Marshall Islands: Immigration and Emigration (Amendment) Act 1991

NITIJELA OF THE MARSHALL ISLANDS 12TH CONSTITUTIONAL REGULAR SESSION, 1991

AN ACT To amend the Immigration and Emigration Act 1986 to establish a procedure in deportation proceedings to comply with the constitutional right to due process.

BE IT ENACTED BY THE NITIJELA OF THE MARSHALL ISLANDS:

Section 1.Short Title.

This Act may be cited as the Immigration and Emigration (Amendment) Act 1991.

Section 2.Amendments.

(1)The Immigration and Emigration Act 1986, P. L. 1986-16, as amended by P. L. 1987-27 and P. L. 1989-65 (hereinafter "the Act") in Part V of the Act ("Removal from the Republic of Persons other than Citizens of the Republic"), consisting of Sections 28, 29 and 30, is repealed and reserved for future use.

(2)Sections 32 and 33 of the Act are repealed and the following enacted in their place:

"Section 32.Power of Minister to deport.

(1)As used in this Part,

(a)"deportation order" means an order made in accordance with this Act by the Minister in the prescribed form requiring the person named in that order to leave the Republic of the Marshall Islands and not to return; and

(b)"person charged" means a person in respect of whom it is alleged that there are grounds for making a deportation order, and includes a person in respect of whom such an order has been made.

(2)The Minister may in any of the following cases where a person is shown, by evidence which the Minister deems sufficient, and after following all of the procedures specified in Section 33 of this Act, make a deportation order requiring any such person to whom this Part applies to leave the Republic and remain thereafter out of the Republic where that person:

(a)has had his visa cancelled; has overstayed the period specified in the entry permit or visa; has willfully furnished false, incomplete or misleading information on an application for an entry permit or visa; or otherwise fails to comply with any other terms, conditions or restrictions imposed upon him by any entry permit or visa granted or issued to him; or

(b)enters or remains in the Republic in contravention of any provisions of this Act, any regulations made pursuant to this Act, or in violation of any other law of the Republic; or

(c)is unable to support himself and his dependents, by reason of mental or physical health or lack of economic means; or

(d)is or has been conducting himself in a manner prejudicial to the peace, defense, public safety, public order, public morality, public health, security or good government of the Republic; or

(e)has been convicted of an offense under the provisions of any law of the Republic which would, in the opinion of the Minister, justify his deportation; or

(f)has been convicted of an extraditable offense in any other country for which he has not received a pardon and which would, in the opinion of the Minister, justify his deportation; or

(g)for any other reason in which the Minister deems it to be conducive to the public interest to make a deportation order.

Section 33.Procedure; detention; expenses; violation.

(1)In any case where the Minister intends to make a deportation order against any person under Section 32 of this Act, a notice signed by or under the authority of the Minister shall be served on the person charged. The notice shall specify the facts alleged against that person in sufficient detail as to give him reasonable notice of the grounds upon which it is alleged that the order may be made against him under this Act. The notice shall require the person charged to show cause, before a Justice of the High Court at a time stated in the notice, why such order should not be made against him.

(2)Where it is represented on other or affidavit to a Justice of the High Court that a person falls within any of the categories specified in Subsection 32(1), the Justice may issue a warrant for his arrest. If the notice required under Subsection (1) of this Section has not already been served upon that person, the notice shall be served upon him not later than twenty-four (24) hours after his arrest.

(3)Every witness whose evidence may be required before the Justice of the High Court in any proceedings taken under this Section shall be issued a subpoena at the request of a police officer or of a person charged. Any such witness who fails to appear shall be deemed in contempt of court.

(4)The Attorney-General may certify to the High Court, or the person charged may request, that the proceedings be held in camera, in which case the court shall direct that the public shall not have access to, or enter or remain in, any room, building or place in which such proceed ins are taking place during the hearing.

(5)The person charged may be represented by legal counsel of his choosing at his own expense, or shall be appointed counsel upon a showing that he is indigent and is unable to pay for such counsel.

