DOJ: Injunction vs CW rule will result in even greater uncertainty

Issuing an injunction to prevent the Department of Homeland Security from enforcing the CNMI-only Transitional Worker final rule on Nov. 28 would inject even greater uncertainty into the status of guest workers and the state of the CNMI economy, according to the Department of Justice.

In an opposition filed yesterday with the U.S. District Court for the NMI, Theodore W. Atkinson, senior litigation counsel of the Department of Justice, said if the court were to stop the CW final rule’s implementation, that would still not prevent the fact that those lawfully present in the CNMI on the basis of an umbrella permit will fall out of legal status by Nov. 27, 2011.

The only result an injunction would have would be to suspend the very regulations that currently benefit the more than 1,150 foreign worker with pending CW petitions, he added.

“Giving plaintiffs the injunction they want would mean the exploitation plaintiffs decry would be given another six months to thrive,” he said.

Atkinson’s filing is intended to oppose the motion for preliminary injunction filed by Gerardo G. De Guzman and six others who are suing federal officials to stop them from enforcing the CNMI-only Transitional Worker final rule on Nov. 28.

Atkinson is counsel for defendants DHS Secretary Janet Napolitano, U.S. Citizenship and Immigration Services District Director David Gulick, U.S. Labor Secretary Hilda L. Solis, and U.S. Department of Labor District Director Terrence Trotter.

An injunction, Atkinson said, would deprive DHS of the ability to implement and enforce the transition to federalization in any meaningful way, “thus eviscerating the intent of Congress in passing the Consolidated Natural Resources Act (the federalization law) and establishing an orderly transition while minimizing, to the greatest extent practicable, negative economic and fiscal impacts of the phasing-out of the CNMI-guest worker program.”

Atkinson said the plaintiffs are not likely to succeed on any of their Administrative Procedure Act or constitutional claims.

“They have failed to provide any evidence that they will suffer irreparable harm, or even that any harm they would suffer would stem from the CW final rule itself, rather than from the expiration of umbrella permits under the CNRA,” he said.

Atkinson said the timing of the CW final rule complies with APA requirements, and the plaintiffs’ claims of procedural defects are without merit.

He said the CW final rule also comports with Congress’ intent to apply federal immigration law while minimizing negative economic impacts during the transition.

At the heart of plaintiffs’ grievances about federalization, Akinson said, is the loss of immigration status.

“But the loss of immigration status is a result of the CNRA-which is not challenged in this action-and not an effect of the CW final rule, which offers foreign workers an avenue to an immigration status,” he said.

The federal court, Atkinson pointed out, cannot confer status on foreign workers once the “grandfather” period expires on Nov. 27, 2011.

“Enjoining the CW final rule, partially or in its entirety, would do nothing to address plaintiffs’ complaints. But enjoining the CW final rule could deprive foreign workers of an avenue to immigration status,” he said.

Atkinson said plaintiffs’ misguided effort would, tragically, have the exact opposite effect they intend by potentially causing more foreign workers to fall out of immigration status.

The plaintiffs’ lawyer, Stephen C. Woodruff, earlier said that without a preliminary injunction, thousands of alien workers and their families could leave the CNMI or be forced into removal proceedings and businesses will be disrupted by the loss of customers and access to an adequate workforce.

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 loss of the benefits of a free labor market.

Woodruff asked the court to bar DHS for 180 days from treating any alien lawfully present in the CNMI on Nov. 27, 2009, as lacking “admitted or paroled” status, removable or otherwise unlawfully present in the U.S.

He also asked the court to bar DHS for 180 days from treating any alien as not being authorized for employment and from enforcing the Nov. 28, 2011, cut-off for CW petitions.

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