‘Exodus of foreign workers will doom islands’ economy’

Without a preliminary injunction, thousands of alien workers and their families could leave the CNMI or be forced into removal proceedings, resulting in businesses being disrupted by loss of customers and losing access to an adequate workforce, according to attorney Stephen C. Woodruff.

In a legal brief he submitted yesterday to the U.S. District Court for the NMI to support a motion for preliminary injunction, Woodruff said the quality of life for the CNMI as a whole could deteriorate substantially due to the loss of part-time laborers on which households and businesses depend, declining government revenues, and the loss of a free labor market and its benefits.

Woodruff asked the court to prevent the Department of Homeland Security for 180 days-about six months-from treating any alien legally present in the CNMI on Nov. 27, 2009, as lacking “admitted or paroled” status, removable, or unlawfully present in the U.S.

He also asked the court to prevent DHS for 180 days from enforcing the Nov. 28, 2011, cut-off for CW petitions, and also from treating any alien authorized to work in the CNMI on Nov. 27, 2009, as not being authorized for employment.

Woodruff is counsel for a group of individuals that is suing to stop federal officials from enforcing the CNMI-only Transitional Worker final rule on Nov. 28, 2011.

On Tuesday, Woodruff also explained to the court his failure to file a briefing or exhibits in support of the motion for preliminary injunction by the Monday deadline, citing computer problems, including repeated unexplained crashes, programs not responding, and “agonizingly slow” performance.

Defective

Woodruff said the CW final rule is both substantially and procedurally defective.

He cited that this is not the first time DHS has been in court facing a possible injunction relating to the CW rule.

He pointed out that DHS waited 22 months from the time the interim final rule was suspended before finally promulgating the current rule, which in most respects is virtually identical to the interim final rule published two years earlier.

“Judge [Paul] Friedman’s description from two years ago aptly captures the 51-day quandary faced by legal alien workers and their employers today. This short time period to obtain a federally recognized nonimmigrant status is likewise per se unreasonable,” Woodruff said.

Friedman is a U.S. District Court for the District of Columbia who, in November 2009, issued a preliminary injunction that stopped the federal government from implementing the interim final rule on the CNMI transitional worker program on Nov. 28, 2009.

In that ruling, Friedman agreed with the CNMI government that DHS has no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedure Act.

Woodruff said the entire rule is substantially deficient in that it fails to conform with the language and intent of Congress by restoring a system “that effectively indentures the alien worker” to an employer.

“DHS thus inadvertently but effectively is reviving the very evils Congress set out to destroy. This is apparently because DHS never understood those evils or how they were institutionalized by the CNMI regime,” he said.

Congress, Woodruff said, expressly mandated a system in which alien workers could protect themselves against abuse and exploitation by offering their labor in a free and open market for the period of time authorized.

“It is for this reason that Congress explicitly provided that aliens holding CNMI-only nonimmigrant transitional worker status ‘shall be permitted to transfer between employers in the Commonwealth during the period of such alien’s authorized stay therein.’”

Woodruff said that DHS confused the reference to “permits” with the “ignominious old CNMI system of permits for workers and used the failed CNMI system (that Congress expressly abrogated)” as its model.

“Accordingly, the final rule cannot stand substantively and must be modified to conform with the statutory text and intent of Congress,” Woodruff said.

He said enormous confusion and uncertainty now pervades the community. “Unscrupulous individuals have begun to take advantage of the situation to exploit alien workers.”

Woodruff said thousands of alien workers literally face abrupt loss of immigration status with no reasonable and realistic means of obtaining a new status.

“An exodus of large numbers of aliens costs the economy of both workers and consumers, threatening an even deeper downward spiral,” he said.