Manibusan: DOLI violated deal with guest worker

Presiding Judge Edward Manibusan yesterday ruled that the CNMI government has violated the non-prosecution agreement it entered into with Russian national Oxana A. Galkina when it filed a criminal case against her for allegedly working in the CNMI without legal papers.

In dismissing the case against her with prejudice, Judge Manibusan said Ms. Galkina expected to leave the CNMI and come back without restrictions. Her failure to leave is not a breach of the non-prosecution agreement. In fact, her testimony was instrumental in the conviction of two labor violators.

“The government has an obligation to ensure fairness throughout the criminal process. There is more at stake than just the liberty of the defendant. At stake is the honor of the government and the public confidence in the fair and efficient administration of justice. Fundamental fairness and public confidence in government officials require that prosecutors be held to meticulous standards of both promise and performance, “Judge Manibusan said.

Ms. Galkina had a valid permit to work at Palace Corp. as a waitress when she arrived in the CNMI. She was underpaid, thus, along with 22 other co-workers, filed a lawsuit against her employer.

The hearing officer at the Department of Labor and Immigration awarded damages to the workers and ordered Ms. Galkina be transferred to Sung Moon Cho of Big Boss Corp., owner of Boss Club.

Boss Club was directed to file new Nonresident Workers Identification Certificates with the Division of Labor within 60 days by the hearing officer. But Boss Club failed to submit the necessary papers and in July 1999, DOLI conducted an immigration raid and arrested Ms. Galkina for working illegally.

Following Ms. Galkina’s arrest, the government agreed not to criminally prosecute her if she agreed to do the following:

• Give a statement regarding her work at the Boss Club;

• Remain in the CNMI until the end of the Boss Club prosecution;

• Voluntarily depart the CNMI at the end of the Boss Club prosecution.

The government signed the non-prosecution agreement and granted Ms. Galkina a temporary work order after she made a videotaped statement regarding her employment at the Boss Club. She later on appeared at the trial as witness and the Boss Club prosecution ended on Dec. 28, 1998.

But when the case against Boss Club ended, Ms. Galkina did not leave the CNMI. Instead, she requested a transfer hearing to ensure her ability to return to the CNMI to pursue her two pending labor cases.

The transfer hearing occurred on Jan. 13, 1999, at which time the government opposed the transfer on grounds that Ms. Galkina had already agreed to depart the CNMI at the conclusion of the Boss Club prosecution. However, the hearing officer granted the transfer. Immediately, the government appealed.

On Jan. 27, 1999, DOLI Secretary Mark Zachares reversed the transfer order and directed Ms. Galkina to leave the CNMI within 15 days from the issuance of an administrative order.

The issue here is whether Ms. Galkina’s failure to voluntarily depart the CNMI is considered a breach of non-prosecution agreement, thus, allowing the government to prosecute her.

“When the government believes that a defendant has breached the terms of a non-prosecution agreement and wishes to be relieved of performing its part of the bargain…the government must prove to the court by a preponderance of the evidence that (1) the defendant breached the agreement, and (2) the breach is sufficiently material to warrant a recission,” the decision said.

Ms. Galkina asserted that she understood voluntary departure to mean that she could leave the CNMI and return easily. Evidence showed that during interviews with immigration officers on the day she signed the non prosecution agreement, she was told that “voluntary departure” meant that she could return to the CNMI.

She later on asserted that if she leaves the CNMI, she will not be able to return because she did not receive a transfer and all Russian passport holders are now required to present an Authorization to Board issued by the Secretary of Labor unless that person is a nonresident worker with a valid authorization for entry.

Unfortunately, Mr. Zachares denied Ms. Galkina’s request for an Authorization to Board.