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8:12-cv-01137 #149

8:12-cv-01137 #149

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Doc 149 - DOJ's Opposition to Plaintiffs' Motion for Summary Judgment
Doc 149 - DOJ's Opposition to Plaintiffs' Motion for Summary Judgment

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Case 8:12-cv-01137-CBM-AJW Document 149 Filed 07/29/13 Page 1 of 12 Page ID #:3436

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STUART F. DELERY Acting Assistant Attorney General AUGUST E. FLENTJE Senior Counsel for Immigration DAVID J. KLINE Director, Office of Immigration Litigation District Court Section JEFFREY S. ROBINS Assistant Director AARON S. GOLDSMITH (VSB No. 45405) Senior Litigation Counsel P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 532-4107 Facsimile: (202) 305-7000 Email: aaron.goldsmith@usdoj.gov TIMOTHY M. BELSAN Trial Attorney Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ______________________________ ) MARTIN ARANAS, et al., No. 8:12-cv-1137-CBM (AJWx) DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Hearing: Time: Judge:

August 19, 2013 10:00 a.m. Hon. Consuelo Marshall

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Since this action was commenced on July 12, 2012, the Supreme Court has held that Section 3 of the Defense of Marriage Act (“DOMA”) is unconstitutional. See United States v. Windsor, 133 S. Ct. 2675 (2013). Not only is the Executive Branch no longer applying Section 3 of DOMA, it is working expeditiously to implement the Windsor decision across the federal government. As a result, the Defendants are already providing the relief sought by Plaintiffs in this action. Specifically, the Department of Homeland Security (“DHS”) is evaluating all immigration petitions and applications, including I-485 applications for adjustment of status, without regard to Section 3 of DOMA. See http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriageact; see also In re Zeleniak, 26 I. & N. Dec. 158, 159 (B.I.A. 2013) (holding that Section 3 of DOMA is no longer an impediment to the recognition of lawful samesex marriages if the marriage is valid under the laws of the State of celebration).

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Additionally, DHS recently announced that it is reopening prior applications that were denied solely on the basis of Section 3 of DOMA, without charging a fee to applicants. See “Same-Sex Marriages – Frequently Asked Questions” (cited hereafter as “Guidance Regarding Reopening”), pp. 1-2 available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f 6d1a/?vgnextoid=2543215c310af310VgnVCM100000082ca60aRCRD&vgnextcha nnel=2543215c310af310VgnVCM100000082ca60aRCRD. If an applicant’s work authorization was denied or revoked based upon the denial of the I-485 application, the denial or revocation will be “concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary.” See id. The decision to reopen petitions and applications that were denied solely based on Section 3 of DOMA effectively remedies any accrual of unlawful presence under 8 U.S.C. § 1182(a)(9)(B)(i) resulting directly from the denial of the petition or application based solely on Section 3 of DOMA. As a result, this Court need not 2

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grant any of Plaintiffs’ motions, as the relief sought is already being provided by Defendants. Plaintiffs filed this suit primarily to obtain interim relief pending the Supreme Court’s resolution of the constitutionality of Section 3 of DOMA. That resolution has now come, and this case is therefore now moot. While this Court could enter a judgment declaring Section 3 of DOMA unconstitutional, such a ruling would serve no purpose given the Supreme Court’s decision making the same determination in a manner that is definitive and applies nationwide. Defendants therefore oppose Plaintiffs’ Motion for Summary Judgment because each of Plaintiffs’ two claims for final relief is moot. Although this Court had jurisdiction over Plaintiffs’ claims when this action was commenced, intervening developments have rendered Plaintiffs’ claims moot. Because there is no live case or controversy with respect to any form of relief in Plaintiffs’ Complaint, this

