CNMI Court Dismisses Lawsuit By Tinian Casino Workers

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Dynasty’s appeal against denial of foreign worker petitions precludes case

By Alexie Villegas Zotomayor

SAIPAN, CNMI (Marianas Variety, May 6, 2015) – Absent a final decision by the U.S. Citizenship and Immigration Services on Tinian Dynasty’s appeal, the federal government’s motion to dismiss Hossain et. al’s lawsuit has been granted without prejudice.

In her order issued yesterday, District Court for the NMI Chief Judge Ramona V. Manglona stated, "Because the petition denials are not final, the court lacks subject matter jurisdiction and must dismiss this action."

She noted in her order that it is unnecessary to determine whether the plaintiffs—Tinian Dynasty CW workers Belal Hossain, Wenli Zhong, Pukar Patel, and Does 1-500—beneficiaries of Hong Kong Entertainment (Overseas) Investments Limited’s petitions, have standing to sue and can state a claim on which relief may be granted.

Although the order dismissed the case, it also stated that the plaintiffs may refile after the Administrative Appeals Office or AAO has issued its decision and the agency’s action is final.

The court explained its decision.

"Finality is a jurisdictional requirement," the court said adding that the for an agency’s action to be rendered final, the action must mark the consummation of the agency’s decision-making process and be one by which rights or obligations have been determined, or from which legal consequences flow.

In the case of the Dynasty’s appeals of the USCIS decisions, the court noted that although the complaint did not mention that HKE had appealed the denial of CW-1 petitions, HKE had stated in its court filings that it has filed appeals and acknowledged that these appeals are pending.

"Therefore, the agency has not ‘rendered its last word on the matter’ and the petition denials are not final agency actions," the court said.

For its part, the defendant, the U.S. government, in its motion to dismiss, asserted four grounds to dismiss the complaint: the court lacks subject matter jurisdiction to review USCIS denial of the CW-1 permits because plaintiffs are not challenging a final agency action; plaintiffs lack standing to sue because they are outside the zone of interest of the statutes and regulations establishing the CW-1 permitting scheme; plaintiffs have no property interest in the CW-1 permits that would support a due process claim; and plaintiffs’ equal protection claim is implausible.

Plaintiffs, however, argued that denials of their employer’s petitions should be regarded as final agency action because their effect on the beneficiaries—the nonresident worker-plaintiffs—is final.

This denial of extension leaves the nonresident workers with no lawful immigration status and renders their continued presence in the U.S. unlawful.

A CW-1 worker whose I-129CW petition is denied will have to depart the CNMI immediately or risk incurring unlawful presence.

The court, however, acknowledged that these denial of extensions has significant legal ramifications for them.

They are out of status, not authorized to work and have been accruing unlawful presence.

The government has assured if HKE’s appeals were granted, the plaintiffs will get their extensions and be reinstated to lawful status and the time accrued in unlawful presence will be rolled back.

The court noted that the lawsuit does not challenge the decision to deny them extensions; the lawsuit challenged the correctness of the underlying decision to deny the CW-1 petitions, the court said.

"That decision clearly is not final, for the AAO I snow in the process of reviewing it," the court said.

It would be a waste of resources and would be a redundant action if the court were to proceed with its own review while the appeal is pending.

The court upheld the arguments of the federal government. "Whenever a district court determines that it lacks subject matter jurisdiction, it must dismiss the action."

The court explained that U.S. Congress, through the Administrative Procedure Act, provided for a judicial review of agency actions that have caused a person to suffer a legal wrong.

"For an agency action to be reviewable, it must be final agency action for which there is no other adequate remedy in court," the order said.

Last December 2014, Dynasty workers Belal Hossain, Wenli Zhong and Pukar Patel sued the Department of Homeland Security, USCIS, DHS Secretary Jeh Johnson, USCIS director Leon Rodriguez and California Service Center director Kathy A. Baran over the denial of petitions involving over 500 individuals under USCIS Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, or the CW program.

The workers’ petitions were filed by their employer HKE, owner of Tinian Dynasty.

Does 500 are foreign contract workers employed by HKE who are also being adversely and irreparably harmed by the defendants, according to Berline’s 16-page complaint.

The lawsuit also named as among the plaintiffs Does 500 — nonresident workers employed by HKE who are also being adversely and irreparably harmed by the defendants.

The lawsuit stemmed from the denial of 69 I-129CW petitions filed by HKE for 520 workers.

Early in the process, in 2012, HKE received a so-called Request for Evidence, or RFE from USCIS for its petitions relating to its eligibility as an employer and compliance with federal requirements.

In late 2012, USCIS issued Notices of Intent to Deny or NOID owing to failure to provide sufficient evidence, citing as well an investigation by the federal Labor department for alleged withholding of overtime pay.

In early 2013, HKE received approvals; however, sometime in July 2013, it received Notices of Intent to Revoke, or NOIR revoking these approvals made earlier.

The decision took note of the allegations of nonpayment of wages.

In April 2013, the federal government filed criminal charges against HKE for failure to file currency transaction reports.

"Notwithstanding the pendency of the criminal case, USCIS lifted the NOIRs but not the NOIDs."

Subsequent decisions by USCIS to deny the petitions questioned HKE’s eligibility as a petitioner of the I-129CW petitions.

USCIS underscored in its decision that a petitioner must establish that it is a legitimate business in order to eligible to file a CW-1 petition.

"A business will not be considered legitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under Federal or CNMI law. DHS [Department of Homeland Security] will determine whether a business is legitimate," USCIS stated.

In a separate yet related lawsuit, HKE sued the federal government relating to $191,400 in civil money penalties stemming from a May 2007 investigation and settlement of delayed payrolls.

HKE filed this lawsuit on Dec. 29, 2014.

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