CUC: Gulick, DHS ignoring late governor’s advice on CW-1 cap ‘mind boggling’

The Commonwealth Utilities Corp. described as “mind boggling” U.S. Citizenship and Immigration Services District 26 Director David G. Gulick and the Department of Homeland Security casually ignoring then-governor Eloy S. Inos’ comments and advice to reduce the previous year’s CNMI-only transitional workers (CW-1) permits by a nominal one or to 13,998 for the Fiscal Year 2016 cap.

CUC, through counsel James S. Sirok, pointed out that Gulick and DHS instead, under the guise of exercising its “broad discretion,” set a CW-1 cap number drastically different from Inos’ advice on July 2 and 8, 2015 based primarily on two newspaper articles published a few weeks earlier by “two young non-indigenous newspaper reporters with little if any knowledge of what would be in the best interests of the CNMI, its citizens and its business community.”

In his declaration, Gulick admitted that DHS did not follow Inos’ advice to reduce the previous year’s CW-1 permits by a nominal one or to 13,998 for Fiscal Year 2016 cap. Nonetheless, Gulick says the late governor’s views were considered in good faith in DHS’ decision on the FY 2016 CW-1 cap of 12,999.

Gulick’s declaration is being attached to support DHS Secretary Jeh Johnson’s and co-defendants’ brief in opposition to CUC’s and its affected 13 foreign workers’ motion for preliminary injunction.

Sirok discussed yesterday the CW-1 cap issue in CUC’s and its 13 affected foreign workers’ reply in support of their application for preliminary injunction.

Asserting that the U.S. District Court for the NMI has jurisdiction over CUC’s and 13 workers’ lawsuit against DHS and co-defendants, Sirok said DHS’ conduct in setting the 2013 to 2016 annual CW-1 cap numbers is reviewable under the federal Administrative Procedure Act and that plaintiffs are likely to succeed on the merits of their complaint.

Sirok also disclosed that nine of the 13 CW-1 plaintiffs are still working because of a confidential agreement with defendants.

Sirok said plaintiffs CUC and the 13 workers agreed with defendants’ request to forego action on their temporary restraining order and to continue the hearing date to allow defendants further time to brief the injunctive relief motions.

The lawyer noted that it’s the defendants that revealed the confidential agreement in their opposition to plaintiffs’ motion for preliminary injunction.

Sirok said defendants’ argument that nine of the 13 CW-1 plaintiffs are not suffering harm because they are currently working is “deeply troublesome.”

Sirok said for defendants to now use the result of that confidential agreement against CUC and its affected workers is disingenuous.

Furthermore, the lawyer said, defendants know that the agreed upon work privilege is only temporary, based solely on issues related to the current motion practice, and is not a permanent solution to plaintiffs’ claims in the lawsuit.

Sirok said DHS should first determine the eligibility for the exemption before summarily rejecting and returning the CW-1 petitions.

Sirok said by asking the federal court to refrain from action, defendants now seek to complete their efforts to unilaterally re-write provisions of the Consolidated Natural Resources Act in flagrant disregard for the checks and balances provided by the other branches and agencies of the federal government.

To evade review of the court, he said, DHS now attempts to self-regulate its conduct via what it states is a “broad unreviewable authority” while flouting the APA’s public notice and comment requirements for substantive administrative rules.

“This regulatory shell game, where the DHS Secretary’s actions are purposefully designed to dodge accountability and transparency, must be stopped,” Sirok said.

The lawyer said judicial review, along with a preliminary injunction, is the only effective antidote to DHS’s lawless attempt to exceed the bounds of discretionary power, if any, granted to it under the Consolidated Natural Resources Act.

Sirok said defendants incorrectly argue that a preliminary injunction is not available to plaintiffs.

The lawyer said defendants’ argumentative position is surprising in light of its knowledge that DHS was enjoined by a preliminary injunction in 2009 for failing to comply with the statutory requirements of the APA.

CUC and its 13 CW-1 workers are suing Johnson and others for not acting on their CW-1 permit renewals.

Plaintiffs CUC’s and 13 CW-1 workers’ motion for preliminary relief will be heard on Sept. 9, 2016 at 9am.

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.