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8:12-cv-01137 #116

8:12-cv-01137 #116

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Published by Equality Case Files
Doc #116 - DOJ's Reply in support of its motion to stay proceedings.
Doc #116 - DOJ's Reply in support of its motion to stay proceedings.

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Categories:Types, Business/Law
Published by: Equality Case Files on Jan 15, 2013
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01/15/2013

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STUART F. DELERYPrincipal Deputy Assistant Attorney GeneralAUGUST E. FLENTJEActing Deputy Assistant Attorney GeneralDAVID J. KLINEDirector, Office of Immigration LitigationJEFFREY S. ROBINSAssistant DirectorAARON S. GOLDSMITHSenior Litigation CounselTIMOTHY M. BELSANTrial AttorneyKATHERINE E.M. GOETTEL (IA No. 23821)Trial AttorneyP.O. Box 868, Ben Franklin StationWashington, D.C. 20044Telephone: (202) 532-4115Facsimile: (202) 305-7000Email: kate.goettel@usdoj.govAttorneys for DefendantsUNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF CALIFORNIAMARTIN ARANAS, et al., ) No. 8:12-cv-1137-CBM (AJWx))Plaintiffs, )
DEFENDANTS’ REPLY TO
)
PLAINTIFFS
OPPOSITION
v. )
TO DEFENDANTS’ MOTION
 )
TO STAY PROCEEDINGS
JANET NAPOLITANO, Secretary, )Department of Homeland Security, ) Hearing: January 28, 2013
 
et al., ) Time: 11:00 a.m.Defendants. ) Hon. Consuelo B. Marshall______________________________ )
Case 8:12-cv-01137-CBM-AJW Document 116 Filed 01/14/13 Page 1 of 4 Page ID #:2397
 
 
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This action should not be resolved while the Supreme Court considers theconstitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7
(“DOMA”) in
 
United States v. Windsor 
, No. 12-307. Because the Supreme Courtgranted
certiorari
on the primary legal issue in this case
 – 
whether Section 3violates the equal protection component of the Due Process Clause
 – 
the outcomein that case likely will govern the present case. Indeed, the Supreme Courtrecently set the case for oral argument on March 27, 2013.
See
Supreme CourtOral Argument Calendar (Jan. 7, 2013),
available at 
http://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalMar2013.pdf. The
Supreme Court’s
consideration of the constitutionality of DOMA Section 3 in thecoming months, combined with the importance of the legal issue, counsels againstthis
Court’s
proceeding until the Supreme Court resolves
Windsor 
.
See generally A.L. Mechling Barge Lines, Inc. v. United States
, 368 U.S. 324, 331 (1961)
(“[S]ound discretion withholds the remedy when it appears that a challenged‘continuing practice’ is, at the moment adjudication is sought, undergoing
significant modification so that its ultimate form cannot be confidently
 predicted.”).
 In opposing
Defendants’ Motion to Stay Proceedings
, Plaintiffs argue thatthey will be irreparably injured unless the Court grants a preliminary injunctionbecause they will continue to accrue unlawful presence. Pl. Opp. at 3. ButPlaintiffs have not shown that they actually and imminently will be harmed byaccruing unlawful presence. The accrual of unlawful presence would bar Ms.
DeLeon’s admission to the United States
only if she leaves and attempts to re-enter.
See
8 U.S.C. § 1182(a)(9)(B);
 In re Lemus-Losa
, 24 I. & N. Dec. 373, 376(BIA 2007). Yet Plaintiffs have failed to allege that Ms. DeLeon or any of theother putative class members have any plans to leave the country. In particular,Plaintiffs failed to show that either the named Plaintiffs or putative class membersplan to leave in the next few months while the
Windsor 
case is pending before the
Case 8:12-cv-01137-CBM-AJW Document 116 Filed 01/14/13 Page 2 of 4 Page ID #:2398
 
 
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Supreme Court. Similarly, Plaintiffs argue that the loss of employmentauthorization constitutes irreparable harm, (Pl. Opp. at 4), but no Plaintiff allegesthat he or she is attempting to work or has been denied employment opportunities.
Rather, Plaintiffs’ opposition
offers only generalized statements regarding thecircumstances of same-sex binational couples.
See
Pl. Opp. at 6-7. Suchgeneralities do not justify interim relief in the face of an imminent Supreme Courtdecision.Last, Plaintiffs
conclusory allegations of potential psychological harm (Pl.Opp. at 3-8) do not demonstrate
“irreparable harm” because
Plaintiffs have notshown that such harm is likely.
See Winter v. Natural Res. Def. Council, Inc.
, 555U.S. 7, 22, 129 S.Ct. 365, 376 (2008) (plaintiffs seeking a preliminary injunctionmust demonstrate that irreparable injury is not just probable but likely).
Plaintiffs’
hypothetical emotional distress does not meet the
Winter 
“likelihood”
standard.Furthermore, the Supreme Court will likely determine the constitutionality of Section 3 of DOMA in the next few months, which will decide the issue before thisCourt. As a result,
Plaintiffs’ status will be resolved in the near future.
 For these reasons and those set forth in Defendan
ts’ Motion to Stay
Memorandum, (ECF No. 114)
, this Court should grant Defendants’ Motion to
Stay.
Case 8:12-cv-01137-CBM-AJW Document 116 Filed 01/14/13 Page 3 of 4 Page ID #:2399

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