The underlying immigration policy of some U.S. island territories might be characterized as: "Let 'em in, deny 'em political rights, and exploit 'em."
Exploit them, in different ways, but to such an extreme that – eventually – Mainland norms override the islands' policy tendencies.
A decision of the Ninth Circuit on a Northern Marianas immigration issue yesterday reminded me of these island/Mainland tensions, which I once watched from my perch inside the U.S. Department of the Interior's Office of Insular Affairs.
But first, a bit of background. The Commonwealth of the Northern Mariana Islands (CNMI), which lies just north of Guam in the western Pacific, famous for the garment sweatshops on Saipan (the main island) during the '90s, long had control of its own immigration policies. It used those powers to bring large numbers (by CNMI standards) of temporary alien workers to the islands to work under sub-par conditions, under circumstances in which the workers could never obtain permanent legal status, much less citizenship.
The CNMI garment factories, at one point, would deport to China any worker who made the mistake of getting pregnant, unless she chose to have an illegal abortion, on the island, before the bosses noticed her condition. (Roe V. Wade never was implemented in those islands.)
Meanwhile, in the Caribbean, the desire to exploit immigrants took a different form in the U.S. Virgin Islands, and the definition of immigrants took on a different meaning from what it was in the CNMI, and what it is on the Mainland.
Last year the Virgin Islands constitutional convention – there is no such document now in existence – decided that there should be three classes of citizens of the islands. At the top there would be "ancestral native Virgin Islanders," people born in the islands before 1932 and their descendants.
Next there would be "native Virgin Islanders," others born in the islands.
At the bottom would be other U.S. citizens, i.e., immigrants from the Mainland.
The draft constitution, as I reported in an earlier blog, ruled that the members of the first class would never have to pay property taxes, which would be borne by the other two classes, and only natives and ancestral natives could be elected governor and lieutenant governor. V.I. Gov. John deJongh, by the way, had nothing to do with the deliberations and expressed grave concern about these provisions.
So, what happened to these harsh, insular concepts? There were two stages to the Mainland reactions.
The first stage of the reaction to the CNMI situation was drawn out over a number of years by the CNMI's allies in Washington, including the now-disgraced, but then powerful, House Majority Leader Tom Delay (R-TX) and the later-jailed lobbyist Jack Abramoff. Eventually, after both DeLay and Abramoff had been pushed off-stage, Congress, in 2008, placed the CNMI, like the rest of the U.S., under the mainline Immigration and Nationality Act (INA), but made certain transitional arrangements to smooth the move from island to Mainland control.
The first stage of the Mainland reaction to the draft V.I. constitution took place more quickly; the Justice Department let it be known that were the frankly biased provisions of the constitution be left in place, that they would sue (and likely win) under the equal protection clause of the U.S. Constitution. Congress let the Virgin Islands know that they, too, had serious reservations along the same lines, and would the constitutional convention please reconvene and reexamine these issues? The administration let it be known that the Office of Insular Affairs, which has a small grant program, would fund the reconvening of the constitutional convention.
Territorial constitutions are, as you might suspect, subject to congressional review.
The second stage. That's how matters stood until recently. Then Messrs. Shi Guang Li, Yong Jun Li, and Wei Kun Zhong sought to take a boat ride from Saipan to Guam, and, a little later, the Virgin Islands constitutional delegates got greedy.
The three Chinese, neither citizens nor green card holders, were in Saipan in the winter of 2009-2010 and wanted to go to Guam; they thought that this would be illegal, so they contacted a boat captain, who is not named in the court records filed with PACER, the judiciary's internet website. You can take a smallish boat between these islands, though it might be an exciting journey.
The boat captain is probably not named because, according to the criminal complaint, he was an undercover agent of ICE, an agency that thought the proposed passage from Saipan to Guam was illegal, too. The boat captain made the arrangements with Zhong and the two Li's, and they, apparently, were all arrested before the boat left Saipan.
The three were hauled into the federal court on Saipan, and the judge agreed with ICE, that the trio had "attempted to unlawfully enter the United States in violation" of federal law.
The three appealed, and the defense lawyers must have had a wonderful time with the case, for clearly moving from one part of the United States to another is not a crime, even if is done through international waters – like from Hawaii to California.
The federal judge on Saipan had ruled that the CNMI was not yet part of the U.S. for immigration purposes because some transitional provisions were still in place. (That judge, Alex Munson, in prior actions has shown that he is not very sympathetic to the extension of the INA to his islands.)
The Ninth Circuit ruled on May 4 that the CNMI was indeed part of the United States for immigration purposes, ordered the convictions overturned, and, presumably, caused some red faces in the offices of ICE and Judge Munson. I did not read the cases thoroughly enough to find out if anyone had objected to what might appear to be entrapment on the part of the ICE boat captain.
On the other hand, if you lure someone into doing something legal, is that entrapment? Or maybe the undercover ICE agent could be charged with false entrapment.
The decision of the three circuit court judges on the CNMI case – minus any reference to the ICE undercover agent – appeared in the Saipan Tribune. The decision solidifies the Mainland's domination of immigration policies in those islands.
The denouement in the Virgin Islands was neither as dramatic nor as well documented.
After Congress told the V.I. constitutional convention to think about these matters again, but before it could do so, Gov. deJongh was re-elected, soundly defeating (in the Democratic primary) Gerald Luz James, the president of the constitutional convention and a former lieutenant governor of the islands. This result, I gather, took some of the steam out of the drive for James' version of a territorial constitution.
Further, my information is that the convention delegates, or their leaders, wanted an unreasonable amount of money to reopen the convention, and the Office of Insular Affairs would not agree. Then the conversation sort of dribbled away. Although its death has not been announced, the draft V.I. constitution seems to be disappearing into the mists.
As I pointed out in a column in the sprightly Virgin Islands Source, a virtual newspaper in the islands, that in a purely apples-to-apples comparison, it costsseven and half times more per vote for the government of the V.I. to run an election than it costs the government of my hometown of Arlington, Va. So that the convention delegates might have an inflated idea of what it should cost to run a convention does not come as a surprise.
In summary, really exploitative, biased immigration policies in the islands have, in these cases, eventually run into serious Mainland opposition, and have been modified as a result. For the moment, anyway, these are rare bits of good news in the immigration policy field.