Peter Eche, et al v. Eric Holder, Jr., et al

Filing

FILED OPINION (MARY M. SCHROEDER, CONSUELO M. CALLAHAN and N. RANDY SMITH) AFFIRMED. Judge: MMS Authoring,. FILED AND ENTERED JUDGMENT. [8318076]--[Edited 09/11/2012 by ASW: replaced PDF with correct version, resent notice.]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER ECHE, Ph. D.; PERRY POSHEUNG 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.





No. 10-17652
D.C. No.
1:10-cv-00013
OPINION



Appeal from the United States District Court
for the District of the Northern Mariana Islands
Philip M. Pro, District Judge, Presiding
Argued and Submitted
June 12, 2012—Honolulu, Hawaii
Filed September 11, 2012
Before: Mary M. Schroeder, Consuelo M. Callahan, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Schroeder

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COUNSEL
Michael A. Brodsky, Capitola, California, for plaintiffsappellants Peter Eche, et al.
Samuel P. Go, Washington, D.C., for defendants-appellees
Eric H. Holder, Attorney General, et al.

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OPINION
SCHROEDER, Circuit Judge:
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 PlaintiffsAppellants 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

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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

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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
28, 2009 transition date “cannot be counted as residence in
the United States for naturalization purposes.”
Eche and Lo together then filed this suit pro se in the District Court for the Northern Mariana Islands. The district court
treated the action as one to review the agency’s denial of
plaintiffs’ naturalization applications, so the court exercised
jurisdiction pursuant to 8 U.S.C. § 1447(a). It held on the
merits that CNRA did not permit the plaintiffs to count
toward the requirements for naturalization the time they
resided in the CNMI before CNRA’s effective date. See Eche,
742 F. Supp.2d at 1141-45. The court therefore granted summary judgment for the government.
Eche and Lo filed this timely appeal, and this court
appointed pro bono counsel. All parties agree there are no
material issues of fact and the critical issue is one of statutory
interpretation.
The district court also held that Eche and Lo had exhausted
administrative remedies. Eche and Lo had explored the possibilities for review of the denials, but were discouraged from
filing formal appeals. Assuming the district court’s conclusion
was incorrect, there is no jurisdictional bar to our considering
their appeal on the merits. This is because the statutory provision for review of the agency’s denial of naturalization applications is permissive, rather than mandatory. It provides a
denied applicant “after a hearing before an immigration offi-

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cer . . . may seek review of such denial before the United
States district court.” 8 U.S.C. § 1421(c). That section does
not contain the “sweeping and direct jurisdictional mandate”
that the Supreme Court and we have required before concluding an exhaustion requirement is jurisdictional. Maronyan v.
Toyota Motor Sales, U.S.A., Inc., 658 F.3d 1038, 1040 (9th
Cir. 2011). The requirement is thus prudential, not jurisdictional. We exercise our discretion to decide Eche and Lo’s
appeal on the merits. Their case presents unusual circumstances: they were told repeatedly that they should not pursue
an administrative appeal because it would be futile. The government is thus in no position to fault them for failing to
appeal. See Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir.
2004) (failure to exhaust may be waived when “administrative
appeal would be futile”).
THE STATUTORY MEANING
The relevant language of the CNRA was intended to clarify
the legal effect of residence and presence in the CNMI before
the 2009 transition from CNMI immigration law to federal
immigration law. Section 705 provides in pertinent part:
(a) IN GENERAL.—Except as specifically provided
in this section or otherwise in this subtitle, this subtitle and the amendments made by this subtitle shall
take effect on the date of enactment of this Act.
(b) AMENDMENTS TO THE IMMIGRATION
AND NATIONALITY ACT.—The amendments to
the Immigration and Nationality Act made by this
subtitle, and other provisions of this subtitle applying the immigration laws (as defined in section
101(a)(17) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(17))) to the Commonwealth, shall
take effect on the transition program effective date
described in section 6 of Public Law 94-241 (as

