Opinion
APPEAL NO. 98-041
July 13, 1999, Submitted on the Briefs . October 20, 1999, Decided
Counsel for Petitioners: Robert Goldberg, Assistant Attorney General, Saipan.
Pro Se: Gemma G. Sagun.
Amicus Curiae: Joe Hill, Hill Law Office, Saipan.
DEMAPAN, Chief Justice:
This matter is before us on an appeal brought by the Office of the Attorney General and the Division of Immigration Services of the Commonwealth of the Northern Mariana Islands ("Government") following the trial court's order granting voluntary departure to a six year overstay in a deportation case. Amicus curiae argue they have similar factual and legal issues to warrant an interest in this case.
On June 28, 1999 this Court declined to issue a writ of mandamus against the Superior Court in Office of the Attorney General v. Superior Court, Fabricante and Chi, 1999 N. Mar. I. LEXIS 21, No. 99-001 (N.M.I. Jun 28, 1999) (slip op.).
Orders of deportation are final and appealable. 3 CMC § 4342. This Court has jurisdiction pursuant to Article IV, Section 3 of the Commonwealth Constitution. N.M.I. Const. art IV § 3 (1997) and 3 CMC § 4342. We reverse and remand.
Appeal of an order of deportation may be had as an appeal in any civil case. 3 CMC § 4342.
ISSUE PRESENTED AND STANDARD OF REVIEW
We must determine whether the lower court had the discretion to allow Sagun to voluntarily depart the Commonwealth. In other words, does the Superior Court have statutory jurisdiction to grant voluntary departure after a deportation case has commenced? This is a legal issue reviewed de novo. Agulto v. Northern Marianas Islands Investment Group Ltd., 4 N. Mar. I. 7, 9 (1993).
FACTUAL AND PROCEDURAL BACKGROUND
Respondent/Appellee, Sagun, is a citizen of the Republic of the Philippines, who entered the Commonwealth for employment as a houseworker. Her work permit expired on January 27, 1993. In spite of the expiration, she remained in the Commonwealth for nearly six years. On September 18, 1998, the trial court entered an Order to Show Cause why Sagun should not be deported and set the matter for a deportation hearing on October 22, 1998. Prior to the deportation hearing the Government denied Sagun's request for a voluntary departure.
At the October 22, 1998 deportation hearing, Sagun admitted the facts in the Petition, then asked the lower court judge to grant her a voluntary departure. The judge responded that the Superior Court could not grant voluntary departure in her situation and "the only way" the trial court could grant voluntary departure was if the Government were to stipulate. Appellant's Trial Transcript, Excerpts of Record ("E.R.") at 19. Nonetheless, the judge granted the voluntary departure "for the sake of expediency." E.R. at 21. The Order of Deportation stated, "if respondent departs the Commonwealth by October 31, 1998, the court shall vacate the Order." Office of the Attorney General v. Sagun, slip op., No. 98-1022 (N.M.I. Super. Ct. Oct. 26, 1998)(Order of Deportation). The Government timely appealed.
Sagun appeared pro se, assisted by Benigno M. Sablan; Mr. Sablan is not licensed to practice law in the CNMI. Office of the Attorney General v. Sagun, slip op., Appeal No. 98-041, Request for Leave re Modification and Correction of Record Pursuant to Rule 10(e) and Suggestion of Mootness; Under Rule 27(c), Affidavit of Benigno Sablan.
It is undisputed that Sagun remained in the Commonwealth after her permit expired and was thus subject to deportation. See 3 CMC 4434(g). The particular issue we confront is whether the trial court had the discretion to permit a voluntary departure of a six year over stay.
