Calvo's Prisoner Removal: What's his goal and what's his process?
by John O'Connor
The Guam Daily Post
October 23, 2016
Back in June, two individuals from the Federated States of Micronesia allegedly assaulted two police officers at the Hemlani Apartments. About three weeks later, a man found himself with a one-way plane ticket destined for Chuuk. Yet Ninton Hauk, the man sent home, had nothing to do with the incident at Hemlani. (He was, however, in prison at the time for other crimes, including assault on a peace officer as a third-degree felony.) Instead, Hauk’s removal served as Governor Eddie Calvo’s test case for a policy designed to “protect the health and interest of all the people of Guam” through the removal of non-U.S. citizen prisoners incarcerated by the Guam Department of Corrections. Depending on who you ask, Hauk was either lucky or unlucky enough to have been caught up in outside circumstances resulting in the commutation of his sentence in exchange for agreeing to permanently leave Guam.
Since then, the governor has “deported” 11 more non-citizen convicts from the island, while a twelfth has had his sentence commuted and is in federal custody awaiting removal. The governor initially referred to these actions as deportations until Attorney General AG Barret-Anderson advised him that he does not have the authority to deport foreign nationals. Like governors of U.S. states, however, he does posses the power to pardon and commute the sentences of GDOC prisoners. And from his view, if he managed to convince prisoners to leave Guam in exchange for commutation, well… that is something else entirely.
Calvo has claimed these recent actions as a remedy to purported federal inaction regarding the alleviation of financial stresses on the local government related to immigration from some neighboring nations. While the Hemlani Apartments incident may have been the breaking point for the governor – who also called for the deportation of two individuals allegedly involved in the incident, even though they hadn't been convicted – a neglectful federal government remains a popular talking point in local politics that makes for an easy enough punching bag during an election year. Simmering resentment among locals toward Micronesian immigrants, in particular those of Chuukese descent, could also play into Calvo’s political motives, say some critics.
Costs of COFA
Compacts of free association (COFA) between the United States and the FSM, the Republic of Palau, and the Republic of the Marshall Islands allow citizens from these nations to live and work in the U.S. as legal nonimmigrants. Federal law provides at least $30 million annually to be distributed between Guam, Hawaii, American Samoa, and the CNMI to cover the cost of hosting these individuals.
But costs for a single state or territory can run more than double that pooled amount.
A January 2016 report from the U.S. Department of the Interior stated that 2014 government of Guam COFA expenditures amounted to about $144 million while federal reimbursement was just around $18 million. The governor and his legislative colleagues are quick to point out the resulting deficiencies – a strained public hospital, crowded schools, and an overpopulated prison system.
“On the one hand the federal government is saying ‘You’ve got an overcrowded prison system, you’re not allowing them their constitutional rights,’” Calvo said during an interview with the Sunday Post in early October. “And yet, at the same time, the federal government has helped, aided, and abetted the overcrowding because they have not done their jobs.”
There are presently about 230 non-U.S. citizens incarcerated with the Guam Department of Corrections. This accounts for about 30 percent of the total prison population, the majority of which are from the FSM – particularly, Chuuk. At a cost of $43,000 to imprison a single convict per year, Guam spends over $9 million annually detaining foreign nationals.
Debate over deportation
While deportation falls under the larger purview of the federal government, Guam law specifically calls for the deportation of a COFA citizen if convicted of a felony or crime of moral turpitude, if sentenced to one or more years for any crime, or if they become a repeat offender for driving under the influence of alcohol. The attorney general of Guam is tasked with notifying the U.S. Immigration and Customs Enforcement Division (ICE) of the U.S. Department of Homeland Security for any desire to deport a criminal. The attorney general is also required to file a quarterly report with the Guam Legislature and list on its own website cases that have been forwarded to ICE. According to Post files, however, the last report was published in the first quarter of 2014.
During a budget hearing in July, AG Barrett-Anderson said her involvement was void once a foreign national serves his or her prison sentence or probationary period. In the end, she cited the federal government’s responsibility to determine which individuals should be deported for violating the conditions of their stay, whether under COFA or not.
“Several months back, with the Homeland Security ICE officials, we said ‘Why aren’t you deporting these multi-convicted felons?’ And they said, ‘It’s not our priority,” Calvo said during the October interview. "When they said [it's] not their priority, I had to do what I had to do. You can question how I did it, but I did it because I had to. There is an issue here with overcrowding in the prison, criminal activity – recidivism. And it wouldn’t have occurred if they had deported them the first time.”
