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

) ) ) ) ) ) ) ) Plaintiffs, ) ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; ) DEPARTMENT OF HOMELAND SECURITY; ) ALEJANDRO MAYORKAS, Director, United ) ) States Citizenship and Immigration ) ) Services; and ) UNITED STATES CITIZENSHIP & ) ) IMMIGRATION SERVICES, ) ) Defendants. ) __________________________________ ) MARTIN R. ARANAS, IRMA RODRIGUEZ, AND JANE DELEON,

No: SACV12-1137 CMB-AJW DISCOVERY MATTER NOTICE OF MOTION AND JOINT STIPULATION RE DISCOVERY DISPUTES. (LOCAL RULE 37)

Hearing: Nov. 19, 2012 Time: 10:00 a.m. Hon. ANDREW J. WISTRICH, U.S. MAGISTRATE JUDGE

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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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To defendants and their counsel of record: PLEASE TAKE NOTICE that on November 19, 2012, at 10:00 a.m., or as soon thereafter as counsel may be heard, plaintiffs will and do hereby move the Court for an Order compelling defendants to appear in response to Plaintiffs’ September 10, 2012, Notice of Rule 36(b)(6) Depositions and to respond to Plaintiffs’ September 24, 2012, Requests for Admissions, Production of Documents, and Interrogatories. This motion is based upon the complaint on file in this action, the accompanying STIPULATION RE DISCOVERY DISPUTES (LOCAL RULE 37-1) and exhibits, and upon all other matters of record herein. Dated: October 16, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguín PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Peter A. Schey________________ /s/ Carlos R. Holguín _____________ Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE No. SACV12-1137 JVS (MLGx) I hereby certify that on this 17th day of October 2012, I electronically filed the foregoing NOTICE OF MOTION AND STIPULATION RE DISCOVERY DISPUTES 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 Court’s CM/ECF system.

/s/ Peter Schey Dated: October 16, 2012. ///

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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW PETER A. SCHEY CARLOS R. HOLGUIN 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holguin ext. 309) Facsimile: (213) 386-9484 pschey@centerforhumanrights.org crholguin@centerforhumanrights.org Attorneys for plaintiffs Additional attorneys listed following pages UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

12 Martin R. ARANAS, Irma RODRIGUEZ, and 13 Jane DELEON, 14 Plaintiffs, 15 16 v. 17 18 19 20 21 22 23 24 26 27 28
Stipulation pursuant to LR 35-7

Case No: 12-cv-01137-CMBAJW STIPULATION RE DISCOVERY DISPUTES (LOCAL RULE 37-1)

Janet NAPOLITANO, Secretary of the Department of Homeland Security; Alejandro MAYORKAS, Director, United States Citizenship & Immigration Services; UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES; and DEPARTMENT OF HOMELAND SECURITY,

Hearing: Nov. 19, 2012 10 am

Defendants. 25 ________________________________ ///

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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 ///

Stipulation pursuant to LR 35-7

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STUART F. DELERY Acting Assistant Attorney General, Civil Division AUGUST FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director JESI J. CARLSON Senior Litigation Counsel TIMOTHY M. BELSAN (KS 24112) Trial Attorney P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 532-4596 Facsimile: (202) 305-7000 Email: timothy.m.belsan@usdoj.gov Attorneys for Defendants

Stipulation pursuant to LR 35-7

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TABLE OF CONTENTS 1. 2. 3.   4.   Good faith effort to eliminate disputes............................................................................1   Moving parties’ letter .........................................................................................................1   Discovery requests and defendants’ response................................................................1   Parties’ position...................................................................................................................2   (a) Plaintiffs’ position .........................................................................................................2   (b) Defendants’ position.....................................................................................................7   I.   Introduction.......................................................................................................7   II.   Procedural History..........................................................................................8   III.   Argument ........................................................................................................12   IV.   Conclusion ......................................................................................................20  

Stipulation pursuant to LR 35-7

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Stipulation pursuant to LR 35-7

