Suit vs federal officials for denial of CW-1 permit dismissed

Finding attorney Stephen C. Woodruff’s excuses not credible, U.S. District Court for the NMI Chief Judge Ramona V. Manglona has dismissed a lawsuit he filed on behalf of a private company and a mother of twin U.S. citizen girls born on Saipan against federal officials for denying a petition for CW-1 permit and request for parole-in-place.

In an order on Friday, Manglona denied Woodruff’s request to extend time for him to serve the complaint of his clients, KB Enterprises Inc. and Lucelle Mancia Lampera.

Manglona dismissed the complaint without prejudice and directed the court’s clerk to close the case. Dismissed without prejudice means the plaintiff is allowed to refile a new suit on the same claim in the future.

The judge said Woodruff failed to explain why it was not “feasible” to ask for an extension in this matter before the deadline had passed.

“A routine motion for an extension doesn’t require legal research or take more than an hour to write and file,” Manglona said.

In the lawsuit filed last Jan. 17, KB Enterprises and Lampera sued former U.S. Department of Homeland Security Secretary Janet Napolitano, U.S. Citizenship and Immigration Services California Center director Kathy A. Baran, and USCIS Field Office director Stephen P. Green.

In the complaint, Woodruff asked the court to issue a judgment declaring that the grant of parole status to Lampera under the Nov. 23, 2011, USCIS policy for parole of immediate relatives of U.S citizens in the CNMI is not barred by Lampera’s prior CW-1 status.

Woodruff asked the court to issue a judgment declaring that the grant of parole status to alien immediate relatives of U.S. citizens is not precluded by a prior admission of such aliens. He said this preclusion is inconsistent with the declared objectives of U.S. Congress for the transition to federal immigration control in the CNMI.

The lawyer also asked the court to issue a declaratory judgment that the lawful presence requirement of the statute is not authorized by the Consolidated Natural Resources Act (federalization law) and is contrary to the congressionally-mandated performance standards for the transition period and is therefore invalid and unenforceable.

On May 21, 2014, Manglona gave the plaintiffs notice of the court’s intent to dismiss the case for failure to serve the complaint within the 120 days required in the Federal Rules of Civil Procedure. In that order, Manglona noted that plaintiffs had not yet even asked the court’s clerk to issue summonses.

On May 27, 2014, Woodruff asked the court to give him until July 15, 2014, to serve the complaint on the defendants.

Woodruff said that after the complaint was filed, he learned that Napolitano was no longer Secretary of the Department of Homeland Security and there was a need to amend the complaint to replace Napolitano with DHS Secretary Jeh Johnson.

Woodruff also stated that there’s a possibility to add more defendants and potentially to further refine the complaint and relief requested.

“Since I had determined that an amended complaint should be filed, I believed serving defendants immediately with a complaint I had already concluded should be amended would be a disservice to defendants and contribute nothing to fair and efficient prosecution of the case, I decided to hold off on serving the defendants until a first amended complaint could be prepared and filed,” he said.

In her order, Manglona said all defendants are being sued in their official capacities as federal officials. Manglona said the real party in interest is the United States and that it makes little difference if the names of the office holders change.

The judge said when suing a public officer in an official capacity, plaintiff need not give the officer’s name but may designate the officer by official title only.

“It is hard to see how the United States, or any defendant for that matter, would appreciate not knowing it is being sued until months after the lawsuit was initiated,” Manglona said.

Manglona said pressing deadlines in other matters are exactly the reason that diligent attorneys file timely motions for extensions.

According to the complaint, Lampera first came to the CNMI as a nonresident worker under CNMI law in 1997. In 2001, at the end of her employment, she returned to the Philippines. In 2004, she came back to the CNMI as a visitor, continuing as a student, and finally again as a nonresident worker.

On Aug. 14, 2000, while legally employed in the CNMI, Lampera gave birth to twin U.S. citizen girls. The daughters presently live with her in the CNMI, where she is raising them as a single parent.

Woodruff said KB Enterprises offered a job to Lampera and filed a CW-1 petition on June 12, 2013, a mere 41 days after the expiration date of her original I-94 (record of admission).

Woodruff said that, on Oct. 3, 2013, Baran denied the CW-1 petition on the ground that Lampera failed to satisfy the lawful presence requirement.

On Nov. 1, 2013, Green denied Lampera’s request for parole-in-place on the ground that she was ineligible on account of her prior admission to CW-1 status.