Full Opinion

Office of the Attorney General v. Paran, 4 N.M.I. 191 (1994) Office of the Attorney General and Office of Immigration and Naturalization of the Commonwealth of the Northern Mariana Islands, Petitioners/Appellees, v. Ceferina A. Paran, Respondent/Appellant. Appeal No. 93-014 Civil Action No. 93-0019 October 6, 1994 Argued and Subm itted Decem ber 9, 1993 Counsel for appellant: Reynaldo O. Yana, Saipan. Counsel for appellees: Thom as E. Sheldon, Assistant Attorney General, Saipan. BEFORE: DELA CRUZ, Chief Justice, and VILLAGOM EZ and ATALIG, Justices. DELA CRUZ, Chief Justice: I. FACTS The respondent/appellant, Ceferina A. Paran, is a nonresident alien who entered the Com m onwealth for em ployment as a houseworker. Her nonim m igrant entry perm it expired on January 22, 1992. Seven m onths before her entry perm it expired, Paran filed a com plaint with the Com m onwealth Division of Labor (“Labor”) against her em ployer for non-paym ent of wages and for assault and battery (Labor Case No. 155-91). 1 She sought, am ong other relief, a transfer to another em ployer pursuant to 3 CM C § 4444(e)(5). On M ay 21, 1992, almost a year after filing Labor Case No. 155-91, the Chief of Labor undertook to investigate the m atter. Pursuant to 3 CM C § 4444(a)(1), the Chief issued a “Determ ination and Notice of W arning and Request to Correct Violation” to Paran’s form er em ployer. The em ployer thereafter rem itted to the Chief of Labor Paran’s back wages and return airfare to her country of origin, the Philippines. See Office of the Attorney 1 Paran’s action before the Division of Labor was designated In the Matter of Ceferina A. Pa[r]an, Labor Case No. 156-91, and Paran v. Sablan, Labor Case No. 155-91. See Appellant’s Excerpts of Record at Excerpts 7 and 10. Because the parties refer the Court to these cases as Paran’s sole action before the Division of Labor, we consider both references to be part of the same Labor case, which we shall refer to as Case No. 155-91. Paran filed her complaint on May 31, 1991. Transcript of Proceedings at 15:6, Office of the Attorney General v. Paran, Civ. No. 93-0019 (N.M.I. Super. Ct. Mar. 22, 1993). General v. Paran, Civ. No. 93-0019 (N.M .I. Super. Ct. Apr. 5, 1993) (Order of Deportation). The Chief of Labor instructed Paran to leave the Com m onwealth. By the tim e Labor issued its M ay 21, 1992, determination, Paran’s nonimm igrant entry perm it had been expired for alm ost four months. 2 The Office of Imm igration and Naturalization (“Im m igration”) asserts that the case was settled in Paran’s favor. Paran disputes this contention on the ground that she was not allowed to transfer to a new em ployer. Paran failed to depart from the Comm onwealth as instructed. On January 5, 1993, the Attorney General and Im m igration filed a petition to deport her. The Superior Court issued an order to show cause why Paran should not be deported. On January 8, 1993, Paran filed a notice of hearing in Labor Case No. 155-91 seeking relief in the form of a transfer to a new em ployer.3 However, the record does not establish Labor’s final action on Paran’s request. On April 5, 1993, the trial court ordered Paran deported on the ground that her entry perm it had expired. No stay of the order was sought and she was deported. This appeal followed. W e have jurisdiction pursuant to 3 CM C § 4342 and 1 CM C § 3102(a). W e affirm the order of deportation. II. ISSUES AND STANDARD OF REVIEW The sole issue before us is whether “the court err[ed] in ordering the deportation of the appellant in spite of the fact that the Chief of Labor had not issued a notice of violation and given the appellant a meaningful hearing.” Appellant’s Brief at 3. Paran claim s that her right to due process of law entitled her to a stay of the deportation proceedings. She argues that a stay was necessary to enable Labor to determ ine whether she was entitled to a transfer to another employer based on the assault and battery allegedly comm itted against her by her form er em ployer. Our review of the issue raised is de novo. Office of the Attorney General v. Rivera, 3 N.M .I. 436, 441 (1993). III. ANALYSIS It is undisputed that Paran rem ained in the Com m onwealth after her entry perm it expired and was thus subject to deportation. See 3 CM C § 4434(g). The particular issue we confront is whether due process required the trial court to stay Paran’s deportation proceedings so that Paran could pursue her assault and battery claim at Labor and be given the opportunity to transfer to another em ployer. A. M ootness W e begin by noting that Paran has already been deported. W e therefore have raised the issue of m ootness and requested argum ent as to why the appeal before us should not be dism issed on that basis. W e are satisfied that the m atter is not moot because of the effect the deportation order has on Paran’s ability to reenter the Com m onwealth. See 3 CM C § 4322(d) (a resident alien who is deported m ay not reenter the Com m onwealth for five years from the date of deportation). W e shall therefore address the issue presented. B. Due Process In Rivera, we reversed a deportation order on due process grounds. W e held that Rivera and other 2 Nonimmigrant Entry Permit No. S-46369 was issued to Paran on February 1, 1991. It expired by its terms on January 22, 1992. 