This Stipulation is made pursuant to Local Rule 35-7. 1. GOOD FAITH EFFORT TO ELIMINATE DISPUTES The parties have met and conferred telephonically rather than in person because defendants counsel are located in Washington DC and plaintiffs’ counsel in Los Angeles. They have conferred in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. 2. MOVING PARTIES’ LETTER The moving party’s letter, attached as Exhibit 1, identifies the issue in dispute, states briefly with respect to the issue the moving parties’ position (and provides legal authority which the moving party believes is dispositive of the dispute as to that issue), and specifies the terms of the discovery order to be sought. 3. DISCOVERY REQUESTS AND DEFENDANTS’ RESPONSE

(a) Plaintiffs’ September 10, 2012, Notice of Rule 36(b)(6) Depositions is attached as Exhibit 2. (b) Defendants’ correspondence dated September 24, 2012, declining to appear for deposition pursuant to plaintiffs’ notice of deposition upon oral examination of September 10, 2012, is attached as Exhibit 3. (c) Plaintiffs’ September 24, 2012, Requests for Admissions, Production

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of Documents, and Interrogatories is attached as Exhibit 4.1 4. PARTIES’ POSITION2 (a) Plaintiffs’ position In summary, plaintiffs contend that discovery is immediately appropriate with respect to the factual claims defendants make in opposing plaintiffs' motions for preliminary injunction and class certification, including arguments regarding whether proposed class members will suffer irreparable injury in the absence of preliminary injunctive relief and whether common questions of law pertain to a sufficient number of similarly situated individuals as to make joinder impracticable. Defendants’ Opposition to Plaintiffs’ Motion for Class Certification is attached as Exhibit 5; Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction is attached as Exhibit 6. While not intended to be an exhaustive list of all claims made by defendants or disputed issues presented in plaintiffs’ pending motions for class certification and a preliminary injunction, the following are examples of why responses to the requested discovery are important:

1 Each separate request is not included in this stipulation because the parties’ dispute does not involve responses to particular requests for discovery but rather an objection to any discovery because defendants believe this is an APA case in which discovery is not required. 2 Counsel for Defendant-Intervenor the Bipartisan Legal Advisory Group of the United States House of Representatives advised counsel for plaintiffs and defendants by email dated October 11, 2012, that “[t]his one [the instant discovery dispute] does not concern the House. Accordingly, we will not be submitting anything for inclusion in your proposed stipulation …”
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1. In their opposition to plaintiffs’ motion for class certification, defendants’ argue that the Court should “refuse to certify Plaintiffs’ proposed class because the definition is not limited in geographic scope. Although there is no per se prohibition against the certification of a nationwide class, the Supreme Court has made clear that nationwide class actions are disfavored …” Ex. 5 at 7.3 Plaintiffs seek discovery on the number of people denied immigration benefits under DOMA and any instructions issued to defendants’ officers which, we assume, will disclose whether there are geographical differences in the manner in which defendants handle DOMA cases. Much if not all of the discovery sought would obviously help the district court determine the appropriateness of class certification, and perhaps also help in refining or modifying the proposed class definition. 2. Defendants also argue in opposition to class certification that commonality cannot be established “where there is wide factual variation requiring individual adjudications of each class member’s claims.” Ex. 5 at 10, citing Nguyen Da Yen v. Kissinger, 70 F.R.D. 663-64 (N.D. Cal. 1976) (“[d]issimilarities within the proposed class are what have the potential to impede the generation of common answers”). Plaintiffs discovery requests seek information only in defendants’ possession about whether plaintiffs’ or

