Lawsuit seeks to suspend CW rule

Seven persons sued in federal court yesterday to stop federal officials from implementing the CNMI-only Transitional Worker final rule, describing it as “unlawful.”

The plaintiffs—Bonifacio V. Sagana, Manuel T. Vilaga, Gerardo G. De Guzman, Hector T. Sevilla, Carlito J. Marquez, Eduardo M. Elenzano, and Jong Ho Lee—filed the lawsuit pro se or without a lawyer. They asked the court to certify their lawsuit as a class action.

Named defendants in the lawsuit are Department of Homeland Security Secretary Janet Napolitano, U.S. Citizenship and Immigration Services District Director David Gulick, U.S. Labor Secretary Hilda L. Solis, and U.S. Department of Labor District Director Terrence Trotter.

The plaintiffs want the U.S. District Court for the NMI to declare the implementation of the CW Final Rule as unlawful and exceed the defendants’ constitutional and statutory authority.

Vilaga is a U.S. citizen, while Lee is a U.S. permanent resident. The other plaintiffs are long-term nonresident workers who mostly have U.S. citizen children.

Sagana is president of the Dekada Movement. He has worked in the CNMI for 22 years and has U.S. citizen children. He claimed he has uncollected money judgments from the CNMI Department of Labor.

Vilaga has a small-scale contracting business on Saipan. He claims that his business has been affected by the short period allowed within the CW final rule to convert his employees to CW status. The final rule has set a deadline of Nov. 27, 2011, for employers to file change-of-status petitions for their employees.

Lee is the current president of the Korean Community on Saipan. He is engaged in a small-scale business.

De Guzman has lived and worked in the CNMI for 22 years as accountant. He has U.S. citizen children.

Sevilla, an architect, has worked in the CNMI for 22 years and has U.S. citizen children.

Marquez is a mechanical engineering technologist currently working as health safety and environmental officer in one of the power plants on Saipan. He has been working in the CNMI for 14 years.

Elenzano is an award-winning artist who has worked in the CNMI for 23 years. He also has U.S. citizen children.

According to the lawsuit, from Nov. 28, 2009, until the release of the CW final rule on Sept. 7, 2011, employers, employees, and the foreign worker population in the CNMI were in limbo as to what to do. The plaintiffs alleged that the Federal Labor Ombudsman made the declaration that those with pending cases have valid immigration status even after Nov. 27, 2009.

“This declaration was relied upon by many foreign workers in the CNMI,” the plaintiffs said.

They said a number of workers were unpaid, short-changed, working hours were cut off, contracts not renewed, and some workers worked without pay for fear of not being renewed and for fear of not getting immigration status.

When DHS finally released the CW final rule on Sept. 7, 2011, DHS and USCIS, led by Gulick, conducted a series of information and workshops or presentations to educate employers and employees about the new rule governing the hiring of foreign workers in the CNMI.

The information presented by the USCIS team, the plaintiffs said, failed to address many labor and immigration issues, which has hounded the CNMI before the release of the CW final rule.

The plaintiffs said the implementation of the CW final rule unduly prejudices foreign workers and business owners due to the short period by which it was released and implemented.

Given the economic conditions in the CNMI, they said the CW final rule fails to take into consideration the congressional intent in implementing Public Law 110-229, among which is “to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out the Commonwealth’s nonresident contract worker program and to maximize the Commonwealth’s potential for future economic and business growth.”

Implementation of the CW final rule, they said, also runs counter to the mandate of Congress that there should be an “orderly phasing-out of the nonresident contract worker program of the Commonwealth.”

“The transition is such a mess that nonresident workers and employers alike do not know where to go and what to do when grievances arise,” the plaintiffs said.

An injunction to suspend the implementation of the CW final rule serves the public interests of the large number of people who will be negatively affected by its implementation, they said.

The plaintiffs asserted that the implementation of the CW final rule in such a short period of time is “an affront to the human dignity of nonresident workers who have relied on the U.S. government as a bulwark for the protection of human rights.”