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Peter Eche, Ph. D.; Perry Po-Sheung Lo v. Eric H. Holder

September 11, 2012

PETER ECHE, PH. D.; PERRY PO-SHEUNG LO, PLAINTIFFS-APPELLANTS,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL; JANET A. NAPOLITANO,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY; DAVID GULICK, USCIS DISTRICT DIRECTOR;
WALTER L. HAITH, USCIS DISTRICT 26 FIELD OFFICE DIRECTOR; SUSAN TERUYA, USCIS IMMIGRATION OFFICER, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of the Northern Mariana Islands D.C. No. 1:10-cv-00013 Philip M. Pro, District Judge, Presiding

The opinion of the court was delivered by: Schroeder, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted June 12, 2012-Honolulu, Hawaii

Before: Mary M. Schroeder, Consuelo M. Callahan, and N. Randy Smith, Circuit Judges.

Opinion by Judge Schroeder

OPINION

Lawful permanent residents of the United States (LPRs) who apply for naturalization as United States citizens must show, inter alia, that they have resided in the United States continuously for five years. See 8 U.S.C. § 1427(a)(1); 8 C.F.R. § 316.2(a)(3)-(4). Each of the two Plaintiffs-Appellants in this case had resided for several years in the Commonwealth of the Northern Mariana Islands (CNMI), a territory of the United States, when federal immigration law replaced CNMI immigration law there in 2009. The issue we must decide in this appeal is whether the time plaintiffs resided in the CNMI before the 2009 transition date counts toward the five-year residence requirement for naturalization. The district court held in a published decision that the time does not count. Eche v. Holder, 742 F. Supp. 2d 1136, 1141-45 (D.N.M.I. 2011). That is the correct answer under the clear language of the controlling statute, and we affirm.

STATUTORY BACKGROUND

When Congress in 1976 approved the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States (Covenant), citizens of the CNMI became citizens of the United States. See Covenant, Pub. L. No. 94-241, § 301, 90 Stat. 263, 265-66. The CNMI government, however, retained nearly exclusive control over immigration to the territory. See id. § 503(a), 90 Stat. at 268. Over time, the CNMI government permitted a massive influx of temporary "guest workers" from Asia to work in the territory's factories, which were devoted principally to textile and clothing manufacture. See Sagana v. Tenorio, 384 F.3d 731, 734-35 (9th Cir. 2004). While CNMI law authorized the guest workers' presence, United States law did not extend the workers any federal immigration status. See id. Thus LPRs of the United States could not count time spent living in the CNMI toward federal naturalization requirements unless they had a US-citizen immediate relative also living in the CNMI. See Covenant § 506(c), 90 Stat. at 269; see also General Counsel Opinion, No. 94-10, 1994 WL 1753115 at *4 (INS, Feb. 9, 1994).

In 2009 this situation changed when the Consolidated Natural Resources Act of 2008 (CNRA), Pub. L. No. 110-229, 122 Stat. 754 (2008), became effective. That statute and its implementing regulation made federal immigration law applicable to the CNMI beginning on November 28, 2009. See 48 U.S.C. § 1806(a)(1); Commonwealth of the Northern Mariana Island Transitional Worker Classification, 74 Fed. Reg. 55094 (Oct. 27, 2009). The CNRA divested territorial officials' authority to administer immigration law and policy, and gave the authority to officers of the United States government. See CNRA § 702, 122 Stat. at 854-55. The statute also made the CNMI part of the United States within the meaning of the Immigration and Nationality Act. See id., 122 Stat. at 866; 8 U.S.C. § 1101(a)(36), (a)(38). LPRs of the United States may therefore now count time they reside in the CNMI toward the residence requirement for naturalization as United States citizens. The plaintiffs in this case, however, wish to count time they lived in the CNMI before the transition.

PROCEDURAL BACKGROUND

The Plaintiffs-Appellants are Peter Eche and Perry PoSheung Lo. Each became a permanent resident of the United States and each later moved to the CNMI before the CNRA transition date. Eche, a Nigerian citizen, entered the United States at Seattle and was admitted as an LPR in September 2004 as the immediate family member of his United States citizen father. He moved to the CNMI in January 2005, and his father apparently remained in the continental United States. Lo, a Chinese citizen, was admitted as an LPR in February 1989 as the immediate family member of his United States citizen sister. He lived in the CNMI between October 2000 and 2009 with no citizen immediate family member.

Both Eche and Lo filed applications in the CNMI to naturalize as United States citizens and appeared for examination in late 2009. The United States Citizenship and Immigration Service (USCIS) rejected both applications on the ground that their pre-transition date residence did not count. The agency said that if the LPRs had no US-citizen immediate relative also living in the CNMI, the residence before the November ...


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