................... 34

Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L. Ed. 2d 478 (1976) ......................... 34

Skidmore v. Swift & Co., 323 U.S. 134 (1944) .................................................................. 6

United States v. Windsor,

133 S. Ct. 2675,186 L. Ed. 2d 808, 81 USLW 4633 (2013) .................................. 34

Wong Wing v. United States,

163 U.S. 228, 16 S. Ct. 977, 41 L. Ed. 140 (1896) ................................................ 34

Wong Yang Sung v. McGrath,

339 U.S. 33, 70 S. Ct. 445, 94 L .Ed. 616 (1950) .................................................. 34

OTHER FEDERAL COURT CASES

Chen v. Ashcroft, 378 F.3d 1081 (9th Cir. 2004) ............................................................. 41

Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y. 1973) ................................................... 38

Eche v. Holder, 694 F.3d 1026 (9th Cir. 2012) ............................................................... 27

Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006) ......................................... 41

Gu v. Ashcroft, 36 F.3d 1194 (9th Cir. 2004) .................................................................. 35

Gu v. Gonzalez, 454 F.3d 1014 (9th Cir. 2006) ............................................................... 35

Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004) ............................................................. 41

Lei v. Holder, 629 F.3d 1154 (9th Cir. 2011) .................................................................. 35

Lezama-Garcia v. Holder, 666 F.3d 518 (9th Cir. 2011) .................................................. 5


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Page(s)

Montes-Lopez v. Gonzales, 486 F.3d 1163 (9th Cir. 2007) ............................................. 41

Northern Mariana Islands v. United States (I),

670 F.Supp.2d 65 (D.D.C. 2009) ................................................................................ 28

Northern Mariana Islands v. United States (II),

686 F.Supp.2d 7 (D.D.C. 2009) ............................................................................ 29, 30

Ortega-Cervantes v. Gonzales, 501 F.3d 1111 (9th

Cir. 2007) ........................................ 38

CNMI COURT CASES

Office of the Attorney General v. Rivera, 3 N.M.I. 436, 445-46 (1993) ........................... 25

AGENCY CASES

Matter of Castellon, 17 I. & N. Dec. 616 (BIA 1981) ..................................................... 38

Matter of Conceiro, 14 I&N Dec. 278 (BIA 1973) ......................................................... 38

Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010) .......................................... 38

Matter of Lepofsky, 14 I. & N. Dec. 718 (BIA 1974) ...................................................... 38

Matter of Matelot, 18 I. & N. Dec. 334 (BIA 1982) ........................................................ 38

Matter of Niayesh, 17 I. & N. Dec. 231 (BIA 1980) ....................................................... 38

Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) ........................................................ 22

U.S. CONSTITUTION

Fifth Amendment ............................................................................................................. 33

U.S. STATUTES AND PUBLIC LAWS

8 U.S.C. § 1101(a)(15) ..................................................................................................... 26

8 U.S.C. § 1101(a)(38) ................................................................................................. 4, 32


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Page(s)

8 U.S.C. § 1182(a)(6)(A)(i) ..................................................................................... passim

8 U.S.C. § 1182(a)(7)(A)(i)(I) ................................................................................. passim

8 U.S.C. § 1182(d)(3) ...................................................................................................... 39

8 U.S.C. § 1182(d)(5) .............................................................................................. passim

8 U.S.C. § 1225 ............................................................................................................ 3, 32

8 U.S.C. § 1226 ................................................................................................................ 38

8 U.S.C. § 1227 ................................................................................................................ 22

8 U.S.C. § 1229a ...................................................................................................... passim

8 U.S.C. § 1252 .................................................................................................................. 1

28 U.S.C. § 1294 ................................................................................................................ 1

28 U.S.C. § 2342 ................................................................................................................ 1

48 U.S.C. § 1806 ...................................................................................................... passim

48 U.S.C. § 1821 ................................................................................................................ 1

Consolidated Natural Resources Act of 2008 (CNRA),

Pub. L. 110-229, 122 Stat. 754 ........................................................................... passim

Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 (2002) ...................... 38

U.S. RULES

76 Fed. Reg. 55502 .......................................................................................................... 29

8 C.F.R. § 214.2(w) ......................................................................................................... 29

8 C.F.R. § 212.5 ............................................................................................................... 39

8 C.F.R. § 214.4 ............................................................................................................... 39

8 C.F.R. § 1003.1 ......................................................................................................... 1, 11


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Page(s)

LEGISLATIVE HISTORY

S. Rep. 110-324, 2008 WL 1740677 ......................................................................... 30, 33

H. Rep. 110-469, 2007 WL 4291940 ............................................................................... 30

S. 744, 113th

Cong., 1st Sess. ............................................................................................ 30

OFFICIAL REPORTS

1997 U.S. Commission on Immigration Reform Report, 2008 WL 1740677 ................. 33


STATEMENT OF JURISDICTION

Jurisdiction of the Agency. The immigration judge had jurisdiction to

determine removability of Petitioner pursuant to 8 U.S.C. § 1229a(a)(1)

(“An immigration judge shall conduct proceedings for deciding the

inadmissibility or deportability of an alien.”). The Board of Immigration

Appeals (BIA) had jurisdiction of Petitioner’s appeal from the order of the

Immigration Judge pursuant to 8 C.F.R. § 1003.1(b)(3) (“Appeals may be

filed with the Board of Immigration Appeals from . . . [d]ecisions of

Immigration Judges in removal proceedings[.]”).

Jurisdiction of this Court. This Court has jurisdiction in this matter

pursuant to 8 U.S.C. § 1252(a) (“Judicial review of a final order of removal

. . . is governed only by chapter 158 of Title 28[.]”) and 28 U.S.C. § 2342 (a

section of chapter 158 of Title 28, granting the courts of appeal jurisdiction

to review administrative orders). Venue is proper in this Circuit pursuant to

8 U.S.C. § 1252(b)(2) (“The petition for review shall be filed with the court

of appeals for the judicial circuit in which the immigration judge completed

the proceedings.”); 48 U.S.C. § 1821(a) (placing the Northern Mariana

Islands in the same judicial circuit as Guam); and 28 U.S.C. § 1294 (placing

Guam in the Ninth Circuit).


2

Timeliness of Petition. The Petition for Judicial Review was filed on

August 21, 2013, within 30 days of the July 22, 2013, final order of removal,

see Certified Administrative Record (“CAR”) at 3 (Dkt# 3), and thus was

timely pursuant to 8 U.S.C. § 1252(b)(1).

DETENTION STATUS

Petitioner is NOT DETAINED. Petitioner has NOT moved the Board

of Immigration Appeals to reopen or applied to the district director for an

adjustment of status.

STATEMENT OF ISSUES

This case presents several issues not previously decided by the Court

of Appeals in the context of the extension of the territorial application of

U.S. immigration law to the Commonwealth of the Northern Mariana

Islands (“CNMI”) and the administration and enforcement of that law by the

United States during the transition period prescribed by 48 U.S.C. §

1806(a)(1)-(3). It also presents questions of general applicability pertaining

to the proper construction, interpretation, and application of specific

provisions of the Immigration and Nationality Act (“INA”), under

conditions that may be unique to the CNMI at the present time, and general

principles of due process of law and fidelity to circuit precedent.


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The Issues:

I.

Whether the Immigration Judge erred in denying Petitioner’s

motion to terminate on grounds that he was “not in possession of an

umbrella permit,” notwithstanding that 48 U.S.C. § 1806(e)(1)(A)

requires only a foundation of lawful status under CNMI law, of which

an “umbrella permit” is sufficient but not necessary evidence, and

Petitioner’s evidence of lawful status under the immigration laws of

the Commonwealth prior to the November 28, 2009 transition

program effective date was unrebutted by the Department of

Homeland Security.

II.

Whether the Immigration judge erred in finding Petitioner

removable on 8 U.S.C. § 1182(a)(7)(A)(i)(I) grounds as an

“immigrant” without prescribed entry documents at the time of

application for admission without an express finding that Petitioner

had an intent to immigrate at the time he presented himself to an

immigration officer at the border and notwithstanding his membership

in the 48 U.S.C. § 1806(e)(1)(A) class (or a finding, after notice and

opportunity to be heard, that he is not a member of that class).


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III.

Whether Petitioner’s due process rights were violated by being

deemed statutorily ineligible for asylum based on 48 U.S.C. §

1806(a)(7) or 8 U.S.C. § 1225(b)(1)(G), given that of all aliens in the

United States as defined by 8 U.S.C. § 1101(a)(38) only aliens present

in the CNMI are denied eligibility for asylum and this exclusion is not

narrowly tailored to serve a legitimate and compelling governmental

interest; indeed, the United States has never even clearly articulated

any interest served by the exclusion of aliens present in the CNMI

from eligibility for asylum.

IV.

Whether the BIA erred by failing to conduct an independent

review of the record assessing Petitioner’s fear of persecution as a

Christian (and denial of freedom of conscience) if returned to China,

and to provide to Petitioner with a reasoned explanation supporting its

conclusion, implicit in its order, that the Immigration Judge reached

the right result.


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V.

Whether the Immigration Judge erred in concluding that she

lacked jurisdiction to grant Petitioner relief in the form of parole-in-

place pursuant to 8 U.S.C. § 1182(d)(5).

VI.

Whether the BIA erred and violated Petitioner’s due process

rights by deciding his case by a single Board member despite

substantial factual and legal questions, a complex factual scenario,

and operative facts and legal issues potentially applicable to numerous

other aliens given the unique and special circumstances of the

transition to Federal immigration control in the CNMI.

Standard of Review:

The issues presented are questions of law, principally of statutory

construction. Questions of law are reviewed de novo, “except to the extent

that deference is owed to [the BIA’s] interpretation of the governing statutes

and regulations.” Lezama-Garcia v. Holder, 666 F.3d 518, 524 (9th Cir.

2011). “Where—as here—a BIA decision interpreting a statute is

unpublished and issued by a single member of the BIA, it does not carry the

force of law, and is accorded only Skidmore deference proportional to its

thoroughness, reasoning, consistency, and ability to persuade.” Id. at 524-25


6

(citation and internal punctuation omitted) (citing Skidmore v. Swift & Co.,

323 U.S. 134 (1944)). Where the decision is “conclusory and lacks any

meaningful analysis,” it is therefore afforded no deference at all. Id. at 532

n. 14.

STATEMENT OF THE CASE

Nature of the Case. This is a petition for review of an administrative

order finding Petitioner Gu removable from the United States – specifically,

from the Commonwealth of the Northern Mariana Islands – to his home

country of the People’s Republic of China and denying him relief in the

form of 8 U.S.C. § 1182(d)(5) parole as the parent of a U.S. citizen child

resident in the CNMI or withholding of removal based on his fear of

persecution and anticipated denial of religious liberty in China on account of

his Christian faith.

Course of Proceedings and Disposition Below. Mr. Gu was served

with a boilerplate Notice to Appear (NTA) on or about September 23, 2010,

charging him with being removable from the United States based on

Sections 212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I) of the Immigration and

Nationality Act (INA) (8 U.S.C. §§ 1182(a)(6)(A)(i) and

1182(a)(7)(A)(i)(I)). See CAR 369-71.


7

On January 26, 2011, DHS filed evidence consisting of a Form I-213

and a partial copy of Petitioner’s passport. CAR 346-50. The partial copy

of Petitioner’s passport contains a clearly-stamped “ADMITTED” cachet (in

Class “CP”) on February 9, 2010. Id. at 350. At the first master calendar

hearing of the case, on January 26, 2011, the Immigration Judge treated this

fact as effectively immaterial, relying on nothing more than the

representations of DHS counsel.1 CAR 62-63. The I-213 falsely states that

Petitioner entered the United States at an unknown time and place, while

simultaneously containing a cryptic “SAI; Parolee” reference.2 Id. at 347.

The I-213 further states that Petitioner was “referred to ICE as a alien

present in the CNMI without status by the CNMI Attorney General’s Office”

but articulates no factual basis for such a referral.3 Id.