Calvo’s initial solution was not technically deportation. Instead, he commuted convicts’ sentences with the stipulation that they would leave Guam and never return. These commutations are within his rights as granted by the Organic Act, but the resulting expulsions from Guam did not go unnoticed by the attorney general or the governments to which the convicts were being sent.
The first five individuals to leave through these agreements were all FSM nationals from Chuuk, prompting Barrett-Anderson – in an interview with the Pacific Daily News (PDN) – to state that the governor needed to ensure his actions were “racially neutral” and that foreign prisoners were afforded their due process, which included a deportation hearing. Calvo has maintained that his selections had more to do with the statistical make-up of Guam’s prison than race.
Persona non grata
The FSM government also voiced concerns with Calvo’s commutations practice and a seeming lack of due process, prompting contentious exchanges between Calvo and FSM officials.
In September, Robert Ruecho, the FSM consul general to Guam, announced that, under executive instructions, his office would no longer be assisting the administration by providing information on FSM nationals. This led Calvo to declare Ruecho persona non grata – or, in common parlance, an unwelcome person. This is the most serious form of censure a country can apply to foreign diplomats and typically leads to their immediate recall by a home government. Calvo again faced heat for potentially overstepping his authority, as the term refers to a foreign person whose entering or remaining in a particular country is prohibited by that country's government. Calvo, however, doesn’t have the ability to determine diplomatic relations with foreign nations and expel ambassadors. Days later, he threatened to extend the censure to all FSM officials who refuse to cooperate with his government in confirming if a convicted criminal is an FSM citizen.
Ruecho told the Sunday Post on Thursday that the Calvo administration and ICE are now communicating only with the FSM’s Division of Immigration and Labor in Pohnpei and that his office is completely uninvolved.
While the FSM government’s position has become something of a sticking point for the governor's approach, there have been some signs of success. On Oct. 10, the administration touted a prison-to-prison transfer request from Palau President Tommy Remengesau, who relayed a desire from the prisoner’s family to have him finish his sentence on his home island. Calvo said he hoped the FSM president would tender similar cooperation sometime in the future. Likewise, the governor's office has said they've received several letters from non-citizen prisoners requesting to partake in the program.
However, even with the appearance of such high-level cooperation between Palau and Guam's leaders, the legal destiny of the Palauan prisoner, Ngeskebei Saburo, is unclear. Rebluud Kesolei, President Remengesau’s deputy chief of staff, told the Sunday Post that the two governments have not yet actually engaged in any formal discussions or brokered any deals on the matter. The Calvo administration has said it's passed Saburo's case and request on to the U.S. Department of Justice. Saburo has served 12 years at DOC and is up for parole in three years.
Despite criticisms, the administration has given no indication that it will stop the commutation and removal practice anytime soon. Denek Eugichi, the fifth FSM national exiled from Guam, was the last to sign an agreement not to return. Since September, convicts have been handed to ICE for adjudication and then deportation, although the governor still commutes their sentence.
At the time, the Post inquired about the shift away from agreements and was told that nothing had changed.
However, according to Barrett-Anderson, sometime in September representatives from the ICE Enforcement and Removal Operations office in Honolulu met with the attorney general along with officials from the governor’s office and DOC. These representatives recommended following the federal detainer process to initiate removals, which Guam officials agreed to.
“Since that meeting, the commutation program of the governor is now supported by the federal deportation process,” Barrett-Anderson said.
This seems to have also satisfied the attorney general's concerns for racial neutrality, now that that the administration is relying on the federal detainer list to draw names for potential deportation.
“I would assume the detainer list is racially neutral,” she added.
Ten of the 12 convicts who have had their sentences commuted and have been removed or are awaiting deportation are from the FSM. One prisoner has been returned to the Philippines and one to Peru.
According to Oyoal Ngirairikl, the governor's spokeswoman, a team consisting of public safety agencies, senior advisors, and legal counsel review files on non-U.S. citizens in detention. Caseworkers provide the files, which include a convict’s crime, sentence and time served, behavior in prison, as well as their participation and completion of programs while incarcerated.
"The Department of Corrections and the Guam Police Department would work together to identify and reach out to a (deportee's) victim or, if the victim couldn’t be reached, their families. The attorney general’s office has started to assist in this area," said Ngirairikl. "Thus far, there have not been any objections."
But the most important aspect of following the federal deportation process, according to Barrett-Anderson, was that only federal officials can prevent persons from re-entering Guam. With respect to the possibility of re-entry by the five who only signed agreements rather than be deported, the attorney general stated, "That's a question I will answer if it ever happens."
