DHS: Federal court no jurisdiction over CUC’s, CW workers’ lawsuit

Jeh Johnson

Department of Homeland Security Secretary Jeh Johnson stated that the U.S. District Court for the NMI has no jurisdiction over the lawsuit filed by the Commonwealth Utilities Corp. and its 13 foreign workers affected by CNMI-only transitional workers (CW-1) cap.

Johnson and co-defendants, through Department of Justice Office of Immigration assistant director Glenn M. Girdharry, filed on Saturday a motion to dismiss CUC and its 13 foreign workers’ lawsuit.

Girdharry said the Administrative Procedure Act expressly precludes judicial review of DHS’ administration of the CW-1 visa cap because it is an agency action committed to agency discretion by law.

Girdharry said the reasonable methodology and criteria that DHS uses to administer the CW-1 visa cap—aimed at achieving the statutory goals of reducing the number of CW-1 workers annually to zero by Dec. 31, 2019, and preventing any adverse effect on the wages and working conditions of domestic workers—is an action that is wholly “committed to agency discretion by law.”

The lawyer said plaintiffs’ allegations that DHS’ administration of the CW-1 visa cap is arbitrary or capricious fails to state a claim for which the court can provide them with any relief.

Contrary to plaintiffs’ allegations, Girdharry pointed out that DHS has established a regulatory scheme to administer the CW-1 transitional worker program that has been in place since 2011.

Girdharry said the U.S. Citizenship and Immigration Services lawfully rejected CUC’s CW-1 petitions after the cap was reached in accordance with agency rules and procedures.

Girdharry said to the extent plaintiffs allege that DHS’ rejection of their petitions violated their due process rights, such a claim utterly fails because it is well established that there is no constitutionally-protected interest in a visa petition that may permit a foreign national admission into the United States.

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

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.

Plaintiffs’ counsel Sirok alleged that the failure of USCIS to make a determination on the CW renewal petitions violates the Administrative Procedure Act.

Sirok alleged that plaintiffs have suffered a legal wrong because of the conduct of defendants DHS and USCIS in setting the annual CW-1 caps for fiscal years 2013 through 2016.

Sirok said CUC will be adversely affected by the loss of these CW-1 workers in its ability to maintain and operate its power generation facilities on Saipan, Tinian, and Rota.

Sirok asked the court to declare that the failure of USCIS to render a determination on the CW-1 renewal petitions for the 13 workers was unlawful, contrary to law, and in violation of plaintiffs’ constitutional rights.

CUC employs over 300 workers, including 42 nonresident workers.

Sirok said the foreign workers’ workforce within CUC is an essential and necessary work force needed for the utility to provide power, water, and wastewater utility services to the CNMI.