1 The issue came up again at the second master calendar hearing on

April 6, 2011, at which time the Immigration Judge was even more

deferential to DHS. CAR 72 (“. . . this is the point I’m stuck on . . . he was

not admitted, he was paroled and we know that because they filed the

evidence. We’ve got the stamp that says CP, the cache[t] with the

handwritten CP and that’s parole for the, for the Saipan cases.”). DHS

counsel acknowledged that none of this was in her brief. Id. The

Immigration Judge then allowed DHS counsel to be an unsworn witness for

DHS on the question of the meaning of “CP.” See CAR 73.

2 The I-213 further references a “Field Operations Worksheet” that

was never supplied to Petitioner. CAR 348.

3 The I-213 asserts that Petitioner was in CNMI deportation

proceedings prior to the transition to Federal immigration control:


8

On February 18, 2011, Petitioner filed a motion to terminate

proceedings (with exhibits A through G) through counsel in Immigration

Court. CAR 287-345. On March 10, 2011, DHS counsel requested an

extension of time to respond to the motion to terminate. CAR 284-86. The

IJ granted the DHS motion the same day. CAR 283. DHS timely filed its

opposition on March 18, 2011. CAR 278-82. The opposition withdrew the

factually impossible section 212(a)(6)(A)(i) charge and moved to amend the

factual allegations to correct the expiration date of Petitioner’s authorized

stay as established by the immigration officer at the border. Id. at 279.

At a master calendar hearing on April 6, 2011, at which Petitioner’s

motion to terminate was discussed but not argued, the Immigration Judge

GU was in deportation proceedings initiated by the CNMI

government prior to US DHS assuming immigration

responsibilities on 11/28/2009. This case was not resolved

prior to the federal takeover of responsibility.

CAR 348. There are multiple problems with this assertion. First, all

pending CNMI immigration cases were dismissed by Commonwealth Courts

upon the transition to Federal immigration control. See Addendum. Second,

Petitioner had lawful status pursuant to CNMI law prior to November 28,

2009, and thus was entitled to an “umbrella permit” documenting that status.

See CAR 305-14, 328-39. Moreover, the CNMI Attorney General’s Office

filed for dismissal of Petitioner’s CNMI deportation case more than seven

months before the transition to Federal immigration control! See CAR 302-

04.


9

announced that she was sustaining removability (without ruling on the

motion to terminate). CAR 77. At the next master calendar hearing on

August 16, 2011, Petitioner’s original attorney failed to appear. CAR 80-84.

The following day, August 17, 2011, Petitioner again appeared at a master

calendar hearing without his attorney but with a note from his attorney

explaining his absence. Petitioner also brought a partially completed I-589

he had worked on overnight without assistance from his attorney. The

Immigration Judge fully explained the process of applying for withholding

of removal and protection under the Convention Against Torture and set

September 1, 2011, as the next master calendar hearing and deadline to

submit the completed I-589. CAR 85-93.

At the master calendar hearing on September 1, 2011, Petitioner’s

original counsel moved to withdraw from the representation. CAR 96. The

Immigration Judge also determined that she had not actually issued her

written decision denying the motion to terminate, although she had a copy,

dated April 6, 2011, outside the Record of Proceedings. CAR 98. After a

recess, the Immigration Judge issued the written decision with the current

date of September 1, 2011. CAR 101. See also CAR 36-38, 274-76.


10

The decision also concluded that Petitioner “appears to be an

intending immigrant” and that he had not met his burden under INA §

240(c)(2) to prove that he is “clearly and beyond doubt entitled to be

admitted to the United States and is not removable as charged under INA §

212(a)(7)(A)(i)(I).” CAR 276. The Immigration Judge also concluded that

she lacked jurisdiction to grant parole in place (more precisely, extension of

parole) to Petitioner. Id.

After denying Mr. Meyer’s oral motion to withdraw as counsel, the

Immigration Judge set another master calendar hearing for September 13,

2011. CAR 102-04. On September 13, 2011, after obtaining Petitioner’s

I-589, CAR 263-72, and reviewing the process for the evidentiary individual

hearing, the Immigration Judge set the matter for individual hearing on

September 15, 2013, and, with Petitioner’s consent, allowed Mr. Meyers to

withdraw as counsel. CAR 106-15. The individual hearing was conducted

on September 15, 2011, with Petitioner representing himself, CAR 117-47,

at the conclusion of which the Immigration Judge delivered her oral decision

denying relief. CAR 13-23. The Immigration Judge explicitly found

Petitioner credible, CAR 15, but found his testimony insufficient to make

out a claim for the relief sought. CAR 23.


11

Petitioner then retained new counsel and on October 12, 2011, timely

appealed the decision of the Immigration Judge. CAR 31-41.

On July 22, 2013, a single member of the BIA dismissed the appeal.

CAR 3. Without even noting that the record includes two separate decisions

of the Immigration Judge – the written decision denying the motion to

terminate and the oral decision rendered at the conclusion of proceedings –

the single Board member simply affirmed “without opinion, the results of

decision below.” Id. Thus, stated the Board member, citing 8 C.F.R. §

1003.1 (e)(4), “The decision below is, therefore, the final agency

determination.” Id.

STATEMENT OF FACTS

Petitioner Gu’s first entry to the CNMI was in 2004. CAR 18. He

came to Saipan as a student along with four other prospective students,

expecting to be work-authorized as part of the offered educational program.

Id. Unfortunately, he had been scammed and discovered after arrival that

his student status did not allow him to work. See id., CAR 129. An

investigation into the matter was undertaken by the CNMI Attorney

General’s Office, which documented this fact to Chinese Authorities on


12

July 29, 2004. See CAR 252; see also CAR 129. He eventually returned to

China, and came to Saipan again in 2006. CAR 18.

Petitioner Gu remained in Saipan from 2006 to 2009, when it became

necessary for him to return to China for emergency medical reasons. See id.

During his residence on Saipan, Petitioner Gu had become a Christian. Id.

As he was processing through Chinese immigration, he encountered the first

of several problems with Chinese authorities he was to experience as a

consequence of his Christian faith. CAR 18-19. On account of Christian

books and CDs in his luggage, Petitioner Gu was detained by Chinese

authorities and released only after he demonstrated that the purpose of his

travel was emergency medical treatment. CAR 19. His Christian books and

CDs were confiscated. Id.

After eight weeks of hospitalization, surgery, and convalescence,

Petitioner Gu visited the Baoding official Christian church and discussed

with the pastor the differences between religious practice in the official

Christian churches in China and practice on Saipan. Id. As he approached

the church, one of the first things he saw was a banner on the church saying

"loyal to the Chinese communist and also love your country." CAR 125.

Petitioner Gu explained to the Immigration Judge that in China that has to be

the “first belief” of a practitioner in an official Christian church. See id.


13

During the church service, many individuals went forward to give

testimony, but their testimony “had nothing to do with God.” Id.

Apparently, it concerned only the mundane elements of daily life and living

or official Chinese government-approved dogma. In a conversation with the

pastor following the service, Petitioner Gu was asked if he could tell the

difference between practice in the Baoding church and practice overseas. Id.

Petitioner Gu responded that at his church on Saipan “all the words for our

speech are God’s words,” not those of others. Id. Petitioner Gu went on to

tell the pastor, “I did not hear you guys talking about God's words here, and

also God is our Savior, which I consider those are very important as a

Christian.” CAR 126. After this conversation, the pastor asked Petitioner

Gu to write his name, address, and phone number on a registration form,

which he declined to do. Id.

Early in February of 2010, Petitioner Gu’s brother-in-law, Shu Jun

Wang, visited Petitioner Gu and informed him that someone had contacted

him trying to reach Petitioner Gu to instruct Petitioner Gu to report to the

local police office. Shu Jun Wang was very concerned about this and

wanted Petitioner Gu to report to the Chinese police as requested. Shu Jun


14

Wang further advised Petitioner Gu to bring baby items and the like with

him when he reported.4 Id.

Coincidentally, around the same time, Petitioner Gu received a call

from a church brother on Saipan, Ying Fu Zhao, inquiring into his health.

CAR 126-27. During their conversation, Ying Fu Zhao advised Petitioner

Gu of reports of Chinese government arrests of “lots of Christians” at that

time. CAR 127. Petitioner Gu had not heard anything about this while in

China. Id. As a consequence of this warning, Petitioner was afraid and did

not report to the local police station. Id. Instead, he asked Ying Fu Zhao for

a favor, to contact their pastor and his lawyer on Saipan to arrange Petitioner

Gu’s return to the CNMI. CAR 127-28. Petitioner Gu then left China as

soon as possible, CAR 128, arriving on Saipan on February 9, 2010. CAR

127.

Upon inspection by immigration officers at the Saipan airport,

Petitioner Gu’s passport was stamped with a cachet indicating admission to

the United States:

4 Petitioner Gu subsequently clarified that this indicated that the

police intended to take him into custody and not release him. CAR 145.


15

CAR 350.

Prior to first coming to Saipan in 2004, Petitioner Gu borrowed a

significant amount of money from a Chinese loan shark known as Brother

Wang to finance his travel and education. CAR 129-30. Petitioner Gu and

others5 met with Brother Wang several times prior to being lent the money.

Each time Brother Wang was accompanied by several other people. CAR

131-32. Petitioner Gu and the others felt intimidated by Brother Wang. See

CAR 132. While Petitioner Gu was in the hospital, Brother Wang came to

5 The two others who accompanied Petitioner Gu at these meetings

were the individual who introduced Petitioner Gu and a middle person.

CAR 132.


16

see him and demanded payment of 90,000 RMB. CAR 132-33. The visit

from Brother Wang at the hospital right after his surgery frightened

Petitioner Gu. CAR 133.

It also frightened the hospital staff, who called the police. CAR 136.

Hospital staff called the police because Brother Wang was trying to force

Petitioner Gu to come with him out of the hospital. Id., CAR 138. When

Brother Wang heard that hospital staff had called the police, he left

immediately. The police arrived an hour later. CAR 137. After

interviewing Petitioner Gu, the police left, saying they would be in touch

later. Id.

Brother Wang also made multiple other attempts to find Petitioner Gu.

CAR 142. On one occasion in 2005, he set out to break windows and

property at the family residence. Id. When Petitioner Gu’s father tried to

prevent the destruction of property, Brother Wang assaulted him and

Petitioner Gu’s mother. Id. His mother was hospitalized as a result. Id.

Petitioner Gu’s parents were again assaulted, even more seriously, by

Brother Wang in 2008. CAR 143. Two bones in Petitioner Gu’s father’s

back were broken in this attack. Id. The attack was in the morning, and the

neighbors called the police; however, the police did not come until the

afternoon. Id. In what seems to be a common pattern, the police asked


17

questions, took notes, and left – after which nothing further happened. See

id.

Petitioner Gu also testified to the futility of getting the Chinese

government to act on complaints like his problem with the loan shark and

with recruiting agencies that scammed people like him to pay a lot of money

to go overseas where nothing was as promised. See CAR 140. He pointed

out that when he confronted the recruiting agency in Beijing, they told him

they were untouchable. Id. Even though the story of recruiting fraud had

been reported on Chinese government TV, nothing could be done, no one

could get a remedy, unless they had money to “get things going.”6 Id.

Petitioner has two U.S. citizen children born on Saipan. On

November 23, 2011, USCIS announced a policy of parole-in-place for

immediate relatives of U.S. citizens such as Petitioner.7 Petitioner has been

unable to avail himself – and his U.S. citizen children – of the benefits of

6 Other testimony of Petitioner Gu would suggest that police

misconduct is common in China and that he was a victim. CAR 140-41.

7 See USCIS website: http://www.uscis.gov/laws/immigration-

commonwealth-northern-mariana-islands-cnmi/parole-immediate-relatives-

us-citizens-and-certain-stateless-individuals.


18

this policy solely because of the removal order and removal proceedings

against him.

SUMMARY OF ARGUMENT

The Immigration Judge erroneously denied Petitioner’s motion to

terminate and sustained removability by incorrectly allocating the burden of

proof to Petitioner. Petitioner’s passport contained a cachet indicating

admission to the United States. At a minimum, DHS had the burden of

proof of establishing by competent evidence that Petitioner in fact was not

admitted but only paroled into the United States. DHS did not meet this

burden.

