NMI immigration officers say they may sue govt
Wednesday, January 06, 2010
By Haidee V. Eugenio
Now jobless, at least six long-time civil service employees of the newly-closed CNMI Division of Immigration are weighing their options that may include suing the government for leaving them in limbo.
Roman M. Tudela Jr., who serves as spokesperson of the group, said they were not given an opportunity to transfer to other local agencies or to file for retirement.
“We would like to give the government until today to answer my letter about the closing of the Immigration office. We are not asking for more. Filing a lawsuit is our last resort. We would like to settle this matter as peaceful as possible,” Tudela told Saipan Tribune in a phone interview yesterday.
Tudela worked at the CNMI Division of Immigration for over 19 years.
He wrote a letter to Attorney General Edward T. Buckingham on Jan. 4, a few days after Buckingham issued a memorandum officially stating that the CNMI Division of Immigration has ceased operations.
The office closure came a little over a month since the federal government took over control of CNMI immigration on Nov. 28 pursuant to U.S. Public Law 110-229 or the Consolidated Natural Resources Act.
Tudela said while the attorney general's memo mentioned that the office “has finally come to a conclusion,” he said he is “still in limbo on the status of my employment.”
“There are about five other long-time civil service employees who were never formally informed of our future in the CNMI government after such closure of DOI,” Tudela told Buckingham.
As of yesterday, Tudela has yet to receive a response from the attorney general.
“I understand times have been very challenging and we are all busy during this transition mode with federalization of CNMI immigration, but I feel I deserve the respect and the right to be addressed properly as CNMI government civil service employee,” Tudela said.
He also gave a copy of his letter to Gov. Benigno R. Fitial, Lt. Gov. Eloy S. Inos, House Speaker Arnold I. Palacios (R-Saipan), Senate President Pete P. Reyes (R-Saipan), and Personnel director Francisco S. Ada.
Acting press secretary Teresa Kim earlier said that the government has worked to get as many people as possible placed into alternate jobs.
She also noted ongoing meetings with CNMI immigration employees to discuss options within the government and options to retire, among other things.
Back in November, there were at least 34 remaining CNMI immigration officers with the division, but the governor said at the time that his administration is doing its best to transfer eligible employees to other local agencies such as the Department of Corrections, the Division of Customs Service, or the Labor and Immigration Identification System.
Federalization of local immigration not only marked another chapter in the CNMI's 34-year relationship with the United States, but also leaves American Samoa as the only U.S. territory that controls its own borders.
Showing posts with label CRNA. Show all posts
Showing posts with label CRNA. Show all posts
Wednesday, January 06, 2010
Tuesday, December 01, 2009
Parole status offered to foreign dependents of FAS citizens, others
Parole status offered to foreign dependents of FAS citizens, others
Wednesday, 02 December 2009 00:00 By Gemma Q. Casas - Reporter
THE U.S. Citizenship and Immigration Services says it will grant a two-year parole status on a case-by-case basis to eligible foreign nationals from certain impacted groups in the CNMI, like the foreign spouses and immediate relatives of citizens of the Freely Associated States.
This will allow them to stay on the islands even as the U.S. immigration law is applied here.
This parole status will also be offered to CNMI permanent residents and their immediate relatives and the spouses and children of deceased CNMI permanent residents.
The FAS are the Republic of Palau, the Federated States of Micronesia — Chuuk, Kosrae, Pohnpei, Yap — and the Republic of the Marshall Islands.
Citizens of these independent nations can freely travel, work and study anywhere in the U.S. and its territories like the CNMI.
But authorities said the law that extended U.S. immigration jurisdiction to the CNMI, U.S. Public Law 110-229 or the Consolidated Natural Resources Act of 2008, does not provide any U.S. immigration status to their foreign dependents living in the CNMI.
David Gulick, district director of the USCIS, said this parole status is not mandatory and is being offered for humanitarian reasons to minimize potential adverse economic impact on the CNMI and support future business growth here.
“We’re not going to mandate that they take advantage of it but we will make it available for them…. This is unique to the CNMI. Let’s say, a Marshallese has a spouse from Mexico [then the parole status is recommended],” he said.
Alexander Y. Hartman, immigration policy advisor of the Department of Homeland Security’s Office of Policy Development, said their department is offering the parole status to these foreign nationals in good faith and for humanitarian reasons.
“It is a compassionate decision made by DHS recognizing the unique situation of the islands,” he said.
The parole status is valid for two years and will be renewable subject to certain conditions.
The USCIS has the discretion to terminate the parole status if the parolee committed a crime in the CNMI or is experiencing a personal change in circumstances affecting eligibility.
Under this parole policy, the USCIS defined an immediate relative as a legally recognized spouse; a child under the age of 21 whether natural or adopted before the age of 18; a stepchild if the marriage that established that relationship took place before the child’s 18th birthday; or a surviving spouse or child of a CNMI permanent resident.
Gulick said there is no filing fee to obtain parole in the CNMI under this program.
However, fees will be charged if they leave the islands and get the appropriate documents to travel.
Applicants for the parole status are advised to first make an appointment online to visit the USCIS Application Support Center on Saipan.
Wednesday, 02 December 2009 00:00 By Gemma Q. Casas - Reporter
THE U.S. Citizenship and Immigration Services says it will grant a two-year parole status on a case-by-case basis to eligible foreign nationals from certain impacted groups in the CNMI, like the foreign spouses and immediate relatives of citizens of the Freely Associated States.
This will allow them to stay on the islands even as the U.S. immigration law is applied here.
This parole status will also be offered to CNMI permanent residents and their immediate relatives and the spouses and children of deceased CNMI permanent residents.
The FAS are the Republic of Palau, the Federated States of Micronesia — Chuuk, Kosrae, Pohnpei, Yap — and the Republic of the Marshall Islands.
Citizens of these independent nations can freely travel, work and study anywhere in the U.S. and its territories like the CNMI.
