CW due process rights at stake in Guanlao case

Lawyer Rosemond B. Santos has asserted that whatever the decision the U.S. District Court for the NMI reached in the case of a Filipino mother of two minor U.S. children, who has been fighting against a 2013 immigration court’s order of her removal from the U.S., will be an important ruling on a question affecting nonresident workers’ due process rights.

Santos, who is counsel for the mother Amalia Abo Guanlao, said Guanlao’s case presents a unique challenge between clear violations of due process and the immigration administrative process requirements.

Santos said the underlying conflicting issue is of obvious importance CNMI-wide given the inevitable 10-year extension of the CNMI-Only Transitional Worker program.

“For that basic reason, this case is a prime candidate for a stay on appeal,” said the lawyer in Guanlao’s memorandum in support of her motion to stay the proceedings in the District Court pending her appeal.

Guanlao is appealing to the U.S. Court of Appeals for the Ninth Circuit that seeks to reverse the District Court’s ruling that dismissed her petition for a writ of habeas corpus. The petition seeks to appeal the immigration’s removal order.

Santos is moving the District Court to grant Guanlao’s motion for stay of the ordered dismissal of her petition and the lifting of the stay of removal, pending an appeal of the final order to the Ninth Circuit.

Santos said the “likelihood of success” factor, properly understood, favors the entry of a stay pending appeal in this novel and important case.

Guanlao first moved to Saipan in April 1994 and has consistently remained in the CNMI for the past 24 years.

Guanlao married her husband (also a nonresident worker) in December 2000. Together they have children, ages 12 and 15 years old, who are both born in the CNMI and are U.S. citizens.

Santos said without the issuance of a stay, the Guanlao couple will be forced to sell all their personal belongings—including household items, automobiles, and other items.

She said the couple will be forced to pull their two children out of school and move their entire family to the Philippines after 24 years of residency in the CNMI.

“Such irreparable injury is both certain and great; it is actual and not theoretical; and it is real and immediate,” the lawyer pointed out.

Santos said these concrete harms to Guanlao from having to implement the District Court’s order, while it remains under appellate review, far outweigh any harm that respondents Immigration and Customs Enforcement officials may suffer from preservation of the legal status quo pending appeal.

She said the harm is significant in that it is a drastic, overwhelming, and life-changing situation that will have tremendous effect not only on Guanlao, but also her gainfully employed husband and their two minor children.

On the other hand, Santos said, the respondents will not be affected by the issuance of a stay that has been in effect for over two years now.

Santos noted that the Ninth Circuit will ultimately decide one way or another whether to agree with the District Court’s order granting dismissal or, conversely on Guanlao’s contention that her ineffective assistance of counsel and due process violations may be reviewable despite the immigration’s administrative requirements.

Santos said while that remains a possibility, the public interest favors staying this court’s order as there are also personal legal rights, social and economic justice issues that will need to be resolved.

More importantly, Santos said, the inevitable passage of the pending federal “NMI U.S. Workforce Act of 2018” will mean the presence of nonresident workers in the CNMI for an additional 10 years.

“Such extension will certainly continue to raise immigration removal issues as it pertains to a nonresident workers’ due process rights. This is most certainly a public interest matter which favors a stay,” she said.

The lawyer said the absence of the court’s order of stay in this case alters the status quo in a nonresident worker/immigration system that involves approximately 14,000 nonresident worker applicants on a yearly basis.

U.S. District Court for the NMI designated Judge Frances Tydingco-Gatewood dismissed last June 19 Guanlao’s petition.

On June 23, 2016, U.S. District Court for the NMI Chief Judge Ramona V. Manglona issued a stay of Guanlao’s removal from the U.S.

Following Tydingco-Gatewood’s dismissal order, the U.S. government, through Department of Justice Office of Immigration litigation trial attorney Adrienne Zack, moved the District Court to formally lift the stay of removal because this case has been resolved.

According to court records, on Sept. 10, 2013, an immigration judge found that Guanlao was removable as an alien present without a valid immigrant visa or entry document and ordered her removed to the Philippines.

Guanlao appealed the judge’s decision pro se or without a lawyer to the Board of Appeals. She lost her case before the immigration court.

In June 2016, she filed her petition for a writ of habeas corpus, seeking determination of “the legality of her continued detention and intended removal” and “a stay of her removal during the pendency of this case.”