Responding to a request for information from Reps. Tina Sablan, Ind.-Saipan, and Edward Salas, R-Saipan, San Nicolas said when Labor Director Barry Hirshbein made a statement that ‘they retain the documents until the termites eat them” it was intended as a joke.
“In part the comment was intended to convey that the department keeps records for longer than any law or regulation requires,” San Nicolas quoted Hirshbein.
He said under the new labor law, P.L. 15-108, the Department of Labor is authorized to use publications to meet notice requirements.
“It meets all applicable requirements under the Commonwealth Constitution and the U.S. Constitution,” he added.
The published notices have been used by the department for more than 18 months and have “engendered no litigation,” he said.
“From the tone of your statements, I suspect that you believe that notice by publication is inferior under the circumstances of the department’s cases,” San Nicolas told the two lawmakers. “If so, your suspicion is not proven by the department’s recent successes. The published notices reach for more parties and produce far better attendance at hearings than the attempted personal service and mail service used previously.”
Labor’s administrative hearing officer, he said, follows a policy of allowing anyone who did not see a published notice to request a rehearing.
No request for a rehearing has been denied, and no appeal has been received on this issue, he added.
Regarding the overstayer list, San Nicolas believes that “over all, it was neither flawed nor inaccurate.”
Very few persons on the list appeared at Labor with documentation to show that the department’s record should be corrected, he said.
“There is no basis to assume that publication in a newspaper of general circulation in the commonwealth in two successive weeks is insufficient to provide notice. Each notice contains a specific date by which any person on the list should report errors to the department,” he said.
According to San Nicolas, Labor “does not extract from its data any statistics on the number of notices that are published or the number of notices that are given by other means.”
Labor, he said, “does not regularly extract from its data any statistics on the number of cases closed for particular reasons.”
“If the Immigration Division begins deportation proceedings on the basis of records that indicate a person is in overstayer status, that person has guaranteed procedural rights. The department does not deal with deportations,” San Nicolas said.
Regardin the concern that Labor allows appeals to be heard by the same hearing officer who denied the original case, San Nicolas said when he issued an order remanding a case to the administrative hearing office, the case goes back to the hearing officer who heard the case previously “if that hearing office is available.”
He added, “That is a procedure followed by the commonwealth courts and courts generally in the U.S. The department does not keep statistics on the outcome of remand hearings. However, any order from a remand hearing may again be appealed to the secretary [of Labor], and from there appealed further to the Commonwealth Superior Court.”
