OTOMS brief

“Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.”
-Winston Churchill

The case presented in the lawsuit that was filed in the U.S. District Court of the Northern Mariana Island by seven people on Oct. 20, 2011, presents an issue of extraordinary importance to the rights of foreign workers and small-scale businesses in the CNMI and seeks to obtain for plaintiffs and those similarly situated declaratory and injunctive relief against the full implementation of the CNMI-only Transitional Worker Classification Final Rule.

The plaintiffs’ brief statement states: “The W Final Rule affects private interests of foreign workers as well as the businesses community. Due process is the simple notion that the Constitution requires governmental procedures to be fundamentally fair before a person and/or establishments may be deprived of rights, liberty, or property. The very short period of time by which DHS seek to enforce the CW Rule also violates due process as it curtails the process by which petitioners and individuals in the same situation cannot exhaust all remedies afforded to them due to very limited period of time to comply with all the requirements as stated in the Final Rule. The CW Rule potentially affects liberty or property and rights of foreign workers and businesses and fairness should govern in all its provisions.”

A commitment to legality is at the heart of all advanced legal systems. The due process clause promises that before depriving a citizen of life, liberty, or property, and/or entity, government must follow fair procedures. Thus it is not always enough for the government just to act in accordance with whatever law is created by humans who happen to be lawmakers. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. The purpose of the equal protection clause of the 14th Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Willowbrook v. Olech, 528 U.S. 1073 (2000), 120 S. Ct. 1073, 1074-75 (2000) (per curiam) (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441,445 (1923)).

Certain provisions of the CW Final Rule violate the equal protection clause of the U.S. Constitution. This provision or condition is deemed a source of potential abuse, putting workers at the mercy of employers. It also creates an unfair labor situation, violates the equal protection clause, and contravenes the CNRA’s congressional intent to assure worker protection from potential abuse and exploitation. There are literally millions of aliens within the jurisdiction of the United States. The 5th Amendment, as well as the 14th Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law.even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.” Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51 (1950), Wong Wing v. United States, 163 U.S. 228, 238 (1896), Russian Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931).

It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. The Japanese Immigrant Case, 189 U.S. 86, 100 -101 (1903); Wong Yang Sung v. McGrath, 339 U.S. 33, 49 -50 (1950); Kwong Hai Chew v. Colding, 344 U.S. 590, 598 (1953).

DHS in the CW Rule declares its belief that it is reasonable to interpret that the CNMI permit is comparable to a federal immigration status because they both set conditions for the admission of foreign workers. However, the permit system or CW classification DHS created should not unduly burden employers and employee, taking into account the short period of time by which it was released and sought to be implemented. The immediate implementation of the CW Final Rule shortly after its release contradicts the flexibility they claim to have. Lack of flexibility in the CW rule’s implementation does not bode well for the purpose of carrying out congressional intent of avoiding adverse effects to the CNMI economy and violates procedural fairness. Outreach programs by USCIS prior to promulgation of CW rule failed to address the status of workers with pending labor cases and status of workers with conditional umbrella permits and others that were not duly covered by the CNRA.

DHS’ CW Rule provision that domestic workers must be channeled through an established, legitimate business operation is unreasonable and violates due process, given the very short period of time allotted for domestic workers who have current and legitimate employers in the person of private individuals or households to look for businesses or agencies that will petition them for a CW status. This onerous provision has also spawned the birth of agencies or establishments that charge certain fees for the processing of CW applications or petitions for domestic workers, without regard for their welfare or regulation, paving the way for abuse and exploitation, which the provision reportedly seeks to prevent. Just recently, domestic helpers and house workers were now given a chance to file for CW status.

Provision on the filing of applications or petitions for a CW worker is deemed vague, ambiguous, and confusing and lacks procedural fairness due to the deficiency of parameters set for worker eligibility or qualification under the CW as distinguished from those eligible or qualified under the INA. Employers who are required to file attestations hesitate, dither, or are unwilling to commit themselves to file CW petitions for workers for fear of violating conditions that are unclear and uncertain. Employees are also not certain as to what category they should belong. Irreparable damage on the part of the foreign workers’ statuses and profession is now in place and. with no choice at all, employers’ petitions will not materialize within the very limited time to file under the Final Rule.

“The Final Rule is confusing, conflicting, and contradicting and therefore, it is not enforceable.”-Manuel Vilaga

“The DHS Final Rule drives affected foreign workers and businesses into a confined space, where there is very limited mobility and insufficient breathing space.”-CJM.

In the latest development of our lawsuit, the seven individual who filed the lawsuit believe that the merit of the case will prevail above all, and we will deal with it diligently and with perseverance. Thanks to Attorney D.

Carlito J. Marquez
Gerardo de Guzman
Hector Sevilla
Bonifacio Sagan
Eduardo Elenzano
Manuel Vilaga
Lee, Jong Ho
October Twenty One Movement, Saipan (OTOMS)