Case 8:12-cv-01137-CBM-AJW Document 95

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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holgun (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309) Facsimile: (213) 386-9484 pschey@centerforhumanrights.org crholguin@centerforhumanrights.org Additional counsel listed next page Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION ) ) ) ) ) ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; et al., ) ) ) Defendants. ) __________________________________ ) SACV12-01137 CBM (AJWx) [CORRECTED] OPPOSITION TO EX PARTE APPLICATION TO CONTINUE HEARING ON MOTIONS FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION.

15 MARTIN R. ARANAS, et al., 16 Plaintiffs, 17 18 19 20 21 22 23 24 25 26 27 28

Hearing: None

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[Corrected] Opposition to Ex Parte Application - II Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Additional counsel for plaintiff Aranas: PUBLIC LAW CENTER Julie Greenwald (Cal. Bar No. 233714) Monica Ashiku (Cal. Bar No. 263112) 601 Civic Center Drive West Santa Ana, CA 92701 Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249) Facsimile: (714) 541-5157 jgreenwald@publiclawcenter.org mashiku@publiclawcenter.org ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan (Cal. Bar No. 271064) 184 Jackson Street, San Jose, CA 95112 Telephone: (408) 287-9710 Facsimile: (408) 287-0864 Email: bpangilinan@asianlawalliance.org Additional counsel for plaintiffs Rodriguez and DeLeon: LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin (Cal. Bar No. 41469) Reyna M. Tanner (Cal. Bar No. 197931) 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708 Telephone: 714-963-8951 Facsimile: 714-968-4948 gmanulkin@mgblaw.com reynatanner@yahoo.com ///

