‘Federal preemption prevents Labor from enforcing CNMI immigration related laws’

The Department of Labor cannot sanction employers for, among other things, not filing a “declaration” with Labor’s Citizen Job Placement Section because federal preemption prevents the enforcement of Commonwealth immigration related laws and regulations.

“Under the concept of federal preemption, a state generally cannot enforce additional or auxiliary regulations relating to the employment of aliens, the registration of aliens, etc.,” veteran lawyer Steven Pixley told Saipan Tribune yesterday.

He said states are generally precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance.

Immigration is one of those areas, Pixley said.

He pointed out that the Consolidated Natural Resources Act of 2008—which federalized the immigration system in the CNMI—expressly provided that the Commonwealth’s immigration laws would be preempted by the new application of the federal immigration laws to the Commonwealth.

Pixley cited that the U.S. Supreme Court has held that the U.S. government has broad power over the subject of immigration and the status of aliens.

Pixley said this authority rests, in part, on the national government’s constitutional power to “establish a uniform Rule of Naturalization” and its inherent power as sovereign to control and conduct relations with foreign nations.

Here, the U.S. government has taken control over immigration and enacted comprehensive regulations governing the employment of non-U.S. citizens in the CNMI.

Labor administrative hearing officer Jerry Cody had cleared Kanoa Resort Saipan from a labor complaint of a U.S. citizen job applicant who alleged that the hotel rejected his application for the position of maintenance manager without just cause.

In his administrative order, Cody ruled that the job applicant failed to meet his burden of establishing that he was qualified for the position.

In its determination, Labor found that the job applicant was not qualified for the position and determined that there was no violation.

Labor, however, determined that Kanoa Resort violated Employment Rules and Regulations with respect to “declaration” requirements and asked that the hotel be sanctioned in the amount of $2,000.

Labor rules require an employer to file a “declaration” (i.e. online response) with the Citizen Job Placement Section within 14 days after publication of a job announcement on Labor’s website. This requirement is met if the employer posts a timely, short response on the website, explaining the action taken on each applicant who posted a response to the job vacancy, and the reasons why that person was not hired for the position.

In that case, Pixley, as counsel for Kanoa Resort, filed a motion to dismiss the case based on the federal preemption contention.

The federal preemption issue was not touched in Cody’s order, citing that Pixley stated that if Kanoa Resort prevailed on the merits of the case, it would dismiss its motion to dismiss or consider it moot.

In the footnote of his order, Cody said as Kanoa Resort has now prevailed, he shall consider the hotel’s motion to dismiss withdrawn.

As to the legal argument that was raised in the motion to dismiss, Cody noted that he previously addressed this legal issue in another Labor case based on the same statute.

In the motion to dismiss, Pixley said the power to regulate immigration is unquestionably exclusively a federal power.

“Where the federal government has enacted a complete scheme of regulations and has therein provided a standard for registration of aliens, states cannot, inconsistently with the purpose of Congress conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations,” he said, citing previous court rulings.

Indeed, Pixley said, the federal government has enacted extensive regulations regarding the CW-1 immigration designation as well as the employment of aliens in the Commonwealth.

“The Department of Labor’s enforcement of auxiliary laws and regulations cannot withstand preemption scrutiny,” Pixley pointed out.

The lawyer said that, on March 22, 2010, Public Law 17-1 was enacted and that this Act was designated the “Immigration Conformity Act of 2010.”

Pixley said this act repealed certain sections of the Commonwealth Code dealing with immigration functions, and for other purposes.

Pixley said this act, however, among other things, retained CNMI control over immigration matters.

For example, he said, this act requires all aliens to register with Labor and imposed criminal sanctions on aliens who failed to register.

Pixley said Labor recently promulgated regulations to ensure strict compliance of labor laws and regulations. These regulations control the employment of persons who are not U.S. citizens residing in the CNMI.

Among other things, he said, these regulations empower Labor to sanction private employers who do not hire U.S. citizens.

Pixley said the U.S. government “has broad, undoubted power over the subject of immigration and the status of aliens.”