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added by section 702(a) [of CNRA]), unless specifically provided otherwise in this subtitle.
(c) CONSTRUCTION.—Nothing in this subtitle or
the amendments made by this subtitle shall be construed to make any residence or presence in the
Commonwealth before the transition program effective date described in section 6 of Public Law
94-241 (as added by section 702(a) [of CNRA]) residence or presence in the United States, except that,
for the purpose only of determining whether an alien
lawfully admitted for permanent residence (as
defined in section 101(a)(20) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(20))) has abandoned or lost such status by reason of absence from
the United States, such alien’s presence in the Commonwealth before, on, or after the date of enactment
of this Act shall be considered to be presence in the
United States.
CNRA § 705, 122 Stat. at 867 (codified at 48 U.S.C. § 1806
note). The district court interpreted subsection (c) to mean
that an LPR of the United States may not count pre-transition
time in the CNMI toward the naturalization requirements,
except for the limited purpose of determining abandonment,
i.e., whether an LPR “loses his status . . . by leaving the
United States.” Eche, 742 F. Supp. 2d at 1145. An LPR who
lived in the CNMI before the transition date would not have
abandoned LPR status, but could not count the time in the
CNMI toward citizenship qualification. The court thus concluded that under the controlling plain language, Eche and Lo
did not qualify for naturalization.
[1] Eche and Lo’s principal argument on appeal is that the
first and operative clause of CNRA § 705(c) was intended to
prevent only temporary guest workers from counting their residence in the CNMI. The statute does not say that, however.
It has blanket language. The statute says it should not be con-

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strued to make “any residence or presence” in the CNMI,
before the effective date, “residence or presence in the United
States.” Section 705(c) thus does not distinguish between
temporary guest workers and LPRs. All categories of aliens
are encompassed.
[2] There is one narrow exception. The exception in the
second clause permits an alien to count presence in the CNMI
as presence in the United States for the limited purpose of
determining whether the alien has lost or abandoned LPR status. § 705(c). The exception addresses the status abandonment
doctrine, under which an alien with LPR status may lose or
abandon such status by traveling abroad for more than a temporary visit. See Khodagholian v. Ashcroft, 335 F.3d 1003,
1006 (9th Cir. 2003); Khoshfahm v. Holder, 655 F.3d 1147,
1151-52 (9th Cir. 2011). The exception therefore provides
that an alien’s time spent in the CNMI “before, on, or after the
transition date,” is not a loss or abandonment of LPR status.
Beyond this, residence or presence in the CNMI before the
transition date cannot count toward the naturalization requirements.
Eche and Lo offer still another strained interpretation of
§ 705(c) to count their time in the CNMI before the transition
date. They ask us to interpret the phrase “such status” in the
second clause as referring to presence in the United States,
rather than to immigration status. They then insist that by living in the CNMI they were not abandoning their “status” of
being present in the United States. Continuity of presence is
relevant for purposes of determining whether an alien retains
LPR status, because prolonged absence from the United
States can disrupt continuity of presence. See 8 C.F.R.
§ 316.5(c). The statutory antecedent to the phrase “such status,” however, is the status of having been admitted to lawful
permanent residence. See 8 U.S.C. § 1101(a)(20) (defining
LPR status). Presence is not an immigration “status.”
[3] Congress thus clearly ensured that residence in the
CNMI before United States immigration law became effective

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would not count toward the residence required for naturalization as a United States citizen. The reason for this is apparent.
Before CNRA’s effective date, the CNMI government controlled and administered its own immigration law, applicable
only to the CNMI. The territory admitted temporary guest
workers and other aliens who lacked federal immigration status, and therefore were not eligible for adjustment of status
under federal law. After CNRA’s effective date, the Immigration and Nationality Act applied to the territory and the federal government took over administration of immigration law.
See CNRA § 702. Congress thus provided, in § 705, that residence in the territory before federal immigration law applied
was not residence in the United States.
[4] Eche and Lo nevertheless contend that we should interpret CNRA § 705(c) in their favor to preserve uniformity and
to avoid a constitutional question under the Naturalization
Clause of the Constitution. That clause provides Congress
shall have the power “[t]o establish a uniform Rule of Naturalization . . . throughout the United States.” U.S. Const., Art.
I, § 8, cl. 4. Eche and Lo contend it requires CNMI naturalization law to have been the same as that in the States at all
times.
The only support Eche and Lo offer for their argument is
a century-old decision of this court, United States v. Rodiek,
162 F. 469 (9th Cir. 1908). The case involved a nowsuperceded requirement that applicants for naturalization
declare intent to naturalize two years before applying to do so.
The Organic Act for Hawaii, however, provided that an applicant who had lived in Hawaii for the prior five years could
naturalize without having declared intent. Id. at 470; see
Organic Act, April 30, 1900, c. 339, s. 100, 31 Stat. 141, 146.
The same law had also organized Hawaii as an incorporated
territory of the United States, explicitly extending the Constitution to the territory. See Friend v. Reno, 172 F.3d 638, 646
(9th Cir. 1999); Organic Act, s. 5, 31 Stat. at 141. Congress
later repealed the Hawaii declaration exception. We therefore

