Judges Denies Preliminary Injunction of CW Final Rule

January 2, 2012

On December 30, 2011 U.S. District Court for the Northern Mariana Islands U.S. District Judge Ramona Manglona, issued an order denying a preliminary injunction of the CW Rule.

In October 2011, seven plaintiffs, five foreign workers and two business owners, (Gerardo de Guzman, Hector Sevilla, Carlito Marquez, Bonifacio Sagana, Eduardo Elenzano, Jong Ho Lee, and Manuel Vilaga) sued the U.S. Department of Homeland Security Secretary Janet Napolitano, District Director, U.S. Citizenship and Immigration Services David Gulick, Secretary of Labor Hilda Solis, and U.S. Department of Labor District Director Terrence Trotter in their official capacities, challenging the implementation and enforcement of the CNMI-only Guest Worker Program Final Rule. The regulation, which was mandated by P.L. 110-229 was released by the Department of Homeland Security in September 7, 2011after a long delay.

There is no denial that the late release of the rule caused confusion, suffering and conflict for foreign employees and their employers. The 22-month delay of the release left employers of foreign workers only 51 days to understand the rule and apply for CW permits. However, Judge Manglona determined that "DHS’s implementation of the Final Rule was in compliance with section 553 of the APA."

The judge concluded:
Plaintiffs’ contentions fail. First, affected persons had at least eighty-one days prior to the expiration of the two-year grace period to plan for complying with the Final Rule because of the thirty-day notice requirement. The two named employer Plaintiffs themselves were able to file the appropriate CW petitions by the deadline of November 27, the expiration of the two-year grace period. Second, DHS published the Interim Rule for a notice-and-comment period in October of 2009. The Final Rule as promulgated in 2011 included few changes, most of which were meant to address the concerns expressed in the comments during the open period and to benefit employers and foreign employees in the CNMI. The major components of the Final Rule remained the same as those of the Interim Rule. The public, therefore, realistically had nearly two years of notice to plan and prepare for the implementation of the Final Rule. This long notice-and-comment period provided adequate time for employers to familiarize themselves with the proposed rule. The publication of the Final Rule, which adopted most of the same terms as the Interim Rule, provided adequate notice to employers to take action to retain their foreign employees through the CW application process.
I take issue with her second point. Unless the judge and DHS thinks that the public are all have psychic powers there is no way anyone would know that the final rule would so closely mirror the proposed rule. There were 146 comments with many that conflicted with the proposed rule. Why would anyone expect that it would remain as written?

As far as the unresolved cases with the CNMI Department of Labor the judge stated:
Plaintiffs argue that DHS has not implemented an orderly transition because (1) the CNMI Department of Labor has asserted authority over labor issues in the Commonwealth and (2) a number of guest workers with umbrella permits have unresolved wage and other claims against employers pending with the CNMI Department of Labor. Plaintiffs aver that these grievances could be addressed if Plaintiffs were, as they request, given more time under which they are considered lawfully present in the Commonwealth. However, Plaintiffs fail to show that there is a connection between their grievances and the Final Rule. Moreover, none of the Plaintiffs represented that they have unresolved wage or labor claims against their employers. Should any non-resident worker with unresolved claims against his or her employer face removal proceedings under the Final Rule, the issue would properly be presented in immigration court.
The fact that the CNMI Department of Labor is a lawless agency that has purposely ignored and/or dismissed cases where it was documented and proven that employers cheated the foreign workers of wages may not relate to this case, but the U.S. government has a responsibility to make these victims whole. Immigration court should not even be in the picture. The U.S. Congress should have acted according to the intent of P.L. 110-229 to establish status for all of the legal, long-term foreign workers before they were forced out of status.

