CNMI asks court to declare DHS regulations invalid

CNMI asks court to declare DHS regulations invalid

Thursday, November 05, 2009

By Ferdie de la Torre
Reporter

The CNMI has asked the U.S. District Court for the District of Columbia to declare as invalid the Department of Homeland Security's interim final rule on the CNMI transitional worker program.

The CNMI, through the Jenner & Block law firm, asked the court to rule that the manner with which DHS promulgated the interim permit rule violates the Administrative Act.

Jenner & Block stressed that the “societal, familiar, and personal damage” that will be caused by Public Law 110-229, the Consolidated Natural Resources Act of 2008 (federalization law), “is as severe as its economic impact.” The law firm said the law will force thousands of U.S. citizen children to separate from their parents who are not U.S. citizens.

In the CNMI's amended complained filed on Nov. 2, Jenner & Block also questioned the legality of the interim final rule.

The complaint, which named the United States, DHS Secretary Janet Napolitano, DHS, U.S. Department of Labor Secretary Hilda Solis, and U.S. Labor as defendants-also asked the court to prevent these defendants from acting in violation of the Covenant.

The CNMI wants the court to issue a permanent injunction prohibiting the defendants from enforcing federalization in the CNMI.

The law firm asserted that the defendants violated APA by promulgating the regulations required by Public Law 110-229 without notice to the CNMI and other affected stakeholders and giving them an opportunity to comment.

DHS issued the interim rule on Oct. 27. It is set to go into effect on Nov. 28, 2009, the effective date of the CNRA.

Jenner & Block said the CNRA will strike a devastating, and perhaps fatal, blow on the economy by prohibiting the Commonwealth from ensuring an adequate supply of labor for local residents and businesses.

The law firm said CNRA imposes an uncertain permitting system for an indefinite period of time on about two-thirds of the Commonwealth's private sector workforce and requires that the number of Commonwealth-only permits be reduced to zero by the end of 2014, the end date for the transition period.

“As the number of Commonwealth-only permits is reduced, foreign workers lawfully admitted under CNMI law will have to leave the Commonwealth if they are unable to obtain a visa under the narrow and specialized classifications of the federal immigration laws or if their employers cannot obtain the necessary permits from that steadily shrinking pool of permits,” the law firm said.

Jenner & Block said most of the foreign workers will not be able to qualify for federal visas because existing federal immigration laws do not allow visas for low-skill jobs that are “permanent” rather than “temporary.”

“In addition, because no 'Commonwealth-only' permits can be issued or can authorize employment after 2014, whatever relief is potentially available during the transition period is necessarily temporary,” the law firm said.

The law firm pointed out that the local workforce is not enough to compensate for the labor deficit the CNRA will create.

The overall U.S. citizen population of about 30,000 and the U.S. citizen workforce of about 11,000 have remained constant in size for most of the past decade.

“There is no reasonable basis for assuming that the U.S. citizen population can produce a workforce of sufficient size to meet the needs of the CNMI economy,” the law firm said.

The CNRA, Jenner & Block said, has placed the CNMI in a legal and economic limbo of indefinite duration.

“Such an environment is toxic to economic development,” the law firm said, citing business plans for new ventures that are already being revised or canceled, foreign investment being withdrawn, among other things.

“No other city, county, or state in America has a federal bureaucracy exercising plenary authority over two-thirds of its private sector labor force,” the law firm stressed.

In addition, the CNRA will also rend its social fabric, the law firm said.

The 24,000 alien workers and their families make up roughly 40 percent of the Commonwealth's total population. Jenner & Block said many of these people have lived in the CNMI for over a decade and include thousands of U.S. citizen children.

Under the provisions of CNRA, the complaint said, these children's parents are subject to expulsion from the Commonwealth over the next several years, even if they otherwise could have remained gainfully employed in the CNMI.

When required to leave, the law firm said, these parents will be forced to either separate from their children and find another home for them in the CNMI, or to take these U.S. citizen children away from their home country and the opportunities and benefits of growing up in the U.S.

Jenner & Block said the challenged provisions of CNRA abrogate the CNMI's right of local self-government by denying the Commonwealth the right to regulate its local workforce and economy.