I. Mootness
We begin by noting that counsel for amicus curiae declare that Sagun has already departed the CNMI. The amicus curiae submit that since Sagun voluntarily departed the Commonwealth before October 31, 1998, complying with the provision from the Order of Deportation, the matter should be deemed moot. Nonetheless we will entertain this appeal:
The respondents provided copies of boarding passes for Gemma Sagun from Saipan to Manila on October 23, 1998 on Continental Micronesia. Office of the Attorney General v. Sagun, 1999 N. Mar. I. LEXIS 25, No. 98-041, Request for Leave re Modification and Correction of Record Pursuant to Rule 10(e) and Suggestion of Mootness; Under Rule 27(c), Exhibit 1.
In the exceptional situations mootness is not an obstacle to the considerations of an appeal. In our opinion, 'when the question involved affects the public interest, and it is likely in the nature of things that similar questions arising in the future would likewise become moot before a needed authoritative determination by an appellate court can be made,' an exception to the rule is justified.
Govendo v. Micronesian Garment Mfg., Inc. et al. 2 N. Mar. I. 270, 282 (1991) (quoting Johnston v. Ing, 50 Haw. 379, 441 P.2d 138, 140 (Haw. 1968)). The question presented in this case is of public concern, and, if it were to recur, would likely become moot before it could be determined on appeal.
The practice over the years has been that the trial court has permitted voluntary departure relief pursuant to stipulations by the Office of the Attorney General. See, e.g., Office of the Attorney General v. Tobias, slip op., Civil Action No. 97-1144 (N.M.I. Super Ct. Dec. 1997)(Stipulated Motion for Stay/Dismissal and Relief from Order of Deportation/Order); Office of the Attorney General v. Babusao, slip op., Civil Action No. 96-366 (N.M.I. Super. Ct. June 17, 1997)(Stipulation Re Motion for Stay/Dismissal and Relief from Order of Deportation/Order); Office of the Attorney General v. Mendoza, slip op., Civil Action No. 960659 (N.M.I. Super. Ct. Sept. 13, 1996) (Stipulated Motion to Dismiss with Prejudice to 3 CMC Section 4343 - Voluntary Departure and Order).
Govendo, 2 N. Mar. I. at 282-283. We are satisfied that the matter is not moot because of the effect the deportation order has on Sagun's ability to re-enter the Commonwealth. See 3 CMC § 4322(d) (A resident alien who is deported may not re-enter the Commonwealth for five years from the date of deportation). We shall, therefore, address the issue presented.
The Commonwealth Legislature exercises plenary power with respect to Commonwealth immigration matters, pursuant to section 503 of the Covenant. "For reasons including the population and size disparity between the CNMI and the rest of the U.S. and preservation of the unique CNMI's Chamorro and Carolinian ethnic and cultural heritage, the CNMI has been permitted to exercise plenary authority over its own immigration." Tran v. CNMI, 780 F. Supp. 709, 713 (D.N.M.I. 1991) aff'd, 993 F.2d 884 (9th Cir. 1993). With respect to Commonwealth immigration matters, the Commonwealth is sovereign and this Court is duty-bound to apply only the immigration laws of the Commonwealth. AGO v. Honrado, 1996 N. Mar. I. LEXIS 2, *18, No. 94-044 (N.M.I. June 27, 1996).
Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (Covenant) § 503(a), Act of Mar 24, 1976, Pub.L. 94-241,90 Stat. 263, as amended by Pub.L. 98-213, § 9,97 Stat. 1461, Pub.L. 99-396, § 10, 100 Stat. 840.
The Commonwealth legislature has expressed its intent that "Entry and deportation legislation in the Commonwealth should follow closely United States law." Standing Committee Report No. 33-267, on Senate Bill No. 3-119 (November 21, 1983), Exhibit 8. The immigration laws of the United States, with limited exceptions which are not relevant here, do not apply to the CNMI. Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America §§ 503(a), 506.
The Covenant and the Commonwealth Constitution set forth roles for each branch. In the Commonwealth, deportation proceedings are governed by the terms of the Commonwealth Entry and Deportation Act of 1983. 3 CMC § 4301. Sections 4341 and 4343 govern deportation procedures at the hearing stage and set the terms for voluntary departure:
Any time prior to actual commencement of the hearing on the order to show cause, the respondent may be permitted to voluntarily depart the Commonwealth at the discretion of the Attorney General.
