Judge clarifies rules on alien deportation

The Superior Court ruled yesterday that being found without actual possession of a passport, an alien registration card, or an entry permit is not ground for the deportation of an alien worker.

Associate Judge David A. Wiseman said an interpretation of “personal possession” which would require aliens to carry their alien registration cards on their physical person at all times “threatens to precipitate absurd results that would impinge on the personal freedom of aliens.”

“The court foresees numerous absurd consequences that could restrict aliens from enjoying physical exercise at a gym or in the ocean, bathing, and other activities which require them to move about unencumbered,” Wiseman pointed out.

Wiseman discussed the “possession” issue in his order dismissing a deportation case filed by the Attorney General’s Office and the Division of Immigration Services against Xu Wang Zheng, who was among 14 reported “stowaway” Chinese workers arrested last December for trying to illegally enter Guam.

The judge found that, because the government has not shown through clear and convincing evidence that Xu had not kept his registration documentation in his possession, the court cannot find him in violation of the registration requirements and deportable under the statutes.

Attorney Gregory Baka represented Xu in the deportation case.

Court records show that on Dec. 1, 2005, a Coast Guard investigator received a request from an Immigration and Customs Enforcement agent for assistance in investigating a planned expedition of Chinese workers from Saipan to Guam via a small boat.

The Coast Guard investigator assisted the ICE agent and the Commonwealth Immigration investigators joined the probe.

On Dec. 6, 2005, the boat departed from Saipan. Coast Guard intercepted the boat approximately 11 miles off the coast of Rota, heading on a southerly course.

The nearest land mass south of Rota is Guam. After intercepting the boat, the Coast Guard escorted the boat containing 14 Chinese nationals, including respondent Xu, back to Saipan.

None of the passengers, with the exception of one, who is not the respondent, carried either their CNMI entry permits or their passports.

When asked about the purpose of the trip, one of the passengers (not the respondent) claimed that the passengers intended to go fishing.

Among the items discovered on the vessel were two fishing rods and tackle boxes. No bait or lures were recovered from the boat during the search.

While searching the boat, the Coast guard investigator discovered several personal items in the vessel.

Immigration investigator Irwin Flores testified at the hearing that respondent Xu, a Chinese citizen, entered Saipan on June 13, 1997 as a contract worker whose permit remained valid at the time of the incident.

Flores testified that respondent did not have a passport or entry permit on his person when searched.

Colin Sablan, an employee of Immigration in charge of the registration of aliens, testified that respondent last registered on July 20, 2005 and that such registration was valid for one year.

The government had moved to deport Xu, who was found without his passport and entry permit in alleged violations of the statutes.

Both Flores and Sablan confirmed, though, that they were not aware of any aliens being deported on account of not personally carrying their passport or entry permits.

Wiseman said that, in order to find an alien deportable under CNMI law, the Commonwealth has the burden of showing, by “clear and convincing evidence” that Xu’s actions or omissions have made him deportable by the statute.

Under the statute, those excludable from entry into the CNMI are aliens who are not in possession of a lawfully issued passport and those who do not have evidence of a valid entry permit.

The government argued that because Xu didn’t have his passport or his entry permit at the time he was taken into custody, he violated the statutes and is deportable.

But Wiseman said whether Xu violated the statutes depends on the proper meaning of the word “possession” in relation to Xu’s passport and “evidence of” in relation to the respondent’s entry permit.

Wiseman said a statute is considered ambiguous when it is capable of more than one interpretation.

The judge said the term “possession”, at least in legal usage, has developed to embody multiple definitions in relation to a person’s control over a thing.

A cursory scan of Black’s Law Dictionary reveals several meanings attributable to “possession.”

The question here, Wiseman noted, is what meaning did the Legislature intend to impart “possession” when the plain language of the statute provides no guidance and where the CNMI courts have been silent on the matter.

He said because the Legislature left “possession” unadorned by adjectives providing a more specific and restrictive meaning, the court can only find that the Legislature only intended the word “possession” to be used in its broadest legal sense.

The judge said the court will adopt the general definition that “possession” is the exercise of dominion over property “to the exclusion of all others” as the manifestation of the Legislature’s plain intent.

In this case, Wiseman said, the government failed to show that Xu relinquished his dominion and control over his passport to the exclusion of all others as they could have done by demonstrating that Xu disposed of his passport as waste or sold it or gave it away to another, thus relinquishing his dominion.

Rather, he said, the government sought to show that Xu was required to carry his passport with him at all times or face deportation, and alternatively that he constructively abandoned his passport.

However, the judge noted, “possession” as intended by the Legislature did not exclude constructive possession, and absent clear and convincing proof of Xu’s relinquishment of dominion and control of his passport, the court cannot find a violation of the statutes and ground for deportation.

Wiseman said Xu and his fellow passengers are already subject to federal charges for attempting to illegally enter Guam.

In contrast, he said, the CNMI Legislature, thus far, has not enacted legislation making it a deportable offense for an alien to travel to Guam.

Wiseman found persuasive Xu’s argument that requiring actual or physical possession of his passport or entry permit at all times would place undue restrictions on an alien’s activities such as restricting their ability to swim, windsurf, jog, bathe or otherwise engage in activities that typically require a person to secure their personal items in places other than their physical person.

“This court is not ready to apply these types of prior restraints on an alien’s personal freedoms before any concrete wrong has been committed and proven,” he said.

The government further argued that Xu was found without his entry permit in violation of the statute.

But the judge disagreed. He said the language of the statute plainly requires that the government prove by clear and convincing evidence that the alien have no evidence of an entry permit.

He said the government has proven that Xu did not have physical possession of his entry permit at the time of his detention along with the circumstances of his voyage.

“But the statute does not require that the respondent even show possession. In order to provide a basis for deportation, the Commonwealth must demonstrate that respondent had no evidence of a valid entry permit,” Wiseman added.