But authorities said the law that extended U.S. immigration jurisdiction to the CNMI, U.S. Public Law 110-229 or the Consolidated Natural Resources Act of 2008, does not provide any U.S. immigration status to their foreign dependents living in the CNMI.
David Gulick, district director of the USCIS, said this parole status is not mandatory and is being offered for humanitarian reasons to minimize potential adverse economic impact on the CNMI and support future business growth here.
“We’re not going to mandate that they take advantage of it but we will make it available for them…. This is unique to the CNMI. Let’s say, a Marshallese has a spouse from Mexico [then the parole status is recommended],” he said.
Alexander Y. Hartman, immigration policy advisor of the Department of Homeland Security’s Office of Policy Development, said their department is offering the parole status to these foreign nationals in good faith and for humanitarian reasons.
“It is a compassionate decision made by DHS recognizing the unique situation of the islands,” he said.
The parole status is valid for two years and will be renewable subject to certain conditions.
The USCIS has the discretion to terminate the parole status if the parolee committed a crime in the CNMI or is experiencing a personal change in circumstances affecting eligibility.
Under this parole policy, the USCIS defined an immediate relative as a legally recognized spouse; a child under the age of 21 whether natural or adopted before the age of 18; a stepchild if the marriage that established that relationship took place before the child’s 18th birthday; or a surviving spouse or child of a CNMI permanent resident.
Gulick said there is no filing fee to obtain parole in the CNMI under this program.
However, fees will be charged if they leave the islands and get the appropriate documents to travel.
Applicants for the parole status are advised to first make an appointment online to visit the USCIS Application Support Center on Saipan.
Thursday, November 26, 2009
Judge stops DHS from implementing interim final rule
Judge stops DHS from implementing interim final rule
Friday, November 27, 2009
Agency told to come up with regs for alien workers to travel in, out of NMI
By Ferdie de la Torre
Reporter
The federal government's interim final rule on the CNMI transitional worker program will not go into effect tomorrow, Saturday, after the judge handling the CNMI government's lawsuit against federalization issued a preliminary injunction yesterday to prevent the rule from going into effect pending the outcome of the lawsuit.
U.S. District Court for the District of Columbia Judge Paul L. Friedman agreed with the CNMI government that the U.S. Department of Homeland Security had no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedures Act.
To help alien workers leave and re-enter the CNMI or for employers to hire needed off-island workers, Friedman suggested that DHS promulgate a narrowly focused and temporary emergency regulation that addresses these issues.
Labor special counsel Deanne Siemer said this is virtually a command for DHS to come up with an emergency regulation that would allow aliens in the CNMI to travel in and out.
Also, since no U.S. Citizenship and Immigration Services' regulations on CW status or business permits will come into effect tomorrow, the CNMI will continue to operate under its existing labor system except for entry and exit, Siemer said.
The interim rule defines the types of businesses that will be eligible to receive permits for alien workers. It sets a numerical limit on the number of permits that will be granted between Nov. 28, 2009 and Sept. 30, 2010. It also outlines requirements that must be met by employers seeking to obtain a permit.
The CNMI, through the Block and Jenner law firm, asked the court to bar the implementation of the regulations, citing that DHS violated the APA in promulgating them. The CNMI argued that DHS wrongfully dispensed with the notice-and-comment procedures required by the law.
The federal government countered that DHS' action does not violate the APA because it had “good cause” to dispense with the requirement.
In granting the CNMI's motion, Friedman said DHS first provided public notice of the rule when it published the rule in the Federal Register on Oct. 27, 2009.
“Since the interim rule was already in its final form on that date, it is undisputed that DHS failed to provide the notice and opportunity for comment typically required by the APA,” Friedman said.
The judge concluded that upon consideration of the totality of the circumstances surrounding the issue, the CNMI is likely to succeed on its claim that DHS did not have “good cause” to dispense with the notice-and-comment procedures and thus violated the APA.
The federal government suggested that providing notice and an opportunity to comment prior to promulgating the rule was impracticable because Congress, in passing the Consolidated Natural Resources Act (federalization law), imposed several burdensome administrative duties on DHS and only allowed the agency 18 months in which to fulfill them.
Friedman found this argument unpersuasive. He said the interim rule will dramatically alter the CNMI's current system for admitting guest workers, who constitute two-thirds of the CNMI's private workforce.
In short, the judge said, the rule will enact far-reaching changes that likely will have significant effects on the CNMI labor market, and it will do so despite the fact that it has not “been tested via exposure to diverse public comment.”
Friedman found convincing the CNMI's arguments that residents and government have meaningful concerns about the rule.
Friedman cited that the criteria established by the rule for issuance of permits for new guest workers to employers may be inadequate.
As written, the judge pointed out, the rule requires employers seeking permits to “consider all available U.S. workers for the position” that is to be filled by a new guest worker, but does not require those employers to consider guest workers already present in the Commonwealth for the position.
To ensure that employers have “considered available U.S. workers,” the rule only asks that employers attest that they have done so, Friedman said.
“The CNMI posits that such attestations may 'be prone to fraud and leave qualified U.S. citizens unemployed,' a matter it would have raised and documented if it had been given the opportunity to comment,” he said.
The judge added that if he ultimately decides the merits of the CNMI's APA claim in the Commonwealth's favor, the damage done by DHS' violation of the APA cannot be fully cured by later remedial action.
He noted that once the program structured by the rule has begun operation as scheduled on Nov. 28, 2009, DHS is far less likely to be receptive to comments.
“If the interim permit rule is not enjoined prior to its effective date, the CNMI will never have an equivalent opportunity to influence the rule's contents,” Friedman said.
The federal government has provided no evidence to show how many workers and businesses will be affected by a temporary delay in the implementation of the rule, and the court is aware of none.
Friedman said it is unclear that foreign workers otherwise eligible under the Immigration and Nationality Act will be able to leave the CNMI and re-enter it within the first several weeks after Nov. 28, 2009, even if the rule is in place.