3 Defendants also argue that “the district court must conduct a rigorous analysis to determine that the requirements of Rule 23 have been met.” Id. at 9. Plaintiffs agree. Defendants’ point makes clear the importance of defendants providing responses to plaintiffs’ limited discovery requests.
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proposed class members’ petitions or applications have been denied under DOMA for different reasons or because of unique facts in each case, or whether such applications and petitions have been denied simply because DOMA prohibits any federal benefit based upon a same sex marriage, regardless of any other individual facts involved. 3. Defendants repeatedly argue in various ways that plaintiff DeLeon’s claims are not “typical” of the claims of the proposed class and “plaintiffs have not identified even one other proposed class member who has suffered the same injury …” See, e.g., Ex. 5 at 13. Obviously defendants are in the best position to know how many immigrants’ waiver applications they have denied based on DOMA. Responses to plaintiffs’ discovery requests would make clear how “unique” or “common” the DeLeon case is. 4. Regarding adequacy of representation and typicality, defendants argue that plaintiff DeLeon’s case involves the denial under DOMA of her application for a waiver of inadmissibility (based upon her marriage), versus other proposed class members whose applications for visas (based upon their marriages) have been denied under DOMA. See, e.g., Ex. 5 at 14-15 (“Ms. DeLeon’s interests are notably different from other potential class members”). The discovery sought would disclose what only defendants now know: Is their any functional or substantive difference in the standards applied or procedures followed when defendants deny a family-based application for waiver under DOMA and a family-based visa petition under DOMA.
Stipulation pursuant to LR 35-7

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5. Defendants argue that the facts before the court fail to establish “numerosity” required for class certification. Ex. 5 at 15-18. Defendants hopefully have assessed and know how many applications and petitions they have denied under DOMA and this information is obviously relevant to the court’s determination of the numerosity requirement for class certification. 6. In their opposition to plaintiffs’ motion for a preliminary injunction, defendants concede that “[t]he denial of Ms. DeLeon’s I-601 application for a waiver of inadmissibility – and, in turn, her loss of work authorization – was based on Section 3 of DOMA. As a result of that denial, she cannot legally work in the United States and is now accruing unlawful presence in the United States.” Ex. 6, Defendants’ Opposition to Preliminary Injunction, at 19. Defendants also argue that “[t]he effect of USCIS’s denial of Ms. DeLeon’s I-601 waiver would be ended by an order by this Court ultimately declaring DOMA to be unconstitutional.” Id. Plaintiffs discovery seeks information on how defendants could, if at all, retroactively erase illegal employment and unauthorized presence (caused by defendants failure to provide temporary status pending a ruling on DOMA’s constitutionality) to prevent application of statutory bars under the INA from being triggered precisely because of plaintiff’s forced unauthorized employment and unauthorized presence even if the Supreme Court eventually agrees with plaintiffs and defendants that DOMA is unconstitutional.
Stipulation pursuant to LR 35-7

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7. Defendants argue that “Plaintiffs have offered no evidence at all that there are putative class members who face irreparable harm here.” Ex. 6 at 22. Plaintiffs have provided “no evidence that there are putative class members … who have lost work authorization based upon DOMA.” Id. Again, by responding to plaintiffs’ discovery requests the parties, their counsel, and the court would far better understand how many putative class members in fact face irreparable harm or “have lost work authorization based upon DOMA.” 8. Finally, plaintiffs disagree with defendants’ contention that classwide judicial review of the constitutionality of DOMA § 3 is limited to the administrative record compiled in plaintiff DeLeon's individual case. Plaintiffs have a clear right to sue directly under the Constitution and independently of the APA to enjoin defendants from violating her and putative class members’ constitutional rights, and have done so. Porter v. Califano, 592 F.2d 770, 781 (5th Cir. 1979); see also, e.g., Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993) (district court jurisdiction over non-APA claims of immigrants denied benefits under the INA); McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991) (jurisdiction over non-APA constitutional and statutory challenge to decisions under INA § 210 Special Agricultural Worker program not limited to administrative record); Smith v. Schlesinger, 513 F.2d 462, 473 (D.C. Cir. 1975) (where “action in the District Court encompasses … an attack on …
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constitutionality of the procedures … judicial review must of necessity consider more than the formal administrative record.”); ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 185 (1999) (discovery appropriate even were review generally limited to administrative record “in cases where relief is at issue, especially at the preliminary injunction stage.”) Discovery in the instant action should accordingly proceed and defendants ordered to promptly respond to the outstanding discovery requests prior to the scheduled hearing on plaintiffs’ motions for class certification and class-wide preliminary injunctive relief scheduled for November 20, 2012. (b) Defendants’ position I. INTRODUCTION This Court should deny Plaintiffs’ request for an order compelling Defendants to engage in discovery at this point in the litigation. Defendants and BLAG have motions to dismiss pending before this Court, which could result in a resolution of the entire case and the resolution of which does not turn on any contested factual matter. Although Plaintiffs contend that discovery is necessary for the resolution of their motions for class certification and for a preliminary injunction, this Court can decide both motions without discovery. Moreover, Plaintiffs’ purported urgent need