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By ex parte application filed November 7, 2012, defendants again ask the Court to delay hearing on plaintiffs motions for preliminary injunction and class certification. For the reasons set forth below, defendants ex parte application should be granted only with regards defendants and intervenors dispositive motions to dismiss. As established below, plaintiffs and their proposed class members are suffering extreme and irreparable harm that should be preliminarily enjoined regardless of the outcome of the Supreme Courts November 20, 2012, conference on whether to grant certiorari in other DOMA cases. The Supreme Courts action will have absolutely no impact on plaintiffs motion for a preliminary injunction. This action challenges discrimination in the conferring benefits under the Immigration and Nationality Act, 8 U.S.C. 1101, et seq., against members of lawful marriages solely because the spouses are of the same sex. Plaintiffs contend that members of marriages lawful under the law of the state of celebration are entitled to recognition as spouses under the INA regardless of their members sex or sexual orientation. Defendants do not deny that members of same-sex marriages qualify as spouses under the INA; rather, they decline to recognize them as such pursuant to 3(a) of the Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7 (DOMA), a statue defendants concede is unconstitutional. Once they have denied their immigration applications, defendants reduce the spouses of U.S. citizens to undocumented aliens, bereft even of the right to work lawfully in the United States. Plaintiffs motions for preliminary injunction (Dkt. 12) and class certification (Dkt. 13) seek to protect plaintiffs and those similarly situated
[Corrected] Opposition to Ex Parte Application -1Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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from irreparable injury pendente lite. Neither motion involves the Courts passing final judgment on DOMA 3s constitutionality. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) (A preliminary injunction is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment.). That plaintiffs and their proposed class members are experiencing irreparable injury cannot be gainsaid. Kevin Cathcart directs Lambda Legal, the largest and oldest advocate for lesbians and gays in the United States. Declaration of K. Cathcart, November 23, 2012, Exhibit 3, Dkt. 83 at 9. Plaintiffs Exhibit 3, Dkt. 83 at 9. Few, if any, are better informed regarding the impact of DOMA 3 on same-sex couples. He declares: [T]here are likely hundreds of immigrants around the country who are legally married to partners of the same sex who currently are unable to extend or secure temporary employment authorization or temporary authorized status because there is not yet a final, definitive Judicial Branch decision holding Section 3 of DOMA unconstitutional. Id. at 11. Mr. Cathcart further declares that same-sex spouses forced into such circumstances experience psychological trauma, including depression and despair, so profound as to tear apart otherwise strong and stable families, or else to compel foreign-born spouses and their U.S. citizen partners to leave the United States entirely. Id. at 13. Whether they self-deport, separate, or endure the hardships of undocumented status, these couples are clearly experiencing severe and irreparable injury, id., he concludes.
[Corrected] Opposition to Ex Parte Application -2Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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Among plaintiffs lawyers is Gary Manulkin, a certified immigration specialist with decades of practice in southern California. Declaration of G. Manulkin, November 5, 2012, Exhibit 16, Dkt. 83 at 119. Mr. Manulkin has served as an adjunct professor of law at Loyola Law School, the University of Southern California, and Southwestern University School of Law. Id. He declares: I have been forced to advise same-sex bi-national couples they are barred by [DOMA 3] from obtaining any immigration benefit for the foreign-born spouse because they are of the same sex. My clients fortunate enough to have an alternative means of immigrating are forced into lengthy waiting periods of up to 20 years. My clients without alternative means of immigrating are forced [to] choose a life of living in the shadows in unlawful status, without employment authorization, and without the hope of ever immigrating, or leaving their spouse, thereby destroying their family unit. Regardless of whether the client chooses to leave his spouse or remain the U.S. in unlawful status, both alternatives are intolerable. A person should not be forced between violating the law or destroying his/her family. Absent a preliminary injunction, my clients are left with nothing but a Hobsons choice: to break the law or destroy their family. Id. at 120-21. Gloria Curiel is a Los Angeles immigration attorney who regularly advises binational couples hoping to regularize the status of foreign-born spouses. Declaration of G. Curiel, Nov. 5, 2012, Exhibit 11, Dkt. 83 at 96. She has counseled some 100 same[Corrected] Opposition to Ex Parte Application -3Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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sex couples seeking immigration benefits for immigrant spouses. Id. She declares: The plight of same-sex couples [whose immigration applications are] denied is dire. Such couples endure substantial residual public opprobrium directed against their sexual orientation and marriages. Denied lawful immigration status, foreign-born spouses of U.S. citizens and permanent residents are then consigned to the undocumented underground, where they must live in constant fear of arrest and removal and are denied even the ability to support their families through lawful employment in the United States. Id. at 98. Todd Fernandez is a leading advocate for bi-national LGBT married couples. He works with numerous groups advocating for the equal treatment of such couples. Declaration of Todd Fernandez, Exhibit 6, Dkt. 89 at 50. As Mr. Fernandez declares, unlike similarly situated immigrants in heterosexual marriages, immigrants in same-sex marriages denied status pursuant to DOMA are told to depart the country when their applications are denied, their work permits are terminated, [and] they start to acquire unauthorized status Id. 52 (emph. added). This places enormous pressure on immigrants in same-sex marriages to self-deport, with or without their spouses. Id. Mr. Fernandez further points out that defendants leave immigrants in same-sex marriages subject to arrest and detention at any time both by federal authorities and [i]n many states such immigrants also face detention by local police agencies .... Id. Unlike immigrants in heterosexual marriages with visa applications pending, those in same-sex marriages cannot travel abroad for family emergencies or other