“Similarly, while the interim permit rule creates a mechanism whereby a CNMI employer may arrange to hire foreign workers from outside the Commonwealth, it is difficult to know whether employers will have much need for that mechanism in the weeks immediately following Nov. 28, 2009.”
Friedman said the emergency rules to address the problem of foreign workers seeking to leave and return to the CNMI or employers in need of workers from outside the CNMI may be promulgated without notice and comment, since they fall within the APA's “good cause” exception.
“It is unfortunate that DHS may have to issue such ad hoc emergency rules. The court emphasizes, however, that this is a problem of the agency's own making,” he said.
Had DHS released the rule earlier in the year and provided the public with notice and an opportunity for comment, the current problem would never have arisen, he said.
“DHS should not now expect to excuse its violation of the APA by pointing to the problems created by its own delay,” Friedman said.
By failing to meet even the minimum standards set by the APA, DHS has also failed to comply fully with Congress' intent to secure the meaningful involvement of the Commonwealth in the transformation of the CNMI's immigration law, he said.
Friedman said the transitional work permitting program “is of great importance to the CNMI, since it has the potential to transform the nature of the Commonwealth's workforce.”
“That program also involves an area-the regulation of immigration into the CNMI-about which the Commonwealth has significant expertise, having knowledge of the needs of its own economy and having operated its own immigration program for decades,” he said.
The judge said the public interest will be best served if the rule is temporarily stopped so that it may be revised as necessary by DHS upon receipt of comments and advice from the CNMI and other parties.
Friday, November 27, 2009
Agency told to come up with regs for alien workers to travel in, out of NMI
By Ferdie de la Torre
Reporter
The federal government's interim final rule on the CNMI transitional worker program will not go into effect tomorrow, Saturday, after the judge handling the CNMI government's lawsuit against federalization issued a preliminary injunction yesterday to prevent the rule from going into effect pending the outcome of the lawsuit.
U.S. District Court for the District of Columbia Judge Paul L. Friedman agreed with the CNMI government that the U.S. Department of Homeland Security had no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedures Act.
To help alien workers leave and re-enter the CNMI or for employers to hire needed off-island workers, Friedman suggested that DHS promulgate a narrowly focused and temporary emergency regulation that addresses these issues.
Labor special counsel Deanne Siemer said this is virtually a command for DHS to come up with an emergency regulation that would allow aliens in the CNMI to travel in and out.
Also, since no U.S. Citizenship and Immigration Services' regulations on CW status or business permits will come into effect tomorrow, the CNMI will continue to operate under its existing labor system except for entry and exit, Siemer said.
The interim rule defines the types of businesses that will be eligible to receive permits for alien workers. It sets a numerical limit on the number of permits that will be granted between Nov. 28, 2009 and Sept. 30, 2010. It also outlines requirements that must be met by employers seeking to obtain a permit.
The CNMI, through the Block and Jenner law firm, asked the court to bar the implementation of the regulations, citing that DHS violated the APA in promulgating them. The CNMI argued that DHS wrongfully dispensed with the notice-and-comment procedures required by the law.
The federal government countered that DHS' action does not violate the APA because it had “good cause” to dispense with the requirement.
In granting the CNMI's motion, Friedman said DHS first provided public notice of the rule when it published the rule in the Federal Register on Oct. 27, 2009.
“Since the interim rule was already in its final form on that date, it is undisputed that DHS failed to provide the notice and opportunity for comment typically required by the APA,” Friedman said.
The judge concluded that upon consideration of the totality of the circumstances surrounding the issue, the CNMI is likely to succeed on its claim that DHS did not have “good cause” to dispense with the notice-and-comment procedures and thus violated the APA.
The federal government suggested that providing notice and an opportunity to comment prior to promulgating the rule was impracticable because Congress, in passing the Consolidated Natural Resources Act (federalization law), imposed several burdensome administrative duties on DHS and only allowed the agency 18 months in which to fulfill them.
Friedman found this argument unpersuasive. He said the interim rule will dramatically alter the CNMI's current system for admitting guest workers, who constitute two-thirds of the CNMI's private workforce.
In short, the judge said, the rule will enact far-reaching changes that likely will have significant effects on the CNMI labor market, and it will do so despite the fact that it has not “been tested via exposure to diverse public comment.”
Friedman found convincing the CNMI's arguments that residents and government have meaningful concerns about the rule.
Friedman cited that the criteria established by the rule for issuance of permits for new guest workers to employers may be inadequate.
As written, the judge pointed out, the rule requires employers seeking permits to “consider all available U.S. workers for the position” that is to be filled by a new guest worker, but does not require those employers to consider guest workers already present in the Commonwealth for the position.
To ensure that employers have “considered available U.S. workers,” the rule only asks that employers attest that they have done so, Friedman said.
“The CNMI posits that such attestations may 'be prone to fraud and leave qualified U.S. citizens unemployed,' a matter it would have raised and documented if it had been given the opportunity to comment,” he said.
The judge added that if he ultimately decides the merits of the CNMI's APA claim in the Commonwealth's favor, the damage done by DHS' violation of the APA cannot be fully cured by later remedial action.
He noted that once the program structured by the rule has begun operation as scheduled on Nov. 28, 2009, DHS is far less likely to be receptive to comments.
“If the interim permit rule is not enjoined prior to its effective date, the CNMI will never have an equivalent opportunity to influence the rule's contents,” Friedman said.
The federal government has provided no evidence to show how many workers and businesses will be affected by a temporary delay in the implementation of the rule, and the court is aware of none.
Friedman said it is unclear that foreign workers otherwise eligible under the Immigration and Nationality Act will be able to leave the CNMI and re-enter it within the first several weeks after Nov. 28, 2009, even if the rule is in place.
“Similarly, while the interim permit rule creates a mechanism whereby a CNMI employer may arrange to hire foreign workers from outside the Commonwealth, it is difficult to know whether employers will have much need for that mechanism in the weeks immediately following Nov. 28, 2009.”
