Law governing alien workers survives legal challenge

The U.S. Court of Appeals junked the appeal of a Filipino worker who had challenged the constitutionality of the Nonresident Workers Act based on arguments asserting equal protection and due process rights as guaranteed by the U.S. Constitution’s Fourteenth Amendment.

CNMI Assistant Attorney General James Livingstone said the appellate court effectively upheld the constitutionality of the NWA as a whole, after it withstood legal challenge.

The U.S. Court of Appeals for the Ninth Circuit added, though, that it is taking no position whether individual sections of the NWA would satisfy a more focused legal challenge anchored on equal protection grounds.

“Our decision does not foreclose the possibility that discrete elements of the CNMI’s temporary worker program could violate the equal protection rights of nonresident workers,” the appellate court said.

The appellate court also said that certain provisions of the NWA were already struck down for being unconstitutional by violating equal protection rights.

These provisions pertain to the one that barred immediate relatives of nonresident workers from entering the CNMI unless the worker earned more than $20,000 and posted a bond to guarantee his dependents’ repatriation; and another one that barred a nonresident worker from accessing the courts.

The Ninth Circuit, through Judge Alfred T. Goodwin, ruled that, although the NWA is incontestably a discriminatory statute that treats nonresidents differently from residents and citizens, it appeared consistent with the CNMI government’s goals.

The appellate court reached the ruling in an appeal raised by Filipino worker Bonifacio Sagana, the one who sued the then CNMI Department of Labor and Immigration in federal court and reached a settlement agreement that led to the adoption of new labor regulations allowing multiple employments for alien workers in the Commonwealth.

“Our task here is to determine only whether the CNMI, by limiting a nonresident alien’s ability to seek and engage in employment as a condition for entry, violates that alien’s constitutional rights under the Fourteenth Amendment. Viewed at the level of abstraction, the NWA withstands challenge,” the appellate court said.

The court called as “reasonable, important purposes” the CNMI Legislature’s goal in creating a temporary class of employees to bolster the CNMI economy, while giving preference to its residents and protecting the latter’s wages and conditions by enforcing a system of control to regulate visiting workers.

It also held that, while the Fourteenth Amendment guarantees due process to protect the right to work for a living in the common occupations of the community, the judiciary has never recognized the right to pursue work as a fundamental right. It said that the general right to choose one’s employment is subject to reasonable government regulation.

The appellate court also junked Sagana’s claim based on a federal statute that affords protection against alienage discrimination.

It generally affirmed, however, that the statute prohibits “governmental discrimination on the basis of alienage.” It also ruled that, although the Covenant reached between the CNMI and the federal government provided authority on immigration and labor to the Commonwealth, federal laws in existence at the time of the Covenant’s passage apply to the islands.

“The CNMI agreed to be bound by the dictates of the Thirteenth and Fourteenth Amendments and the statutes enforcing them,” the appellate court said.