[Corrected] Opposition to Ex Parte Application -4Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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reasons (business, vacation, family visits, etc.) unless they are prepared to risk returning unlawfully. Id. 14. Proposed class members are afraid to travel domestically because of airport and highway immigration checkpoints. Id. Elissa Barrett an attorney who serves as Vice-President and General Counsel of Bet Tzedek Legal Services (Bet Tzedek). Declaration of Elissa Barrett, November 5, 2012, Exhibit 12, Dkt. 89 at 101. Much of Bet Tzedeks work focuses on LGBT cases. Id. 101-02. She declares that in Bet Tzedeks experience underground employers routinely violate labor, wage and safety laws engaging in wage theft, unlawful retaliation and other, more extreme abuses, such as human trafficking and physical violence, against undocumented LGBTs. Id. at 102. Ms. Barrett explains: The numerous challenges faced by LGBTQ individuals are exacerbated if they do not have lawful immigration status. Many LGBTQ people are already lowincome and trans-people struggle the most with poverty. If they cannot work or are forced to give up work because of their immigration status, they cannot afford the basic necessities of life including food, rent, and medicine. Moreover, if they decide to risk employment in the underground economy, they may be subject to the same exploitation as other immigrants, whose employers routinely violate labor, wage and safety laws. The situation may cause increased stress and stigmatization, which in turn, places additional pressure on family relationships, tests the bonds of marriage and can lead to negative health consequences.
[Corrected] Opposition to Ex Parte Application -5Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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Id. at 103. Examples of the foregoing involving individual immigrants are now before this Court. Proposed class member Martha Reyes applied for lawful status for her spouse, Holga Martinez. Declaration of Holga Martinez, Plaintiffs Supplemental Exhibits, Exhibit 18, filed herewith, at 3. On September 26, 2011, as if her sex and sexual orientation were Marks of Cain, defendants advised Ms. Reyes that her petition was denied because [b]oth you and the [visa] beneficiary are female. Plaintiffs Exhibit 13, Dkt. 89 at 106 (emphasis in original). On the same day, defendants issued a final denial of Ms. Martinezs application for lawful status because her spouses visa petition on her behalf was denied. Defendants informed her that there is no appeal to this decision. Plaintiffs Exhibit 17, Dkt. 89 at 122. Ms. Martinez, like countless others similarly situated, was also informed that her authorization to accept employment is terminated and her temporary authorized status likewise summarily terminated. Id. at 122-23. After denying plaintiff Jane DeLeons application pursuant to DOMA 3, CIS informed Jane she could no longer legally work in the United States and was accruing unlawful presence that would bar her from the United States for 10 years. Plaintiffs Exhibit 7, Dkt. 89 at 58. Defendants acknowledge that [t]he accrual of unlawful presence can lead to significant bars to admission to the United States, should Ms. DeLeon leave the country [to obtain an immigrant visa] and attempt to re-enter. Dkt. 62 at 19. Jane describes the impact defendants actions have had on her and her U.S.
[Corrected] Opposition to Ex Parte Application -6Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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citizen spouse, plaintiff Irma Rodriguez: The termination of my authorized presence has caused and continues to cause extreme hardship on our family. I have not left the U.S. out of fear that this may trigger a ten-year bar to my readmission even if DOMA is declared unconstitutional. At the same time, Irma suffers from stenosis of the left brain that causes extreme pain, disorientation, and numbness. Due to her illnesses, Irma is required to take several prescription medications. I play a significant role in caring for my spouse ... The Governments termination of my temporary status and threats regarding future inadmissibility if I fail to depart the country have caused us to suffer severe anxiety, depression, despair, sleeplessness, nightmares, and fear of arrest or family separation. This has placed a tremendous strain on our family and our relationship. Plaintiffs Supplemental Exhibit 19 at 8-9. Since enactment, DOMA 3 has likely resulted in some 8,000 foreign-born spouses of U.S. citizens just like Jane and Holga being cast into the undocumented underground solely because of their sex and sexual orientation. See Reply to Opposition to Class Certification (Dkt. 87) at 9-10 (collecting evidence of class numerosity). There should be a very good reason to again prolong so many families twisting in the wind. Defendants ex parte application offers none. First, hearing on plaintiffs motions was originally calendared for September 24, 2012, and has now been continued three times: to October 9, 2012 (Dkt. 17), next to
[Corrected] Opposition to Ex Parte Application -7Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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November 6, 2012 (Dkt. 44), and then to November 20, 2012 (Dkt. 55). This is defendants second ex parte application to continue plaintiffs motions. In their prior application (Dkt. 15), defendants complained their lawyers were too busy to respond to plaintiffs motions because one was going on vacation and another too busy with an initial document production in another case. Id. at 6-7. In their latest application (Dkt. 90), defendants speculate that the Supreme Court may grant certiorari in one or more of four casesall of which have declared DOMA 3 unconstitutional on equal protection grounds1 and that a stay of this case may be appropriate to avoid litigation of an issue that may be definitively resolved by the Supreme Court. Ex Parte Application at 2. Plaintiffs agree that a stay may be appropriate to avoid litigating dispositive motions involving issues that may be definitively resolved by the Supreme Court. But the Supreme Court clearly will not be addressing many months from now the irreparable harm addressed in the pending motion for a preliminary injunction. Whatever the Supreme Court may do in in its conference, plaintiffs have shown (1) that proposed class members are likely to prevail on both equal protection and due process challenges to DOMA 3;2 and (2) that proposed class members are enduring palpably grievous injury as a result of