Friedman said the emergency rules to address the problem of foreign workers seeking to leave and return to the CNMI or employers in need of workers from outside the CNMI may be promulgated without notice and comment, since they fall within the APA's “good cause” exception.
“It is unfortunate that DHS may have to issue such ad hoc emergency rules. The court emphasizes, however, that this is a problem of the agency's own making,” he said.
Had DHS released the rule earlier in the year and provided the public with notice and an opportunity for comment, the current problem would never have arisen, he said.
“DHS should not now expect to excuse its violation of the APA by pointing to the problems created by its own delay,” Friedman said.
By failing to meet even the minimum standards set by the APA, DHS has also failed to comply fully with Congress' intent to secure the meaningful involvement of the Commonwealth in the transformation of the CNMI's immigration law, he said.
Friedman said the transitional work permitting program “is of great importance to the CNMI, since it has the potential to transform the nature of the Commonwealth's workforce.”
“That program also involves an area-the regulation of immigration into the CNMI-about which the Commonwealth has significant expertise, having knowledge of the needs of its own economy and having operated its own immigration program for decades,” he said.
The judge said the public interest will be best served if the rule is temporarily stopped so that it may be revised as necessary by DHS upon receipt of comments and advice from the CNMI and other parties.
'Federalization law is legal'
'Federalization law is legal'
Friday, November 27, 2009
NMI arguments 'unpersuasive, plain wrong'
By Ferdie de la Torre
Reporter
U.S. District Court for the District of Columbia Judge Paul L. Friedman has upheld the constitutionality of the law that applies federal immigration laws to the CNMI.
In explaining his order dismissing counts 1 and 2 of the CNMI government's amended lawsuit against federalization, Friedman described the Commonwealth's arguments “unpersuasive, unavailing, and just plain wrong.”
Friedman said that Congress was authorized to enact the Consolidated Natural Resources Act by the plain and unambiguous terms of Section 503 of the Covenant. CNRA, the federalization law, is also known as Public Law 110-229.
The judge also ruled that the challenged provisions of the CNRA comply with the mutual consent provision of Section 105 and the “self-government” guarantee of Section 103 of the Covenant.
“No doubt the CNMI would prefer that federal legislation never affect any matters of local concern, no matter how inextricably intertwined they may be with federal affairs. But it cannot rely on the Covenant to ensure that result,” said Friedman in a 39-page opinion that explained his Tuesday order dismissing two of the CNMI government's three-count lawsuit.
The CNMI, through the Jenner and Block law firm, had asked the court to prevent the federal government from acting in violation of the Covenant and urged the court to issue a permanent ban against the implementation of the federalization law in the Commonwealth.
In Count 1, the CNMI claimed that federalization is in violation of the Covenant in that it infringes on the right of the CNMI to self-government and abrogates that right without the CNMI's consent.
The CNMI argued, among other things, that the federalization of immigration and foreign worker-related labor matters in the CNMI violates sections of the Covenant which call for local control over local matters and require mutual consent for any changes to the Covenant.
The CNMI insists that Congress acted in excess of its authority in passing some provisions of the CNRA, and that those provisions must be stopped.
Friedman disagreed. He concluded that under the express and unambiguous language of Section 503 of the Covenant, Congress was free after Nov. 3, 1986, to apply immigration and naturalization laws of the U.S. to the CNMI.
“As a result, the CNRA is a legitimate exercise of federal congressional authority so long as its challenged provisions qualify as being among 'the immigration and naturalization laws of the United States.'”
Friedman said so long as the CNRA qualifies as an “immigration and naturalization law,” it does not infringe upon the “internal affairs” of the CNMI within the meaning of Section 103.
He said the CNMI's argument that the CNRA cannot be viewed as an “immigration law” is unpersuasive.
The judge said the CNMI is just plain wrong when it asserts that nothing in federal immigration and naturalization law permits an “employer-by-employer, worker-by-worker local labor permitting scheme.”
“The fact that the application of federal immigration laws to the CNMI through the CNRA may have a dramatic impact upon the CNMI's labor force does not convert an immigration law into a labor law,” he said.
Friedman said even if the court were to agree with the CNMI that the CNRA is not an immigration and naturalization law that Congress is specifically authorized by the Covenant to enact, the court will still find the CNRA valid under the Covenant.
The CNMI had argued that the provisions of the CNRA dealing with foreign workers already in the CNMI “have nothing whatever to do with border security” but are internal labor matters.
Friedman rejected this argument, saying this appears to be based on the assumption that “border security” is achieved only at the border and nowhere else.
“That assumption makes little sense here. Thousands of individuals who would have been ineligible to enter the CNMI under federal immigration law already reside in the CNMI,” he said.
Obviously, Friedman said, the U.S. could not simply ignore these individuals and at the same time regard the CNMI's borders as “secure,” because one of the principal ways the U.S. secures its borders is by requiring compliance with its immigration laws.
He said the CNMI wishes to characterize the regulation of foreign workers already admitted to the CNMI as a local matter because the CNMI's economy is dependent on the labor of foreign workers.
“In addition to being circular, that argument fails to recognize that the presence of thousands of foreign workers in the CNMI, few of whom would qualify to enter the CNMI under federal immigration laws, raises legitimate foreign policy and security concerns-concerns solely within the province of the federal government,” Friedman said.
Friday, November 27, 2009
NMI arguments 'unpersuasive, plain wrong'
By Ferdie de la Torre
Reporter
U.S. District Court for the District of Columbia Judge Paul L. Friedman has upheld the constitutionality of the law that applies federal immigration laws to the CNMI.
In explaining his order dismissing counts 1 and 2 of the CNMI government's amended lawsuit against federalization, Friedman described the Commonwealth's arguments “unpersuasive, unavailing, and just plain wrong.”
