A magician pulling rabbit from a hat

Commonwealth Utilities Corp. counsel James S. Sirok likens the decision of David G. Gulick and his team at U.S. Citizenship and Immigration Services to reduce the CW-1 cap to a magician pulling a rabbit from a hat.

Citing the CW-1 cap for fiscal year 2016, Sirok said there was no information reported in the Federal Register or brought to the attention of the court why the reduction number had to be 1,000 versus 1 or 2 or 10 or 100 or even 2,000.

“Mr. Gulick and his team merely pulled the reduction number of 1,000 out of thin air to enlighten and humor the populace of the CNMI, and its political leaders, in the same manner a magician pulls a rabbit from a hat,” the lawyer said.

Sirok discussed the CW-1 cap issue in CUC’s opposition to a motion to dismiss CUC’s first complaint. Thirteen of CUC’s CW-1 workers have joined the lawsuit.

In their first amended complaint, CUC and its 13 CW-1 workers asked the court to prevent Department of Homeland Security Secretary Jeh Charles Johnson and co-defendants from enforcing the CW-1 caps set for fiscal years 2013 through 2017, as set by the DHS Secretary.

The plaintiffs argued, among other things, that the manner and process used in the past and being currently being used by DHS to arrive at the cap number is arbitrary, capricious, and results in an abuse of the DHS secretary’s limited discretion.

Johnson and his co-defendants moved to dismiss the complaint. They argued, among other things, that the DHS secretary has unfettered discretion to set the cap in any manner and make it applicable to the CW-1 petitioning process.

In plaintiffs’ opposition, Sirok said that District 26 director Gulick and his team did this because they felt they knew better than the CNMI governor what was best for the Commonwealth and its ability to encourage future economic development and growth.

Sirok pointed out that this is not what was envisioned by Congress when it enacted the Consolidated Natural Resources Act. The CNRA extended U.S. immigration laws to the Northern Marianas and established the Commonwealth-Only Transitional Workers or CW-1 program for foreign workers.

Sirok pointed out that U.S. District Court for the NMI Chief Judge Ramona V. Manglona‘s discussion on the cap numbers for fiscal years 2013 makes it clear that DHS has no uniform and consistent approach to setting the cap each fiscal year.

Sirok said there has been no numerical limitation plan developed for the allocation of the number of permits to be issued each year as required by the CNRA.

Sirok said Gulick testified clearly that, for the fiscal year 2016 cap number, he merely chose to reduce the 2015 cap by 1,000 because that number was greater than one but large enough to get the attention of employers, businesses, and the CNMI’s citizens that the total number of CW-1 workers will be reduced to zero by 2019.

“This is arbitrary and capricious conduct in its purest form,” said Sirok, adding that this is a prime example of conduct that is not in accordance with the CNRA provisions and abusive of whatever discretion may have been created under the CNRA provisions.

Sirok said DHS may have taken into consideration many factors relevant to CNMI’s economy and future development before computing the cap number for fiscal year 2016. However, Sirok said, these considerations are meaningless without some type of calculation, formula, numerical limitation plan or allocation system.

Sirok said all of these considerations were thrown aside when Gulick and his staff simply and randomly decided to reduce the fiscal year 2015limit by 1,000 because it was “better than one” and would get the attention of everyone that there would be no more CW-1 workers after December 2019.

Sirok said there was no causal link between setting the fiscal year 2016 cap number and the economic and social information obtained by Gulick and his staff prior to making this decision.

Sirok said Manglona recognized that the CNRA provides that the system “may be based on any reasonable method and criteria” as determined by DHS secretary.

Sirok said Manglona recognized that the CNRA requires the DHS secretary to “establish, administer, and enforce a system for allocating and determining the number and terms and conditions of permits.”

Sirok said the DHS secretary simply has not developed a method, or a system, for allocating and determining the number of CW-1 permits that are to be issued each fiscal year.

Sirok noted that Manglona has also come to that conclusion.

In denying the plaintiffs’ motion for preliminary injunction early this month, Manglona has determined that from Gulick’s testimony, it appears that DHS and the USCIS have not set in place an allocation system of CNMI-only transitional workers visa (CW-1) permits.

Manglona said it appears that DHS and USCIS only prioritize CW-1 petitions based on the date they actually arrive in their offices.

While the parties have not fully briefed the issue as to whether an allocation system exists or not, Manglona said that Gulick’s testimony leads her to believe that no allocation system has been set in place.

Rather, Manglona said CW-1 permits are examined on a first-in first-out basis without regard to the occupational category the permit may fall under.

Manglona discussed the CW-1 allocation system in her 33-page order that denied a motion for preliminary injunction filed by the Commonwealth Utilities Corp. to allow its 13 CW-1 workers to work or continue to work despite their permits’ expiration dates.

Manglona denied the same motion for preliminary injunction that requests to prevent Johnson and co-defendants from enforcing the published fiscal year 2016 CW-1 cap set by DHS for failure to comply with the CNRA and the Administrative Procedure Act.

Manglona ruled that given the unlikelihood that CUC and its 13 CW-1 workers will succeed on the merits of their claim and the lack of irreparable harm absent injunctive relief, she concludes that plaintiffs have not established their entitlement to a preliminary injunction.

The judge noted that CW-1 workers have been allowed to continue working pending the resolution of this case.

Manglona concluded that DHS has complied with the CNRA to the extent that DHS has established, administered, and enforced a system to determine the number of CW-1 permits. The judge pointed out that what plaintiffs fail to address in its motion for injunctive relief is the allocation of permits.

CUC employs over 300 workers, including 42 non-resident workers.

Plaintiffs are suing Johnson and others for not acting on their CW-1 permit renewals.

Aside from Johnson, plaintiffs are also suing U.S. Immigration and Customs Enforcement Director Sarah R. Saldana, and U.S. Citizenship and Immigration Services Director Leon Rodriguez.