Commonwealth of the Northern Mariana Islands: DHS Needs to Conclude Negotiations and Finalize Regulations to Implement Federal Immigration Law
Published: 2010-05-18T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: This testimony discusses our work on the status of efforts to establish federal border control in the Commonwealth of the Northern Mariana Islands (CNMI) and implement the Consolidated Natural Resources Act of 2008 (CNRA) with regard to foreign workers, visitors, and investors in the CNMI. In May 2008, the United States enacted CNRA, amending the U.S.-CNMI Covenant to establish federal control of CNMI immigration. CNRA contains several CNMI-specific provisions affecting foreign workers and investors during a transition period that began in November 2009 and ends in 2014. In addition, CNRA amends existing U.S. immigration law to establish a joint visa waiver program for the CNMI and Guam by replacing an existing visa waiver program for Guam visitors. During the transition period, the U.S. Secretary of Homeland Security, in consultation with the Secretaries of the Interior, Labor, and State and the U.S. Attorney General, has the responsibility to establish, administer, and enforce a transition program to regulate immigration in the CNMI. CNRA requires that we report on the implementation of federal immigration law in the CNMI. This testimony summarizes findings from our recent report regarding (1) steps that the Department of Homeland Security (DHS) has taken to establish federal border control in the CNMI; (2) actions that DHS has taken to implement programs for workers, visitors, and investors; and (3) unresolved operational challenges that DHS has encountered.
section_title: What GAO Found
paragraphs: DHS and its components have taken a number of steps to secure the border in the CNMI and to implement CNRA-required programs for foreign workers, visitors, and foreign investors. However, the components face certain operational challenges that they have been unable to resolve with the CNMI government. Steps taken to establish border control: DHS and its components have taken the following steps, among others, to establish federal border control in the CNMI. (1) Customs and Border Protection (CBP). Since November 2009, CBP has inspected arriving travelers in Saipan and Rota. (2) Immigration and Customs Enforcement (ICE). Also since November 2009, ICE has identified individuals who may be in violation of U.S. immigration laws and has begun processing some aliens for removal. (3) U.S. Citizenship and Immigration Services (USCIS). In March 2009, USCIS opened an application support center. For calendar year 2009, USCIS processed 515 CNMI applications for permanent residency and 50 CNMI applications for naturalization or citizenship. (4) DHS. DHS has taken several department-level actions to facilitate implementation of CNRA but has not finalized an interdepartmental agreement regarding implementation of CNRA and has not yet specified its resource requirements for this effort as directed by Congress. Actions taken to implement worker, visitor, and investor programs: DHS has begun to implement CNRA-required programs for foreign workers, visitors, and foreign investors but has not yet finalized key regulations. As a result, certain transition programs remain unavailable. (1) Foreign workers. On October 27, 2009, DHS issued an interim rule to implement a CNMI-only work permit program required by CNRA for foreign workers not otherwise admissible under federal law. However, a November 2009 U.S. District Court ruling, responding to an amended lawsuit by the CNMI government, prohibited implementation of the interim rule, stating that DHS must consider public comments before issuing a final rule. As a result, CNMI-only work permits are not currently available. (2) Visitors. DHS has established the Guam-CNMI visa waiver program. However, the program does not include China and Russia, two countries that provide significant economic benefit to the CNMI. (3) Foreign investors. DHS has proposed a rule to allow a large proportion of investors holding CNMI foreign investor permits to obtain U.S. CNMI-only nonimmigrant treaty investor status during the transition period. DHS plans to issue a final rule in July 2010; until then, the program is not available. Unresolved operational challenges: DHS components and the CNMI government have not yet negotiated solutions to operational challenges regarding access to CNMI airport space, detention facilities, and databases. (1) Airport space. Lacking long-term occupancy agreements and adequate space at CNMI airports, the agency is operating in facilities that do not meet its standards for holding cells and secondary inspections. (2) Detention facilities. Lacking an agreement with the CNMI government regarding detention space, ICE has released a number of aliens with criminal records into the community under orders of supervision and has paid to transport several detainees to Guam and Hawaii. (3) Databases. Lacking direct access to the CNMI's immigration and border control databases, ICE officials have instead directed data requests to a single CNMI point of contact, limiting their ability to quickly verify the status of aliens and potentially compromising the security of ongoing operations.