3 This administrative notice of hearing is not in the trial or appellate record. However, a Division of Labor witness read the notice of hearing into the record during a hearing before the trial court on March 22, 1993. Transcript of Proceedings, supra note 1, at 29:9-18. Office of the Attorney General v. Paran, 4 N.M.I. 191 (1994) appellants were entitled to rem ain in the Com m onwealth, although their tourist visas had expired, in order to prosecute their unpaid wage com plaints. W e stated: “‘In an administrative proceeding where a person’s life, liberty, or property is at stake, Article I, § 5 of the Com m onwealth Constitution requires, at a minim um , that the person be accorded m eaningful notice and a m eaningful opportunity to a hearing, appropriate to the nature of the case.’” 3 N.M .I. at 445 (quoting Office of the Attorney General v. Deala, 3 N.M .I. 110, 116 (1992)). In Deala, we vacated a deportation order on statutory grounds. W e held that Deala, a nonresident alien, was entitled to rem ain in the Com m onwealth for thirty days after the Director of the Departm ent of Com m erce and Labor had made a determ ination on Deala’s unpaid wage com plaint. 3 N.M .I. at 117-19. At issue in Deala and Rivera were valid and unresolved claim s for non-paym ent of wages made by nonresident aliens subject to deportation. In this case, Paran asserts that due process required a stay of the deportation proceeding so that she could have pursued a transfer to another em ployer based on her claim of assault and battery. Paran argues that the trial court erred in refusing to stay the deportation hearing pending Labor’s consideration of her request for a transfer. In her argum ent to the trial court, she stated, through counsel: This is not a case, a claim for dam ages, . . . it’s only a claim of transfer. That was in the complaint itself. It never asked for dam ages . . . . The com plaint only said, I got— I have to get out of my— from my em ployer because she beat me up, therefore, I’d like to be transferred. Transcript of Proceedings at 40:5-10, Paran, Civ. No. 93-0019 (N.M .I. Super. Ct. M ar. 22, 1993). In other words, Paran did not seek dam ages or injunctive relief against her former em ployer based on assault and battery. Rather, she sought from Labor a transfer to another em ployer because of the alleged assault and battery. In requesting a stay of the deportation proceeding, Paran simply asserted that she had a right to transfer to another em ployer. The Nonresident W orkers Act 4 (“Act”) provides Labor with two methods of resolving a labor dispute. The first is to issue a warning and request to correct. 3 CM C § 4444(a)(1). The second is to issue a notice of violation and to conduct a hearing. 3 CM C § 4444(a)(2). Here, Labor followed the first method. On M ay 21, 1992, Labor issued a “Determ ination and Notice of W arning and Request to Correct” (“notice of warning”) to Paran’s form er em ployer. The record shows that the violation was corrected by Paran’s em ployer, who paid Paran’s unpaid wages and provided her airfare back to the Philippines. Paran’s request for a transfer to a new employer based on the assault and battery allegedly comm itted by her em ployer was not addressed in the notice of warning, and Paran did not pursue a transfer after that until the governm ent initiated deportation proceedings against her. Labor had the discretion to follow the first method, noted above, and issue a notice of warning. The Act does not require Labor to follow the second m ethod of resolving labor violations. Nothing in the Act im poses a duty on Labor to grant Paran a transfer to another em ployer. A transfer is, in short, a discretionary rem edy. Labor may “[t]ransfer an affected non-resident worker to another employer with the consent of the worker and new em ployer.” 