Ruling reversed on foreign worker in removal proceedings

The U.S. Court of Appeals for the Ninth Circuit recently reversed a ruling that found a foreign worker deportable from the CNMI after the Consolidated Natural Resources Act was enacted in November 2009.

Catherine Lopena Torres, who was present in the Commonwealth when the Immigration and Nationality Act or INA became applicable to the CNMI, was found not removable pursuant to the new ruling.

The Ninth Circuit granted in part and denied in part Torres’ petition for review of a decision of the Board of Immigration Appeals and overruled a previous decision made by the Ninth Circuit regarding a similar case.

In its ruling dated Sept. 24, 2020, the Ninth Circuit stated that the sudden imposition of the INA could have rendered thousands of guest workers and other lawful residents under CNMI law removable overnight. In an effort to ensure that these guest workers and others like them were not unfairly penalized and that the CNMI economy would not be destabilized by the deportation of previously admitted guest workers, U.S. Congress provided a two-year reprieve in which any alien “lawfully present in the Commonwealth” on Nov. 28, 2009, could not be removed for being present in the U.S. without admission or parole.

Starting in 2010, just months after the INA went into effect in the CNMI, the federal government began charging some CNMI residents as removable under 8 U.S.C. § 1182(a)(7), a provision of the INA not covered by the CNRA’s two-year reprieve, for failing to possess a valid entry document at the time of application for admission.

The Ninth Circuit said many CNMI residents, like Torres, challenged their removal on the basis that, because they had not yet submitted an application for admission into the U.S., they were not removable under this provision.

Likewise, many CNMI residents, like the petitioner in Minto v. Sessions, would have had no reason to apply for entry papers into the U.S., as they had entered before such papers were required. Yet, under Minto, all were removable for lack of documentation under § 1182(a)(7) despite Congress’ expressed intent that they be permitted to remain for at least two years after the INA went into effect.

Because of this, the Ninth Circuit found that the Minto case was wrongfully decided and must be overruled.

However, the ruling also found Torres ineligible for cancellation of removal by failing to establish 10 years of continuous presence in the U.S. and that the appellate court lacked jurisdiction to consider her request to remand the case to DHS to consider her application for parole in place.

Torres, who is originally from the Philippines, entered the CNMI lawfully as a guest worker in 1997 and, by 2009, she had given birth to three U.S citizen children.

After the enactment of the CNRA, the U.S. Department of Homeland Security served Torres with a notice to appear, charging her with being removable as a noncitizen present in the United States without being admitted or paroled, and as a noncitizen who, at the time of application for admission, lacked a valid entry document.

Torres contested her removability before the immigration judge, saying that because she had lawfully entered the CNMI in 1997 before the INA went into effect, and because she had never submitted an application for admission into the U.S., she fell outside the scope of the provision.

But the immigration judge rejected her argument and ordered Torres removed, which the Board of Immigration Appeals also affirmed.

The Ninth Circuit previously held in Minto v. Sessions that a respondent “present in the CNMI without admission or parole on Nov. 28, 2009” who was placed in removal proceedings was “deemed” to be “an applicant for admission” and removable for not possessing a valid entry document at the time of application for admission.

The Ninth Circuit then denied Torres’ petition for review initially; but later a majority of non-recused active judges of the Ninth Circuit voted to rehear the case.