Again the judge fails to look at the issue from the perspective of a foreign worker when ruling stating:
Plaintiffs further argue that the employer-based transitional worker classification system conflicts with the CNRA’s stated goal of protecting against the exploitation of workers. (Motion at 7–8.) However, DHS has set forth the many ways the Final Rule protects against worker exploitation. First, the Final Rule’s classification system ensures that any employer of a CW worker is a “legitimate business”2 and attests to the employer’s compliance with federal and CNMI labor law. A business shall not be considered legitimate if it engages directly or indirectly in prostitution, trafficking of minors, or any other activity that is illegal under federal or local law. 8 C.F.R. § 214.2(w)(1)(vi). Certain occupational categories, including those excluded by the legitimate business requirement, have been found to be prone to widespread abuse. 76 Fed. Reg. 55,502, 55,508. The legitimate-business requirement is thus consistent with the CNRA’s stated purpose of protecting workers from potential exploitation and abuse. Second, section 214.2(2)(7)(iii) provides that a CW worker may start to work for a new employer as soon as that employer files a petition pending its adjudication. There is no requirement that the existing employer consent to the transfer, thereby avoiding the possibility of the employee being withheld against her will. Third, the Final Rule provides that CW workers may apply to change their nonimmigrant status to any other status under the INA once they are eligible. These provisions give workers greater opportunities to move from one employer to another, reducing the chances of exploitation and abuse. Accordingly, the Final Rule complies with the CNRA’s stated goal of protecting workers against exploitation.
Perhaps the judge and Secretaries Napolitano and Solis would like to explain how CNMI businesses can be deemed "legitimate" and be allowed to continue to hire foreign workers if they break local and federal labor laws. Take the case of the Tinian Dynasty that has applied for CW permits for hundreds of foreign workers. It still owes tens of thousands of dollars to current foreign workers because the employer has routinely committed wage theft, even though those workers have filed numerous complaints for years with several CNMI and federal agencies. Legitimate? No way.

The judge also stated that the plaintiffs did not show that insufferable harm was caused by the late release of the Final Rule. Regarding the balance of hardship she further stated that:
Plaintiffs are asking for an extension of their status expiration date for six months. This would allow them more time to apply for the CW status or some other status under the INA without the fear of falling out of status and being ineligible for either benefit. However, it is unclear whether an injunction would help non-resident employees at this point. Employers have had at least fifty-one days to apply for CW petitions for the employees they wish to hire or retain. The fact that some foreign employees are still without status may simply be a reflection of the current poor economic conditions that make CNMI employers reluctant to bear the cost of carrying foreign workers under the new law.

On the other hand, a six-month delay in the implementation of the Final Rule would prevent DHS from moving forward with the transition toward full implementation of federal immigration law as mandated by Congress. This delay may also adversely affect those foreign workers who have already secured their CW status and would potentially be able to seek an improved status by the 2014 deadline to fully implement federal immigration law in the CNMI.
This argument makes sense.

The order concludes:
Notwithstanding the balance of harms or how much the public interest would be served, given the unlikelihood that Plaintiffs will succeed on the merits of their claim and the lack of irreparable harm due to the implementation of the Final Rule, the Court concludes that Plaintiffs have not established their entitlement to a preliminary injunction.
According to the Marianas Variety, the attorney for the plaintiffs, Stephen Woodruff stated, ". . . it is clear that the people of the CNMI — both alien and U.S. citizen — need a remedy for the botched implementation of the subtitle A of Title VII of the [Consolidated Natural Resources Act or the federalization law] by [the Department of Homeland Security], and this lawsuit will go on.”

4 comments:

Anonymous said...

So now many that were expecting a favorable outcome to this court action now become over stayers and "bad time" is accumulating for those.
So what happens now? If this thing goes forward on a different action it may take years and the non US Cit. will still be out of legal status and most likely get deported before this is settled.
The only chance now is if they are affected by Kilili bill, if that one passes.
Although this whole thing with the Fed takeover has been a problem from the get go, all should have realized the ultimate end. The worse case scenario.

Anonymous said...

7:22 The way I look at it, this is a blessing. Time to abandon the sinking ship. Why collect bad time to live in a place where we aren't wanted? Why wait for a bill that just keeps the bad status and leaves out so many longterms? I hope all the CWs leave and let the locals live with the bad karma that's going to destroy the NMI like a tidal wave.

Anonymous said...

I agree with you anonymous 7:22. Its time to make our move and plan our future.

Anonymous said...

yup its time to move,,,,,lets out from black hole,,,,,the future is bright when you out from black hole CNMI.....you dont need to fear,,,,good future is waiting for you because you suffer,,,,its an cheating CW policy of USA/CNMI political group......you cant eat greencard/usa passport.why should we waiting for,,,,its an criminal policy to hurt thousand of foreigner in CNMI,,,,its time to let they see them face in mirror...and they will identify,,,,its time to moveeeeeeeeeee onnnnnnnnnn..