Moreover, Petitioner claimed entitlement to 48 U.S.C. §

1806(e)(1)(A) status. The Immigration Judge disregarded this claim based

solely on her assumption, unsupported by any evidence, that Petitioner’s

status was that of an overstaying parolee under the special statutory visa

waiver for Chinese visitors to the CNMI for business or pleasure. Indeed,

Petitioner was not even so charged in the NTA, and the record contains no

explicit determination to that effect.

DHS cannot properly circumvent the protection supplied by 48 U.S.C.

§ 1806(1)(A) through the artifice of charging the alien as an “intending

immigrant” without proper documents under 8 U.S.C. § 1182(a)(7)(A)(i)(I).


19

Aliens with CNMI-derivative immigration status are de jure nonimmigrants

for the duration of the period November 28, 2009, through November 27,

2011.

Exclusion of aliens present in, or arriving at, the CNMI from

eligibility for asylum in the United States violates the Fifth Amendment to

the U.S. Constitution. In any event, Petitioner’s testimony and evidence was

sufficient to establish his entitlement to withholding of removal. Also,

petitioner’s due process rights were violated by the Board of Immigration

Appeals failure to conduct an independent review of Petitioner’s testimony

and evidence and provide Petitioner with a reasoned decision either

affirming or reversing the Immigration Judge’s denial of his application for

withholding of removal.

The Immigration Judge also erred in concluding that she lacked

jurisdiction to grant Petitioner relief in the form of parole-in-place pursuant

to 8 U.S.C. § 1182(d)(5). Finally, summary dismissal of Petitioner’s appeal

by a single member of the BIA was inappropriate and requires, as a

minimum, that the BIA decision be vacated and the matter remanded for

further consideration by a full panel.


20

ARGUMENT

On November 28, 2009, the U.S. Department of Homeland Security

assumed control over immigration in the Commonwealth of the Northern

Mariana Islands. One of the bitter ironies of Petitioner Gu’s situation is that

Congress extended U.S. immigration law and enforcement to the CNMI

largely in response to the abuses and failures of the CNMI labor and

immigration system. Petitioner Gu is in effect a human trafficking victim.

Like so many others, Petitioner Gu was victimized by fraudulent recruiters

in China and unscrupulous businesses in the CNMI. Lured by false

promises of wonderful opportunities in the CNMI, people like Petitioner Gu

borrowed substantial sums of money from Chinese loan sharks to pay the

recruitment, travel, and other costs of coming to the CNMI.

But that is only the beginning of Petitioner Gu’s experience, for he

was baptized as a Christian during his time on Saipan. Upon returning to

China for emergency medical treatment in 2009, he suffered persecution at

the hands of Chinese authorities on account of his Christian faith. He fears

further persecution and denial of freedom of worship if forced to return to

China. Congress sought to protect persons such as Petitioner herein. Li

Qiang Gu now humbly petitions the judges of this circuit court of appeals for


21

justice and restoration of the rule of law for himself and all other persons

affected by the transition to U.S. immigration control in the CNMI.

I. REMOVABLITY WAS ERRONEOUSLY SUSTAINED BASED UPON AN

ERRONEOUS ASSIGNMENT OF THE BURDEN OF PROOF TO

PETITIONER

In her written decision, the Immigration Judge concluded that

Petitioner Gu is “removable as charged under INA § 212(a)(7)(A)(i)(I)” on

grounds that he had “failed to prove that he is clearly and beyond a doubt

entitled to be admitted to the United States and is not removable as charged

under INA § 212(a)(7)(A)(i)(I).” CAR 38. This was error.

A. The Immigration Judge erroneously assigned the burden of

proof to Petitioner Gu.

It is undisputed that Petitioner Gu made an entry to the United States

on February 9, 2010, after presenting himself to U.S. immigration officers

for inspection at the Saipan International Airport. The record includes a

cachet stamped in his passport documenting this entry. See supra at 15;

CAR 350. Less clear is the proper interpretation of that cachet, which

clearly reads in part “ADMITTED.”

An alien charged as removable on grounds of inadmissibility need

only show lawful presence in the United States pursuant to a valid


22

admission8 to defeat removal. 8 U.S.C. § 1229a (c)(2)(B). The passport

cachet and Petitioner’s motion to terminate did precisely that. Moreover, an

alien who has been admitted is not properly chargeable as removable on

8 U.S.C. § 1182 (inadmissibility) grounds at all. 8 U.S.C. § 1229a (e)(2)(A).

Such an alien can only be charged as removable on 8 U.S.C. § 1227

(deportability) grounds. 8 U.S.C. § 1229a (e)(2)(B). Since Petitioner Gu’s

passport on its face shows a valid admission to the United States on

February 9, 2010, DHS first had to overcome the presumptive admission by

sufficient competent evidence before it could proceed on inadmissibility

charges.

In point of fact, DHS presented no competent evidence whatsoever to

prove that Petitioner Gu actually was paroled into the United States and not

admitted as stamped into his passport. Instead, the Immigration Judge

accepted mere representations of DHS counsel reinterpreting and reframing

the cachet, CAR 62-63, and then internalized those representations into

8 An admission need only be procedurally regular to be valid. Matter

of Quilantan, 25 I&N Dec. 285, 291 (BIA 2010). It is undisputable that

Petitioner Gu’s entry on February 9, 2010 was procedurally regular. In

Matter of Quilantan, the alien had merely been waved through the port of

entry by the immigration officer. This action was deemed a procedurally

regular admission. Petitioner Gu’s situation is no different; indeed it

arguably is more compelling because there is an actual “admitted” stamp in

his passport.


23

assumed personal knowledge of the Immigration Judge. See CAR 72. It

also needs to be asked what the burden of proof is for DHS to rebut the

presumption of regularity of the admission stamp in Petitioner Gu’s

passport.

The decision of the immigration judge in a removal case must be

based “only on the evidence produced at the hearing.” 8 U.S.C. § 1229a

(c)(1)(A). Where there is no evidence of admission, the alien has the burden

of establishing that he or she either is “clearly and beyond doubt entitled to

be admitted and is not inadmissible under section 1182” or is “lawfully

present in the United States pursuant to a prior admission” as shown by

“clear and convincing evidence.” 8 U.S.C. § 1229a (c)(2). This burden can

be imposed on the alien only in the absence of evidence of admission and

where the alien has been provided access to any and all non-confidential

records and documents “pertaining to the alien’s admission or presence in

the United States.” Id. Both these tests were failed in Petitioner Gu’s case.

Accordingly, the burden of proof remained with DHS, at least until it

had successfully rebutted the “ADMITTED” stamp in Petitioner’s passport.

DHS has the burden of “establishing by clear and convincing . . . reasonable,

substantial, and probative evidence” all questions of fact it is required to

prove. See 8 U.S.C. § 1229a (c)(3)(A). Section 1229a also makes clear that


24

a threshold question in every removal case is determination of how the alien

may be charged. See 8 U.S.C. § 1229a (e)(2). The burden of showing that

the alien is properly charged plainly must belong to DHS.

II. PETITIONER’S MEMBERSHIP IN THE CLASS DESCRIBED IN

48 U.S.C. § 1806(e)(1)(A) BARS HIS REMOVAL

United States immigration law was extended to the Commonwealth of

the Northern Mariana Islands (CNMI) effective November 28, 2009, by

Title VII of the Consolidated Natural Resources Act of 2008 (CNRA). Pub.

L. 110-229, 122 Stat. 754, 854-55. Pertinent provisions are codified at

48 U.S.C. § 1806. As part of an initial 5-year transition period, Congress

provided that alien residents of the CNMI with lawful status under the

immigration laws of the Commonwealth were to be shielded from removal

for the first two years of the transition period:

[N]o alien who is lawfully present in the Commonwealth

pursuant to the immigration laws of the Commonwealth on the

transition program effective date shall be removed from the

United States on the grounds that such alien’s presence in the

Commonwealth is in violation of section 212(a)(6)(A) of the

Immigration and Nationality Act (8 U.S.C. 1182 (a)(6)(A)),

until the earlier of the date—

(i) of the completion of the period of the alien’s

admission under the immigration laws of the Commonwealth;

or

(ii) that is 2 years after the transition program effective

date.

48 U.S.C. § 1806(e)(1)(A). This is the 48 U.S.C. § 1806(e)(1)(A) class.


25

A. Petitioner Gu was a member of the 48 U.S.C. §

1806(e)(1)(A) class when served with the NTA and when he

was ordered removed by the Immigration Judge.

The evidence in the record is clear that Petitioner Gu had been a

resident of the CNMI for two to three years at the time he travelled to China

for emergency medical treatment in 2009. He did not give up his residence

and intended to return. Despite claims of the Department of Homeland

Security in Immigration Court to the contrary, the evidence in the record is

also clear that Petitioner Gu had lawful status in the CNMI at the time of his

departure to China for medical treatment. See e.g., Office of the Attorney

General v. Rivera, 3 N.M.I 436, 445-46 (1993); see also CAR 287-345

(Petitioner’s motion to terminate). Petitioner Gu would have been entitled

to a reentry letter under the CNMI immigration regime.

The advent of Federal administration and enforcement of immigration

matters on November 28, 2009, was not intended by Congress to change any

of that. Had Petitioner Gu been in the CNMI when umbrella permits were

issued, he would have gotten one. Had Petitioner Gu departed the CNMI for

medical treatment after November 28, 2009, he would have been granted

advance parole by the Department of Homeland Security. Accordingly,

when he presented himself at the Saipan International Airport on February 9,

2010, for inspection and admission, he was entitled to parole as a 48 U.S.C.


26

§ 1806(e)(1)(A) alien. However the cachet in Petitioner Gu’s passport is

interpreted, it must, at a minimum, grant him parole valid until the earlier of

November 28, 2011, or expiration of his authorized stay based on CNMI

(which was indefinite until his legal claim was finally adjudicated).

B. DHS cannot properly circumvent the Congressional

prohibition of removal through the artifice of an

8 U.S.C. § 1182(a)(7)(A)(i)(I) charge.

Immigrants without specified required documents are inadmissible

pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). DHS and immigration judges

regularly label an alien an “intending immigrant” in order to invoke this

statutory provision. Although U.S. immigration law broadly defines

“immigrant” as any alien not defined as a “nonimmigrant,” 8 U.S.C. §

1101(a)(15), the term “immigrant” cannot be so liberally applied to aliens in

the 48 U.S.C. § 1806(e)(1) class. That class is an extension of the status of

CNMI resident aliens under Commonwealth immigration law, and CNMI

law made no provision for immigrants. In short, all aliens entitled to CNMI-

derivative status by 48 U.S.C. § 1806(e)(1)(A) are de jure nonimmigrants

for the duration of the period November 28, 2009, through November 27,

2011.

For this reason alone, 8 U.S.C. § 1182(a)(7)(A)(i)(I) could not

properly be applied to persons such as Petitioner Gu in any NTA served


27

prior to November 28, 2011. But there is an additional reason. Because any

alien against whom an 8 U.S.C. § 1182(a)(6)(A)(i) charge of removability

could be brought is also theoretically amenable to removal under 8 U.S.C. §

1182(a)(7)(A)(i)(I) as interpreted and applied by DHS in the CNMI,

acceptance of DHS use prior to November 28, 2011 of 8 U.S.C. §

1182(a)(7)(A)(i)(I) against an alien such as Petitioner Gu with lawful status

in the CNMI prior to November 28, 2009, would render the 48 U.S.C. §

1806(e)(1)(A) prohibition of removal wholly nugatory and utterly defeat the

Congressional intent while rendering most every alien in the CNMI prior to

November 28, 2009, subject to removal solely according to the whim and

caprice of immigration officers.

C. Use of 8 U.S.C. § 1182(a)(7)(A)(i)(I) to remove Petitioner

flies in the face of Congressional purpose and intent.

The removal from the CNMI for lack of entry documents of an alien

who has been living there since prior to the CNRA would also defeat the

intent of Congress in enacting the CNRA in the first place, which was to

preserve the CNMI’s existing alien population, at least for a substantial

period of time, as a necessary workforce.

Prior to the CNRA, the CNMI “admitted temporary guest workers and

other aliens who lacked federal immigration status.” Eche v. Holder, 694

F.3d 1026, 1030 (9th

Cir. 2012). Congress recognized, in enacting the


28

CNRA, that the passage of the Act could be read to have the effect of

causing this substantial alien population to suddenly and automatically

become present in “the United States” (as defined by the INA) without ever

having been admitted to it (by a U.S. Government employee), and thus

potentially inadmissible and removable under 8 U.S.C. § 1182(a)(6)(A)(i)

(“An alien present in the United States without being admitted or paroled . . .

is inadmissible.”).

