The federal court yesterday ruled that the decision to deny the owner of Tinian Dynasty Hotel and Casino\u2019s CW-1 visa petitions for its foreign workers is clearly not final and that the Administrative Appeals Office is currently in the process of reviewing it.<\/p>\n
In granting the U.S. government\u2019s motion to dismiss the case, U.S. District Court for the NMI Chief Judge Ramona V. Manglona said the court lacks jurisdiction and must dismiss the case filed by the workers because the denial of Hong Kong Entertainment (Overseas) Investments Ltd.\u2019s petitions is not final.<\/p>\n
Manglona, however, said the workers may refile the lawsuit after the Administrative Appeals Office issues its decision and the agency\u2019s action is final.<\/p>\n
\u201cFor this court to undertake its own review while the administrative appeal is pending would waste resources and create the sort of duplication that Section 704 of the APA was intended to avoid,\u201d the judge pointed out.<\/p>\n
Manglona said it is unnecessary, therefore to determine whether plaintiffs, as beneficiaries of Hong Kong Entertainment\u2019s petitions, have standing to sue and can state a claim on which relief may be granted.<\/p>\n
Over 500 foreign workers of Tinian Dynasty Hotel and Casino filed the lawsuit against Homeland Security Secretary Jeh Johnson, U.S. Citizenship and Immigration Services Director Leon Rodriguez, and USCIS California Service Center Director Kathy A. Baran after USCIS denied Hong Kong Entertainment\u2019s 197 CW-1 petitions involving 693 beneficiaries.<\/p>\n
Attorney Bruce Berline filed the lawsuit as counsel for Belal Hossain, Wenli Zhong, Pukar Patel, and 500 unknown co-plaintiffs. Berline asked the court to declare that USCIS is precluded from relying on a pending criminal case against HKE, which owns and operates the 412-room hotel with casino, as a basis for determining that HKE is not a legitimate employer.<\/p>\n
Berline asked the court to declare that the denial of HKE\u2019s CW-1 petitions on grounds that HKE is not a legitimate employer is contrary to and in violation of due process as guaranteed by the U.S. Constitution.<\/p>\n
U.S. Department of Justice Office of Immigration Litigation trial attorney Sarah L. Vuong, as counsel for the defendants, moved to dismiss the lawsuit.<\/p>\n
Vuong asserted that since that HKE\u2019s nonimmigrant visa petition remains under administrative appeal, the federal court should dismiss the lawsuit in its entirety for lack of subject-matter jurisdiction.<\/p>\n
The hearing on the motion was held last April 23.<\/p>\n
In her order yesterday, Manglona said the problem for the plaintiffs is that their lawsuit doesn\u2019t really challenge the decision to deny them extensions.<\/p>\n
\u201cThey don\u2019t assert that they are entitled to extensions regardless of whether their employer\u2019s CW-1 petitions on their behalf are approved,\u201d Manglona said.<\/p>\n
Instead, the judge said, the plaintiffs challenge the correctness of the underlying decision to deny the CW-1 petitions.<\/p>\n
\u201cThat decision clearly is not final, for the AAO is now in the process of reviewing it,\u201d she said.<\/p>\n
Manglona noted that at the hearing, the U.S. government gave assurances that if HKE prevails in its appeal of the CW-1 denials, plaintiffs will get their extensions and return to lawful status, and the time accrued in unlawful presence will roll back.<\/p>\n
However, Manglona said, every day that plaintiffs remain in the U.S. during the pendency of the appeal, they accumulate unlawful presence that may never be rolled back (if the AAO affirms the decisions) and risk being deported by Immigration and Customs Enforcement.<\/p>\n
Moreover, Manglon said, USCIS\u2019s denial of extensions (as opposed to its denial of the petitions) is not appealable.<\/p>\n","protected":false},"excerpt":{"rendered":"
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