Lawsuit vs CW final rule is placed under advisement

 U.S. District Court for the NMI Chief Judge Ramona V. Manglona yesterday heard and placed under advisement the lawsuit filed by a group of individuals that is seeking to stop the Department of Homeland Security from enforcing the CNMI-only Transitional Worker final rule.

After a hearing that lasted over two hours, Manglona said she will issue a ruling as soon as possible as she understands the importance of the issues presented.

Attorney Stephen Woodruff argued on behalf of plaintiffs Bonifacio V. Sagana, Manuel T. Vilaga, Gerardo G. De Guzman, Hector T. Sevilla, Carlito J. Marquez, Eduardo M. Elenzano, and Jong Ho Lee.

Theodore W. Atkinson, senior litigation counsel of the Department of Justice Office of Immigration Litigation-District Court Section, argued for the respondents telephonically as he was at the Commonwealth Health Center for emergency medical treatment.

The respondents in the case are 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.

After the hearing, Woodruff told reporters that he and the plaintiffs appreciate the “great deal of time” that Manglona gave them to argue their case.

“I think Judge Manglona understands the importance of the issue,” he added.

At the hearing, Woodruff pointed out that DHS waited 22 months after the interim final rule was enjoined by U.S. District Court for the District of Columbia Judge Paul Friedman in November 2009 before promulgating the final CW rule.

Friedman issued the preliminary injunction to stop the CNMI transitional worker program’s interim final rule from going into effect on Nov. 28, 2009.

Woodruff said that DHS gave the public only 81 days to know what the CW final rule was, then gave employers and workers only 51 days to prepare and support petitions for thousands of alien workers.

Woodruff said it is very clear that 51 days to deal with 14,000 alien workers is “simply unrealistic and unreasonable.”

He conceded that USCIS did an extensive educational program when the final CW rule came out but only “because they [USCIS] know that there’s a big problem.”

Woodruff said that Friedman provided a roadmap for an orderly and reasonable implementation of the CW rule, but DHS did not do any of those things in the 21-month delay. Woodruff said that Congress’ intent to have a systematic and orderly transition “was largely defeated by the unreasonable 51-day frame.”

“People cannot make intelligent decisions in that kind of [time] frame,” he said.

Woodruff wants the court to stop DHS for 180 days from treating any alien lawfully present in the CNMI as lacking “admitted and paroled” status, removable, or unlawfully present in the U.S. He also wants the court to stop DHS for 180 days from treating any alien as unauthorized for work.

Woodruff emphasized that they are not challenging the federalization law but only DHS’ implementation of the CW final rule.

In his response, DOJ counsel Atkinson said that the plaintiffs can’t show they’re irreparably harmed by the CW final rule. He noted that one of the plaintiffs, Lee, actually filed petitions for CW permits for his workers on Friday.

He said the plaintiffs have not identified a concrete or particularized injury they have suffered or will suffer that makes it necessary to grant the preliminary injunction.

As for the likelihood of success on the merits of their lawsuit, Atkinson said the plaintiffs’ complaints of procedural and constitutional violations by DHS in promulgating the CW final rule have no merit.