Congress did not wish to make all those aliens immediately

removable, however, as it wished to “ensure that CNMI employers have

access to an adequate number of employees during the transition period.”

Northern Mariana Islands v. United States (I), 670 F.Supp. 2d 65, 73

(D.D.C. 2009). Congress therefore protected against mass removal of the

CNMI’s aliens by providing the affirmative protection against removal

contained in 48 U.S.C. § 1806(e)(1)(A). See supra at 23-24.

Congress was conscious that most of the aliens that it thereby shielded

from removal did not have any United States visa, and would not qualify for

any. It therefore provided for a new type of visa to be created specifically

for them. See 48 U.S.C. § 1806(d)(2) (requiring the Secretary of Homeland

Security to establish a system of permits for alien workers in the CNMI who

“would not otherwise be eligible for admission under the Immigration and


29

Nationality Act”). See also Northern Mariana Islands v. United States (II),

supra, 686 F.Supp. 2d 7, 12 (D.D.C. 2009) (“The CNRA transition program

provides a means for foreign workers who are not eligible to enter or remain

in the Commonwealth under the terms of the INA to work in the Islands

lawfully during the transition period.”). Congress also envisioned other

future status opportunities for these aliens in the United States. See 48

U.S.C. § 1806(h)(5) (requiring the Secretary of the Interior to report whether

Congress “should consider permitting lawfully admitted guest workers

lawfully residing in the Commonwealth on [the] enactment date to apply for

long-term status under the immigration and nationality laws of the United

States”).

Eventually, a new work visa program, applicable only in the CNMI,

was created by regulation, effective October 7, 2011. See 76 Fed. Reg.

55502; 8 C.F.R. § 214.2(w) (“CNMI-Only Transitional Worker (CW-1)”).

Also, “parole-in-place” programs were established for certain other classes

of aliens with strong historical or familial ties to the CNMI, whose status

was not clearly addressed by the CNRA.9 These programs allow the

9 See USCIS website: http://www.uscis.gov/laws/immigration-

commonwealth-northern-mariana-islands-cnmi/commonwealth-northern-

mariana-islands-cnmi-federalization-immigration-law.


30

affected aliens to remain in the CNMI while their ultimate status is worked

out, most probably by further legislation.10

Congress’ substantive intent, in establishing an exemption to removal

under 8 U.S.C. § 1182(a)(6)(A), was that the alien population of the CNMI

would, as a class, be protected from mass removal for its presumed (by the

drafters) failure to meet federal admissibility requirements. That intent

appears in the legislative history:

The subsection states that any alien present in the CNMI, at the

start of the transition program effective date may remain in the

CNMI and is considered authorized for employment.

S. Rep. 110-324 at 7, 2008 WL 1740677 *7.

The section states that any alien present in the CNMI, at the

start of the transaction program effective date may remain in the

CNMI and is considered authorized for employment.

H.R. Rep. 110-469(I), 2007 WL 4291940 *16. It also appears in judicial

construction of the CNRA:

[A]ny alien who is lawfully present in the CNMI pursuant to

the Commonwealth’s immigration laws at the start of [the]

transition period may remain within the Islands for a grace

period[.]

NMI (II), supra, 686 F.Supp.2d at 12 (summarizing the U.S. District Court

for the District of Columbia understanding of 48 U.S.C. § 1406(e)(1)(A)).

10

For example, a provision establishing a new CNMI-only permanent

residence status is currently pending before Congress. See S. 744, 113th

Cong., 1st Sess. § 2109.


31

The Department of Homeland Security by policy and practice

systematically defeats this intent by using 8 U.S.C. § 1182(a)(7)(A)(i)(I) to

circumvent the prohibition on removal under 8 U.S.C. § 1182(a)(6)(A).

When 8 U.S.C. § 1182(a)(7)(A)(i)(I) is used in this way, however, then

almost all of the aliens who were in the CNMI at transition are removable

under 8 U.S.C. § 1182(a)(7)(A)(i)(I), since almost none of them had a

United States visa or other entry documents.

Congress could not have intended that result. It could not have

intended that the very characteristic it set up for eligibility for its new visa

system – namely, lack of, and ineligibility for, a United States visa status –

could be, at the same time, asserted as a ground for the removal of the very

aliens for whose preservation the system was to be created.

D. Mr. Gu is entitled to special transitional relief under the

CNRA and USCIS policy.

As the parent of two U.S. citizen children born on Saipan, Petitioner

Gu is qualified for parole-in-place pursuant to USCIS policy adopted

November 23, 2011.11

As a CNMI-resident alien who was in lawful status

pursuant to the immigration laws of the Commonwealth prior to

11

http://www.uscis.gov/laws/immigration-commonwealth-northern-

mariana-islands-cnmi/commonwealth-northern-mariana-islands-cnmi-

federalization-immigration-law.


32

November 28, 2009, and an individual of established good moral character,

Petitioner Gu is qualified for this benefit. The misguided 8 U.S.C. §

1182(a)(7)(A)(i)(I) charge has been frustrating special transitional relief for

alien parents of U.S. citizen children for which Petitioner is qualified.

III. EXCLUSION OF ALIENS IN THE CNMI FROM ELIGIBILITY FOR

ASYLUM VIOLATES THE FIFTH AMENDMENT

The CNMI is the only geographical area within the United States, as

defined by 8 U.S.C. § 1101(a)(38), in which aliens are denied eligibility for

asylum. Subtitle A of Title VII of the CNRA provides two conflicting

provisions regarding eligibility for asylum. The first, codified at 48 U.S.C. §

1806, provides as follows:

Section 208 of the Immigration and Nationality Act (8 U.S.C.

1158) shall not apply during the transition period to persons

physically present in the Commonwealth or arriving in the

Commonwealth (whether or not at a designated port of arrival),

including persons brought to the Commonwealth after having

been interdicted in international or United States waters.

48 U.S.C. § 1806(a)(7). The second, contained in section 702(j)(5) of the

CNRA, is in the form of a “conforming amendment” to the Immigration and

Nationality Act (INA) (8 U.S.C. § 1101 et seq.), adding to INA § 235(b)(1),

governing inspection of alien applicants for admission, a new subparagraph

(G) reading, as codified:

COMMONWEALTH OF THE NORTHERN MARIANA

ISLANDS- Nothing in this subsection shall be construed to


33

authorize or require any person described in section 1158(e) of

this title to be permitted to apply for asylum under section 1158

of this title at any time before January 1, 2014.

8 U.S.C. § 1225(b)(1)(G).

A principle goal of Title VII, Subtitle A of the CNRA was to bring

uniformity to immigration policy, administration, and enforcement

throughout the United States, including the CNMI. See Sen. Rep. 110-324

(April 10, 2008) (‘‘The Marianas immigration system is antithetical to the

principles that are at the core of the U.S. immigration system.’’)(quoting

1997 U.S. Commission on Immigration Reform Report) at 3, 2008 WL

1740677 *3.

One of the principles at the core of the U.S. immigration system is the

availability of asylum to persons such as Petitioner Gu. Achievement of the

Congressional objective of uniformity of policy and result requires the

application of a common sense approach to construction and application of

the immigration laws of the United States in a constitutionally-complaint

way that will accomplish the overarching purposes of Congress in enacting a

comprehensive and principled immigration system. See id.

The Fifth Amendment to the Constitution of the United States of

America provides in relevant part:

No person shall be . . . deprived of life, liberty, or property,

without due process of law . . . .


34

U.S. CONST. amd.V. The U.S. Supreme Court has held that this

constitutional guarantee of due process of law includes entitlement to the

equal protection of the law. See, e.g., Bolling v. Sharpe, 347 U.S. 497

(1954); Adarand Const. v. Pena, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed.

2d 158 (1995); United States v. Windsor, 133 S. Ct. 2675, 2693,186 L. Ed.

2d 808, 81 USLW 4633 (2013). It is also well established that the Fifth

Amendment applies to all aliens within the jurisdiction of the United States,

even those “whose presence in this country is unlawful, involuntary, or

transitory.” Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.

Ed. 2d 478 (1976)(citing Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51,

70 S. Ct. 445, 53-455, 94 L .Ed. 616, 627-29 (1950) and Wong Wing v.

United States, 163 U.S. 228, 238, 16 S. Ct. 977, 981, 41 L. Ed. 140, 143

(1896)).

Against this constitutional imperative the differential treatment of

aliens in, or arriving at, the CNMI from aliens present or arriving elsewhere

in the United States, so as to deny eligibility for asylum to aliens in or

arriving at the CNMI, cannot stand. This exclusion of aliens from eligibility

for asylum in the United States solely because they are present in, or arriving

at, the CNMI and not somewhere else in the United States is not narrowly

tailored to serve a legitimate and compelling governmental interest. Indeed,


35

the United States has never even clearly articulated any rationale for this

discrimination or any interest, legitimate or otherwise, served by the

exclusion of aliens present in, or arriving at, the CNMI from eligibility for

asylum

IV. PETITIONER’S TESTIMONY AND EVIDENCE WAS SUFFICIENT TO

ESTABLISH ENTITLEMENT TO WITHHOLDING OF REMOVAL,

AND, IN ANY EVENT, THE BIA FAILED TO CONDUCT A

MEANINGFUL REVIEW OF PETITIONER’S TESTIMONY AND

EVIDENCE AND PROVIDE A REASONED DECISION

Fairly and carefully considered under the principles of Lei v. Holder,

629 F.3d 1154 (9th Cir. 2011), Gu v. Gonzalez, 454 F.3d 1014 (9th Cir.

2006), and Gu v. Ashcroft, 36 F.3d 1194 (9th Cir. 2004), Petitioner Gu made

out his claim to entitlement to withholding of removal. In Immigration

Court, Petitioner recounted two incidents of past persecution based on his

Christian faith. The first was his detention at the airport when arriving from

Saipan on account of religious materials in his luggage, followed by the

confiscation of his Christian books and CDs. The second was the otherwise

inexplicable directive to report to the local police station and inherent threat

of arrest. Moreover, Petitioner’s well-founded fear of future persecution is

evident from the reports of widespread mass arrests of Christians practicing

their faith outside the officially authorized churches (which promote pro-


36

government dogma) and supported by the State department International

Religious Freedom 2010 report on China. CAR 148-76.

The State Department reports that “Protestant ‘house churches’[and]

Catholics loyal to the Vatican . . . are not permitted to openly hold religious

services unless they affiliate with a patriotic religious association.” CAR

148. Religious believers unaffiliated with a patriotic religious association

are sometimes charged with “illegal religious activities” or “disrupting social

stability” and may be fined or imprisoned. Id. Petitioner Gu’s experience

bears this out. Chinese criminal law defines banned religious or spiritual

groups as “evil cults.” CAR 150. This includes some Protestant Christian

groups. Id. “There are no public criteria for determining, or procedures for

challenging, such a designation.” Id. Unauthorized religious worship is

sometimes punished by confiscation and destruction of property and

imprisonment of leaders and worshipers. CAR 151. Serious violations of

religious freedom were reported. CAR 153-57. This includes actions

against Christians. See, e.g., CAR 155.

In any case, the Board of Immigration Appeals had a duty to make an

independent assessment of the evidence presented in Immigration Court and

failed to fulfill that duty. Instead, a single member of the Board summarily

affirmed the decision of the Immigration Judge, rendering that decision the


37

final agency decision, and failed to provide Petitioner Gu with a reasoned

decision independently evaluating the evidence and informing petitioner

(and this Court) with a meaningful explanation for its conclusions.

V. EXERCISE OF PAROLE AUTHORITY BY IMMIGRATION JUDGES

AND THE BOARD OF IMMIGRATION APPEALS IS NECESSARY TO

ACCOMPLISHMENT OF THE TRANSITION TO FEDERAL

IMMIGRATION CONTROL IN THE CNMI CONSISTENT WITH

EXPRESSLY STATED CONGRESSIONAL MANDATES

The INA grants the executors of United States immigration laws the

authority to parole aliens into the United States in the following terms:

The Attorney General may . . . in his discretion parole into the

United States temporarily under such conditions as he may

prescribe only on a case-by-case basis for urgent humanitarian

reasons or significant public benefit any alien applying for

admission to the United States . . . .

