CW Final Rule challenge dismissed

U.S. District Court for the NMI Chief Judge Ramona V. Manglona dismissed yesterday the lawsuit that challenges the implementation and enforcement of the CNMI-only transitional worker Final Rule.

Manglona, however, gave the plaintiffs 120 days, or no later than Sept. 28, 2012, to file an amended complaint. If an amended complaint is not filed by then, the case will be dismissed with prejudice, meaning the plaintiffs can no longer re-open the case.

In amending the complaint, Manglona said all claims should relate to the implementation, application, and enforcement of immigration laws of the United States in the CNMI and subject to the Consolidated Natural Resources Act of 2008, Public Law 110-229, the Immigration and Nationality Act, and other law.

The plaintiffs are Bonifacio V. Sagana, Manuel T. Vilaga, Gerardo G. De Guzman, Hector T. Sevilla, Carlito J. Marquez, Eduardo M. Elenzano, and Jong Ho Lee. They are represented by attorney Stephen C. Woodruff.

The respondents are DHS Secretary 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.

The plaintiffs’ lawsuit challenges the implementation and enforcement of the CW Final Rule, which according to Woodruff, is both procedurally and substantially defective.

On Wednesday, the plaintiffs, through Woodruff, filed a motion to dismiss the case, but with a request to allow them to amend the complaint so they could drop and add parties and claims.

Woodruff also said that some plaintiffs are concerned that a vigorous prosecution of the lawsuit at this time could jeopardize their own applications that are presently pending with the Department of Homeland Security.

The lawyer said the CNRA requires consultation and coordination with the CNMI governor. “Yet it is common knowledge that the CNMI governor is hostile to federal immigration control, even more hostile toward aliens in the CNMI, and has done, and continues to do, everything in his power to subvert the transition to U.S. immigration law in the CNMI,” Woodruff said.

He pointed out that congressional intent in this transition needs to be carried out, and plaintiffs are convinced that can only happen if the court intervenes.

Woodruff noted that only a tiny fraction of the petitions filed have been adjudicated, almost eight months after the CW Final Rule went into effect.

He pointed out that a vast majority of U.S. Department of State embassies and consulates around the world remain clueless about how to process requests for the CW and E-2C visas necessitated by the CNRA.

“The embassy in Seoul, Korea, for example, only became able to process E-2C visas in January of this year and CW visas sometime later,” Woodruff said.

He said the right of aliens in the CNMI to travel, both overseas and within the United States, is “arbitrarily, capriciously, and unjustly curtailed and impaired.”

“CW and E-2C statuses place aliens in the CNMI in an inferior position compared to other nonimmigrant aliens elsewhere in the United States and impose wholly irrational burdens,” he added.

Theodore W. Atkinson, a senior litigation counsel of the U.S. Department of Justice’s Civil Division, had asked the district court to dismiss the lawsuit.