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action should be dismissed. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 109 (1998) (vacating judgment because litigant alleged only past statutory infractions and not a continuing violation or the likelihood of a future violation). First, this Court need not declare Section 3 of DOMA unconstitutional because the Supreme Court has already done so. See Windsor, 133 S. Ct. 2675 (2013). Indeed, given that determination, this case is now moot. Second, the claim for injunctive relief to bar enforcement of Section 3 of DOMA is also moot, because the Executive Branch is no longer applying it, consistent with the Supreme Court’s holding. See Zeleniak, 26 I. & N. Dec. at 159. Moreover, in light of the Windsor decision and the actions taken by the Executive Branch to implement that decision, there is no reasonable expectation that the Executive Branch will ever apply this statutory provision in the future. Further, as we explain in responding to Plaintiffs’ request for new preliminary injunctive 3

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relief, this Court lacks jurisdiction over a claim for a preliminary injunction regarding Section 3 of DOMA because the Supreme Court has already decided the merits of Plaintiffs’ claim that Section 3 of DOMA is unconstitutional. Plaintiffs cannot be entitled to interim relief because there is no longer any interim. Accordingly, because all of Plaintiffs’ claims for relief are moot, this Court should deny Plaintiffs’ Motion for Summary Judgment and dismiss this case. Legal Standards “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969); see also Native Vill. of Point Hope v. Salazar, 680 F.3d 1123, 1131 (9th Cir. 2012) (“The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.”) (quotations and citations omitted). This is because Article III, Section 2, of of the Constitution extends the “judicial Power” of the United States only to live “Cases” and “Controversies.” Steel Co., 523 U.S. at 94, 101-02 (“Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”) (citations and quotations omitted). The case or controversy requirement found in Article III must be met throughout “all stages of the litigation.” See Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29 (9th Cir. 2005) (sua sponte dismissing appeal as moot even though both parties opposed dismissal); see also Walker v. S.F. United Sch. Dist., 46 F.3d 1449, 1463 (9th Cir. 1995) (reversing district court, which found claim was not moot unless defendants were willing to stipulate to an injunction, because voluntary cessation renders a case moot when it is absolutely clear that that the alleged wrong behavior could not “reasonably be expected to recur”) (citations and quotations omitted). The case or controversy requirement is “not relaxed in the declaratory judgment context.” See Gator.com, 398 F.3d at 1129. 4

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In order to state a claim upon which relief can be granted, a complaint must contain “a demand for the relief sought.” Fed. R. Civ. P. 8(a)(3). The demand for relief in the complaint sets the basic contours of the case. See generally, Schneiderman v. United States, 320 U.S. 118, 160 (1943) (“Because [this issue is] outside the scope of the complaint, we do not consider [it].”); Li v. Kerry, 710 F.3d 995, 1001 n.6 (9th Cir. 2013) (declining to consider an issue raised for the first time in an appellate brief that did not appear in the complaint). Accordingly, a litigant is not permitted to use a motion for preliminary injunction to seek a form of relief that is outside the scope of the issues raised in the complaint. See generally De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945) (finding that the preliminary injunction at issue was not of the “same character” as the final relief sought and dealt “with a matter wholly outside the issues in the suit”); Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997) (“A district court should not issue an injunction when the injunction in question is not of the same character, and deals with a matter lying wholly outside the issues in the suit.”). Argument 1. All of the claims for relief sought in Plaintiffs’ Complaint are now moot. In their Complaint, Plaintiffs sought two forms of relief on final judgment. 1 Both claims for relief were prospective; Plaintiffs did not seek to redress past

Plaintiffs also sought class certification, interim relief, and attorney’s fees. With respect to the request for interim relief, that request was denied, and we address Plaintiffs’ motion for reconsideration in our opposition, filed concurrently herewith. In any event, this Court need not consider the request for preliminary relief given the instant request for summary judgment and entry of a permanent injunction. This Court granted class certification on April 19, 2013. See Dkt. 1, p. 29, ¶ 2; Dkt. 127. No request for attorney’s fees under the Equal Access to Justice Act (“EAJA”), see Dkt. 1, p. 30, ¶ 7, is pending at this time. 5

