ATTORNEY Joseph Horey is opposing the motion of the U.S. Department of Justice to dismiss the lawsuit of his client, Sukesh Chandra Barman, who wants the federal court to review the decision of U.S. Citizenship and Immigration Services to deny his CNMI long-term residency application.
According to the DOJ, the court lacks jurisdiction to review the denial of Barman’s CNMI long-term resident application.
But Horey said his client is seeking a review of the decision of the Guam field office director for USCIS, a subordinate official in the Department of Homeland Security.
It is not a decision “of the Secretary of Homeland Security or the Attorney General,” which are the only decisions of which the statute precludes judicial review, Horey added.
“The question is whether the statutory language insulates such a decision from judicial review. It does not, due to the presumption construing ambiguous language in favor of judicial review,” he said.
The lawsuit named Rebecca Maliuwelur, in her official capacity as director of the USCIS Guam field office, as respondent.
Barman wants the District Court for the NMI to issue an order declaring that his application met all the statutory criteria of eligibility for CNMI residency status as set forth in the Northern Mariana Islands Long-Term Residents Relief Act or U.S. Public Law 116-24.
Horey said the statutory purpose — affording relief to long-term residents who “fell through the cracks” and “were not taken into account” in previous legislation — is not frustrated in the least by allowing judicial review of decisions on applications for such relief.
“On the contrary, especially insofar as the purpose is ‘resolving any uncertainty,’ and doing so ‘in an equitable and lawful manner,’ that purpose is frustrated by denying judicial review, and thereby cutting off the best avenue for the correction of error,” Horey said.
“Nor is there any countervailing purpose that would be foiled by stressing the remedial. There is no need for haste, or even expedition, especially since the aliens involved have already been awaiting relief since 2008 — for fifteen years. A few more weeks in the interest of getting the decision right are not going to kill anyone. Allowing judicial review also puts no additional burden on the Secretary, who does no additional work whether or not the Guam Director’s decision is reviewable. Nor indeed does it put any undue burden on the Court,” Horey added.
He said only a small group of aliens is affected, and they seek a benefit that was made available to them only once, and only for a limited time.
“Authorizing review of a handful of questionable decisions will not open the floodgates to endless litigation; all the…applications that will ever be decided already had been. Since the statutory purpose does not require, or even favor, subdelegation, any presumption in its favor does not arise,” Horey said.
Denial
Barman’s application for CNMI residency or NM-1 status was denied by USCIS on Dec. 30, 2021.
He sought reconsideration of the denial on March 22, 2022, but it was denied by the director on Oct. 14, 2022.
“The action of the director was final and administratively unappealable, and is therefore ripe for judicial review,” the lawsuit stated.
Barman wants the court to order the Guam field office to approve his application and grant him CNMI residency status, and issue him all appropriate documentation evidencing such status.
According to the complaint, “The grant of [CNMI residency] status to plaintiff was unlawfully withheld by the Director, and the denial of his application was short of statutory right and not in accordance with law. In particular, the Director’s finding that plaintiff had not ‘resided continuously and lawfully’ in the CNMI for the requisite time period was erroneous as a matter of law and resulted from a misconstruction of the Relief Act.”
The United States Courthouse in Gualo Rai, Saipan.