3 CM C § 4444(e)(5). Paran failed to dem onstrate to the trial court that she was entitled to a transfer because she never established that there was a “new employer” that would hire her or that any such new em ployer would consent to a possible transfer. M oreover, at the tim e of the Labor investigation Paran’s entry perm it had been expired for over three months. In summ ary, the Chief of Labor had the discretion to issue the notice of warning. The record shows that Paran’s employer com plied with Labor’s request to correct the violation. Labor’s adm inistrative action was 4 3 CMC § 4411 et seq. appropriate under the Act. The fact that Labor did not perm it a transfer is of no consequence in this deportation action.5 Paran’s argum ent that she was entitled as a matter of a due process to a stay of the deportation proceedings would be viable only if she had brought a civil action against her form er employer for dam ages resulting from the alleged assault and battery. Paran did not do this, and she cannot do so now. Labor does not have the authority to adjudicate a nonresident worker’s claim for dam ages arising from assault and battery. Labor’s enforcement power is lim ited to violations com m itted under the Act, under its rules and regulations, or under any contract or agreem ent entered pursuant to the Act. See 3 CM C § 4444(a). Under the Act, Labor may only investigate a claim of injury, including injury resulting from assault and battery. Thereafter, Labor must report the claim of injury, if it resulted in substantial mental or physical im pairm ent, to the Attorney General. See 3 CM C § 4441. It cannot adjudicate dam ages claims. Aside from the Act, the Alien Labor Rules and Regulations do not authorize Labor to award dam ages for a nonresident worker’s claim of injury based on assault and battery inflicted by an em ployer. See 10 Com . Reg. 5512 et seq. (Apr. 15, 1988). Only the Superior Court may adjudicate such a claim . See 1 CM C § 3202. No civil com plaint was ever filed by Paran for dam ages based on the alleged assault and battery, even though counsel was alerted at the tim e of the deportation proceedings by both the trial court and opposing counsel that such a com plaint could then have been filed. Transcript of Proceedings, supra, at 40:1-4; 42:16-23. Paran’s cause of action for assault and battery, which accrued on M ay 27, 1991, now appears to be barred by the two-year statute of lim itations. See 7 CM C § 2503(a). Paran’s failure to file a tim ely dam age claim in the Superior Court precludes her from making a colorable argum ent that the decision not to stay the deportation proceeding violated her right to due process. She was not litigating any claim in the Com m onwealth at the tim e of her deportation. Therefore, her due process rights were not violated. The deportation order was proper because her perm it had expired and there was no legal basis for her to rem ain in the Com m onwealth. Our holding does not mean, however, that Paran’s due process right to remain in the Comm onwealth was not im plicated. Had she filed a tim ely civil com plaint for assault and battery, a stay of the deportation proceedings m ight have been warranted. That is the principal distinction between this case and Rivera and Deala. In the latter cases, the petitioners, at the tim e of the deportation hearings, had asserted viable claim s for non-paym ent of wages. The Com m onwealth Constitution guarantees nonim m igrant aliens the right to resolve disputed claim s against their em ployers before becom ing subject to deportation. Rivera, 3 N.M .I. at 445. Here, however, Paran did not assert a viable claim . She claim s an unfounded right to transfer to another em ployer. W e hold that the trial court did not err by denying Paran’s request to stay the deportation proceedings. IV. CONCLUSION W e wish to note that we are very disturbed at Labor’s failure to prom ptly investigate Paran’s com plaint. W e are not inform ed by the governm ent as to the reason why it took Labor over a year to investigate this case. W hen Paran filed her com plaint, her entry perm it was not scheduled to expire for at least seven months. Thus, her request for a transfer to another em ployer was potentially viable and Labor, at that time, had the discretion to allow a transfer, assuming the assault and battery allegations were meritorious. Because Paran’s entry perm it had expired by the tim e Labor concluded its investigation, Labor decided, for an unidentified reason, not to permit a transfer. Because Labor’s decision to transfer is discretionary, and Paran’s entry permit had expired well before Labor’s decision was issued, the petition to deport was, therefore, appropriately filed by the Attorney General. W e AFFIRM the deportation order. 5 The appellees complain that Paran has abused the system by attempting to reopen Labor Case No. 155-91 six months after the Division of Labor issued a decision. They claim that Paran’s right to a stay was barred by the doctrine of laches. Because of our disposition of this matter, we do not address this argument.