In the PDN interview, Barrett-Anderson was said to be working on a set of guidelines for local customs officials in case a flagged individual attempts to return to Guam. The attorney general clarified with the Sunday Post that this was not the case and there is currently no need to look at such rules.
Additional reporting from Palau by Bernadette Carreon.
Calvo: Feds to deport convicts from Philippines, FSM
by Jojo Santo Tomas
Pacific Daily News
September 6, 2016
Gov. Eddie Calvo signed the commutations of two men late Saturday, according to a news release issued by the governor’s office.
Two convicted criminals — non-U.S. citizens who have committed deportable offenses and have served a majority of their time — were transferred to federal detention facilities. They were identified and presented by U.S. immigration officials, said Calvo.Calvo said that the commutations are dependent on their deportation, and has asked the feds to “move swiftly.” It should take about two weeks for them to leave Guam, he said.
Calvo spent Sunday afternoon at the beach. He made his round at the Gov. Joseph Flores Beach Park, where thousands of government employees celebrated Labor Day. He talked at length with a handful of employees and leaders who work in public safety, and thanked them all for their service.
“The federal government are the only ones that can deport,” said Calvo, “but they’re not doing their job. I’m doing their jobs for them. But I can’t say the word ‘deportation’ … but it’s having the same effect.
“I’m using my powers as a governor, and we’re getting some cooperation from the federal authorities, on particularly the (convicts) that are in federal detainer.”
Calvo added he’s working with U.S. Immigration and U.S. Customs on criminal removal, to ease the impact the criminals have on government systems and the Department of Corrections.
Alfredo Felijar Nicolas Jr., a Philippine national, was convicted in 2012 of second-degree criminal sexual conduct as a first-degree felony. Nicolas was sentenced to seven years in prison with two years suspended.
Dwight Luther, an FSM national, was charged with family violence, criminal sexual conduct and child abuse. He was convicted in 2012 of second-degree criminal sexual conduct as a first-degree felony and was sentenced to five years in prison. He also served time in prison previously for vehicular homicide and was released in 2011.
Of the seven total criminals that Calvo removed from the local Department of Corrections, Nicolas is the first one from the Philippines. The prior five criminals — each presented with a one-way ticket back to Chuuk — hailed from the Federated States of Micronesia.
Calvo’s recent actions have sparked community debate, a quiet protest and response from FSM leaders.
“Unfortunately, I missed a young lady who did this silent protest … this is not about picking one ethnicity or not. For me, the most important thing is keeping the peace in our island and ensuring all the people of Guam are safe.”
With their commutation and custody transfer, the federal government now shoulders the cost of housing the two individuals. The average cost of housing each inmate and detainee at the Department of Corrections is almost $100 a day.
“Much of what has happened, that has led to an overcrowded prison, is because the federal government has not done their work in so many different areas,” said Calvo. “I’m trying to help them out.”
Calvo deports FSM citizen
by Robert Tupaz
Guam Daily Post
July 14, 2016
With the stroke of his pen, and a one-way ticket, Gov. Eddie Calvo made good on his promise to deport felony or habitual non-citizen criminals from the island with or without the assistance of the federal government.
Yesterday, a citizen from the Federated States of Micronesia became the island’s test case for the government of Guam as Calvo ordered his deportation. In order to effectuate the process, Calvo invoked his Organic Act authority and issued executive order 2016-15, which he signed Sunday, July 10.
According to Oyaol Ngirairikl, the governor’s spokeswoman, through a collaborative effort with the Department of Corrections, FSM Citizen Ninton Hauk, a DOC inmate, was selected and agreed to have his sentence commuted in exchange for a one-way ticket to his home state of Chuuk. “He’s been deported,” Ngirairikl confirmed to the Post.
DOC Deputy Director Carla Borja also confirmed that Hauk was transported to the A.B. Won Pat International Airport yesterday morning by corrections officers and escorted to the plane, which departed at 9:20 a.m.
“DOC bore the cost of the travel,” Borja said. “His commutation was based on his removal from DOC and the island.”
Ngirairikl and Borja stressed that at no time was Hauk a free man in Guam between the commutation of his sentence and his travel yesterday.
'Authority to enforce'
In his order, and in a letter to FSM President Peter Christian dated July 12, Calvo stated, “As the Governor of Guam, I have 'residual authority to enforce the immigration laws of the United States,’ and authority to ’grant pardons and reprieves … for offenses against local laws.”
Calvo informed Christian of his intent to commute the sentence and then deport the repeat offender back to Chuuk.