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held in Rodiek the district court should not have applied the
special naturalization rule for Hawaii. 162 F. at 470-71. We
observed in passing that the special territorial rule would have
raised constitutional concerns had it not been repealed. Id. at
470.
Eche and Lo rely on this observation, but our decision in
Rodiek did not turn on any constitutional issue. Moreover,
because Hawaii was an incorporated territory, our observation
about the Naturalization Clause must be read in that context.
The CNMI is not an incorporated territory. While the Covenant is silent as to whether the CNMI is an unincorporated
territory, and while we have observed that it may be some
third category, the difference is not material here because the
Constitution has “no greater” force in the CNMI “than in an
unincorporated territory.” Comm. of Northern Mariana
Islands v. Atalig, 723 F.2d 682, 691 n.28 (9th Cir. 1984); see
Wabol v. Villacrusis, 958 F.2d 1450, 1459 n.18 (9th Cir.
1990). The Covenant extends certain clauses of the United
States Constitution to the CNMI, but the Naturalization
Clause is not among them. See Covenant § 501, 90 Stat. at
267. The Covenant provides that the other clauses of the Constitution “do not apply of their own force,” even though they
may apply with the mutual consent of both governments. Id.
[5] The Naturalization Clause does not apply of its own
force and the governments have not consented to its applicability. The Naturalization Clause has a geographic limitation:
it applies “throughout the United States.” The federal courts
have repeatedly construed similar and even identical language
in other clauses to include states and incorporated territories,
but not unincorporated territories. In Downes v. Bidwell, 182
U.S. 244 (1901), one of the Insular Cases, the Supreme Court
held that the Revenue Clause’s identical explicit geographic
limitation, “throughout the United States,” did not include the
unincorporated territory of Puerto Rico, which for purposes of
that Clause was “not part of the United States.” Id. at 287.
The Court reached this sensible result because unincorporated

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territories are not on a path to statehood. See Boumediene v.
Bush, 553 U.S. 723, 757-58 (2008) (citing Downes, 182 U.S.
at 293). In Rabang v. I.N.S., 35 F.3d 1449 (9th Cir. 1994), this
court held that the Fourteenth Amendment’s limitation of
birthright citizenship to those “born . . . in the United States”
did not extend citizenship to those born in the Philippines during the period when it was an unincorporated territory. U.S.
Const., 14th Amend., cl. 1; see Rabang, 35 F.3d at 1451.
Every court to have construed that clause’s geographic limitation has agreed. See Valmonte v. I.N.S., 136 F.3d 914, 920-21
(2d Cir. 1998); Lacap v. I.N.S., 138 F.3d 518, 519 (3d Cir.
1998); Licudine v. Winter, 603 F. Supp. 2d 129, 134 (D.D.C.
2009).
[6] Like the constitutional clauses at issue in Rabang and
Downes, the Naturalization Clause is expressly limited to the
“United States.” This limitation “prevents its extension to
every place over which the government exercises its sovereignty.” Rabang, 35 F.3d at 1453. Because the Naturalization
Clause did not follow the flag to the CNMI when Congress
approved the Covenant, the Clause does not require us to
apply federal immigration law to the CNMI prior to the
CNRA’s transition date.
[7] The district court correctly granted summary judgment
on the merits to the government Defendants. Eche and Lo
may, of course, submit new applications for naturalization
once they have satisfied the statutory requirements.
AFFIRMED.