Friedman said that Congress was authorized to enact the Consolidated Natural Resources Act by the plain and unambiguous terms of Section 503 of the Covenant. CNRA, the federalization law, is also known as Public Law 110-229.
The judge also ruled that the challenged provisions of the CNRA comply with the mutual consent provision of Section 105 and the “self-government” guarantee of Section 103 of the Covenant.
“No doubt the CNMI would prefer that federal legislation never affect any matters of local concern, no matter how inextricably intertwined they may be with federal affairs. But it cannot rely on the Covenant to ensure that result,” said Friedman in a 39-page opinion that explained his Tuesday order dismissing two of the CNMI government's three-count lawsuit.
The CNMI, through the Jenner and Block law firm, had asked the court to prevent the federal government from acting in violation of the Covenant and urged the court to issue a permanent ban against the implementation of the federalization law in the Commonwealth.
In Count 1, the CNMI claimed that federalization is in violation of the Covenant in that it infringes on the right of the CNMI to self-government and abrogates that right without the CNMI's consent.
The CNMI argued, among other things, that the federalization of immigration and foreign worker-related labor matters in the CNMI violates sections of the Covenant which call for local control over local matters and require mutual consent for any changes to the Covenant.
The CNMI insists that Congress acted in excess of its authority in passing some provisions of the CNRA, and that those provisions must be stopped.
Friedman disagreed. He concluded that under the express and unambiguous language of Section 503 of the Covenant, Congress was free after Nov. 3, 1986, to apply immigration and naturalization laws of the U.S. to the CNMI.
“As a result, the CNRA is a legitimate exercise of federal congressional authority so long as its challenged provisions qualify as being among 'the immigration and naturalization laws of the United States.'”
Friedman said so long as the CNRA qualifies as an “immigration and naturalization law,” it does not infringe upon the “internal affairs” of the CNMI within the meaning of Section 103.
He said the CNMI's argument that the CNRA cannot be viewed as an “immigration law” is unpersuasive.
The judge said the CNMI is just plain wrong when it asserts that nothing in federal immigration and naturalization law permits an “employer-by-employer, worker-by-worker local labor permitting scheme.”
“The fact that the application of federal immigration laws to the CNMI through the CNRA may have a dramatic impact upon the CNMI's labor force does not convert an immigration law into a labor law,” he said.
Friedman said even if the court were to agree with the CNMI that the CNRA is not an immigration and naturalization law that Congress is specifically authorized by the Covenant to enact, the court will still find the CNRA valid under the Covenant.
The CNMI had argued that the provisions of the CNRA dealing with foreign workers already in the CNMI “have nothing whatever to do with border security” but are internal labor matters.
Friedman rejected this argument, saying this appears to be based on the assumption that “border security” is achieved only at the border and nowhere else.
“That assumption makes little sense here. Thousands of individuals who would have been ineligible to enter the CNMI under federal immigration law already reside in the CNMI,” he said.
Obviously, Friedman said, the U.S. could not simply ignore these individuals and at the same time regard the CNMI's borders as “secure,” because one of the principal ways the U.S. secures its borders is by requiring compliance with its immigration laws.
He said the CNMI wishes to characterize the regulation of foreign workers already admitted to the CNMI as a local matter because the CNMI's economy is dependent on the labor of foreign workers.
“In addition to being circular, that argument fails to recognize that the presence of thousands of foreign workers in the CNMI, few of whom would qualify to enter the CNMI under federal immigration laws, raises legitimate foreign policy and security concerns-concerns solely within the province of the federal government,” Friedman said.
Tuesday, November 24, 2009
Two counts of federalization suit dismissed
Two counts of federalization suit dismissed
Wednesday, November 25, 2009
By Ferdie de la Torre
Reporter
The judge handling the lawsuit filed by the CNMI government to block the federal takeover of the local immigration system dismissed yesterday two of the three-count lawsuit, saying the CNMI failed to prove its case.
“After careful consideration of the parties' papers, their exhibits, the relevant case law, the statute and the Covenant, the court concludes that the [CNMI] has failed to state a claim upon which relief can be granted with respect to Counts I and II of its amended complaint, and that those claims therefore should be dismissed,” said U.S. District Court for the District of Columbia Judge Paul L. Friedman in a two-page order.
The judge did not provide any further explanation, saying he will issue an opinion explaining the reasoning underlying his order later this week.
As a result of the dismissal, Friedman said, the CNMI's motion to prevent the implementation of certain provisions of the federalization law, the Consolidated Natural Resources Act, is moot. The Act is also known as Public Law 110-229.
Friedman granted the U.S. government's motion to dismiss the complaint.
Friedman first heard oral arguments on March 12, 2009, on the U.S. government's motion to dismiss the complaint and the CNMI's first motion for a preliminary injunction.
The CNMI then filed an amended complaint, adding a claim that, according to the judge, is not relevant to the motions.
In the CNMI's amended complaint, it named as defendants the U.S.A., U.S. Department of Homeland Security Secretary Janet Napolitano, DHS, U.S. Department of Labor Secretary Hilda Solis, and U.S. Labor.
The CNMI, through the Jenner & Block law firm, asked the court to prevent these defendants from acting in violation of the Covenant and urged the court to issue a permanent ban against the implementation of federalization in the CNMI.
In Count 1, the CNMI claimed that federalization is in violation of sections 103 and 105 of the Covenant.
Section 103 of the Covenant authorizes the Commonwealth to exercise the right to local self-government and to govern itself with respect to its internal affairs in accordance with its Constitution. Section 105 of the Covenant forbids the U.S. from abrogating the Commonwealth's right to local self-government without its consent.
The CNMI argued that one aspect of the right to local self-government is the right to regulate internal labor and economic affairs and to secure the economic prosperity of local residents.
Jenner & Block said the some provisions of Public Law 110-229 abrogate the Commonwealth's right to local self-government by denying the Commonwealth the right to regulate its local workforce and economy.