section_title: Letter
paragraphs: Thank you for the opportunity to discuss our work on the status of efforts  to establish federal border control in the Commonwealth of the Northern  Mariana Islands (CNMI) and implement the Consolidated Natural  Resources Act of 2008 (CNRA) with regard to foreign workers, visitors,  and investors in the CNMI.
In May 2008, the United States enacted CNRA, amending the U.S.-CNMI  Covenant to establish federal control of CNMI immigration. CNRA  contains several CNMI-specific provisions affecting foreign workers and  investors during a transition period that began in November 2009 and ends  in 2014. In addition, CNRA amends existing U.S. immigration law to  establish a joint visa waiver program for the CNMI and Guam by replacing  an existing visa waiver program for Guam visitors. During the transition  period, the U.S. Secretary of Homeland Security, in consultation with the  Secretaries of the Interior, Labor, and State and the U.S. Attorney General,  has the responsibility to establish, administer, and enforce a transition  program to regulate immigration in the CNMI. CNRA requires that we  report on the implementation of federal immigration law in the CNMI.
My remarks today will summarize findings from our recent report  regarding (1) steps that the Department of Homeland Security (DHS) has  taken to establish federal border control in the CNMI; (2) actions that DHS  has taken to implement programs for workers, visitors, and investors; and  (3) unresolved operational challenges that DHS has encountered. We  conducted this performance audit from September 2009 to May 2010 in  accordance with generally accepted government auditing standards.
subsections: section_title: DHS Has Begun Implementing Border Control
paragraphs: Customs and Border Protection. From November 28, 2009, to March 1,  2010, CBP officers working at the Saipan and Rota airports processed  103,565 arriving travelers, granting 11,760 (11 percent) parole. During this  period, more than 80 percent of arriving travelers came from Japan or  South Korea. Of arriving travelers from China and Russia, 86 percent  (10,398 of 12,131) and 90 percent (1,027 of 1,146), respectively, were  paroled into the CNMI only, under DHS authority. In addition, CBP signed  right-of-entry agreements with the CNMI government that gave the agency  access to the airports to prepare for implementation of federal border  control.
Immigration and Customs Enforcement. Since November 28, 2009, 10  ICE officials detailed to Saipan have identified aliens in violation of U.S.  immigration laws and have processed or detained aliens for removal  proceedings. From December 7, 2009, to March 1, 2010, ICE identified  approximately 264 aliens subject to possible removal from the CNMI— including approximately 214 referrals from the CNMI Attorney General’s  office with pending CNMI deportation orders and 49 referrals from the  ICE Office of Investigations and the community—and requested  immigration status information about these individuals from the CNMI  Department of Labor. As of March 1, 2010, ICE officials had processed 72  of the 264 aliens for removal proceedings. As of March 26, 2010, ICE  officials told us they had not deported any of the 72 aliens being processed  for removal but that 31 were scheduled for immigration hearings by the  end of March 2010 and 9 had agreed to waive their right to a hearing and to  be deported after completing their criminal sentences.
U.S. Citizenship and Immigration Services. In March 2009, USCIS  opened an Application Support Center in Saipan and stationed two full- time employees at the center to provide information services, interview  residents currently eligible to apply for lawful permanent resident status  or citizenship, and process requests requiring biometric services such as  fingerprints or photographs. For calendar year 2009, USCIS processed 515  CNMI applications for permanent residency and 50 CNMI applications for  naturalization or citizenship, more than doubling the number of interviews  conducted for applications for residency or citizenship from calendar year  2008, according to data provided by USCIS officials. By March 17, 2010,  USCIS had also received 1,353 advance parole requests and approved  1,123 of them. USCIS also granted parole-in-place status to 705  individuals for domestic travel and granted 24 group paroles.
Department of Homeland Security. To facilitate implementation of  CNRA in the CNMI, DHS led meetings with the other departments charged  with implementing CNRA; reported to Congress on the budget and  personnel needed by the DHS components; and initiated outreach to the  CNMI government. However, DHS has not finalized an interdepartmental  agreement with other U.S. departments regarding implementation of  CNRA and has not specified changes in its resource requirements as  directed by Congress.
section_title: U.S. Agencies’ Implementation of CNRA Programs for Workers, Visitors, and Investors Is Incomplete
subsections: section_title: DHS Has Taken Steps to Create CNMI-Only Work Permit Program, but Program Is Not Yet Available
paragraphs: DHS issued an interim rule for the CNMI-only work permit program on  October 27, 2009, but a court injunction has prevented implementation of  the rule. The interim rule establishes (1) the number of permits to be  issued, (2) the way the permits will be distributed, (3) the terms and  conditions for the permits, and (4) the fees for the permits. In issuing the  interim rule, which was scheduled to take effect on November 27, 2009,  DHS announced that it would accept comments in the development of the  final rule but was not following notice-and-comment rulemaking  procedures, asserting that it had good cause not to do so.