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harms or injuries.2 Importantly, both claims are now moot in light of recent, intervening developments. First, Plaintiffs sought a declaratory judgment that the application of Section 3 of DOMA in the context of immigration is “unlawful.” Dkt. 1, p. 29, ¶ 3. On June 26, 2013, the Supreme Court held that Section 3 of DOMA is unconstitutional, and that ruling is the law of the land. See United States v. Windsor, 133 S. Ct. 2675 (2013). As a result, Plaintiffs’ claim for a declaratory judgment is moot. See Gator.com Corp., 398 F.3d at 1129, 1131 (finding claim for declaratory judgment moot and dismissing sua sponte). Second, Plaintiffs sought a permanent injunction enjoining Defendants from denying immigration benefits “solely because the lawfully married U.S. citizens and immigrant beneficiaries are of the same sex.” Dkt. 1, pp. 29-30, ¶ 5. That claim is also moot because the Executive Branch is no longer applying Section 3 of DOMA and the Department of Homeland Security (“DHS”) is no longer denying immigration benefits solely because the beneficiary is in a same-sex marriage. See http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriageact; see also Zeleniak, 26 I. & N. Dec. at 159. Indeed, DHS has recently gone one step further and announced that it will reopen, without charging a fee, petitions or applications that were denied solely because of Section 3 of DOMA in the past. See Guidance Regarding Reopening, pp. 1-2. In light of these developments, there can be no expectation, let alone a reasonable expectation, that Defendants will deny immigration benefits “solely because the lawfully married U.S. citizens and immigrant beneficiaries are of the To be clear, there are individuals in same-sex marriages who have filed actions in other federal district courts seeking retrospective relief with respect to denials of immigration benefits based on Section 3 of DOMA. This Court has previously provided notice to the plaintiffs in one such action, Blesch v. Holder, No. 12-cv1578 (E.D.N.Y.), which was filed before this action was commenced. See Dkt. 111. 6
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same sex.” Dkt. 1, pp. 29-30, ¶ 5; see also Walker, 46 F.3d at 1463. As a result, Plaintiffs’ claim for permanent injunctive relief is moot. See, e.g., Steel Co., 523 U.S. at 109 (holding claims for injunctive relief moot). Because the Supreme Court has held Section 3 of DOMA to be unconstitutional, and because the Executive Branch is no longer enforcing Section 3 and instead is affirmatively providing relief to individuals previously denied benefits by its application, the Court cannot provide Plaintiffs with any effective relief. Accordingly, there is no longer a live case or controversy before the Court and under Federal Rule of Civil Procedure 12(b)(1), the Court must dismiss the Complaint for lack of subject matter jurisdiction. 2. Even if Plaintiffs had sought retrospective relief in their Complaint, such a claim would also be moot in light of DHS’s decision to reopen petitions and applications previously denied based on Section 3 of DOMA. Plaintiffs’ Complaint only sought prospective relief, and such claims are moot for the reasons provided above. But even if Plaintiffs had sought retrospective relief, that claim would also be moot because DHS has put into place a process by which it will remedy the prior harms wrought on class members by the application of Section 3 of DOMA. Specifically, DHS recently announced that it will reopen petitions or applications, in particular I-130 petitions, which were denied solely because of Section 3 of DOMA. See Guidance Regarding Reopening, p. 1. Once an I-130 petition is reopened, it will be considered anew, without regard to Section 3 of DOMA, based upon the information previously submitted and any new information provided. Id. DHS will also “concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications).” Id. Additionally, if an applicant’s work authorization was denied or revoked based upon the denial of 7

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the I-485, the denial or revocation will be “concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary.” Id. “If a decision cannot be rendered immediately on a reopened I-485, USCIS [a subagency of DHS] will either (1) immediately process any pending application for employment authorization, or (2) reopen and approve any previously denied or revoked application for employment authorization.” Id. As set forth below, because of DHS’s recently announced procedure for reopening prior denials based on Section 3 of DOMA, there is no need for judicial intervention with respect to either (i) employment authorization, or (ii) the accrual of unlawful presence, the two issues which Plaintiffs have sought to address through a preliminary injunction.3 (i) Employment Authorization

