CW Final Rule Hearing Moved to November 22, 2011

November 1, 2011

U.S. Senior Litigation Counsel Theodore W. Atkinson of the Department of Justice, Office of Immigration Litigation, District Court Section, filed a motion for continuance of the preliminary injunction hearing in the case of the foreign workers and U.S. nationals against Napolitano and other federal officials in seeking a preliminary injunction against the CNMI-only Transitional Worker Final Rule.

The hearing was scheduled to be held today, November 2 2011 (Saipan time), but U.S. District Judge Ramona Manglona pushed the preliminary injunction hearing date to November 22, 2011.

The brief states:
Undersigned counsel does not request this continuance lightly. However, the hearing on the issuance of a preliminary injunction reaches the Government in a procedurally unusual way. There is no pending motion for a preliminary injunction, and thus no memorandum of points and authorities from Plaintiffs explaining why they are entitled to preliminary injunctive relief. All the Government has to work from is the Complaint.

However, even if the Complaint can be construed as containing a request for a preliminary injunction, the Complaint itself is vague and indefinite as to the bases for a preliminary injunction. Plaintiffs claim that the final rule establishing the CNMI-only Transitional Worker permit (“CW Final Rule”) “unduly prejudices foreign workers and business owners due to the short period by which it was released and implemented,” but they cite no specific violation of the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq.; they allege that the CW Final Rule “runs counter to the mandate of Congress that there should be ‘an orderly phasing-out of the nonresident contract worker program of the
Commonwealth,’” but – even if that were true – they do not specify how what they deem as “confused” implementation of the CW Final Rule forms an actionable basis for relief; Plaintiffs assert that the implementation of the CW Final Rule will cause them to suffer a “grievous injury” and a deprivation of due process, but they identify no concrete or particularized injury they have suffered or will suffer, let alone irreparable injury necessary before a preliminary injunction may be granted.

It is clear that the Plaintiffs disagree with the implementation of the CW Final Rule, and have serious qualms, from their perspective, as to how the CW Final Rule is being implemented. But what remains unclear is the legal underpinning for this action and the grounds for a preliminary injunction. Pro se litigants are entitled to substantial latitude with respect to how they negotiate the procedural shoals of federal district court litigation. They are not, however, entitled to latitude with respect to their burdens in court. And the only thing Plaintiffs have offered – and thus the only thing the Government has before it with respect to the basis for a preliminary injunction – is the Complaint, which contains, at best, vague assertions of injury and unspecified violations of the law.
I do not know if this lawsuit has legal standing. I do know that U.S. District Judge Friedman already stated that P.L. 110-229 was legal and could be implemented.

However, because of Fitial’s lawsuit the release of the final CNMI-only Transitional Worker Program Rule was delayed until September 2011, less than 3 months before the November 27, 2011, the date that the rule goes into effect. That long delay created confusion and uncertainty, not just for the foreign workers and business owners, but for employers. The delay has forced the foreign workers to postpone important decisions regarding their future plans and actions.

During the time period between the filing of Fitial’s lawsuit and the release of the final rule the CNMI’s economy has crashed. Many businesses have closed or gone bankrupt. Still others have cut personnel or drastically cut hours. Once-employed legal, long-term workers now find themselves unemployed or under-employed.

Even those CNMI foreign workers with jobs face uncertainty. Will their employers petition them for U.S. visas? Less than one month before the CNMI-only Guest Worker Program takes effect, there are currently hundreds of foreign workers in the CNMI who are currently employed, yet their employers have still not applied for CW or other U.S. visas for them. These people can hardly be expected to make plans for themselves and their families.

What injury will they suffer? Since the U.S. Congress did not act expediently on the DOI Report, no status was granted for the legal, long-term foreign workers before the November 27, 2011 deadline. This inexcusable failure to follow the intent of P.L. 110-229 will have irreversible consequences for many, if not the majority of the legal, long-term foreign workers. Many are now faced with instability and the threat of deportation, even though they have dedicated decades of their life to working in and serving the CNMI on U.S. soil. Most, having lived in the CNMI for most of their adult lives, have no “home” to return to, and no prospective employment opportunities. Many with children face the problem of returning to countries where there are fees and deadlines for school enrollment that they will not be able to meet.

Many of the foreign workers are owed back wages from unscrupulous employers and they do not want to leave without collecting their money. They should not have to leave until they are paid. The lack of enforcement by CNMI and U.S. officials over the span of three decades has perpetuated the problem of wage theft. In 2008 over $6.1 million in unpaid wages was documented. The true amount far exceeds that 2008 estimation. When will the U.S. government step up to ensure that foreign workers are reimbursed and made whole? These foreign workers will suffer irreversible harm if forced to leave without the money that is owed to them.

Read the motion:


Anonymous said...

hi wendy! can i copy and paste this article to one of the plaintiffs account?

thank you and more power!

Wendy Doromal said...

10:30 Sure, just cite it or link it to Unheard No More!