In its November 2, 2009, amendment to its ongoing lawsuit to overturn  portions of CNRA, the CNMI filed a motion for a preliminary injunction to  prevent the operation of the DHS interim rule. The CNMI argued in part  that DHS had violated procedural requirements of the Administrative  Procedure Act, which requires notice and the opportunity for public  comment before regulations can go into effect.
On November 25, 2009, the federal District Court for the District of  Columbia issued an order prohibiting implementation of the interim rule,  stating that DHS must consider public comments before issuing a final  rule. In response to this preliminary injunction, DHS reopened the  comment period from December 9, 2009, until January 8, 2010. As of May  18, 2010, DHS had not yet issued a final rule, and as a result, CNMI-only  work permits are not available.
DHS received numerous comments on the interim rule from the CNMI  government, a private sector group, and interested businesses and  individuals. The CNMI government commented that the rule was  incomplete and would damage CNMI workers, employers, and community.  In addition, the Saipan Chamber of Commerce raised concerns regarding  the economic impact of the regulations and made a proposal to make it  easier for workers with the CNMI-only work permit to return from travel  outside the commonwealth.
DHS plans to issue a final rule for the CNMI-only work permit program in  September 2010.
section_title: DHS Has Implemented the Guam-CNMI Visa Waiver Program but Is Reconsidering Inclusion of China and Russia
paragraphs: On January 16, 2009, DHS issued an interim final rule for the Guam-CNMI  joint visa waiver program, which went into effect November 28, 2009. The  program is intended to allow visitors for business or pleasure to enter the  CNMI and Guam without obtaining a nonimmigrant visa for a stay of no  longer than 45 days. DHS’s rule designates 12 countries or geographic  areas, including Japan and South Korea, as eligible for participation in  the program. DHS considered designating Russia and China as eligible  for participation, because visitors from those countries provide significa economic benefits to the CNMI. However, because of political, security,  and law enforcement concerns, including high nonimmigrant visa refusal  rates, DHS deemed China and Russia as not eligible to participate in the  program. nt  In developing the Guam-CNMI visa waiver program, DHS officials  consulted with representatives of the CNMI and Guam governments, both  of which sought the inclusion of China and Russia in the program. In May  2009, DHS officials informed Congress that the department is  reconsidering whether to include China and Russia in the Guam-CNMI visa  waiver program.
On October 21, 2009, the Secretary of Homeland Security announced to  Congress and the Governors of the CNMI and Guam the decision to parole  tourists from China and Russia into the CNMI on a case-by-case basis for a  maximum of 45 days, in recognition of their significant economic benefit  to the commonwealth.
Public comments on the regulations from the Guam and CNMI  governments and private sectors emphasized the economic significance of  including China and Russia in the program. Guam officials argued that  tourist arrivals in Guam from traditional markets were declining and that  access to the China tourism market presented an important economic  benefit. CNMI officials noted that the CNMI economy would be seriously  damaged unless the CNMI retained access to the China and Russia tourism  markets.
The regulations became effective on November 28, 2009. DHS plans to  issue a final rule for the program in November 2010.
section_title: Proposed DHS Rule to Provide CNMI-Treaty Investor Status to Foreign Investors Is Not Yet Final
paragraphs: In September 2009, DHS proposed a rule to allow a large proportion of  CNMI foreign investor permit holders to obtain U.S. CNMI-only  nonimmigrant investor treaty status during the transition period.  According to the proposed rule, eligibility criteria for this status during the  transition period include, among others, having been physically present in  the CNMI for at least half the time since obtaining CNMI investor status.  Additionally, investors must provide evidence of maintaining financial  investments in the CNMI, with long-term business investors showing an  investment of at least $150,000.
In commenting on the proposed rule, the CNMI government stated that  about 85 of 514 long-term business entry permit holders could not qualify  if an investment level of $150,000 is required. The CNMI also reported that  251 of the 514 permit holders were granted at a $50,000 required  investment level and were “grandfathered” in 1997, when the minimum  investment requirement was increased. The CNMI projected that after the  end of the transition period, only 42 of 514 long-term business entry permit  holders may be able to meet the minimum investment level to qualify for  federal investor status.
