DHS secretary, other USCIS officials oppose TRO request

Homeland Security Secretary Jeh Charles Johnson, Immigration and Customs Enforcement Director Saarah Saldana, and U.S. Citizenship and Immigration Services Director Leon Rodriguez submitted yesterday their opposition to the request of the Commonwealth Utilities Corp. and 18 of its foreign workers for a temporary restraining order that would allow these CW-1 workers to immediately return to work.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona heard the TRO matter yesterday.

When Saipan Tribune left the courtroom at 6:25pm, CUC counsel James Sirok was still arguing the position of CUC and the 18 workers.

CUC and the 18 foreign workers, through Sirok, filed a lawsuit on Monday against Johnson, Saldana, and Rodriguez over the delayed renewal of their Commonwealth-only worker, or CW-1 permits. CUC also asked the court to issue a TRO.

Sirok requested the TRO allowing the affected CW-1 workers to return to work and prevent the defendants from taking any adverse action against these workers until a final decision is made on the merits of CUC’s and the workers’ claims in their complaint.

Assistant U.S. attorneys Jessica F. Cruz and Mikel W. Schwab, and Office of Immigration Litigation attorney Sarah S. Wilson, appeared by telephone at the hearing as counsels for defendants Johnson, Saldana, and Rodriguez. Cruz and Schwab were in Guam, while Wilson was in Washington, D.C.

In defendants’ opposition to the TRO, Cruz and Wilson said CUC only filed its petitions for extension of the workers’ status last Dec. 28—a mere three days prior to the expiration of their nonimmigrant status.

Cruz and Wilson said in spite of CUC’s lackadaisical approach to its alleged crisis, defendants offered CUC’s counsel Sirok a reasonable resolution: submit a request to expedite the petitions that sets forth the circumstances supporting their need for immediate action and defendants will move CUC’s petitions to the front of the queue.

Cruz and Wilson said Sirok declined this sensible solution and, as a result, is facing “a manufactured crisis.”

Now, Cruz and Wilson said, CUC and the workers request a TRO that seeks to substantially alter—rather than preserve—the status quo to immediately facilitate the extension of legal status to individuals who have not yet been determined to be eligible for continued status.

As such, the lawyers said, plaintiffs’ motion must be denied absent a heightened showing that CUC and the workers are likely to succeed on the merits and that they will experience particularly egregious irreparable injury unless their motion is granted.

Cruz and Wilson asserted that plaintiffs rely on an unprecedented legal theory that purports to treat time-limited and numerically-capped nonimmigrant visas as “licenses for a continuing activity.”

Such a holding, the lawyers pointed out, would be the very first of its kind, in direct tension with decades of Supreme Court precedent recognizing the Executive’s plenary authority in the realm of immigration policy, and would conflict with the Immigration and Nationality At provision granting the Secretary authority to prescribe the time and conditions for the admission of a nonimmigrant.

At the hearing yesterday, Sirok called to the witness stand CUC acting executive director Gary P. Camacho and CUC power generation manager Richard Cano.

Camacho testified, among other things, that the affected foreign workers are all highly skilled personnel assigned at the power plants in Lower Base.

Camacho disclosed that Typhoon Soudelor affected power plants’ exhaust system as it took 22 days to dry up the water brought by the typhoon.

Camacho said the affected workers are key components of the ongoing restoration at the power plants because of the typhoon’s damage.

The acting executive director noted that in 2015, there were a number of typhoons so between now and the summer, it is CUC’s opportunity to “attack” the damage and conduct preventive maintenance.

“We can’t replace them (affected foreign workers) because of the skill level that they possessed,” he said.

Camacho said without their expertise, there will be a direct deterioration of service to CUC’s customers and the general public in the CNMI.

Camacho also disclosed that CUC “lost” one power engine unit the other day and that they need manpower to get that unit working.

Cano, on the other hand, explained how CUC’s power plants’ operations have been severely affected due to the foreign workers’ work stoppage.

Cano cited an example the downed 14 units of exhaust due to Typhoon Soudelor. He said the repair was stopped because the needed workers could not work.

Asked when he believes that the affected workers should go back to work, the manager replied, “the soonest the better. Tomorrow the better.”

Sirok argued, among other things, that the Federal Administrative Procedure Act allows a CW-1 worker to continue to work after the expiration of the CW-1’s validity period during the agency’s review of a timely filed petition for a CW-1 renewal/extension of stay.