'DHS rules will wipe out two-thirds of the alien workforce'

'DHS rules will wipe out two-thirds of the alien workforce'

NMI FILES SUPPLEMENTAL ARGUMENTS

Monday, November 02, 2009
By Ferdie de la Torre
Reporter

The CNMI government has filed a supplemental memorandum supporting its motion for a preliminary injunction against federalization by citing the Department of Homeland Security's publication of its interim final rule.

Gov. Benigno R. Fitial said yesterday the “interim final rule” was a violation of the Administrative Procedure Act, so he asked his lawyers to challenge it.

“These regulations affect all elements of our community-our struggling economy, our investors and employers, our entire workforce, and our senior citizens,” said Fitial in a statement.

The CNMI, through counsel Jenner and Block LLP, filed the supplemental memorandum on Oct. 30, 2009, before the U.S. District Court for the District of Columbia. Howard P. Willens, special legal counsel to Fitial, also signed the memorandum. The U.S. government did not oppose the filing.

According to the CNMI's counsel, the interim permit rule sets forth the regulations that will govern the transition worker permit program, which is being challenged by the Commonwealth.

The Jenner and Block law firm said the defendants also issued an “interim final rule,” scheduled to go into effect on Nov. 28, 2009, that purports to extend U.S. immigration laws to the CNMI.

“The Interim Permit Rule and Interim Immigration Rule further establish why the CNMI's motion for injunctive relief should be granted,” Jenner and Block said.

First, it said, the issuance of the interim rules removes any doubt that the CNMI has standing and that its claims are “ripe.”

“Defendants have repeatedly-and incorrectly-argued that the CNMI's claims were speculative and unripe because regulations implementing the [Consolidated Natural Resources] Act had not been issued,” the law firm said. The CNRA contains the law that extends federal labor and immigration laws to the CNMI.

Second, Jenner and Block said, the interim rules demonstrate that the CNMI accurately portrayed the Act's consequences upon the CNMI, and that these consequences far exceed the bounds of Congress' authority to regulate the CNMI under the Covenant.

The interim permit rule, the law firm said, creates a scheme for issuing a new CNMI-only transitional worker permit (CW permits) to foreign workers in the CNMI. Under the rule, DHS-and not the CNMI-shall decide which employers shall obtain CW permits for which workers.

“This regulatory scheme ousts local control over two-thirds of the Commonwealth's private-sector workforce, dictates the ultimate removal of that population from the CNMI, and barely recognizes, much less accommodates, the devastating economic consequences this will have upon the Commonwealth,” Jenner and Block said.

The law firm said the manner in which DHS issued the interim rules further confirms the injuries to local self-government that are being made under the purported authority of the Act.

Jenner and Block noted that, although the CNRA was enacted nearly 18 months ago, DHS waited to issue the interim rules just 31 days before the Act's effective date.

DHS did not provide notice and did not allow comments from the CNMI and others in the Commonwealth affected by these regulations, the law firm said.

“This is a blatant violation of the Administrative Procedure Act, and the Commonwealth is preparing papers, which it hopes to file early next week, seeking leave to amend its complaint to add a claim challenging this violation of the APA and seeking emergency injunctive relief and expedited briefing,” the law firm added.

Jenner and Block pointed out that these are regulations that over the next two to five years will wipe out two-thirds of the CNMI's private sector workforce.

“The defendants have promulgated these rules by the force of central fiat from bureaucrats in Washington D.C., with no local input or transparency whatsoever, with not even an effort to solicit comments from the people most affected,” the law firm said.

In his comment, Fitial said DHS urged dismissal of the CNMI's lawsuit because “DHS has not announced rules or regulations” and that therefore the Commonwealth “has no idea what the transitional period visa program will provide, who will be eligible, or what impact it will have on foreign workers.”

“I believe that these new regulations dramatically support our contentions that the 'labor provisions' of the law violate our right of self-government guaranteed by the Covenant,” Fitial said.

The governor said they want the court to consider these regulations before reaching a final decision on the CNMI's motion for a preliminary injunction.

Fitial said DHS published the interim final rule without complying with the notice and comment provisions of APA.

“The people of the Commonwealth have the right under this Act to participate in the rulemaking process and to have their comments considered carefully and openly by the department before any final regulations are issued 30 days before their effective date,” Fitial said.