An alien may file an application for employment authorization concurrently
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with, or after the submission of, an I-485 application for adjustment of status (which, among other situations, typically accompanies an I-130 petition). See 8 C.F.R. § 274a.12. Work authorization allows an alien to lawfully work in the United States while his or her I-485 is pending with DHS. As indicated above, if an applicant’s work authorization was denied or revoked based upon the denial of the I-485, “the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary.” See Guidance Regarding Reopening, p. 1. Moreover, DHS has announced that if a decision cannot be rendered immediately on a reopened adjustment of status Specifically, Plaintiffs’ pending Motion to Modify Stay and Issue Class-Wide Preliminary Injunction seeks an injunction: (i) vacating the denials of Plaintiffs’ employment authorization and “granting such applications pending reopening,” and (ii) restraining Defendants from deeming class members’ presence in the United States unauthorized for purposes of 8 U.S.C. § 1182(a)(9)(B) pending reopening and adjudication of their applications and petitions. See Dkt. 132, p. 3. 8
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application, DHS will either “(1) immediately process any pending application for employment authorization or (2) reopen and approve any previously denied or revoked application for employment authorization.” See id. Thus, applicants will promptly receive employment authorization without the need of a court order. Since this new policy for issuing work authorization in previously denied cases was issued just last week, to the extent that the Court wishes to retain jurisdiction over this case, the government can provide the Court a status report on its implementation prior to this Court’s hearing scheduled for August 19, 2013. (ii) Accrual of Unlawful Presence Under 8 U.S.C. § 1182(a)(9)(B)(i) Section 1182(a)(9)(B)(i) potentially4 renders inadmissible for either three or ten years certain aliens who have accrued more than 180 days of “unlawful presence” in the United States and subsequently depart from the United States. See 8 U.S.C. § 1182(a)(9)(B)(i); see In re Rodarte-Roman, 23 I. & N. Dec. 905, 906

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(B.I.A. 2006) (bar on re-entry is not triggered until alien departs). The filing of an I-130 has no effect on the accrual of unlawful presence; instead, it is the existence of a pending I-485 adjustment of status application that halts the accrual of unlawful presence. Under long-standing DHS policy, no alien, regardless of his or her actual immigration status, accrues unlawful presence while he or she has pending a properly filed I-485 application adjustment of status. U.S. Citizenship and Immigration Services Interoffice Memorandum, dated May 6, 2009, from Donald Neufeld to Field Leadership (hereafter cited as “Neufeld Memorandum”) p. 3, available at DHS has the discretion to waive these bars on re-entry under certain circumstances. See 8 U.S.C. § 1182(a)(9)(B)(v); see also 8 C.F.R. § 212.7(a), (e). In addition, although a motion to reopen or reconsider the denial by an alien would not normally stop the accrual of unlawful presence, U.S. Citizenship and Immigration Services “[may] direct[] otherwise.” See 8 C.F.R. § 103.5(a)(1)(iv). 9
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http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/rev ision_redesign_AFM.PDF. If a motion to reopen is granted, the proceeding, by definition, is reopened. See 8 U.S.C. § 103.5(a)(4) (“Where a motion to reopen is granted, the proceeding shall be reopened.”). Thus, once DHS reopens an I-485 application, the I-485 application will be deemed to be pending. In turn, that person, because the I-485 application is pending, is protected from accrual of unlawful presence from the original date the I-485 application was properly filed until there is a final decision denying it. Neufeld Memorandum, p. 34. Thus, reopening an I-485 application will, in effect, “erase” any unlawful presence that may have accrued between the date of the original denial and the date of reopening. If DHS grants an alien’s I-485 application for adjustment of status, the applicant, of course, will be an alien lawfully admitted for permanent residence, and the unlawful presence bars no longer apply. See 8 U.S.C. § 1182(a)(9)(B)(i)