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for discovery prior to the November 20, 2012 hearing4 is a product of their decision to wait until this late date, six weeks prior to the hearing, to seek discovery under the Federal Rules of Civil Procedure.5 The compressed schedule that Plaintiffs seek would result in extreme prejudice to Defendants. Accordingly, this Court should stay any discovery until it has ruled on the motions to dismiss. II. PROCEDURAL HISTORY Plaintiffs filed this action on July 14, 2012. Dkt. No. 1. That same day, Plaintiffs sent to Defendants a draft motion for a preliminary injunction. See Dkt. No. 16 at 5. On August 23, 2012, Plaintiffs filed motions for class certification and for a preliminary injunction. Dkt. Nos. 12, 13. Despite having long anticipated and prepared for the filing of those motions, Plaintiffs did not at that time seek discovery to support their motions or an order from this Court permitting expedited or early discovery. On August 27, 2012, this Court granted Defendants’ ex parte application, continuing the hearing on Plaintiffs’ motions to October 9, 2012, and ordering Defendants’ responses due September 14, 2012. Dkt. No. 17.

On October 12, 2012, the Court moved the previous November 6, 2012 hearing date for all four pending motions to November 20, 2012. See Dkt. No. 55. Defendants have adjusted their briefing accordingly.
4

While Defendants attempted to seek discovery in September, they were not permitted to do so under the Federal Rules of Civil Procedure without a stipulation or a Court order at that time. As discussed more fully in the body of this brief, Plaintiffs did not attempt to seek such an order to allow discovery prior to the Rule 26(f) conference.
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Stipulation pursuant to LR 35-7

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On September 10, 2012, four days before Defendants’ responses to Plaintiffs’ motions were due, Plaintiffs e-mailed a Notice of Rule 30(b)(6) Depositions to counsel for Defendants. See Exhibit 2. The next day, Defendants informed Plaintiffs by e-mail that they opposed “engaging in discovery prior to the October 9, 2012 hearing date.” See E-mail from T. Belsan to P. Schey (Sept. 11, 2012, 17:31 EST) (attached hereto as Exhibit 8). Defendants further stated that “the case should be resolved based upon the record of the agency under the APA” and that discovery was “improper at this stage of the litigation.” Id. On September 14, 2012, Defendants filed their oppositions to Plaintiffs’ motions for class certification and for a preliminary injunction. Dkt. Nos. 35, 39. On September 24, 2012, Defendants sent a letter to Plaintiffs’ counsel explaining their position regarding Plaintiffs’ deposition notice in further detail. See Exhibit 3. Defendants noted that the parties had not yet conferred as required by Federal Rule of Civil Procedure 26(f), and that, under Rule 26(d)(1), Plaintiffs could not seek discovery without a stipulation or court order. Id. Defendants made clear that they did not stipulate to early discovery. Id. In addition, Defendants informed Plaintiffs that “because this is an APA case, discovery is unwarranted at any phase of the litigation.” Id. The next day, Plaintiffs e-mailed to counsel for Defendants written discovery including requests for admission, production of documents, and interrogatories. See Exhibit 4. Plaintiffs did not, however, seek a court order allowing expedited discovery.