The Commonwealth has not consented to this abrogation of its rights under the Covenant, the law firm said.
In Count 2, the CNMI alleged that federalization is in violation of Article 1 of the U.S. Constitution.
Under the fundamental structural principle of limited powers that animates the U.S. Constitution, Jenner & Block said, Congress could not enact a law that imposes such a “burdensome, discriminatory and onerous federal regulatory regime” upon a state where the law was passed in a defective political process.
The law firm said the CNRA exceeds Congress' Article 1 powers to enact legislation with respect to the Commonwealth.
The CNMI asked the court to stop the implementation of CNRA provisions that “impose a burdensome, discriminatory and onerous federal regulatory regime on the Commonwealth.”
Count 3 of the amended complaint refers to alleged violation of the Administrative Procedure Act. Jenner & Block argued that the defendants violated the APA by promulgating the regulations required by Public Law 110-229 without giving the CNMI and other stakeholders notice and an opportunity to comment.
This claim is still pending in court.
Jenner & Block said the defendants promulgated the DHS' Interim Permit Rule without notice and comment, in violation of the APA.
DHS, the law firm said, cannot establish “good cause” for its failure to comply with the notice and comment requirements of the APA.
DHS is set to implement federal immigration laws in the CNMI on Nov. 28, under the authority provided by the CNRA.
Wednesday, November 25, 2009
By Ferdie de la Torre
Reporter
The judge handling the lawsuit filed by the CNMI government to block the federal takeover of the local immigration system dismissed yesterday two of the three-count lawsuit, saying the CNMI failed to prove its case.
“After careful consideration of the parties' papers, their exhibits, the relevant case law, the statute and the Covenant, the court concludes that the [CNMI] has failed to state a claim upon which relief can be granted with respect to Counts I and II of its amended complaint, and that those claims therefore should be dismissed,” said U.S. District Court for the District of Columbia Judge Paul L. Friedman in a two-page order.
The judge did not provide any further explanation, saying he will issue an opinion explaining the reasoning underlying his order later this week.
As a result of the dismissal, Friedman said, the CNMI's motion to prevent the implementation of certain provisions of the federalization law, the Consolidated Natural Resources Act, is moot. The Act is also known as Public Law 110-229.
Friedman granted the U.S. government's motion to dismiss the complaint.
Friedman first heard oral arguments on March 12, 2009, on the U.S. government's motion to dismiss the complaint and the CNMI's first motion for a preliminary injunction.
The CNMI then filed an amended complaint, adding a claim that, according to the judge, is not relevant to the motions.
In the CNMI's amended complaint, it named as defendants the U.S.A., U.S. Department of Homeland Security Secretary Janet Napolitano, DHS, U.S. Department of Labor Secretary Hilda Solis, and U.S. Labor.
The CNMI, through the Jenner & Block law firm, asked the court to prevent these defendants from acting in violation of the Covenant and urged the court to issue a permanent ban against the implementation of federalization in the CNMI.
In Count 1, the CNMI claimed that federalization is in violation of sections 103 and 105 of the Covenant.
Section 103 of the Covenant authorizes the Commonwealth to exercise the right to local self-government and to govern itself with respect to its internal affairs in accordance with its Constitution. Section 105 of the Covenant forbids the U.S. from abrogating the Commonwealth's right to local self-government without its consent.
The CNMI argued that one aspect of the right to local self-government is the right to regulate internal labor and economic affairs and to secure the economic prosperity of local residents.
Jenner & Block said the some provisions of Public Law 110-229 abrogate the Commonwealth's right to local self-government by denying the Commonwealth the right to regulate its local workforce and economy.
The Commonwealth has not consented to this abrogation of its rights under the Covenant, the law firm said.
In Count 2, the CNMI alleged that federalization is in violation of Article 1 of the U.S. Constitution.
Under the fundamental structural principle of limited powers that animates the U.S. Constitution, Jenner & Block said, Congress could not enact a law that imposes such a “burdensome, discriminatory and onerous federal regulatory regime” upon a state where the law was passed in a defective political process.
The law firm said the CNRA exceeds Congress' Article 1 powers to enact legislation with respect to the Commonwealth.
The CNMI asked the court to stop the implementation of CNRA provisions that “impose a burdensome, discriminatory and onerous federal regulatory regime on the Commonwealth.”
Count 3 of the amended complaint refers to alleged violation of the Administrative Procedure Act. Jenner & Block argued that the defendants violated the APA by promulgating the regulations required by Public Law 110-229 without giving the CNMI and other stakeholders notice and an opportunity to comment.
This claim is still pending in court.
Jenner & Block said the defendants promulgated the DHS' Interim Permit Rule without notice and comment, in violation of the APA.
DHS, the law firm said, cannot establish “good cause” for its failure to comply with the notice and comment requirements of the APA.
DHS is set to implement federal immigration laws in the CNMI on Nov. 28, under the authority provided by the CNRA.
Monday, November 16, 2009
Petition for 'green cards' begins
Petition for 'green cards' begins
Ahead of federal decision on immigration status of guest workers
Monday, November 16, 2009
By Haidee V. Eugenio
A petition seeking “green cards” or lawful permanent resident status for foreign workers and others with relatives who are U.S. or Freely Associated States citizens has started circulating ahead of the May 10, 2010, deadline for Interior Secretary Ken Salazar to recommend to Congress whether a grant of permanent immigration status to nonresidents in the CNMI is necessary.
The Coalition of United Workers-NMI started circulating the petition on Nov. 9 but temporarily halted it to prioritize the issue of securing umbrella permits for “overstayers,” its president, Rene Reyes, said yesterday.
Reyes said they will resume the signature drive later this week.
Florida-based human rights activist and former Rota teacher Wendy Doromal started the online petition on Saturday, and expects to gather at least 5,000 signatures by January 2010.
“This is our last major push before the May 10, 2010, recommendation from the secretary of Interior to Congress regarding granting United States citizenship or some other permanent legal status to the nonresidents,” Doromal told Saipan Tribune when asked for comment.