Massachusetts v. U.S. Dept of HHS, 682 F.3d 1 (1st Cir. 2012); Windsor v. United States, __ F.3d __, 2012 WL 4937310 (2d Cir. Oct. 18, 2012); Golinski v. U.S. Office of Pers. Mgmt., Nos. 15-388 &15-409 (9th Cir.); and Pedersen, et al. v. Office of Pers. Mgmt., et al., Nos. 12-3273 & 12-3872 (2d Cir.).
1

See Motion for Preliminary Injunction (Dkt. 12); Opposition to Motion to Dismiss (Dkt. 58); Reply to Opposition to Motion for Preliminary Injunction (Dkt. 88); Opposition to Intervenors Motion to Dismiss (Dkt. 71).
2

[Corrected] Opposition to Ex Parte Application -8Center for Human Rights & Constitutional Law

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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defendants refusal to grant the same interim relief extended to heterosexual couples pending the Supreme Courts resolution of the constitutionality of DOMA. Defendants agree with the many courts that have held DOMA 3 violative of equal protection. There is good reason to predict the Supreme Court may agree with defendants and join the First, Second, and Ninth Circuits in disapproving DOMA 3. See, e.g., Lawrence v. Texas, 539 U.S. 558, , 574-75, 578; 123 S. Ct. 2472; 156 L. Ed. 2d 508 (2003) (government cannot demean their existence or control [gay and lesbians] destiny by penalizing them for their sexual orientation; gays and lesbians have a due process right to demand respect for conduct protected by the substantive guarantee of liberty, and are entitled to autonomy in their personal decisions relating to marriage, procreation, family relationships ).3 More importantly, a preliminary injunction protects litigants against irreparable injury pendente lite. The Supreme Courts granting certiorari would say nothing about plaintiffs case for interim protection. It would still be many months before the Court could possibly reverse the First, Second, and Ninth Circuits; in the meanwhile, plaintiffs case for a preliminary injunction remains inviolate and should be heard forthwith. Brierwood Shoe Corp. v. Sears, Roebuck & Co., 479 F. Supp. 563, 567 (S.D. N.Y. 1979) (cases involving emergencies, preliminary injunctions or other matters of

Furthermore, even were the Supreme Court to grant review, disagree with the rest of the federal judiciary, and uphold DOMA 3 on equal protection grounds, this Courts acting on plaintiffs motions would still be required: nothing the Supreme Court could say about DOMA in the equal protection cases it is being asked to review would affect plaintiffs case for a preliminary injunction on due process grounds.
3

[Corrected] Opposition to Ex Parte Application -9Center for Human Rights & Constitutional Law

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great moment are entitled to priority ).4 Defendants application is plainly inimical to the precedence rightly accorded the prompt resolution of motions for preliminary injunction. Plaintiffs have no objection and see the merit in the Court continuing the pending motions to dismiss pursuant to defendants application. However, for the reasons stated above, Defendants application as it pertains to the pending motions for provisional class certification and a preliminary injunction should be denied.5 Dated: November 8, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun /s/ Peter A. Schey ________________ /s/ Carlos R. Holgun _____________ Attorneys for Plaintiffs

The same, of course, is not true respecting defendants and intervenors pending dispositive motions to dismiss. If granted, those motions would result in a final ruling on plaintiffs equal protection claim that could very well conflict with the Supreme Courts eventual decision in other DOMA cases. It would accordingly make some sense to continue those motions pending the Supreme Courts conference, and should it grant certiorari, pending the Courts ruling.
4

Assuming the dispositive motions alone are continued for two weeks, and the Supreme Court announces it has accepted certiorari in one or more DOMA cases, it is entirely possible that at that stage the parties and the Court may find it best to stay the dispositive motions entirely until the Supreme Court rules on the constitutionality of DOMA, a ruling that may be expected by June 2013.
5

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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 9th day of November, 2012, I electronically filed the foregoing [Corrected] OPPOSITION TO EX PARTE APPLICATION TO CONTINUE HEARING ON MOTIONS FOR CLASS CERTIFICATION AND PRELIMINARY INJUNCTION with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system. Dated: November 9, 2012. /// /s/ Carlos Holguin

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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693