Tran v. COM. OF THE NORTHERN MARIANA ISLANDS, Civ. A. No. 90-0009.
| Decision Date | 27 November 1991 |
| Docket Number | Civ. A. No. 90-0009. |
| Citation | 780 F. Supp. 709 |
| Parties | Van Maurice TRAN, Plaintiff, v. COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS; Lorenzo I. Guerrero, Governor; Robert C. Naraja, Attorney General; and Eric Smith, Assistant Attorney General, Defendants. |
| Court | U.S. District Court — Northern Mariana Islands |
V.K. Sawhney, Hill & Sawhney, Saipan, MP, for plaintiff.
James B. Parsons, CNMI Asst. Atty. Gen., Saipan, MP, for defendants.
DECISION AND ORDER OF DISMISSAL
THIS MATTER came before the Court on Monday, October 28, 1991 for hearing of Defendants' motion to dismiss this case for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Plaintiff was represented by Mr. V.K. Sawhney of Hill & Sawhney. The Defendants Commonwealth of the Northern Mariana Islands, et al. (collectively "CNMI"), were represented by CNMI Assistant Attorney General James B. Parsons.
The issue presented is whether a Vietnamese "stateless" person who enters the CNMI on a tourist entry permit, seeks and is denied political asylum and refugee status both from the CNMI and the United States, is ordered by the CNMI judiciary to be deported, refuses to cooperate with any country which might be willing to receive him, and actively obstructs attempts by the CNMI government to deport him anywhere other than the United States, has a federal constitutional right to employment within the CNMI.
This is an action brought under 42 U.S.C. § 1983 averring violation by the CNMI of such a right. Plaintiff, Mr. Tran, also brings pendent claims alleging violations of the CNMI Constitution and the United Nations Trusteeship Agreement.1 Because no constitutional right to employment within the CNMI exists under the circumstances of this action, there is no subject matter jurisdiction and the case is therefore DISMISSED.
Mr. Van Maurice Tran, born during 1952 in Vietnam of Vietnamese and French parents, fled to France with a forged French passport shortly after the communist triumph in 1975. His French citizenship status was cancelled in 1984 when he revealed his true identity to the French authorities, and Mr. Tran was granted French refugee status instead.
Plaintiff renounced his refugee status in 1988 because of alleged discrimination encountered in France. Cognizant that the CNMI is part of the United States, but unaware that the CNMI controls its own immigration, Mr. Tran entered the CNMI under tourist nonimmigrant entry permit number S-10088 dated July 12, 1988, expiring on September 1, 1988.2 He intended to seek refugee status or political asylum in the United States once he was on American soil.
His refugee passport expired shortly after his arrival on Saipan. (Amended Complaint ¶ 12.) The CNMI instituted deportation proceedings on September 13, 1988. Office of the Attorney General and the Office of Immigration and Naturalization of the Commonwealth of the Northern Mariana Islands v. Van Maurice Tran, Civil Action No. 88-665 (Commonwealth Trial Court). Pending hearing on the matter, Plaintiff's counsel and the CNMI sought information on whether the United States would grant Mr. Tran political asylum or refugee status. The following United States agencies, among others, rejected his application: U.S. Consulate, Immigration and Naturalization Service (INS) Section, Hong Kong (because he was already within U.S. jurisdiction); U.S. State Department, Freely Associated States Section (because he was not in the Federated States of Micronesia, Republic of the Marshall Islands, or Belau); and the U.S. INS Office, Guam (because the CNMI is outside the jurisdiction of the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq.). The United States did not then decide the application on its merits.
At a hearing on November 2, 1988, the Hon. Ramon G. Villagomez, then Associate Judge of the former Commonwealth Trial Court,3 ordered Mr. Tran's deportation as soon as possible. A written Order of Deportation was signed November 15, 1988. A request for stay of deportation pending appeal and pending consideration by the United States of his application was denied by Judge Villagomez following a hearing on December 13, 1988.