Stipulation pursuant to LR 35-7

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On September 27, 2012, counsel for Defendants reiterated to counsel for Plaintiffs by telephone Defendants’ position that because the parties had not yet conferred pursuant to Rule 26(f) and Plaintiffs had not obtained a court order, any discovery they had served was premature. Despite Defendants’ position that discovery was premature, Counsel also informed Plaintiffs that Defendants were amenable to scheduling a Rule 26(f) conference to comply with the Federal Rules of Civil Procedure and to further discuss the issues. Notwithstanding that conversation, on September 28, 2012, Plaintiffs’ counsel sent to Defendants’ counsel a Proposed Stipulation Regarding Discovery Dispute, pursuant to Local Rule 37-1. In an accompanying letter, Plaintiffs “request[ed] to confer with defendants in a good faith effort to eliminate or narrow the parties’ dispute regarding discovery and to finalize a joint stipulation pursuant to Local Rule 37-2.” Letter from P. Schey to J. Carlson (Sept. 28, 2012) (attached hereto as Exhibit 1). Plaintiffs also noted the parties agreed position that “under Rule 30(a)(2), plaintiffs may seek leave to conduct early discovery.” Id. Plaintiffs did not, however, seek a court order allowing expedited discovery at that time. On October 2, 2012, Defendants informed Plaintiffs via letter that because the parties had still not conferred under Rule 26(f) and Plaintiffs had not obtained a court order, both discovery and a motion to compel remained inappropriate. Letter from J. Carlson to P. Schey (Oct. 2, 2012) (attached hereto as Exhibit 7). Defendants, however, suggested the parties schedule a prompt Rule 26(f) conference to thoroughly discuss discovery-related issues, and proposed dates and times for such a
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conference that week. Id. Defendants also suggested that BLAG be included. On October 3, 2012, Plaintiffs sent a revised Proposed Stipulation Regarding Discovery Dispute to Defendants. On October 5, 2012, Plaintiffs, Defendants, and BLAG engaged in an initial Rule 26(f) conference via telephone and discussed all issues required pursuant to the Local Rules and Federal Rules of Civil Procedure. During that conference, Defendants indicated their position that any discovery should be stayed pending the Court’s resolution of the motions to dismiss pending before it.6 Following the Rule 26(f) conference, Plaintiffs re-served Defendants with the prior written discovery, including requests for admission, production of documents, and interrogatories. However, Plaintiffs re-served Defendants with the prior deposition notice for October 4, 2012 depositions, a date which had already passed.7 To date, Plaintiffs have not served a deposition notice dated any time after the Rule 26(f) conference.8

Defendants indicated that because they believe discovery to be improper at this time, a subsequent Rule 26(f) Conference may be necessary at a later date to revisit some of the items of discussion.
6

While Defendants believe discovery should be stayed in its entirety, to the extent any deadline currently applies to Plaintiffs’ written discovery requests, Defendants construe such written responses/objections to be due no earlier than November 5, 2012 (thirty days after Plaintiffs reserved the requests and the 26(f) conference took place).
7

Because there is no deposition notice pending at this time, Defendants ensuing argument addresses primarily Plaintiffs’ written discovery. The arguments, however, apply equally to both types of discovery.
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III. ARGUMENT A. Any Discovery Should Be Stayed Until this Court Has Ruled on the Pending Motions to Dismiss. Any discovery in this case should be stayed until this Court has ruled on the two pending motions to dismiss. As the Ninth Circuit has noted, a stay of discovery is warranted pending resolution of a potentially dispositive motion – such as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or (b)(6) – when the motion to dismiss does not rely on contested factual issues. See Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (“Discovery is only appropriate where there are factual issues raised by a Rule 12(b) motion.”); see also Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (“[D]iscovery is appropriate where there are factual issues raised by the motion.”); Doherty v. Wireless Broad. Sys., 151 F.3d 1129, 1131 (9th Cir. 1998) (affirming lower court decision reducing EAJA fee award on the basis that party did not need to undertake discovery because the issue in the case was a “purely legal question”); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (finding no right to discovery following motion to dismiss that raised purely legal questions). When dispositive motions are pending, a stay “furthers the goal of efficiency for the court and litigants.” Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (holding that on the facts presented, “discovery could not have affected” the district court’s preliminary decision regarding issues of immunity).

