US: NMI's challenge to interim rule too speculative

US: NMI's challenge to interim rule too speculative

Thursday, November 12, 2009
By Ferdie de la Torre

The U.S. government described as “too speculative” the CNMI's claim that the Department of Homeland Security's interim permit rule on the transitional worker program will lead to disastrous economic conditions.

The U.S. government, through the Office of Immigration Litigation trial attorney Theodore W. Atkinson, insisted that the issuance of the interim permit rule does not add to or alter the CNMI's arguments about the constitutionality of the Consolidated Natural Resources Act of 2008 (federalization law).

Atkinson said the existence of the interim permit rule does not add to the CNMI's challenge to the CNRA, because it does not deviate from the mandates of the CNRA in any way.

Atkinson's arguments are contained in the U.S. government's response yesterday to the CNMI's supplemental memorandum in support of a motion for a preliminary injunction.

“In other words, the mere issuance of regulations to implement the Act does not impact the CNMI's arguments regarding the constitutionality of the Act itself,” the lawyer said.

Atkinson said the CNMI's argument that the interim permit rule proves that the Act ousts local control over two-thirds of the CNMI's private sector workforce is nothing new.

“This is the same argument the CNMI has repeatedly made throughout its briefing on the instant motion, but the issuance of the Interim Permit Rule does not provide support for the CNMI's speculative claims of future injury or add to its challenge of the Act,” he said.

The Act itself, Atkinson said, mandates the implementation of a CNMI-only worker permitting system, and specifies that the number of CNMI-only permits shall be reduced during the period of transition to zero at the end of the transition period.

He said the transition period can be extended for five-year periods at the discretion of the U.S. Labor Secretary.

The attorney emphasized that the CNMI's claim is not only speculative but “is also wholly undermined by the fact that the CNMI challenges the transitional nonresident worker permit system, but does not challenge the application of all other federal immigration laws to the CNMI.”

Atkinson said that position is confounding because it completely cuts against the CNMI's argument that a preliminary injunction would avoid harsh economic and other results.

He said without the provisions of the CNRA creating a transitional worker permitting system and without the interim permit rule, nonresident workers currently in the CNMI and who travel outside the CNMI would be inadmissible upon return to the Commonwealth under federal immigration laws not challenged by the CNMI, once those laws take effect on Nov. 28.

Atkinson added that businesses in the CNMI would be unable to hire nonresident workers from outside the Commonwealth as of Nov. 28, because without a CW (transitional worker) classification, such nonresident workers would also be inadmissible.

“In short, without the Interim Permit Rule being effective on Nov. 28, 2009, current CNMI nonresident workers may not be able to return to the CNMI if they leave within two years of that date, and businesses in the CNMI may not be able to 'import' any new nonresident workers from outside the CNMI if the number of current nonresident workers in the CNMI drops,” Atkinson said.

He pointed out that while the CNMI's claims regarding economic injury arising from the implementation of the transitional worker permit system under the Act is speculative, the impact on the CNMI of the immediate application of federal immigration laws in the absence of the interim permit rule is not.

Atkinson asked the court to conclude that the U.S. Congress properly exercised its authority in enacting the CNRA and applying federal immigration law, including the transitional work permit system, to the CNMI.

He said the court should deny the CNMI's motion for a preliminary injunction and grant the United States' motion to dismiss the lawsuit.

The interim rule was published on Oct. 27, 2009. It is scheduled to become effective on Nov. 28, providing for a CNMI Transitional Worker Program.

The CNMI contends that DHS cannot justify its failure to follow the notice and comment provisions of the Administrative Procedure Act before issuing these regulations in final form.

The CNMI seeks for a preliminary injunction to stop the implementation and enforcement of the interim rule.

The CNMI wants the court to issue a preliminary injunction that would prevent DHS from enforcing or implementing the interim permit rule pending the court's resolution of the Commonwealth's claims on the merits.