The petition is addressed to President Obama, members of the U.S. Congress, Interior Secretary Ken Salazar, Labor Secretary Hilda Solis and Homeland Security Secretary Janet Napolitano.
As of 4pm Sunday, the online petition has gathered 69 signatures.
Ronnie Doca, board chairman of the United Workers Movement-NMI, said yesterday they will begin the signature drive on Tuesday, 6pm, at the Fiesta Pilipino by Juvy restaurant across the road from Saipan Grand Hotel in Susupe.
Doromal and the two organizations of foreign workers in the CNMI are using the same petition form.
CNRA requirement
The federal government will take over CNMI immigration on Nov. 28 pursuant to Public Law 110-229 or the Consolidated Natural Resources Act, signed by President George W. Bush on May 8, 2008.
The CNRA requires the Interior secretary, in consultation with the Homeland Security secretary and the governor of the CNMI, to recommend to the U.S. Congress, as the secretary deems appropriate, a permanent immigration status to guest workers legally residing in the CNMI, by May 10, 2010.
Also included in the Interior's report are the numbers of aliens residing in the CNMI, a description of their legal status under federal law, the number of years each alien has been residing in the CNMI, and the current and future requirements of the local economy for an alien workforce.
Improved status
Over the last three years, Doromal has hand-delivered petitions and letters to the U.S. Congress and offices in Washington, D.C., seeking improved status for many in the CNMI.
The quest for improved immigration status, as the petition reads, is for foreign contract workers, CNMI permanent residents and their nonresident spouses, FAS citizens and their nonresident spouses and family members, nonresidents who are married to U.S. citizens, widows and widowers of U.S. citizens, U.S. citizen children of nonresidents, foreign-born children of U.S. citizens and nonresidents, and parents of disabled and special needs U.S. citizen children.
The FAS includes Palau, the Marshall Islands, and the Federated States of Micronesia (Yap, Chuuk, Pohnpei and Kosrae).
Doromal said she and her daughter Nani will personally deliver written letters and the written petition that is circulating in the CNMI to Congress and offices in Washington, D.C. at the end of January after Congress is back in session.
“I will submit the online petition when we reach or surpass our goal,” she added.
Doromal said she has notified friends at non-profit organizations that support human rights, social justice, and immigration reform to appeal for nationwide support.
“Some of my friends are writing stories to post on major progressive Web sites, and we are creating a Facebook page. I am also reaching out to the media to appeal for support,” she added.
Pathway to US citizenship
Doromal said some people mistakenly assume that it is only the nonresidents who support status for the residents of the CNMI.
“This is not true. Millions of Americans believe that all guest worker programs should provide a pathway to citizenship. I put the petition online so that people from across the United States can sign it. The U.S. officials that the petition seeks to influence will see that the support comes not just from the people in the CNMI, but from coast to coast across our nation. The petition has only been up for about five hours and we have people signing from not just the CNMI, but from Florida, Virginia, Georgia, New York, Missouri, Tennessee, South Carolina, Texas, California, Oregon, and Connecticut,” she said.
The online petition is posted on Doromal's blog, “Unheard No More,” at http://unheardnomore.blogspot.com.
“We support the nonresidents of the U.S. Commonwealth of the Northern Mariana Islands in their quest for green cards and a pathway to citizenship as expressed in this petition. We appeal to you to take immediate action to secure their standing and to keep their families together,” the petition's introductory paragraph reads.
The federalization law establishes a goal of phasing out the CNMI guest worker program and requires a report from the Department of the Interior as to the number of guest workers in the CNMI, and recommendations for status, if any.
“There is no assurance that there will be recommendations for status, nor any assurance that status would be granted through subsequent legislation even if such recommendations were made. We appeal to you today to support the introduction of legislation that would grant green cards and a pathway to citizenship to long-term foreign workers and nonresidents,” the petitioners say.
Majority of foreign workers-now only at a little over 10,000-have been in the CNMI for more
“Many of us have children who serve in the U.S. Armed Forces. We are valuable workers and law-abiding, contributing members of our island home. We call upon you to provide protection and equal rights to those of us who have dedicated our lives to building and developing this great U.S. commonwealth,” the petition reads.
In 2000, the U.S. Senate unanimously passed legislation that would have provided these segments of the CNMI population with immigration status.
However, a provision for U.S. status did not make it into the final version of the bill that would become part of Public Law 110-229 or the CNRA.
“While we understand that permanent status and a pathway to citizenship for us in the CNMI may be included in future national comprehensive immigration reform legislation, we plead with you not to wait,” it adds.
The petition cited a precedent for such a relief. In the 1980s, the Virgin Islands and the U.S. Congress realized that special legislation was needed to prevent the separation of guest workers from their U.S. citizen families. Congress passed a law allowing guest workers in the Virgin Islands to adjust to permanent residency status.
“Congress should pass a similar law tailored to the unique needs of the CNMI,” the petitioners say.
Doromal said foreigners invited to U.S. shores to work and build the economy “should be regarded as future citizens rather than replaceable commodities.”
“Those who support a just and democratic guest worker program in the CNMI and in the mainland, support opportunities where foreign workers and immigrants have control over their destiny and the destiny of their families. They embrace the words of President Barack Obama: 'In America, no dream is beyond your grasp if you reach for it, and fight for it, and work for it,'” she added.
Ahead of federal decision on immigration status of guest workers
Monday, November 16, 2009
By Haidee V. Eugenio
A petition seeking “green cards” or lawful permanent resident status for foreign workers and others with relatives who are U.S. or Freely Associated States citizens has started circulating ahead of the May 10, 2010, deadline for Interior Secretary Ken Salazar to recommend to Congress whether a grant of permanent immigration status to nonresidents in the CNMI is necessary.
The Coalition of United Workers-NMI started circulating the petition on Nov. 9 but temporarily halted it to prioritize the issue of securing umbrella permits for “overstayers,” its president, Rene Reyes, said yesterday.
