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

Letter

DHS Has Begun Implementing Border Control

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.

U.S. Agencies’ Implementation of CNRA Programs for Workers, Visitors, and Investors Is Incomplete

DHS Has Taken Steps to Create CNMI-Only Work Permit Program, but Program Is Not Yet Available

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.

DHS Has Implemented the Guam-CNMI Visa Waiver Program but Is Reconsidering Inclusion of China and Russia

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.

Proposed DHS Rule to Provide CNMI-Treaty Investor Status to Foreign Investors Is Not Yet Final

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.

DHS Components Have Been Unable to Negotiate Solutions to Certain Operational Challenges with the CNMI Government

Long-Term Occupancy Agreements for Airport Space

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.

Detention Space in CNMI Correctional Facility

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.

Direct Access to CNMI Immigration and Border Control Data

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.

Concluding Remarks and Prior Recommendation

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.

Appendix I: Key Provisions for Foreign Workers, Visitors, and Foreign Investors in Consolidated Natural Resources Act of 2008 and Other U.S. Immigration Provisions

Exemptions from certain visa caps for nonimmigrant workers

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.

Appendix II: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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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