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
United States v. Windsor
, No. 12-307. Because the Supreme Courtgranted
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.
Supreme CourtOral Argument Calendar (Jan. 7, 2013),
consideration of the constitutionality of DOMA Section 3 in thecoming months, combined with the importance of the legal issue, counsels againstthis
proceeding until the Supreme Court resolves
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
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.
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
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