8 U.S.C. § 1182(d)(5)(A)(emphasis added).

Petitioner disagrees with any contention that this authority can only be

exercised by agents of the Department of Homeland Security and not by

immigration judges or the Board of Immigration Appeals. Certainly the

statute does not so proscribe. The statute vests the authority in the “Attorney

General.” The Board of Immigration Appeals and immigration judges are

part of the Executive Office for Immigration Review of the United States

Department of Justice, headed by the Attorney General. The Department of

Homeland Security exercises parole authority only by virtue of the


38

Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 (2002).

Nothing in that Act compels the result advocated by Respondent.12

By

12

BIA decisions in support of this proposition are not persuasive.

These decisions do not arise out of the transition to Federal immigration

control in the CNMI, and do not include facts or reasoning helpful to

resolution of the question before the court.

Matter of Castillo-Padilla, 25 I. & N. Dec. 257 (BIA 2010), was

concerned with whether an alien who was paroled into the United States

upon release from custody pursuant to 8 U.S.C. § 1226(a)(2)(B) was

considered “paroled” for purposes of statutory eligibility for adjustment of

status. In the course of concluding that he was not, the BIA distinguished

8 U.S.C. § 1226(a)(2)(B) parole from 8 U.S.C. § 1182(d)(5)(A) parole.

Obviously, this is a very different context than the matter now before court,

which is concerned exclusively with what agents of the United States have

authority to act pursuant to 8 U.S.C. § 1182(d)(5)(A).

The BIA apparently made the error of reading the absence of the

office “Attorney General” from the regulations as divesting that office of the

authority, when the Attorney General’s authority flows from the statute, not

the regulations, and the regulations are concerned exclusively with

delegations in the Department of Homeland Security, not the Department of

Justice. See 25 I. & N. at 261. Indeed, the question considered by the BIA

had already been decided by this court in Ortega-Cervantes v. Gonzales, 501

F.3d 1111 (9th

Cir. 2007), without need of reaching such distant conclusions.

Matter of United Airlines Flight UA802 relies on Matter of Matelot,

18 I. & N. Dec. 334 (BIA 1982), for the remarkable language describing the

authority of the INS district director as “exclusive jurisdiction.” Matelot, in

turn, relies on Matter of Castellon, 17 I. & N. Dec. 616 (BIA 1981); Matter

of Niayesh, 17 I. & N. Dec. 231 (BIA 1980); Matter of Lepofsky, 14 I. & N.

Dec. 718 (BIA 1974); and Matter of Conceiro, 14 I&N Dec. 278 (BIA

1973), aff’d Conceiro v. Marks, 360 F. Supp. 454 (S.D.N.Y. 1973). Taken

together, those cases do seem to support the proposition that the Board of

Immigration Appeals, and Immigration Judges, lack authority not only to

review how district directors exercise their parole power but also that they

lack authority to grant parole where USCIS has failed or refused to act.

Nevertheless, the reasoning of these cases is ultimately unsatisfying, and

their continued vitality uncertain, particularly in the context of the unique

circumstances and requirements of the transition to Federal immigration


39

statute, principal authority for parole rests not with the Department of

Homeland Security but with the Attorney General.

The Immigration Judge simply cited 8 C.F.R. § 212.4(a)-(b) and INA

§ 212(d)(3)(A)-(B) [8 U.S.C. § 1182(d)(3)(A)-(B)] as authority for her

assertion that she lacked authority to grant parole to Petitioner Gu. CAR 38.

The latter, the statutory provision, applies to temporary admission as

nonimmigrants of aliens either known or believed by a consular officer to be

ineligible or at the border with appropriate documents (or granted a waiver

of documents) but legally inadmissible, and is inapposite to the question at

hand. 8 U.S.C. § 1182(d)(3)(A). The regulation cited likewise deals

exclusively with exercise of authority under 8 U.S.C. § 1182(d)(3)(A-B),

and is likewise inapposite.

The correct regulation dealing with exercise of parole authority under

8 U.S.C. § 1182(d)(5) – the authority in question – is 8 C.F.R. § 212.5. The

regulation simply defines how the 8 U.S.C. § 1182(d)(5) authority extended

to the Secretary of Homeland Security is to be exercised within in the

Department of Homeland Security. Nothing in that regulation diminishes,

control in the CNMI. It also is noteworthy also that none of these authorities

were cited by DHS counsel, the immigration judge, or the BIA in the course

the proceedings in Petitioner’s case.


40

impairs, or negates the authority of the Attorney General (and his delegates)

to exercise the parole authority at issue.

A. Petitioner Gu is entitled to special transitional relief under

the CNRA and USCIS policy.

As the parent of two U.S. citizen children born on Saipan, Petitioner

Gu is qualified for parole-in-place pursuant to USCIS policy adopted

November 23, 2011.13

As a CNMI-resident alien who was in lawful status

pursuant to the immigration laws of the Commonwealth prior to

November 28, 2009, and an individual of established good moral character,

Petitioner Gu is qualified for this benefit. The misguided removal

proceedings have been frustrating special transitional relief for alien parents

of U.S. citizen children for which Petitioner is qualified.

B. No legal bar has been identified to the exercise of parole

authority necessary to an effective transition as part of the

administrative review process.

Without exercise of parole authority by immigration judges and the

Board of Immigration Appeals in cases arising out of the transition from

CNMI to Federal administration and enforcement of immigration authority

in the CNMI, when the Department of Homeland Security fails or refuses to

13

http://www.uscis.gov/laws/immigration-commonwealth-northern-

mariana-islands-cnmi/commonwealth-northern-mariana-islands-cnmi-

federalization-immigration-law.


41

exercise that authority, the congressional objectives of an orderly transition,

nurturing of the CNMI economy, continued rational use of foreign workers,

furthering the core principles of the U.S. immigration system, and protection

of alien workers from abuse cannot be achieved. This Court should strike

down the artificial barriers the Department of Homeland Security and the

Department of Justice have erected to use of that authority.

VI. THE BIA’s SUMMARY DISPOSITION OF PETITIONER GU’s APPEAL

VIOLATED DUE PROCESS AND CANNOT STAND

Dismissal of Petitioner’s appeal by a single member of the BIA in a

summary disposition was inappropriate and reversible error. See Montes-

Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007); Garcia-Quintero v.

Gonzales, 455 F.3d 1006, 1012-13 (9th Cir. 2006); Lanza v. Ashcroft, 389

F.3d 917, 932 (9th Cir. 2004). It is unequivocally the law that the BIA errs

in streamlining an appeal where, such as here, novel legal questions not

squarely controlled by existing BIA or federal court precedent are present,

or, as here, factual and legal questions that are not insubstantial, or a

complex factual scenario, are presented, or, again as here, the operative facts

and legal issues are potentially applicable to numerous other aliens. See

Chen v. Ashcroft, 378 F.3d 1081, 1086-87 (9th Cir. 2004).


42

CONCLUSION

For the foregoing reasons, the decision of the Board of Immigration

Appeals should be vacated and the case remanded for entry of an order

terminating proceedings, and authorizing Mr. Gu, without necessity of

departure from the United States, to apply for any immigration status or

benefit for which he may be qualified, and holding that he has accrued no

unlawful presence, and giving him the benefit of the lawful status he enjoyed

until it was interrupted by placement in removal proceedings and would

have continued to enjoy for an additional 14 months from the date of service

of the NTA.

Alternatively, the decision of the Board of Immigration Appeals

should be vacated and the case remanded for entry of an order granting

asylum or withholding of removal. The Court should also enter judgment

holding the exclusion of aliens in the CNMI or arriving at a CNMI port of

entry from eligibility for asylum unconstitutional as a violation of the Fifth

Amendment to the United States Constitution.

Dated this 30th

day of December, 2014.


43

Respectfully submitted,

/s/ Stephen C. Woodruff (e-filed)

STEPHEN C. WOODRUFF

Attorney for Appellant

P. O. Box 500770

Saipan, MP 96950


44

STATEMENT OF RELATED CASES

The following cases pending in this court and known to petitioner and

his counsel are believed to be related cases on account of involving the same

or similar issues and the same or similar relevant facts:

Guo v. Holder, Court of Appeals No. 13-72936.

Torres v. Holder, Court of Appeals No.

Jin, Quan Bin v. Holder, Court of Appeals No. 13-70415.

Jin, Jing Guo v. Holder, Court of Appeals No. 13-71659.

Dated this 30th


s/ Stephen C. Woodruff (e-filed)

STEPHEN C. WOODRUFF



45

C.A. No. 13-72936

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIQIANG GU

Petitioner

v.

ERIC H. HOLDER, Jr., Attorney General

Respondent

Agency No. A087-957-069

Board of Immigration Appeals

CERTIFICATION PURSUANT TO CIRCUIT RULE 32 (a)(7)(C)

___________________________________

Pursuant to Ninth Circuit Rule 32(a)(7)(C), I certify that Petitioner’s

Opening Brief is proportionately spaced, has a typeface of 14 points and

contains 8,183 words.

Dated this 30th



STEPHEN C. WOODRUFF

Attorney for Petitioner


46

CERTIFICATE OF SERVICE

I certify that on the 30th

day of December, 2014, I served a copy of the

foregoing PETITIONER’S OPENING BRIEF on Appellees’ counsel of

record through the Court’s electronic CM/ECF system.


STEPHEN C. WOODRUFF



ADDENDUM


Table of Contents BIA Decision 1

Immigration Judge Oral Decision 2

Immigration Judge Written Decision

Denying Motion to Terminate 14

Statutory Excerpts 17

CNMI Superior Court Order

Dismissing Deportation Cases 26


.kl _ _-

U.S. Department of Justice Decisionof theBoardof ImmigrationAppealsExecutiveOfficefor ImmigrationReview

FallsChurch,Virginia22041

File: A087 957 069-Honolulu, HI Date: JUL _ _ 20]3

In re: LIQIANG GU

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro set

ON BEHALF OF DHS: Heith M. KaneshigeAssistant Chief Counsel

APPLICATION: Withholding of removal; Convention Against Torture ..,

ORDER: The Board affirms, without opinion, the results of the decision below. The.decision below is, therefore, the final agency determination. See 8 C.F.R. § 1003.1 (e)(4).

_FOR T_H_

1 Subsequent to the filing of this appeal, the respondent's attorney, Mr. Stephen C. Woodruff,was suspended from practice on March 20, 2013. He is no longer permitted from practicingbefore this Board, the Immigration Judges, and the Department of Homeland Security.Accordingly, this order is being sent directly to the respondent and a courtesy copy is beingfurnished to Mr. Woodruff. Please see the attached copy of the order suspending Mr. Woodrufffrom practice.

001


I I¸ /\ /

UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

Saipan, Northern Mariana Islands

File No.: A 087 957 069 Date: September 15, 2011

In the Matter of ))

LIQIANG GU ) IN REMOVAL PROCEEDINGS)

Respondent )

CHARGE: Section 212(a) (7) (A) (i) (I) Immigration andNationality Act - intending immigrant not inpossession of a valid immigrant visa or otherdocument required. ...

APPLICATIONS: Section 241(b) (3), Immigration and Nationality Act- withholding of removal; Convention againstTorture.

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Pro se Heith Kaneshige,Assistant Chief Counsel ......

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 33-year-old, divorced native and citizen

of China. The Department alleges that he was paroled into the

United States at Saipan international Airport on February 9,

2010, with permission to remain in the United States until March

II, 2010. The Department further alleged that respondent

remained Beyond that time without authorization.

I

002


Proceedings were commenced with the filing of a Notice to

Appear with the Immigration Court in Saipan on January I0, 2011.

See Exhibit I. Respondent had counsel for the initial stages of

the case. He admitted allegations 1 and 2 and denied the other

allegations.

After a number of Master Calendar hearings, the respondent

filed a motion to terminate removal proceedings. See Exhibit 3.

