Supreme Court affirms Bashar’s marriage fraud conviction

The NMI Supreme Court affirmed last Dec. 5 Mohammad A. Bashar’s conviction for marriage fraud.

Back in July 2016, Bashar sought the Supreme Court’s review after the trial court denied Bashar’s request to set aside his plea and vacate his conviction and sentence and order denying Bashar’s request for reconsideration.

The Commonwealth penalty for marriage fraud is up to five years imprisonment, a $2,000 fine, or both.

Because a federal conviction for marriage fraud carries a penalty of up to five years imprisonment, a $250,000 fine, or both, while the Commonwealth penalty for marriage fraud was up to five years imprisonment, a $2,000 fine, or both, the Supreme Court decided that applying federal law to Bashar would subject him to a more severe punishment. As such, applying federal law to Bashar’s prosecution would have an impermissible retroactive effect.

In reviewing Bashar’s case, the Supreme Court determined that because Bashar’s marriage fraud prosecution was a proceeding instituted under prior law, Public Law 17-1 would operate to preserve Bashar’s conviction so long as Commonwealth law remained applicable to his prosecution after Nov. 28, 2009.

The court, however, determined that Congress had explicitly expressed intent to preempt local law on the date of the Consolidated Natural Resources Act of 2008 enactment. As a result, the high court turned to the doctrine of retroactivity to determine whether the CNRA should apply to Bashar’s marriage—an act that occurred prior to its enactment.

Bashar has lived in the Commonwealth since 1997, marrying in March of 2009. Bashar was charged with marriage fraud later in March of 2009 after he allegedly got married and filed for a divorce on the same day; he pleaded no contest to the charge in February of 2011. His conviction made him subject to removal.

Around this time, control over immigration law shifted from local to federal government. Congress enacted the CNRA, prescribing the application of federal immigration law to the Commonwealth. The CNRA became effective in the Commonwealth on Nov. 28, 2009. In response to the federal government’s assumption of immigration responsibilities, the Commonwealth enacted Public Law 17-1. Applying retroactively to Nov. 28, 2009, the law repealed many of the Commonwealth’s statutes dealing with immigration functions, including the marriage fraud statute. Public Law 17-1 contained a savings clause, which governed, in part, proceedings instituted under prior law.