An appeal to the Appellate Division of this Court, which then had jurisdiction pursuant to 48 U.S.C. § 1694b(a) (1988) and 1 CMC §§ 3301 et seq. (1984) (Commonwealth Code), was dismissed by stipulation on January 31, 1989. Plaintiff returned to the Commonwealth Trial Court, seeking an amendment to the deportation order permitting employment. Judge Villagomez denied the motion by order dated March 6, 1989 both on procedural timeliness grounds and on the merits, noting that "No entry permit shall be modified, nor shall a non-resident worker certificate be issued, which would permit a person who has entered the Commonwealth as a visitor or tourist to be employed in the Commonwealth." 3 CMC § 4332(b)(4) (1988 Supp.). Judge Villagomez rejected argument that the cited provision of the Non-Resident Worker's Act was inapplicable.
Following the original deportation order of November 15, 1988, the CNMI sought a country that would accept Mr. Tran. A CNMI Assistant Attorney General (AAG) met with the French Consul General in Honolulu and obtained advice that Tran could reapply for French refugee status, and possibly obtain French citizenship. When Tran's attorney was apprised of this, Mr. Tran immediately contacted the Consul General, informing him he had no desire to live in France. He wrote, As for French citizenship based on his father, he never knew him and had no idea of his whereabouts.
The CNMI eventually sought an order in June 1990 to compel Plaintiff to fill out an application and provide documentation to facilitate his return to France. The CNMI argued it was obvious Tran had no intention of returning to his home of 13 years, and would only cooperate if he were being deported to the United States, which federal authorities had thus far refused to allow. Tran responded that the deportation order placed the burden upon the CNMI of finding a country that would accept him, and that he was under no obligation to assist in his own deportation.
Several continuances were granted to provide time for a CNMI AAG to make another trip to Washington, DC to get a definitive response from the United States. As did the other U.S. agencies previously contacted, the U.S. State Department issued a conclusive letter denying Mr. Tran admission, stating that he does not qualify for refugee status because of his 13 year resettlement in France. 8 C.F.R. § 207.1(b) (1991). Nor does he qualify for political asylum, for the same reason. 8 C.F.R. §§ 208.14(c)(2), 208.15 (1991).
CNMI Superior Court Presiding Judge Hefner issued an order on September 24, 1990 requiring Tran to execute any and all documents necessary to effectuate his departure. Judge Hefner based his ruling on the CNMI Attorney General's broad discretion in immigration matters, pointing out that a federal statute requiring such execution of documents under penalty of felony imprisonment had been upheld against constitutional challenges for vagueness. 8 U.S.C. § 1252(e) (1988); United States v. Spector, 343 U.S. 169, 72 S.Ct. 591, 96 L.Ed. 863 (1952).
Fifteen days later, Plaintiff's motion for permission to work in the CNMI pending deportation was heard. The CNMI argued that the Superior Court was bound by the prior order dated March 6, 1989 denying amendment of the original deportation order to permit employment, and referred to 3 CMC § 4332(b)(4) (1988 Supp.), supra at 710-711, cited in that order. Characterizing work authorization as a peripheral or collateral matter, and relying on changed circumstances, humanitarian concerns, and a court's inherent powers, Judge Hefner ruled that the prior order was not binding. Order at 2-3, 4-5 (N.Mar.I.Super.Ct., Oct. 12, 1990). Judge Hefner wrote that Tran was no longer a tourist but a deportee, and that the statute would not be violated because the court was not ordering a CNMI government agency to permit him to work, but itself was authorizing him to work. Id. at 3-4. The order concluded, "Such authorization shall cease should the respondent not cooperate with the government in resolving his deportation processing and shall terminate upon the issuance of travel documents which will allow him to depart the Commonwealth pursuant to 3 CMC § 4344 (1988 Supp.)"
Although Tran had lost the privilege of reapplying for French refugee status by his prolonged absence from France, the French Consul General in Honolulu forwarded application forms for residency in New Caledonia, a French overseas territory, to a CNMI AAG shortly after the motion to compel was filed. On October 23, 1990 a hearing was held before the CNMI Superior Court and Plaintiff was ordered to complete the New Caledonia application within three days.
Plaintiff did so, but gave as the reason for his application, (Translation from French to English.) In answering if he would undertake to leave upon the expiration of any visa granted, he answered, Above his signature he penned, "My signature does not hold me liable to this application."
When the French Consul General in Honolulu informed the CNMI that the inappropriate comments would inevitably result...
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