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(excluding from its scope “an alien lawfully admitted for permanent residence”). And even if DHS again denies the Form I-485, unlawful presence will begin to accrue only once the denial becomes final. Neufeld Memorandum, p. 34. In particular, if the applicant is able to renew the application in immigration court, the applicant will continue to be protected against accrual of unlawful presence until there is a final administrative decision denying the I-485 application. Id. Neufeld Memorandum, p. 3. DHS has thus addressed the issues of work authorization and the accrual of unlawful presence. Accordingly Plaintiffs now have both the relief requested in the complaint, as well as additional remedies to address applications previously denied based on Section 3 of DOMA. The case is, accordingly, moot. See Native Vill. of Point Hope, 680 F.3d at 1131.

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Conclusion This lawsuit has been resolved, favorably to the Plaintiffs, by the Supreme Court ruling in Windsor. Each of two forms of final relief Plaintiffs sought in their Complaint has been addressed, rendering this case moot. And even if Plaintiffs had stated a claim for retrospective relief in their Complaint – which they did not – such a claim would also be moot given DHS’s decision to reopen petitions and applications previously denied solely based on Section 3 of DOMA and to grant work authorization to such applicants. Moreover, as indicated above, DHS’s decision to reopen prior denials effectively remedies any accrual of unlawful presence under 8 U.S.C. § 1182(a)(9)(B)(i) resulting directly from the denial of the petition or application based solely on Section 3 of DOMA. WHEREFORE, Defendants respectfully request that this Court deny Plaintiffs’ Motion for Summary Judgment and dismiss this action as moot.

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Dated: July 29, 2013

Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General AUGUST E. FLENTJE Senior Counsel for Immigration DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director s/ Aaron S. Goldsmith AARON S. GOLDSMITH Senior Litigation Counsel District Court Section Office of Immigration Litigation 11

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P.O. Box 868, Ben Franklin Station Washington, DC 20044 Attorneys for Defendants

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USCIS - Same-Sex Marriages Page 1 of 2 Case 8:12-cv-01137-CBM-AJW Document 149-1 Filed 07/29/13 Page 1 of 2 Page ID #:3448
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Home > Family > Same-Sex Marriages

Same-Sex Marriages
Statement from Secretary of Homeland Security Janet Napolitano on July 1, 2013: “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Frequently Asked Questions
Petitioning for my Spouse Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa? A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same -sex nature of your marriage. Q2. I am a U.S. citizen who is engaged to be married to a foreign national of the same sex. Can I file a fiancé or fiancée petition for him or her? A2. Yes. You may file a Form I-129F. As long as all other immigration requirements are met, a same-sex engagement may allow your fiancé to enter the United States for marriage. Q3: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse? A3: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward. Applying for Benefits New Applications and Petitions: Q4. Do I have to wait until USCIS issues new regulations, guidance or forms to apply for benefits based upon the Supreme Court decision in Windsor? A4. No. You may apply right away for benefits for which you believe you are eligible. Previously Submitted Applications and Petitions: Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do? A5. USCIS will reopen those petitions or applications that were denied solely because of DOMA section 3. If such a case is known to us or brought to our attention, USCIS will reconsider its prior decision, as well as reopen associated applications to the extent they were also denied as a result of the denial of the Form I-130 (such as concurrently filed Forms I-485). USCIS will make a concerted effort to identify denials of I-130 petitions that occurred on the basis of DOMA section 3 after February 23, 2011. USCIS will also make a concerted effort to notify you (the petitioner), at your last known address, of the reopening and request updated information in support of your petition. To alert USCIS of an I-130 petition that you believe falls within this category, USCIS recommends that you send an e-mail from an account that can receive replies to USCIS at USCIS-626@uscis.dhs.gov stating that you have a pending petition. USCIS will reply to that message with follow-up questions as necessary to update your petition for processing. (DHS has sought to keep track of DOMA denials that occurred after the President determined not to defend Section 3 of DOMA on February 23, 2011, although to ensure that DHS is aware of your denial, please feel free to alert USCIS if you believe your application falls within this category.) For denials of I-130 petitions that occurred prior to February 23, 2011, you must notify USCIS by March 31, 2014, in order for USCIS to act on its own to reopen your I-130 petition. Please notify USCIS by sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov and noting that you believe that your petition was denied on the basis of DOMA section 3. Once your I-130 petition is reopened, it will be considered anew—without regard to DOMA section 3—based upon the information previously submitted and any new information provided. USCIS will also concurrently reopen associated applications as may be necessary to the extent they also were denied as a result of the denial of the I-130 petition (such as concurrently filed Form I-485 applications). Additionally, if your work authorization was denied or revoked based upon the denial of the Form I485, the denial or revocation will be concurrently reconsidered, and a new Employment Authorization Document issued, to the extent necessary. If a decision cannot be rendered immediately on a reopened adjustment of status application, USCIS will either (1) immediately process any pending or denied application for employment authorization or (2) reopen and approve any previously revoked application for employment authorization. If USCIS has already obtained the applicant’s biometric information at an Application Support Center (ASC), a new Employment Authorization Document (EAD) will be produced and delivered without any further action by the applicant. In cases where USCIS has not yet obtained the required biometric information, the applicant will be scheduled for an ASC appointment. If another type of petition or application (other than an I-130 petition or associated application) was denied based solely upon DOMA section 3, please notify USCIS by March 31, 2014, by

