Plaintiff’s brief statement; “CW Final Rule affects private interests of foreign workers as well as the businesses community. Due process is the simple notion that the Constitution requires governmental procedures to be fundamentally fair before a person and/or establishments may be deprived of rights, liberty or property. The very short period of time by which DHS seek to enforce the CW Rule also violates due process as it curtails the process by which petitioners and individuals in the same situation cannot exhaust all remedies afforded to them due to very limited period of time to comply with all the requirements as stated in the Final Rule. The CW Rule potentially affects liberty or property and rights of foreign workers and businesses and fairness should govern in all its provisions.
A commitment to legality is at the heart of all advanced legal systems. The due process clause promises that before depriving a citizen of life, liberty or property, and/or entity, government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law created by human that happen to be the lawmakers. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional. The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Willowbrook v. Olech, 528 U.S. 1073 (2000), 120 S. Ct. 1073, 1074-75 (2000) (per curiam) (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441,445 (1923)).
Certain provisions of the CW Final Rule violate the Equal Protection Clause of the U.S. Constitution. This provision or condition is deemed a source of potential for abuse making workers at the mercy of employers. It also creates an unfair labor situation; violates equal protection clause and contravenes with CNRA’s Congressional Intent to assure worker protections from the potential for abuse and exploitation. There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law… Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection, citing Wong Yang Sung v. McGrath, 339 U.S. 33, 48-51 (1950), Wong Wing v. United States,163 U.S. 228, 238 (1896), Russian Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931). It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. The Japanese Immigrant Case, 189 U.S. 86, 100 -101 (1903); Wong Yang Sung v. McGrath, 339 U.S. 33, 49 -50 (1950); Kwong Hai Chew v. Colding, 344 U.S. 590, 598 (1953).
The DHS in the CW Rule declares its belief that it is reasonable to interpret that the CNMI permit is comparable to the federal immigration status because they both set conditions for the admission of the foreign workers. However, the permit system or CW classification DHS created should not unduly burden employers and employees taking into account the short period of time by which it was released and sought to be implemented.
Immediate implementation of CW Final Rule upon short period of its release date contradicts the flexibility they claim to have. Lack of flexibility in the CW rule’s implementation does not bode well for the purpose of carrying out Congressional Intent of avoiding adverse effects to the CNMI economy and violates procedural fairness. Outreach programs by USCIS prior to promulgation of CW rule failed to address the status of workers with pending labor cases and status of workers with conditional umbrella permits and others which were not duly covered by the CNRA.
DHS’s CW Rule provision that domestic workers must be channeled through an established, legitimate business operation is unreasonable and violates due process, given the very short period of time allotted for domestic workers who have a current and legitimate employers in the persons of private individuals or households to look for businesses or agencies which will petition for them under the CW classification. This onerous provision has also spawned the birth of agencies or establishments under the guise of the CW qualification for legitimate business charging certain fees for the processing of CW applications or petitions for domestic workers, without regard for their welfare or regulation, paving the way for abuse and exploitation, which the provision reportedly seeks to prevent. Just recently, domestic helpers and house workers were now given a chance to file CW status.
Provision on the filing of applications or petitions for a CW worker is deemed vague, ambiguous and confusing and lacks procedural fairness due to the deficiency of parameters set for worker eligibility or qualification under the CW as distinguished from those eligible or qualified under the INA. Employers who are required to file attestations hesitate, dither or are unwilling to commit themselves to file CW petitions for workers for fear of violating conditions that are unclear and uncertain. Employees are also not certain as to what category they should belong. Irreparable damaged on the part of the foreign workers statuses and profession is now in place and indirectly injected with no choice at all otherwise, employer’s petition will not be materialized within the very limited time to file under the Final Rule”.
“The Final Rule is confusing, conflicting, and contradicting and therefore, it is not enforceable”: Manuel Vilaga. “The DHS Final Rule drives affected foreign workers and businesses into a confined space, where there is very limited mobility and breathing insufficient space”: CJM.
In the latest development of our lawsuit, the seven individuals who filed the lawsuit believe that the merit of the case will prevail above all, and we will deal with it diligently and with perseverance. Thanks to attorney D.
Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen,” Winston Churchill.
CARLITO J. MARQUEZ
GERARDO DE GUZMAN
HECTOR SEVILLA
BONIFACIO SAGANA
EDUARDO ELENZANO
MANUEL VILAGA
LEE JONG HO
Plaintiffs