The Department filed an opposition brief. Se____eExhibit 5. On

September I, 2011, this Immigration Judge denied the motion to

terminate in a written order. See Exhibit 7. The case was set

to complete the Individual hearing. However, the respondent's

attorney failed to appear and later explained that he had family

emergencies. Se___eeExhibit 6. Thereafter, this Judge continued

the case to give the respondent a chance to file the Form 1-589,

which his attorney said he would not be assisting the respondent

with. That document was actually received on September 13, 2011,

and was signed on that day. See Exhibit 9. I

Respondent agreed to let his attorney withdraw from the case

and the Court granted that oral motion on September 13, 2011.

The respondent at that time also filed his additional evidence.

See Exhibit I0. The respondent testified that he was confident

that his materialwas adequately and accurately translated.

The Individual hearing was conducted on September 15, 2011,

IThere was no response from the State Department and,therefore, China Country Reports are given significant weight.See Exhibit II.

A 087 957 069 2 September 15, 2011

003


through a televideo connection. The Department reported that

background checks were complete. The respondent testified with a

Mandarin Language interpreter and there was nothing in his

demeanor that detracted from his credibility.

Exhibits 1 through Ii were received. The respondent was the

only witness who testified. Based upon the ruling on the motion

to terminate, the finding of alienage, the cache at Exhibit 2,

tab B showing respondent's parole into Saipan, the Court finds

that removability has been established by clear and convincing

evidence.

STATEMENT OF THE LAW

The respondent is not statutorily eligible to apply for

asylum because his case arises in the Saipan Immigration Court.

This is not an issue that was disputed by either party. Thus,

the Court will review the Form 1-589 for withholding of removal

first.

The respondent's claim relates to being a Christian. An

applicant may qualify as a refugee because he has suffered past

persecution or because he has a well-founded fear of persecution.

For withholding of removal, there must be a nexus to a protected

ground: race, religion, nationality, membership in a particular

social group, or political opinion. 8 C.F.R. 1208.16.

Persecution is defined as a threat to the life or freedom of or

the infliction of suffering or harm upon those who differ in a

way regarded as offensive. However, persecution is an extreme

A 087 957 069 3 September 15, 2011

004


/

concept that does not include every sort of treatment that our

society regards as offensive. See Li v. Ashcroft, 356 F.3d 1153

9th Cir. 2004).

This Immigration Court falls within the jurisdiction of the

United States Court of Appeals, Ninth Circuit, which has issued a

number of decisions arising in China regarding "house churches"

which are Christian, as is the claim in respondent's case. The

Court has given particular attention to the most recent decision

in Lei v. Holder, 629 F.3d 1154 (9th Cir. 2011), which has a

discussion regarding credibility in Chinese Christian underground

church cases. This is a pre-REAL ID Act 2005 case. Other cases

of interest would be Guv. Gonzalez, 454 F.3d 1014 (9th Cir.

2006), which compared the facts in that case with a prior

decision in Guv. Ashcroft, 36 F.3d 1194 (9th Cir. 2004).

An individual is entitled to withholding of removal if he

would be persecuted on account of race, religion, nationality,

membership in a particular social group or political opinion upon

return to the home country. In addition to the religion claim,

respondent seems to have a mixed claim relating to a dispute with

an apparently private Chinese citizen over money respondent

borrowed from this individual to be used to come to work and

attend school in Saipan, discussed within the findings of fact.

The applicant must establish a "clear probability" of persecution

to qualify for withholding of removal. INS v. Stevic, 467 U.S.

407 (1984). An applicant must demonstrate that it is "more

A 087 957 069 4 September 15, 2011

005


likely than not" that he will be persecuted upon return to the

home country, a standard that is higher than that required for

asylum. The attorney general has no discretion to deny

withholding of removal to eligible aliens and such relief must be

granted if the individual demonstrates that he qualifies for such

relief. Respondent has also applied for protection under the

Convention against Torture which does not require a nexus to a

protected ground. An applicant for protection under the

Convention against Torture must prove that it is "more likely

than not" that he will be tortured if removed to the country

designated for removal. Such torture must be inflicted by or at

the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.

8 C.F.R. Section 1208.16 and 1208.18. In assessing whether it is

more likely than not that an alien would be tortured, the Court

should consider, among other things, evidence of past torture

inflicted On the alien; evidence that the applicant could

relocate to another part of the country of removal where he is

not likely to be tortured; evidence of gross, flagrant or mass

violations of human rights within the country of removal; and

other relevant information regarding conditionsin the country

for removal. An applicant can establish his burden of proof by

testimony without corroboration if the testimony is credible.

However, eligibility can not be established by stringing together

a series of suppositions to show that it is more likely than not

A 087 957 069 5 September 15, 2011

006


that torture will result where the evidence does not establish

that each step in the hypothetical chain of events is more likely

than not to happen. In re J-F-F-. 23 I&N Dec. 912 (A.G. 2006).

Respondent is not eligible for voluntary departure and has

no other application before the Court.

FINDINGS OF FACT, CONCLUSIONS OF LAW

The respondent is a 33-year-old divorced man from Hebei

Province and most of the things he discussed in his testimony

arose in his hometown area of Baoding. Turning to the

respondent's travels, he testified that he first left China in

2004 to come to Saipan as a student with four other prospective

students. He believed that he would be able to work in Saipan,

but once he arrived, found out that this was not true. He made

another trip to China and then came back to Saipan in September

2006. He left Saipan around June 2009 and went back to China.

In recounting his travels, the respondent's testimony was not

precise and his application was neither precise and indeed left

off entries into the United States in block 18 of page i, part A-

i. In any event, the respondent testified that he had to go back

to China because he needed surgery at a Chinese hospital. This

brings us to the important part of the claim about religious

persecution. Respondent testified that he had become a baptized

Christian while he was in Saipan. When he went to China in 2009

for his surgery, the customs agents at the airport asked him what

was in his suitcase. Respondent said he had some Christian books

A 087 957 069 6 September 15, 2011

007


f_

!j

and CDs. Respondent was questioned about this and said that "I

am sorry, I do not know" in response to questions as to whether

he knew it was not legal to bring these materials back to China.

The airport officers allowed respondent to leave after he showed

them that he was actually destined to his hometown to go to the

hospital for his surgery. The respondent said the officers gave

him all of his belongings except for the religious CDs and books.

Respondent gave them his brother-in-law's contact numbers,

address, phone number and also the hospital address. Respondent

had essentially no other problems regarding religion from any

government official, according to his testimony. The only other

event regarding religion was that respondent said that after he

was discharged from the hospital after being there for about

eight weeks to have the surgery and to recover, he visited the

Baoding registered Christian church and had a conversation with

thepastor about differences between the church in China and the

church "overseas." Respondent did not have any adverse

circumstance arise as a result of the conversation with this

pastor in China. Respondent really did not describe any past

persecution in China on account of religion. Respondent seemed

to be credible in what he talked about regarding his

Christianity, but even with some subjective fear of religious

repression in China, the respondent has not met his burden to

show that there was any past persecution and in addition has not

been able to show that if hereturns to China now, anyone would

A 087 957 069 7 September 15, 2011

008


be interested in persecuting him based upon his Christian

religious beliefs. Respondent does not have a high profile as a

Christian. The Court notes that there is repression of some

Protestant house church members in China, but in comparing what

the China R_9_ports say to the respondent's circumstances, the

Court comes to the conclusion that he has not met the relatively

high burden of proof for establishing eligibility for withholding

of removal on this basis. Therefore, the claim will be denied.

Next, for both the withholding of removal and the Torture

Convention claim, the respondent appeared to be saying that he is

afraid of someone whose name he does not know, but whom he calls

"Brother Wang." He said that he borrowed 45,000 RMB from Brother

Wang in China to help finance his travels to Saipan. The Court

asked the respondent many questions since the respondent's

attorney had withdrawn from the case to try to find out what kind

of person Brother Wang is. Respondent seemed, after answering

all the questions, to be describing someone who is not a

government official. This person also does not seem to be a bank

official or a professional lender with a known business. The

Court comes to this conclusion because respondent said Brother

Wang came to his house several times and then they met one time

in the city at "a very small restaurant." There was also some

discussion of a middle man and another person being present, but

respondent really did not document all of this.

Respondent testified that on his first trip from Saipan back

A 087 957 069 8 September 15, 2011

009


f

to China, he did pay 5,000 RMB in the original debt to Brother

Wang. Thereafter, he paid nothing else. The issue of payment of

this loan seems to be more in the matter of a civil dispute. The

respondent is afraid of Brother Wang because he has not paid back

the interest and because Brother Wang was able to locate him,

according to the respondent's testimony, at the hospital where

respondent was recuperating from his surgery in 2009. Respondent

told Brother Wang that he had a case against the Saipan

International Business School which was ongoing in Saipan and

that he could pay back the loan once he received his money from

that case. Apparently Brother Wang was not satisfied with that

and tried to "force" respondent to leave the hospital with him.

At that point, hospital staff called the police and when Brother

Wang learned of this, he ran away from the hospital. Respondent

said hospital staff even tried to talk to Brother Wang, who was

insistent. The police did come tO the hospital. In this case,

there does not seem to be any nexus between any government

authority, the police, the recruiting company or otherwise, which

would help respondent provide a nexus to a protected ground for

the withholding of removal claim.

Moreover, respondent said that on a previous occasion,

Brother Wang had come to his parents' home, presumably to obtain

the loan payment in the year 2005 and then again in 2008.

Respondent has uncorroborated evidence that his parents were

assaulted, but said that his parents did not want to worry him

A 087 957 069 9 September 15, 2011

010


and did not tell him about it at the time. This Court asked if

respondent's father went to police to report the more serious

incident in 2008. Respondent said the neighbors did call the

police, the police came, but they came after Brother Wang had

left the residence. The police made an inquiry and, therefore,

it appears that although the case may be unsolved, the police

were not involved in this loan dispute as far as any means of

helping Brother Wang. In listening to all of this testimony,

there simply does not seem to be any "acquiescence" by government

officials for the torture claim issue. Respondent said that

there were over I00 students who went to Saipan as the respondent

did through various recruiting agencies and respondent said that

he is actually knowledgeable that at least one other student has

filed a lawsuit in China against one of the recruiters in what

respondent calls "the cheating case." Again, this seems to be a

civil dispute.

Respondent himself has never been arrested in China. He had

no problem leaving China from Beijing airport to come back to

Saipan in 2010. Moreover, when the police came to the hospital,

they did take a report from the respondent about why Brother Wang

was looking for him and the respondent gave them information

about the whole situation with the students and their lawsuits.

Respondent's subjective fear of harm from Brother Wang, which the

Court will deem related to a Torture Convention claim, comes from

the alleged attacks against his parents and the words of Brother

A 087 957 069 I0 September 15, 2011

011


Wang when he left the hospital telling respondent "you can never

run away since you owe me this money and I am not afraid of the

policemen." If the respondent is able to pay back the debt,

presumably this whole issue will be resolved. The Court finds

that there is no nexus to a protected ground for the withholding

of removal application and the Court finds that respondent has

not established eligibility for Convention against Torture

because there is no acquiescence element present here and it

appears to be a private dispute. Therefore, the applications

must both be denied.

There is no other application before the Court and

respondent is statutorily ineligible for voluntary departure.

Accordingly, the following order shall be entered:

ORDER

IT IS HEREBY ORDERED that the application for withholding of

removal under Section 241(b) (3) of the Act is denied, and that

the application for Convention against Torture is denied.

IT IS FURTHER ORDERED that the respondent be removed from

the United States to China on the Section 212(a) (7) (A) (i) (I)

charge.

_'-_ % _4_ 6" _%_r_ioEnRjudg e

A 087 957 069 11 September 15, 2011

012


CERTIFICATE PAGE

I hereby certify that the attached proceeding before

JUDGE DAYNA BEAMER, in the matter of:

LIQIANG GU

A 087 957 069

Saipan, Northern Mariana Islands

is an accurate, verbatim transcript of the recording as provided by

the Executive Office for Immigration Review and that this is the

original transcript thereof for the file of the Executive Office

for Immigration Review.

_h_Tra__J 7_Free State Reporting, Inc.

December 20, 2011(completion date)

By submission of this CERTIFICATE PAGE, the Contractor certifiesthat a Sony BEC/T-147, 4-channel transcriber or equivalent and/orCD, as described in Section C, paragraph C.3.3.2 of the contract,was used totranscribe the Record of Proceeding shown in the above

\

paragraph..

