Man sues USCIS, officials over denial of CW-1 petition

A Bangladeshi national who obtained an umbrella permit in 2009 and a private company are suing the U.S. government and other officials in federal court for denying the company’s petition for CW-1 permit for him on the grounds that the employer had not established that he was lawfully present in the CNMI at the time the petition was filed.

Angando Inc. and Moniruzzaman Masud are suing the U.S. government, Homeland Security Secretary Jeh Johnson, U.S. Citizenship and Immigration Services Director Leon Rodriguez, and USCIS California Service Center Director Rosemary Langley Melville.

Angando and Masud, through counsel Joseph E. Horey, asked the U.S. District Court for the NMI to declare that Masud was lawfully present in the CNMI at the time of Angando’s petition, and is eligible for CW-1 classification.

Horey wants the court to compel the defendants to classify Masud as an alien eligible for CW-1 classification, and to approve Angando’s petition to employ him.

Horey asked the court to prohibit the defendants from finding that Masud was unlawfully present at any time from Nov. 28, 2009, to the present, and from taking any adverse immigration actions against him as a consequence of such a finding.

The plaintiffs also demanded payment for court costs and attorney’s fees.

Horey stated in the complaint that on April 30, 2007, Masud, who at the time held a CNMI 706D immediate relative entry permit based on his marriage, made a timely application to the CNMI Immigration Director for the renewal of his permit.

His renewal application was denied on July 18, 2007. He appealed the denial to the CNMI Attorney General.

The appeal was set for hearing on several occasions in 2009, but one each occasion the hearing was continued, and the appeal was never decided.

The appeal remained pending and unresolved as of Nov. 27, 2011.

Horey said that, on Nov. 27, 2009, the CNMI Department of Labor issued an umbrella permit to Masud.

Horey said the umbrella permit was a two-year permit issued prior to Nov. 28, 2009, by CNMI Labor, Department of Commerce, or Attorney General.

He said the umbrella permit, which expired on Nov. 27, 2011, protected the status of the holder to remain in the CNMI until revoked or expired.

The umbrella permit remained valid through Nov. 27, 2011, according to the lawyer.

Horey said that, on Nov. 27, 2011, and no later than Nov. 28, 2011 ( a date deemed by USCIS to be equivalent to Nov. 27, 2011), Angando Inc. mailed to USCIS a petition (Form I-129CW) for CW-1 worker classification for Masud.

Horey said that, on Aug. 15, 2012, USCIS California Service Center Director Melville denied the petition on the basis that Angando Inc. had not presented evidence that Masud was lawfully present in the CNMI at the time the application was filed.

Angando Inc. appealed the denial to the administrative appeals office of the Department of Homeland Security.

On Feb. 20, 2015, the administrative appeals office upheld the denial, agreeing with Director Melville that Angando Inc. had not established that Masud was lawfully present in the CNMI at the time the petition was filed.

Under the immigration laws of the CNMI, Horey asserted, the denial of an entry permit renewal application by the Immigration Director was subject to an administrative appeal to the AG.

The AG, Horey pointed out, was authorized to conduct a hearing on the appeal, and, in the case of a denial based upon failure to meet the requirements of a marriage-based permit, was required to do so.

He said the denial, if timely appealed, was not final until affirmed by the AG, and the alien applicant remained lawfully in the CNMI until the disposition of the appeal.

Horey said at the time the application was submitted, Masud was lawfully present in the CNMI by virtue of the appeal and by virtue of the umbrella permit.

“The denial of CW-1 classification to Masud based on lack of evidence establishing that he was lawfully present in the CNMI at the time of the application was arbitrary, an abuse of discretion, and not in accordance with law,” Horey said.

The lawyer said Masud was deprived of his lawful CNMI status without the due process required by CNMI law for the deprivation of such status.