DHS accepted comments on the proposed rule until October 14, 2009, and  intends to issue a final rule in July 2010.
section_title: DHS Components Have Been Unable to Negotiate Solutions to Certain Operational Challenges with the CNMI Government
subsections: section_title: Long-Term Occupancy Agreements for Airport Space
paragraphs: CBP and the CNMI government have not yet signed long-term occupancy  agreements that would allow CBP to reconfigure space that the CNMI  government has provided in CNMI airports. As a result, the agency is  operating in facilities that do not meet its standards for holding cells and  secondary inspections.
The current configuration of CBP’s space at the Saipan airport does not  include holding cells that meet federal standards. As a result, CBP lacks  space to temporarily detain individuals who may present a risk to public  safety and to its officers. In addition, owing to a lack of adequate space for  secondary inspections, CBP officers process parole applications at the  airport in primary inspection booths, resulting in increased wait times for  arriving visitors who are not applying for parole.
U.S. law requires international airports to provide, without charge,  adequate space to the U.S. government to perform its duties. However,  the CNMI government stated that the port authority is not in a financial  position to provide space to CBP without charge. In commenting on a  draft of our report, the CNMI stated that the commonwealth is not  prepared to enter into negotiations with CBP unless it is assured that the  request for space has been cleared at least at the assistant secretary level  at DHS and that the department has received the necessary assurance  from Congress that the funds necessary to fulfill CBP’s space needs will be  available.
As of April 2010, CBP continued to seek access to approximately 7,200  additional square feet of space at the Saipan airport, and the two parties  had not concluded negotiations regarding long-term occupancy  agreements for space at the Saipan and Rota airports. Key differences  related to cost have not yet been resolved.
section_title: Detention Space in CNMI Correctional Facility
paragraphs: ICE has been unable to conclude negotiations with the CNMI government  for access to detention space in the CNMI correctional facility. In March  2010, ICE estimated that it required 50 detention beds for its CNMI  operations. Under a 2007 agreement between the U.S. Marshals Service  and the CNMI Department of Corrections, the CNMI adult correctional  facility in Saipan provided the U.S. government 25 detention beds at $77  per bed per day. As of September 2008, less than 30 percent of the  facility’s beds (134 of 513) were filled.
To obtain needed detention space, ICE proposed to either amend the 2007  U.S. Marshals Service agreement before it expired on April 1, 2010, or  establish a new agreement with the CNMI government. As of March 2010,  after a year of negotiation, ICE had not finalized an agreement with the  CNMI government owing to unresolved cost documentation issues,  according to a senior ICE official.
Since January 2010, negotiations between ICE and the CNMI regarding  detention space have been on hold. Given the current lack of needed  detention space, ICE has identified three alternatives regarding detainees it  seeks to remove from the CNMI while removal proceedings are under way:  (1) release detainees into the CNMI community, under orders of  supervision; (2) transport detainees to other U.S. locations; or (3) pay the  CNMI’s daily rate for each detainee, if the CNMI provides appropriate  documentation justifying its proposed rate. According to ICE officials,  because of flight risk and danger to the community, ICE prefers to detain  aliens with prior criminal records while they await their immigration  removal hearings. However, since November 2009, ICE has released 43  detainees into the CNMI community under orders of supervision, including  27 with prior criminal records. According to ICE officials, orders of  supervision are appropriate for detainees who do not present a danger to  the community or a possible flight risk. In addition, as of March 2010, ICE  had paid a total of approximately $5,000 to transport two detainees to Guam  and one to Honolulu.
Since January 2010, negotiations between ICE and the CNMI government  regarding access to detention space have been at an impasse.
section_title: Direct Access to CNMI Immigration and Border Control Data
paragraphs: As of March 1, 2010, DHS components lacked direct access to CNMI  immigration and border control data contained in two CNMI databases,  the Labor Information Data System (LIDS) and the Border Management  System (BMS). The CNMI government assigned a single point of contact  in the CNMI Department of Labor to respond to CBP, ICE, and USCIS  queries from the database, most commonly for verification of an  individual’s immigration status. DHS component officials have expressed  concerns about the reliance on a single CNMI point of contact.
ICE officials expressed the following concerns, among others:    Relying on one CNMI point of contact to verify immigration status for  individuals subject to ICE investigations could compromise security for  ongoing operations.
