CNMI COURT RULES IN FAVOR OF NONRESIDENT WORKERS

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By Cherrie A. E. Villahermosa

SAIPAN, CNMI (Marianas Variety, Oct. 4) – The U.S. District Court has issued a ruling in favor of a firm engaged in water sport activities and ruled that the government failed to provide any rational basis why non resident workers should be completely foreclosed from being employed in the specific job classifications in the Commonwealth of the Northern Mariana Islands.

U.S. District Court for Northern Mariana Islands Chief Judge Alex R. Munson in his findings of fact and conclusions of law order in connection with a lawsuit filed by Auto Marine Inc. and its employees Rolando Senoran, Benjamin T. Santos, Augusto Santos and Normandy Santos against Antonio Sablan, Mel Grey in his official capacity as Acting Director of Immigration and Richard T. Lizama, personally and in his official capacity, ruled that the government did not provide any rationale as to how the statute (Section 4434 (e) (1) has a fair and substantial relation to the purpose of the Non-Resident Workers Act as stated in Sagana, 384 F. 3d at 741.

Munson said the purpose of the Non-Resident Workers Act as a whole is to provide a balanced and stable economy in the Commonwealth by giving residents preference in employment to uplift the stagnant Commonwealth economy by providing temporary alien labor, to prevent the impairment of wages and working conditions of resident workers due to the availability of temporary alien labor and to provide enforcement, control and regulation of non resident workers. The judge said these are reasonable and important purposes.

Munson’s order stated that the government challenges the constitutionality of and application of 3 CMC § 4434 (e) (1) on its face and as applied to the plaintiffs.

The said statute provides that "[t]he Director of Labor shall not approve non resident worker certificates for the following job classifications: taxi driver, secretary, bookkeeper, accounting clerk, messenger, receptionist, surface tour boat operator, bus driver, including tour bus driver and telephone switchboard operator."

The Judge said under the rational basis test, "[a] classification must be reasonable not arbitrary and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike."

Munson said Section 4434 (e) does not provide a preference to resident workers, rather, it completely forecloses non-resident workers from employment in specific job classifications.

The Judge said the statute does not create temporary alien labor because it completely eliminates the availability of temporary alien labor in the specific job classifications and it does not prevent the impairment of wages and working conditions of resident workers due to the availability of temporary alien labor because it does not create temporary alien labor in the specific job classifications.

Munson, in ruling in favor of the plaintiffs, said that the government provides no basis why the government has any interest in preventing employers from hiring a qualified non resident worker in the specific job classifications if there are no available qualified resident workers to fill those positions.

The Judge said the government provides no basis why the government has an interest in requiring employers to keep positions unfilled in the event that no qualified resident worker is willing and able to take those positions.

Munson said the government provides no basis for why the government has an interest in singling out these specific job classifications from all other jobs in the NMI.

Munson in his ruling said that the court finds that it need not consider whether any heigtened level of scrutiny applies and finds in favor of the plaintiffs on first claim.

The Judge said due to the court’s ruling on the first claim, the court need not consider the second claim.

The defendants through Deputy Attorney General Gregory Baka submitted proposed findings of fact and conclusions of law and requested that the plaintiffs first and second claims for relief of the amended complaint be denied.

Plaintiffs who are represented by G. Anthony Long are seeking declaratory and injunctive relief against defendants declaring unconstitutional and unenforceable the injunctive ruling against Sablan, Grey and Lizama in their official capacity as Acting Director, Director and Inspector of Immigration Services.

The third through sixth claims for relief were resolved through a settlement agreement between the parties.

Baka argued in the legal validity of the first and second claims for relief.

Baka stated that the first claim should be denied statutorily and constitutionally because contracts cannot condone employment in violation of the law; because estoppels against the Commonwealth does not lie with respect to non-immigrant alien contracts; because the statutory scheme surrounding Title 3, Commonwealth Code Subsection 4434 (e) (1) including the Dictionary of Occupational Titles 4th Ed. Rev. 1991 and the ordinary definition of the words in "surface tour boat operator" clearly proscribe the employment conduct engaged in by plaintiffs and because an alien’s entry may be conditioned upon specific employment.

Baka stated that the second claim for relief should be denied because federal maritime safely legislation is not preemptive of Commonwealth of the Northern Mariana Islands immigration law and because the Commonwealth of the Northern Mariana Islands has extraterritorial immigration jurisdiction and because the Commonwealth of the Northern Mariana Islands has concurrent jurisdiction over nearby federal waters.

The plaintiffs sued the defendants for illegal arrest in an alleged violation of Commonwealth of the Northern Mariana Islands law which involved operating a boat owned by Auto Marine.

The defendants charged the plaintiffs for having no lawful documentation and authority to be so employed in the Commonwealth of the Northern Mariana Islands.

Defendants filed a motion to dismiss the first and second claims but Judge Munson denied the motions.

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