013


014


015


016


8 U.S.C. § 1229a

(a) Proceeding

(1) In general

An immigration judge shall conduct proceedings for deciding the inadmissibility or

deportability of an alien.

(2) Charges

An alien placed in proceedings under this section may be charged with any applicable

ground of inadmissibility under section 1182 (a) of this title or any applicable ground of

deportability under section 1227 (a) of this title.

* * *

(c) Decision and burden of proof

(1) Decision

(A) In general

At the conclusion of the proceeding the immigration judge shall decide whether an alien is

removable from the United States. The determination of the immigration judge shall be

based only on the evidence produced at the hearing.

(B) Certain medical decisions

* * *

(2) Burden on alien

In the proceeding the alien has the burden of establishing—

(A) if the alien is an applicant for admission, that the alien is clearly and beyond doubt

entitled to be admitted and is not inadmissible under section 1182 of this title; or

(B) by clear and convincing evidence, that the alien is lawfully present in the United States

pursuant to a prior admission.

In meeting the burden of proof under subparagraph (B), the alien shall have access to the

alien’s visa or other entry document, if any, and any other records and documents, not

considered by the Attorney General to be confidential, pertaining to the alien’s admission

or presence in the United States.

(3) Burden on service in cases of deportable aliens

(A) In general

In the proceeding the Service has the burden of establishing by clear and convincing

evidence that, in the case of an alien who has been admitted to the United States, the alien

is deportable. No decision on deportability shall be valid unless it is based upon

reasonable, substantial, and probative evidence.

* * *

017


http://www.law.cornell.edu/uscode/text/8/usc_sec_08_00001182----000-#a

http://www.law.cornell.edu/uscode/text/8/usc_sec_08_00001227----000-#a

(e) Definitions

In this section and section 1229b of this title:

* * *

(2) Removable

The term “removable” means—

(A) in the case of an alien not admitted to the United States, that the alien is inadmissible

under section 1182 of this title, or

(B) in the case of an alien admitted to the United States, that the alien is deportable under

section 1227 of this title.

018


48 USC 1806

NB: This unofficial compilation of the U.S. Code is current as of Jan. 5, 2009 (see http://www.law.cornell.edu/uscode/uscprint.html).

- 1 -

TITLE 48 - TERRITORIES AND INSULAR POSSESSIONSCHAPTER 17 - NORTHERN MARIANA ISLANDS

SUBCHAPTER I - APPROVAL OF COVENANT AND SUPPLEMENTAL PROVISIONS

§ 1806. Immigration and transition

(a) Application of the Immigration and Nationality Act and establishment of a transitionprogram

(1) In general

Subject to paragraphs (2) and (3), effective on the first day of the first full month commencing1 year after May 8, 2008 (hereafter referred to as the “transition program effective date”), theprovisions of the “immigration laws” (as defined in section 101(a)(17) of the Immigration andNationality Act (8 U.S.C. 1101 (a)(17))) shall apply to the Commonwealth of the Northern MarianaIslands (referred to in this section as the “Commonwealth”), except as otherwise provided in thissection.(2) Transition period

There shall be a transition period beginning on the transition program effective date and ending onDecember 31, 2014, except as provided in subsections (b) and (d), during which the Secretary ofHomeland Security, in consultation with the Secretary of State, the Attorney General, the Secretaryof Labor, and the Secretary of the Interior, shall establish, administer, and enforce a transitionprogram to regulate immigration to the Commonwealth, as provided in this section (hereafterreferred to as the “transition program”).(3) Delay of commencement of transition period

(A) In general

The Secretary of Homeland Security, in the Secretary’s sole discretion, in consultation with theSecretary of the Interior, the Secretary of Labor, the Secretary of State, the Attorney General,and the Governor of the Commonwealth, may determine that the transition program effectivedate be delayed for a period not to exceed more than 180 days after such date.(B) Congressional notification

The Secretary of Homeland Security shall notify the Congress of a determination undersubparagraph (A) not later than 30 days prior to the transition program effective date.(C) Congressional review

A delay of the transition program effective date shall not take effect until 30 days after thedate on which the notification under subparagraph (B) is made.

(4) Requirement for regulations

The transition program shall be implemented pursuant to regulations to be promulgated, asappropriate, by the head of each agency or department of the United States having responsibilitiesunder the transition program.(5) Interagency agreements

The Secretary of Homeland Security, the Secretary of State, the Secretary of Labor, and theSecretary of the Interior shall negotiate and implement agreements among their agencies toidentify and assign their respective duties so as to ensure timely and proper implementation of theprovisions of this section. The agreements should address, at a minimum, procedures to ensurethat Commonwealth employers have access to adequate labor, and that tourists, students, retirees,and other visitors have access to the Commonwealth without unnecessary delay or impediment.The agreements may also allocate funding between the respective agencies tasked with variousresponsibilities under this section.

019


48 USC 1806


- 2 -

(6) Certain education funding

In addition to fees charged pursuant to section 286(m) of the Immigration and Nationality Act(8 U.S.C. 1356 (m)) to recover the full costs of providing adjudication services, the Secretary ofHomeland Security shall charge an annual supplemental fee of $150 per nonimmigrant worker toeach prospective employer who is issued a permit under subsection (d) of this section during thetransition period. Such supplemental fee shall be paid into the Treasury of the Commonwealthgovernment for the purpose of funding ongoing vocational educational curricula and programdevelopment by Commonwealth educational entities.(7) Asylum

Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) shall not apply duringthe transition period to persons physically present in the Commonwealth or arriving in theCommonwealth (whether or not at a designated port of arrival), including persons brought to theCommonwealth after having been interdicted in international or United States waters.

(b) Numerical limitations for nonimmigrant workers

An alien, if otherwise qualified, may seek admission to Guam or to the Commonwealth during thetransition program as a nonimmigrant worker under section 101(a)(15)(H) of the Immigration andNationality Act (8 U.S.C. 1101 (a)(15)(H)) without counting against the numerical limitations set forthin section 214(g) of such Act (8 U.S.C. 1184 (g)). This subsection does not apply to any employmentto be performed outside of Guam or the Commonwealth. Not later than 3 years following the transitionprogram effective date, the Secretary of Homeland Security shall issue a report to the Committee onEnergy and Natural Resources and the Committee on the Judiciary of the Senate and the Committee onNatural Resources and the Committee on the Judiciary of the House of Representatives projecting thenumber of asylum claims the Secretary anticipates following the termination of the transition period,the efforts the Secretary has made to ensure appropriate interdiction efforts, provide for appropriatetreatment of asylum seekers, and prepare to accept and adjudicate asylum claims in the Commonwealth.(c) Nonimmigrant investor visas

(1) In general

Notwithstanding the treaty requirements in section 101(a)(15)(E) of the Immigration andNationality Act (8 U.S.C. 1101 (a)(15)(E)), during the transition period, the Secretary ofHomeland Security may, upon the application of an alien, classify an alien as a CNMI-onlynonimmigrant under section 101(a)(15)(E)(ii) of the Immigration and Nationality Act (8 U.S.C.1101 (a)(15)(E)(ii)) if the alien—

(A) has been admitted to the Commonwealth in long-term investor status under theimmigration laws of the Commonwealth before the transition program effective date;(B) has continuously maintained residence in the Commonwealth under long-term investorstatus;(C) is otherwise admissible; and(D) maintains the investment or investments that formed the basis for such long-term investorstatus.

(2) Requirement for regulations

Not later than 60 days before the transition program effective date, the Secretary of HomelandSecurity shall publish regulations in the Federal Register to implement this subsection.

(d) Special provision to ensure adequate employment; Commonwealth only transitionalworkers

An alien who is seeking to enter the Commonwealth as a nonimmigrant worker may be admitted toperform work during the transition period subject to the following requirements:

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(1) Such an alien shall be treated as a nonimmigrant described in section 101(a)(15) of theImmigration and Nationality Act (8 U.S.C. 1101 (a)(15)), including the ability to apply, ifotherwise eligible, for a change of nonimmigrant classification under section 248 of such Act (8U.S.C. 1258) or adjustment of status under this section and section 245 of such Act (8 U.S.C. 1255).(2) The Secretary of Homeland Security shall establish, administer, and enforce a system forallocating and determining the number, terms, and conditions of permits to be issued to prospectiveemployers for each such nonimmigrant worker described in this subsection who would nototherwise be eligible for admission under the Immigration and Nationality Act (8 U.S.C. 1101 etseq.). In adopting and enforcing this system, the Secretary shall also consider, in good faith andnot later than 30 days after receipt by the Secretary, any comments and advice submitted by theGovernor of the Commonwealth. This system shall provide for a reduction in the allocation ofpermits for such workers on an annual basis to zero, during a period not to extend beyond December31, 2014, unless extended pursuant to paragraph 5 of this subsection. In no event shall a permit bevalid beyond the expiration of the transition period. This system may be based on any reasonablemethod and criteria determined by the Secretary of Homeland Security to promote the maximumuse of, and to prevent adverse effects on wages and working conditions of, workers authorizedto be employed in the United States, including lawfully admissible freely associated state citizenlabor. No alien shall be granted nonimmigrant classification or a visa under this subsection unlessthe permit requirements established under this paragraph have been met.(3) The Secretary of Homeland Security shall set the conditions for admission of such analien under the transition program, and the Secretary of State shall authorize the issuance ofnonimmigrant visas for such an alien. Such a visa shall not be valid for admission to the UnitedStates, as defined in section 101(a)(38) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(38)), except admission to the Commonwealth. An alien admitted to the Commonwealth on thebasis of such a visa shall be permitted to engage in employment only as authorized pursuant tothe transition program.(4) Such an alien shall be permitted to transfer between employers in the Commonwealth duringthe period of such alien’s authorized stay therein, without permission of the employee’s currentor prior employer, within the alien’s occupational category or another occupational category theSecretary of Homeland Security has found requires alien workers to supplement the residentworkforce.(5) (A) Not later than 180 days prior to the expiration of the transition period, or any extension

thereof, the Secretary of Labor, in consultation with the Secretary of Homeland Security, theSecretary of Defense, the Secretary of the Interior, and the Governor of the Commonwealth,shall ascertain the current and anticipated labor needs of the Commonwealth and determinewhether an extension of up to 5 years of the provisions of this subsection is necessary toensure an adequate number of workers will be available for legitimate businesses in theCommonwealth. For the purpose of this subparagraph, a business shall not be consideredlegitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any otheractivity that is illegal under Federal or local law. The determinations of whether a business islegitimate and to what extent, if any, it may require alien workers to supplement the residentworkforce, shall be made by the Secretary of Homeland Security, in the Secretary’s solediscretion.(B) If the Secretary of Labor determines that such an extension is necessary to ensure anadequate number of workers for legitimate businesses in the Commonwealth, the Secretaryof Labor may, through notice published in the Federal Register, provide for an additionalextension period of up to 5 years.(C) In making the determination of whether alien workers are necessary to ensure an adequatenumber of workers for legitimate businesses in the Commonwealth, and if so, the number of

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such workers that are necessary, the Secretary of Labor may consider, among other relevantfactors—

(i) government, industry, or independent workforce studies reporting on the need, or lackthereof, for alien workers in the Commonwealth’s businesses;(ii) the unemployment rate of United States citizen workers residing in theCommonwealth;(iii) the unemployment rate of aliens in the Commonwealth who have been lawfullyadmitted for permanent residence;(iv) the number of unemployed alien workers in the Commonwealth;(v) any good faith efforts to locate, educate, train, or otherwise prepare United Statescitizen residents, lawful permanent residents, and unemployed alien workers alreadywithin the Commonwealth, to assume those jobs;(vi) any available evidence tending to show that United States citizen residents, lawfulpermanent residents, and unemployed alien workers already in the Commonwealth arenot willing to accept jobs of the type offered;(vii) the extent to which admittance of alien workers will affect the compensation,benefits, and living standards of existing workers within those industries and otherindustries authorized to employ alien workers; and(viii) the prior use, if any, of alien workers to fill those industry jobs, and whether theindustry requires alien workers to fill those jobs.

(6) The Secretary of Homeland Security may authorize the admission of a spouse or minor childaccompanying or following to join a worker admitted pursuant to this subsection.

