Manglona: Allowing Dynasty workers to amend suit futile

The federal court denied yesterday the request of over 500 foreign workers of Tinian Dynasty Hotel & Casino to amend their lawsuit over the denial of their CW-1 visa petitions.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona ruled that—as stated in her prior decision and order—the workers may re-file their lawsuit once the administrative appeals of Hong Kong Entertainment (Overseas) Investments Ltd.’s petitions on their behalf are completed. HKE owns Tinian Dynasty.

The judge said the workers’ proposed first amended complaint suffers from the same jurisdictional defect as their initial complaint.

“Nor have plaintiffs raised substantial legal grounds for the court to reconsider its decision that subject matter jurisdiction is lacking,” Manglona said.

Over 500 foreign workers of Tinian Dynasty are suing Department of Homeland Secretary Jeh Johnson, U.S. Citizenship and Immigration Services Director Leon Rodriguez, and USCIS California Service Center Director Kathy A. Baran over USCIS’ denial of HKE’s 197 CNMI-only Transitional Worker (CW-1) petitions involving 693 beneficiaries.

Attorney Bruce Berline filed the lawsuit as counsel for Belal Hossain, Wenli Zhong, Pukar Patel, and 500 unknown co-plaintiffs.

Manglona had dismissed the workers’ lawsuit in May, saying the decision to deny HKE’s petitions for their foreign workers is not final and that the Administrative Appeals Office is currently reviewing it.

Because HKE’s petition denials are not final, the court lacks jurisdiction and must dismiss the case, Manglona said.

The workers, however, are allowed to re-file the lawsuit once the Administrative Appeals Office has issued its decision and the agency’s action is final.

The workers then asked to be allowed to file an amended complaint, asserting six claims. In addition to the equal protection claim asserted in the original complaint, Berline included a claim for an equal protection clause violation arising from USCIS’ alleged approval of a visa petition.

Sarah L. Vuong, Department of Justice Office of Immigration Litigation trial attorney, argued that granting the workers’ request to amend their lawsuit would be futile.

Vuong argued that because the plaintiffs’ amended complaint does not remedy the fatal flaws of their original complaint, the court should deny their motion for leave to file an amended complaint.

In her order yesterday, Manglona said once the agency action becomes final, the impediment to jurisdiction will be lifted and the complaint may be renewed.

At that time, Manglona said, the court would determine whether plaintiffs, as beneficiaries of HKE’s petitions for CW-1 permits, have standing to challenge their denial.

“But unless and until the procedural change, amendment is futile,” she noted.

Manglona said plaintiffs complain that they have not been given an opportunity to be heard “prior to USCIS determining that they must immediately leave the Commonwealth.”

However, the judge said, there is no administrative order directed against any of the plaintiffs that the court could stay.

Though USCIS has informed HKE that plaintiffs must depart the U.S. if do not have a valid immigration status, “it has not placed any of the plaintiffs in removal proceedings, or ordered any plaintiff removed, or ordered any plaintiff to depart by a date certain. Thus, plaintiffs cannot make out a due process claim,” Manglona said.