(6)In any proceedings in the High Court under this Section,

(a)pursuant to Section 51, the burden of proof that the person charged is a citizen of the Republic of the Marshal Islands or is exempt from the provisions of this Part in accordance with Section 31 shall be upon that person; and

(b)unless the contrary is proven, the following presumptions shall apply:

(i)any notice signed by or under the authority of the Minister under Subsection (1) of this Section shall be presumed to have been validly made;

(ii)the facts alleged in the notice of deportation shall be presumed to be true;

(iii)a document purporting to be a deportation order made under Section 32 shall be presumed to be such an order; and

(iv)any deportation order shall be presumed to have been made on the date upon which it purports to have been made.

(7)The Justice of the High Court, after considering the evidence presented before him, shall set forth findings of fact and conclusions of law with respect to the issues presented.

(8)Upon receipt of the findings of fact and conclusions of law of the High Court, and having regard to those findings and conclusions, the Minister may make a deportation order.

(9)Pending the decision of the Minister, a person charged under this Section may, when necessary, be detained in such manner as the Minister may direct for a period not exceeding fourteen (14) days. Such person shall be deemed to be in lawful custody while so detained.

(10)Pursuant to Article VI, Section 3(1) of the Constitution, a deportation order may not be appealed to the High Court. Any person wishing to question the legality of his detention, either before or after a deportation order has been made, may do so by filing a writ of habeas corpus with the High Court pursuant to article II, Section 7 of the Constitution.

(11)Where a deportation order is made under Section 32, a copy of the order shall, as soon as practicable, be served upon the person charged.

(12)A person against whom a deportation order is in force may be detained in such manner as may be directed by the Minister and may be placed on a ship or aircraft about to leave the Republic, and shall be deemed to be in lawful custody while so detained and until the ship or aircraft leaves the Republic.

(13)Where any person against whom a deportation order is in force has been placed on any ship or aircraft in accordance with Subsection (12) of this Section, the master of the ship or the commander of the aircraft shall, if so required by the Minister, take such steps as may be necessary for preventing such person from leaving the ship or aircraft before it leaves the Republic and may for that purpose detain that person in custody on board the ship or aircraft.

(14)If a person against whom a deportation order is in force has been sentenced to any term of imprisonment, that person may, at the discretion of the Minister, be required to serve such sentence shall be served before the order is carried into effect.

(15)The person against whom a deportation order is in force shall be given the opportunity to pay the expenses of deportation. In the event that the person refuses or otherwise fails to pay such expenses, either in whole or in part, the minister may apply for a writ of attachment in the High Court, pursuant to section 6 of the Enforcement of Judgments Act (Title 30, Chapter 1 of the Marshall Islands Revised Code) against such property of the person reasonably expected to cover the costs incurred in the deportation.

(16)If a person in respect of whom a deportation order is in force is at any time found within the Republic or returns or attempts to return to the Republic in contravention of the provisions of such order, he shall be guilty of an offense and shall upon conviction be liable for the penalties provided under Section 47(1) of this Act. Any such conviction shall not affect the original deportation order and the person charged may be deported in accordance with such order without the necessity of complying with the provisions of Subsections (1) through (8) of this Section.

(17)Any person who knowingly or intentionally assists, harbors or conceals any person who is within the Republic in contravention of the terms of a deportation order shall be guilty of an offense and shall upon conviction be liable for the penalties provided under Section 47(2) of this Act."

(3)Section 38 of the Act is amended by deleting the words "under Section 29 of this Act for the removal, or" immediately following the words "No order made" in the first line of that Section.

Certificate
I hereby certify:

(1)that the above Nitijela Bill No. 177 N. D.-1 has been passed by the Nitijela of the Marshall Islands on the 30th day of January, 1991; and

(2)that I am satisfied that Nitijela Bill No. 177N. D.-1 has been passed in accordance with the constitution of the Marshall Islands and the Rules of the Nitijela.

I hereby place my signature before the Clerk of the Nitijela this 20th day of February, 1991.
Kessai Note, Speaker
Nitijela of the Marshall Islands

Attest:
Edinal Jorkan, Clerk
Nitijela of the Marshall Islands