(e) Persons lawfully admitted under the Commonwealth immigration law(1) Prohibition on removal

(A) In general

Subject to subparagraph (B), no alien who is lawfully present in the Commonwealth pursuantto the immigration laws of the Commonwealth on the transition program effective dateshall be removed from the United States on the grounds that such alien’s presence in theCommonwealth is in violation of section 212(a)(6)(A) of the Immigration and Nationality Act(8 U.S.C. 1182 (a)(6)(A)), until the earlier of the date—

(i) of the completion of the period of the alien’s admission under the immigration lawsof the Commonwealth; or(ii) that is 2 years after the transition program effective date.

(B) Limitations

Nothing in this subsection shall be construed to prevent or limit the removal undersubparagraph 212(a)(6)(A) of the Immigration and Nationality Act (8 U.S.C. 1182 (a)(6)(A))of such an alien at any time, if the alien entered the Commonwealth after May 8, 2008, and theSecretary of Homeland Security has determined that the Government of the Commonwealthhas violated section 702(i) of the Consolidated Natural Resources Act of 2008.

(2) Employment authorization

An alien who is lawfully present and authorized to be employed in the Commonwealthpursuant to the immigration laws of the Commonwealth on the transition program effective dateshall be considered authorized by the Secretary of Homeland Security to be employed in theCommonwealth until the earlier of the date—

(A) of expiration of the alien’s employment authorization under the immigration laws of theCommonwealth; or(B) that is 2 years after the transition program effective date.

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(3) Registration

The Secretary of Homeland Security may require any alien present in the Commonwealth onor after the transition period effective date to register with the Secretary in such a manner, andaccording to such schedule, as he may in his discretion require. Paragraphs (1) and (2) of thissubsection shall not apply to any alien who fails to comply with such registration requirement.Notwithstanding any other law, the Government of the Commonwealth shall provide to theSecretary all Commonwealth immigration records or other information that the Secretary deemsnecessary to assist the implementation of this paragraph or other provisions of the ConsolidatedNatural Resources Act of 2008. Nothing in this paragraph shall modify or limit section 262 ofthe Immigration and Nationality Act (8 U.S.C. 1302) or other provision of the Immigration andNationality Act [8 U.S.C. 1101 et seq.] relating to the registration of aliens.(4) Removable aliens

Except as specifically provided in paragraph (1)(A) of this subsection, nothing in this subsectionshall prohibit or limit the removal of any alien who is removable under the Immigration andNationality Act.(5) Prior orders of removal

The Secretary of Homeland Security may execute any administratively final order of exclusion,deportation or removal issued under authority of the immigration laws of the United States before,on, or after the transition period effective date, or under authority of the immigration laws of theCommonwealth before the transition period effective date, upon any subject of such order foundin the Commonwealth on or after the transition period effective date, regardless whether the alienhas previously been removed from the United States or the Commonwealth pursuant to such order.

(f) Effect on other laws

The provisions of this section and of the immigration laws, as defined in section 101(a)(17) of theImmigration and Nationality Act (8 U.S.C. 1101 (a)(17)), shall, on the transition program effective date,supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admissionof aliens and the removal of aliens from the Commonwealth.(g) Accrual of time for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act

No time that an alien is present in the Commonwealth in violation of the immigration laws of theCommonwealth shall be counted for purposes of inadmissibility under section 212(a)(9)(B) of theImmigration and Nationality Act (8 U.S.C. 1182 (a)(9)(B)).(h) Report on nonresident guestworker population

The Secretary of the Interior, in consultation with the Secretary of Homeland Security, and the Governorof the Commonwealth, shall report to the Congress not later than 2 years after May 8, 2008. The reportshall include—

(1) the number of aliens residing in the Commonwealth;(2) a description of the legal status (under Federal law) of such aliens;(3) the number of years each alien has been residing in the Commonwealth;(4) the current and future requirements of the Commonwealth economy for an alien workforce;and(5) such recommendations to the Congress, as the Secretary may deem appropriate, related towhether or not the Congress should consider permitting lawfully admitted guest workers lawfullyresiding in the Commonwealth on May 8, 2008, to apply for long-term status under the immigrationand nationality laws of the United States.

(Pub. L. 94–241, § 6, as added Pub. L. 110–229, title VII, § 702(a), May 8, 2008, 122 Stat. 854.)

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References in Text

The Immigration and Nationality Act, referred to in subsecs. (a), (d)(2), and (e)(3), (4), is act June 27, 1952, ch. 477, 66Stat. 163, which is classified principally to chapter 12 (§ 1101 et seq.) of Title 8, Aliens and Nationality. For completeclassification of this Act to the Code, see Short Title note set out under section 1101 of Title 8 and Tables.

The Consolidated Natural Resources Act of 2008, referred to in subsec. (e)(1)(B), (3), is Pub. L. 110–229, May 8,2008, 122 Stat. 754. Section 702(i) of the Act is set out as a note under this section. For complete classification of thisAct to the Code, see Short Title of 2008 Amendment note set out under section 1 of Title 16, Conservation, and Tables.

Effective Date

Pub. L. 110–229, title VII, § 705, May 8, 2008, 122 Stat. 867, provided that:

“(a) In General.—Except as specifically provided in this section or otherwise in this subtitle [subtitle A (§§ 701–705)of title VII of Pub. L. 110–229, enacting this section and sections 1807 and 1808 of this title, amending section 1804 ofthis title and sections 1101, 1158, 1182, 1184, and 1225 of Title 8, Immigration and Nationality, enacting provisionsset out as notes under this section, section 1801 of this title, and section 1182 of Title 8, and amending provisions setout as notes under section 1801 of this title], this subtitle and the amendments made by this subtitle shall take effecton the date of enactment of this Act [May 8, 2008].

“(b) Amendments to the Immigration and Nationality Act.—The amendments to the Immigration and Nationality Act[8 U.S.C. 1101 et seq.] made by this subtitle [amending sections 1101, 1158, 1182, 1184, and 1225 of Title 8], andother provisions of this subtitle applying the immigration laws (as defined in section 101(a)(17) of Immigration andNationality Act (8 U.S.C. 1101 (a)(17))) to the Commonwealth, shall take effect on the transition program effectivedate described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by section 702 (a)), unless specificallyprovided otherwise in this subtitle.

“(c) Construction.—Nothing in this subtitle or the amendments made by this subtitle shall be construed to make anyresidence or presence in the Commonwealth before the transition program effective date described in section 6 ofPublic Law 94–241 [48 U.S.C. 1806] (as added by section 702 (a)) residence or presence in the United States, exceptthat, for the purpose only of determining whether an alien lawfully admitted for permanent residence (as defined insection 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(20))) has abandoned or lost such statusby reason of absence from the United States, such alien’s presence in the Commonwealth before, on, or after the dateof enactment of this Act [May 8, 2008] shall be considered to be presence in the United States.”

Congressional Intent

Pub. L. 110–229, title VII, § 701, May 8, 2008, 122 Stat. 853, provided that:

“(a) Immigration and Growth.—In recognition of the need to ensure uniform adherence to long-standing fundamentalimmigration policies of the United States, it is the intention of the Congress in enacting this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see Effective Date note set out above]—

“(1) to ensure that effective border control procedures are implemented and observed, and that national security andhomeland security issues are properly addressed, by extending the immigration laws (as defined in section 101(a)(17)of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(17)), to apply to the Commonwealth of the Northern MarianaIslands (referred to in this subtitle as the ‘Commonwealth’), with special provisions to allow for—

“(A) the orderly phasing-out of the nonresident contract worker program of the Commonwealth; and

“(B) the orderly phasing-in of Federal responsibilities over immigration in the Commonwealth; and

“(2) to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out theCommonwealth’s nonresident contract worker program and to maximize the Commonwealth’s potential for futureeconomic and business growth by—

“(A) encouraging diversification and growth of the economy of the Commonwealth in accordance with fundamentalvalues underlying Federal immigration policy;

“(B) recognizing local self-government, as provided for in the Covenant To Establish a Commonwealth of the NorthernMariana Islands in Political Union With the United States of America through consultation with the Governor of theCommonwealth;

“(C) assisting the Commonwealth in achieving a progressively higher standard of living for citizens of theCommonwealth through the provision of technical and other assistance;

“(D) providing opportunities for individuals authorized to work in the United States, including citizens of the freelyassociated states; and

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“(E) providing a mechanism for the continued use of alien workers, to the extent those workers continue to be necessaryto supplement the Commonwealth’s resident workforce, and to protect those workers from the potential for abuse andexploitation.

“(b) Avoiding Adverse Effects.—In recognition of the Commonwealth’s unique economic circumstances, history, andgeographical location, it is the intent of the Congress that the Commonwealth be given as much flexibility as possiblein maintaining existing businesses and other revenue sources, and developing new economic opportunities, consistentwith the mandates of this subtitle. This subtitle, and the amendments made by this subtitle, should be implementedwherever possible to expand tourism and economic development in the Commonwealth, including aiding prospectivetourists in gaining access to the Commonwealth’s memorials, beaches, parks, dive sites, and other points of interest.”

Reports

Pub. L. 110–229, title VII, § 702(h)(1), (2), May 8, 2008, 122 Stat. 864, provided that:

“(1) In general.—Not later than March 1 of the first year that is at least 2 full years after the date of enactmentof this subtitle [May 8, 2008], and annually thereafter, the President shall submit to the Committee on Energy andNatural Resources and the Committee on the Judiciary of the Senate and the Committee on Natural Resources and theCommittee on the Judiciary of the House of Representatives a report that evaluates the overall effect of the transitionprogram established under section 6 [48 U.S.C. 1806] of the Joint Resolution entitled ‘A Joint Resolution to approvethe “Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union with the UnitedStates of America”, and for other purposes’, approved March 24, 1976 (Public Law 94–241), as added by subsection(a), and the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) on the Commonwealth.

“(2) Contents.—In addition to other topics otherwise required to be included under this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see Effective Date note set out above] or the amendments made by thissubtitle, each report submitted under paragraph (1) shall include a description of the efforts that have been undertakenduring the period covered by the report to diversify and strengthen the local economy of the Commonwealth, includingefforts to promote the Commonwealth as a tourist destination. The report by the President shall include an estimatefor the numbers of nonimmigrant workers described under section 101(a)(15)(H) of the Immigration and NationalityAct (8 U.S.C. 1101 (a)(15)(H)) necessary to avoid adverse economic effects in Guam and the Commonwealth.”

Pub. L. 110–229, title VII, § 702(h)(4), May 8, 2008, 122 Stat. 865, provided that:

“(4) Reports by the Local Government.—The Governor of the Commonwealth may submit an annual report to thePresident on the implementation of this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see EffectiveDate note set out above], and the amendments made by this subtitle, with recommendations for future changes. ThePresident shall forward the Governor’s report to the Congress with any Administration comment after an appropriateperiod of time for internal review, provided that nothing in this paragraph shall be construed to require the Presidentto provide any legislative recommendation to the Congress.”

Required Actions Prior to Transition Program Effective Date

Pub. L. 110–229, title VII, § 702(i), May 8, 2008, 122 Stat. 866, provided that:

“During the period beginning on the date of enactment of this Act [May 8, 2008] and ending on the transitionprogram effective date described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by subsection (a)),the Government of the Commonwealth shall—

“(1) not permit an increase in the total number of alien workers who are present in the Commonwealth as of the dateof enactment of this Act [May 8, 2008]; and

“(2) administer its nonrefoulement protection program—

“(A) according to the terms and procedures set forth in the Memorandum of Agreement entered into between theCommonwealth of the Northern Mariana Islands and the United States Department of Interior, Office of Insular Affairs,executed on September 12, 2003 (which terms and procedures, including but not limited to funding by the Secretaryof the Interior and performance by the Secretary of Homeland Security of the duties of ‘Protection Consultant’ to theCommonwealth, shall have effect on and after the date of enactment of this Act [May 8, 2008]), as well as CNMIPublic Law 13–61 and the Immigration Regulations Establishing a Procedural Mechanism for Persons RequestingProtection from Refoulement; and

“(B) so as not to remove or otherwise effect the involuntary return of any alien whom the Protection Consultant hasdetermined to be eligible for protection from persecution or torture.”

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