3 CMC § 4343 (emphases added).
The role of the Superior Court is as follows:
A hearing on the petition to show cause shall be made before the Commonwealth Trial Court. A determination of deportability shall be made if there is clear and convincing evidence that the facts alleged as grounds for deportation are true … If the trial court makes a determination of deportability, an order of deportation shall be entered and the respondent shall forthwith be deported.
3 CMC § 4341(e) and (f) (emphasis added).
The executive branch is vested with authority to exercise discretion with respect to voluntary departure; the judicial branch has the authority to determine facts with respect to deportability. The courts of the United States have historically employed the granting of discretionary relief, including voluntary departure and suspension of deportation to avoid the harshness and hardship resulting from deportation in appropriate cases. In contrast, the Commonwealth Legislature has placed the proceedings that lead to final orders of deportation in the Commonwealth Superior Court.
The U.S. Congress has vested both rule making and adjudicating powers in the Attorney General of the United States regarding aliens in immigration matters. The United States Supreme Court has determined that "discretionary relief, if sought, must be requested prior to or during the deportation hearing. The hearings on deportability and on an application for discretionary relief have, as a matter of traditional uniform practice, been held in one proceeding. . . resulting in one final order of deportation." Foti v. INS, 375 U.S. 217, 223, 84 S. Ct. 306, 310, 11 L. Ed. 2d 281 (1963).
A basic canon of statutory construction is that language be given its plain meaning. Estate of Faisao v. Tenorio, 4 N. Mar. I. 260, 265 (1995). This Court's objective in interpreting statutes, is to "ascertain and give effect to the intent of the legislature." Id. at 266 (1995). If the intent of the legislature is clear, the implementing agency must give effect to the statute as written. Chevron U.S.A. v. Natural Resources Defense Council Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781-82, 81 L. Ed. 2d 694 (1984).
From the meaning of the statute, the trial judge possesses discretion in whether deportability is found. The language of the statute states, "if the trial court makes a finding of deportability"; the trial judge must assess whether factually the alien is deportable. 3 CMC § 4341(e). In cases where deportability is found, or as here, if deportability is admitted, the statute prescribes that the alien in question shall be deported. "The use of the word 'shall' in the statute is mandatory and has the effect of creating a duty, absent any legislative intent to the contrary." Aquino v. Tinian Cockfighting Board, 3 N. Mar. I. 284, 292 (1992).
A Court does not sit as a super legislature, passing judgment on the wisdom of legislative policy decisions limiting immigration. Tran, supra. It is constrained to follow the Constitution and the law. Id. As justices, it is our duty to apply the law even if the results are sometimes harsh. Honrado, 1996 N. Mar. I. LEXIS 2, *22-23.
In this case, the trial court found Sagun "remained in the Commonwealth without lawful authority and is subject to deportation pursuant to 3 CMC § 4340." Order of Deportation. Sagun admitted she remained in the Commonwealth illegally for nearly six years. The Superior Court should therefore have ordered Sagun's deportation. We find no reason to justify an overstay nor a voluntary departure under the circumstances of this case.
CONCLUSION
For the foregoing reasons, we find that the trial court erred in allowing Sagun to voluntary depart the Commonwealth. The case is REMANDED to the trial court to delete the voluntary departure provision in the Order of Deportation that states, "If respondent departs the Commonwealth by October 31, 1998 the Court shall vacate the Order."
Dated this 20th day of October, 1999.
/s/ Miguel S. Demapan
MIGUEL S. DEMAPAN, Chief Justice
/s/ Alexandro C. Castro
ALEXANDRO C. CASTRO, Associate Justice
/s/ Marty W.K. Taylor
MARTY W.K. TAYLOR, Justice Pro Tem