Calvo copied several local, regional and federal entities on his action and letter to Christian including U.S. Attorney Alicia Limtiaco, Attorney General of Guam Elizabeth Barrett-Anderson and Esther Kia’aina, assistant secretary for insular affairs of the Department of the Interior.
“Everyone in Guam is required to live and abide by the laws of Guam. So those here under a visiting visa, or through a treaty, must comply with rules and laws of the island and with the rules of the treaties or of the visa that allow their presence here,” Ngirairikl said.
“This administration has tried to work with federal officials and entities – as some of our senators have," she said. "But we’ve not received clear answers on the how, or what to do. So the governor is taking action based on their inaction.”
Ngirairikl explained that in working with DOC, Hauk’s record indicated he was a good candidate for deportation because his background included every deportable offense. He had no apparent source of support, didn’t attend school, was convicted of felony crimes and was a public charge.
Ngirairikl said Hauk originally took advantage of provisions in the Compact of Free Association, the treaty between the FSM and the United States that allows free travel to the island and elsewhere in the U.S. The compact also requires that persons migrating to Guam from the FSM, the Marshall Islands or Palau are able to migrate to the U.S. for employment, health or educational services.
According to the executive order, Hauk, then 24 years old, was initially arrested on an attempted murder charge in June 2011. Hauk entered a guilty plea in exchange for a lesser charge of aggravated assault and a felony special allegation of use of a deadly weapon. He was sentenced to 10 years with all but one year suspended for the assault charge, with an additional five-year sentence for the special allegation charge.
In February of 2015, Hauk was charged with several crimes while incarcerated, including promoting prison contraband and assault on a peace officer.
The executive order makes note that Hauk refused to participate in rehabilitative programs such as education programs while in DOC. The order added that Hauk arrived in Guam and was not engaged in educational programs as called for in the COFA, nor did his record reflect the ability to be self-sustaining.
“Ninton Hauk is a deportable alien because he has violated and continues to be in violation of, the Amended Compact with the FSM, the U.S. Immigration and Nationality Act, and the DHS immigration regulations by virtue of being a public charge who cannot show that he has sufficient means of support in the United States, or Guam, and by failing to be self-supporting, for a period exceeding 60 consecutive days, and by engaging in felony criminal activity which endangers public safety or national security.”
FSM on the Rise...Guam a territory
September 11, 2016
The 47th Pacific Islands Forum Secretariat's Leaders meeting is done!
FSM President Pete Christian chaired this year's meeting. Australian PM Malcolm Turnbull and New Zealand PM John Key both showed up. It was an international affair!
Neighboring RMI President Hilda Heine was also present.
Christian caused a stir when he 'excused' the media on the first day of the Forum.
Later on, at the site of the Leaders retreat with New Zealand PM John Key, Pete Christian approached the media and asked,
"Which one of you got mad when I asked the media to leave?"
No one said a word. He was of course, just joking.
It was a great time to be in Pohnpei. School was out, new people were everywhere, motorcades were racing back and forth with sounds of motorcycles and sirens filling the air, and people were proud to be a nation among nations.
Somebody asked me, why are they all here? I answered it's the 47th Pacific Island Leaders Forum. He said 'Wei eh? Pohnpei is really important', then he stopped for a while and smiled saying 'FSM is really important!' That's right, FSM is a partner nation with RMI, Fiji, Tonga, Samoa, New Zealand and Australia.
And new members New Caledonia and French Polynesia are now part of the Forum. Welcome fellow Pacific Islanders!
Meanwhile during the PIFS meeting, in other parts of Micronesia that are not considered Micronesia by the inhabitants, some negative press for Micronesia!
Guam Governor Eddie Baza Calvo had some strong words for FSM Government officials but the comments from his supporters were even stronger! It's the same old story from the Guamanians. It's as old as the Trust Territory of the Pacific Islands (which doesn't exist anymore). We went our own way. We chose our path. They chose theirs. The Guamanians have never considered themselves our equals - brothers / sisters. But while they were busy chasing the 'American Dream' we were chasing the 'Sovereign Nation Dream'... and now we have a President, a Congress, Diplomatic missions abroad, and a seat on the UN, PIFS, SIS, ACP, PIDF, etc, etc. We also have a compact of free association with the United States of America... "WITH" .... take note of that word.
So, I wish the people of Guam all the best. I'll leave with a comment made by FSM Speaker Hon Wesley Simina and he said
"Although I sympathize with the governor of Guam's efforts to deal with a number of bad elements from the FSM in Guam, this is a matter for the federal government to address".