Reyes said they will resume the signature drive later this week.
Florida-based human rights activist and former Rota teacher Wendy Doromal started the online petition on Saturday, and expects to gather at least 5,000 signatures by January 2010.
“This is our last major push before the May 10, 2010, recommendation from the secretary of Interior to Congress regarding granting United States citizenship or some other permanent legal status to the nonresidents,” Doromal told Saipan Tribune when asked for comment.
The petition is addressed to President Obama, members of the U.S. Congress, Interior Secretary Ken Salazar, Labor Secretary Hilda Solis and Homeland Security Secretary Janet Napolitano.
As of 4pm Sunday, the online petition has gathered 69 signatures.
Ronnie Doca, board chairman of the United Workers Movement-NMI, said yesterday they will begin the signature drive on Tuesday, 6pm, at the Fiesta Pilipino by Juvy restaurant across the road from Saipan Grand Hotel in Susupe.
Doromal and the two organizations of foreign workers in the CNMI are using the same petition form.
CNRA requirement
The federal government will take over CNMI immigration on Nov. 28 pursuant to Public Law 110-229 or the Consolidated Natural Resources Act, signed by President George W. Bush on May 8, 2008.
The CNRA requires the Interior secretary, in consultation with the Homeland Security secretary and the governor of the CNMI, to recommend to the U.S. Congress, as the secretary deems appropriate, a permanent immigration status to guest workers legally residing in the CNMI, by May 10, 2010.
Also included in the Interior's report are the numbers of aliens residing in the CNMI, a description of their legal status under federal law, the number of years each alien has been residing in the CNMI, and the current and future requirements of the local economy for an alien workforce.
Improved status
Over the last three years, Doromal has hand-delivered petitions and letters to the U.S. Congress and offices in Washington, D.C., seeking improved status for many in the CNMI.
The quest for improved immigration status, as the petition reads, is for foreign contract workers, CNMI permanent residents and their nonresident spouses, FAS citizens and their nonresident spouses and family members, nonresidents who are married to U.S. citizens, widows and widowers of U.S. citizens, U.S. citizen children of nonresidents, foreign-born children of U.S. citizens and nonresidents, and parents of disabled and special needs U.S. citizen children.
The FAS includes Palau, the Marshall Islands, and the Federated States of Micronesia (Yap, Chuuk, Pohnpei and Kosrae).
Doromal said she and her daughter Nani will personally deliver written letters and the written petition that is circulating in the CNMI to Congress and offices in Washington, D.C. at the end of January after Congress is back in session.
“I will submit the online petition when we reach or surpass our goal,” she added.
Doromal said she has notified friends at non-profit organizations that support human rights, social justice, and immigration reform to appeal for nationwide support.
“Some of my friends are writing stories to post on major progressive Web sites, and we are creating a Facebook page. I am also reaching out to the media to appeal for support,” she added.
Pathway to US citizenship
Doromal said some people mistakenly assume that it is only the nonresidents who support status for the residents of the CNMI.
“This is not true. Millions of Americans believe that all guest worker programs should provide a pathway to citizenship. I put the petition online so that people from across the United States can sign it. The U.S. officials that the petition seeks to influence will see that the support comes not just from the people in the CNMI, but from coast to coast across our nation. The petition has only been up for about five hours and we have people signing from not just the CNMI, but from Florida, Virginia, Georgia, New York, Missouri, Tennessee, South Carolina, Texas, California, Oregon, and Connecticut,” she said.
The online petition is posted on Doromal's blog, “Unheard No More,” at http://unheardnomore.blogspot.com.
“We support the nonresidents of the U.S. Commonwealth of the Northern Mariana Islands in their quest for green cards and a pathway to citizenship as expressed in this petition. We appeal to you to take immediate action to secure their standing and to keep their families together,” the petition's introductory paragraph reads.
The federalization law establishes a goal of phasing out the CNMI guest worker program and requires a report from the Department of the Interior as to the number of guest workers in the CNMI, and recommendations for status, if any.
“There is no assurance that there will be recommendations for status, nor any assurance that status would be granted through subsequent legislation even if such recommendations were made. We appeal to you today to support the introduction of legislation that would grant green cards and a pathway to citizenship to long-term foreign workers and nonresidents,” the petitioners say.
Majority of foreign workers-now only at a little over 10,000-have been in the CNMI for more
“Many of us have children who serve in the U.S. Armed Forces. We are valuable workers and law-abiding, contributing members of our island home. We call upon you to provide protection and equal rights to those of us who have dedicated our lives to building and developing this great U.S. commonwealth,” the petition reads.
In 2000, the U.S. Senate unanimously passed legislation that would have provided these segments of the CNMI population with immigration status.
However, a provision for U.S. status did not make it into the final version of the bill that would become part of Public Law 110-229 or the CNRA.
“While we understand that permanent status and a pathway to citizenship for us in the CNMI may be included in future national comprehensive immigration reform legislation, we plead with you not to wait,” it adds.
The petition cited a precedent for such a relief. In the 1980s, the Virgin Islands and the U.S. Congress realized that special legislation was needed to prevent the separation of guest workers from their U.S. citizen families. Congress passed a law allowing guest workers in the Virgin Islands to adjust to permanent residency status.
“Congress should pass a similar law tailored to the unique needs of the CNMI,” the petitioners say.
Doromal said foreigners invited to U.S. shores to work and build the economy “should be regarded as future citizens rather than replaceable commodities.”
“Those who support a just and democratic guest worker program in the CNMI and in the mainland, support opportunities where foreign workers and immigrants have control over their destiny and the destiny of their families. They embrace the words of President Barack Obama: 'In America, no dream is beyond your grasp if you reach for it, and fight for it, and work for it,'” she added.
Thursday, November 12, 2009
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.
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.
Wednesday, November 04, 2009
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.
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.
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