Because the CNMI point of contact is an indirect source, basing ICE  detention and removal decisions on data provided by the point of contact  could lead to those decisions’ eventual reversal in court.
USCIS officials’ concerns included the following:    Direct access to LIDS would allow USCIS to verify information provided  by applicants for immigration benefits such as advance parole.
Direct access to the data would facilitate the processing of applications for  CNMI-only work permits and for CNMI-only nonimmigrant treaty investor  status.
In February 2010, CNMI officials reported that the point of contact assigned  to work with the U.S. government had promptly supplied information on  individual cases to U.S. officials from immigration and border control  databases. A senior CNMI official also stated that if the point of contact is  unable to respond to future DHS inquiries in a timely manner, CNMI  officials would be willing to engage in additional discussions regarding more  direct access to LIDS and BMS. However, according to ICE officials, the  CNMI responses to ICE inquiries have not been timely and have not always  provided sufficient information. We examined ICE records of 68 inquiries  and found that CNMI response times ranged from 16 minutes to around 23  hours, averaging roughly 4-and-a-half hours. ICE officials reported that the  responses contained first and last names and LIDS numbers but rarely  included biographical or other identifying information.
DHS has communicated, at the department and component levels, with the  CNMI government regarding access to CNMI immigration data.
During a September 2009 meeting between the Governor of the CNMI and  the Secretary of Homeland Security, the Governor proposed providing  restricted access to information contained in LIDS and BMS, for a fee and  in exchange for airline flight entry data.
On February 18, 2010, the Governor sent a letter to CBP reiterating the  CNMI’s request that DHS share advance passenger information provided  by the airlines.
On March 31, 2010, CBP responded to the CNMI letter, stating that the  CNMI’s intended use of the advance passenger information did not justify  the data’s release to CNMI authorities.
As of March 2010, DHS and the CNMI government were at an impasse  regarding any exchange of passenger information for CNMI immigration  and border control data.
section_title: Concluding Remarks and Prior Recommendation
paragraphs: DHS components have taken a number of steps since November 28, 2009,  to ensure effective border control procedures in the CNMI. Additionally,  DHS and other agencies have taken steps to implement CNRA provisions  for workers, visitors, and investors, although the programs for workers  and investors are not yet available to eligible individuals in the CNMI.  Despite the DHS components’ progress, however, their inability to  conclude negotiations with the CNMI government regarding access to  airport space, detention facilities, and CNMI databases has resulted in  continuing operational challenges. Although the DHS components have  made continued efforts to overcome these challenges without department- level intervention, in each case, their efforts have encountered obstacles.  Negotiations with the CNMI government for long-term access to the CNMI  airports have not been concluded, and key differences remain unresolved;  meanwhile, negotiations for access to CNMI detention facilities and  databases have reached impasse. Without department-level leadership as  well as strategic approaches and timeframes for concluding its  components’ negotiations with the CNMI, DHS’s prospects for resolving  these issues is uncertain.
To enable DHS to carry out its statutory obligation to implement federal  border control and immigration in the CNMI, we recommended that the  Secretary of Homeland Security work with the heads of CBP, ICE, and USCIS  to establish strategic approaches and timeframes for concluding negotiations  with the CNMI government to resolve the operational challenges related to  access to CNMI airport space, detention facilities, and information about the  status of aliens. DHS agreed with our recommendation.
Madame Chairwoman, this completes my prepared statement. I would be  happy to respond to any questions you or other Members of the  Subcommittee may have at this time.
section_title: Appendix I: Key Provisions for Foreign Workers, Visitors, and Foreign Investors in Consolidated Natural Resources Act of 2008 and Other U.S. Immigration Provisions
subsections: section_title: Exemptions from certain visa caps for nonimmigrant workers
paragraphs: Begins with transition period start date and ends December 31, 2014, under P.L. 110-229,  enacted May 8, 2008.
May be extended indefinitely for up to 5 years at a time by the U.S. Secretary of Labor.
Begins with transition period start date and continues permanently.
section_title: Appendix II: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the person named above, Emil Friberg, Assistant Director;  Michael P.Dino, Assistant Director; Julia A. Roberts, Analyst-in-Charge;  Gifford Howland, Senior Analyst; Ashley Alley, Senior Attorney; and Reid  Lowe, Senior Communications Analyst, made key contributions to this  report. Technical assistance was provided by Martin De Alteriis, Ben  Bolitzer, Etana Finkler, Marissa Jones, and Eddie Uyekawa.
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