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?v...

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sending an e-mail to USCIS at USCIS-626@uscis.dhs.gov as directed above. USCIS will promptly consider whether reopening of that petition or application is appropriate under the law and the circumstances presented. No fee will be required to request USCIS to consider reopening your petition or application pursuant to this procedure. In the alternative to this procedure, you may file a new petition or application to the extent provided by law and according to the form instructions including payment of applicable fees as directed. Changes in Eligibility Based on Same-Sex Marriage Q6. What about immigration benefits other than for immediate relatives, family-preference immigrants, and fiancés or fiancées? In cases where the immigration laws condition the benefit on the existence of a “marriage” or on one’s status as a “spouse,” will same-sex marriages qualify as marriages for purposes of these benefits? A6. Yes. Under the U.S. immigration laws, eligibility for a wide range of benefits depends on the meanings of the terms “marriage” or “spouse.” Examples include (but are not limited to) an alien who seeks to qualify as a spouse accompanying or following to join a family-sponsored immigrant, an employment-based immigrant, certain subcategories of nonimmigrants, or an alien who has been granted refugee status or asylum. In all of these cases, a same-sex marriage will be treated exactly the same as an opposite-sex marriage. Q7. If I am seeking admission under a program that requires me to be a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident, could a same-sex marriage affect my eligibility? A7. There are some situations in which either the individual’s own marriage, or that of his or her parents, can affect whether the individual will qualify as a “child,” a “son or daughter,” a “parent,” or a “brother or sister” of a U.S. citizen or of a lawful permanent resident. In these cases, samesex marriages will be treated exactly the same as opposite-sex marriages. Residency Requirements Q8. Can same-sex marriages, like opposite-sex marriages, reduce the residence period required for naturalization? A8. Yes. As a general matter, naturalization requires five years of residence in the United States following admission as a lawful permanent resident. But, according to the immigration laws, naturalization is available after a required residence period of three years, if during that three year period you have been living in “marital union” with a U.S. citizen “spouse” and your spouse has been a United States citizen. For this purpose, same-sex marriages will be treated exactly the same as opposite-sex marriages. Inadmissibility Waivers Q9. I know that the immigration laws allow discretionary waivers of certain inadmissibility grounds under certain circumstances. For some of those waivers, the person has to be the “spouse” or other family member of a U.S. citizen or of a lawful permanent resident. In cases where the required family relationship depends on whether the individual or the individual’s parents meet the definition of “spouse,” will same-sex marriages count for that purpose? A9.Yes. Whenever the immigration laws condition eligibility for a waiver on the existence of a “marriage” or status as a “spouse,” same-sex marriages will be treated exactly the same as opposite-sex marriages.

Last updated: 07/26/2013

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