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“In considering whether a stay of all discovery pending the outcome of a dispositive motion is warranted, a case-by-case analysis is required.” Skellerup Indus. Ltd. v. City of Los Angeles, 163 F.R.D. 598, 601 (C.D. Cal. 1995) (quotations and alterations omitted). Factors the Court should consider include: “[T]he type of motion and whether it is a challenge as a ‘matter of law’ or the ‘sufficiency’ of the allegations; the nature and complexity of the action; whether counterclaims and/or cross-claims have been interposed; whether some or all of the defendants join in the request for a stay; the posture or stage of the litigation; the expected extent of discovery in light of the number of parties and complexity of the issues in the case; and any other relevant circumstances.” Id. A stay is warranted in this case. First, there are two pending motions to dismiss: BLAG’s motion to dismiss, Dkt. Nos. 36-379, and Defendants’ Partial Motion to Dismiss, Dkt. No. 46. BLAG’s motion contends that all three named Plaintiffs lack standing and therefore the Court lacks subject matter jurisdiction over all of Plaintiffs’ claims. Dkt. No. 37 at 19-20. BLAG’s motion also contends that Plaintiffs’ equal protection and substantive due process claims fail to state a claim upon which relief can be granted. Id. at 21-53. Defendants’ motion asserts that Plaintiffs Aranas and Rodriguez lack standing and that Plaintiffs’ substantive due

On October 12, 2012, this Court ordered BLAG to file, on or before October 22, 2012, a Memorandum of Points and Authorities in Support of its Motion to Dismiss that is no more than thirty pages in length. Dkt. No. 55. Although the Court has rejected BLAG’s prior filings, all of BLAG’s proposed filings have raised the same substantive arguments as BLAG’s original filing. See Dkt. No. 50 at 3. Accordingly, Defendants’ citations are to BLAG’s original filing. See Dkt. Nos. 36-37.
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process and statutory discrimination claims must be dismissed. See Dkt. No. 46 at 1. Thus, the pending motions are potentially dispositive of the entire case. Moreover, neither motion relies on contested factual issues: Both of the pending motions raise purely legal challenges to Plaintiffs’ standing and claims. Thus, the Court can rule on the pending, potentially dispositive motions absent discovery. See, e.g., McCarthy v. Hawkins, 381 F.3d 407, 420-21 (5th Cir. 2004) (“The constitutionality of these statutes is a purely legal question that can be resolved without the aid of either discovery or trial.”). Accordingly, in the interest of judicial economy and preservation of government resources, Defendants ask this Court to stay all discovery in this case until it has ruled on the pending motions to dismiss.10 B. No Discovery Is Proper at this Time. 1. No Discovery Is Needed Concerning the Merits of Plaintiffs’ Claims. Plaintiffs have not at this time sought, nor are they entitled to, discovery concerning the merits of their challenges to Defendants’ denial of Plaintiff DeLeon’s

Although this case involves a motion for class certification and a motion for a preliminary injunction, it is technically an action challenging agency action under the Administrative Procedure Act (APA). See Complaint, Dkt. No. 1 at 4. In such cases, discovery is typically precluded, even when constitutional issues are raised, as long as the Court is only faced with resolving issues of law. Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985) (stating that when reviewing a final agency action “there are no disputed facts that the district court must resolve” because the “court is not required to resolve any facts in a review of an administrative proceeding”). Defendants do not challenge Plaintiffs’ ability to “cite to extra-record evidence” in support of their motion for preliminary injunction, see ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 185 (1999), but rather oppose engaging in discovery. Additionally, the cases upon which Plaintiffs rely are factually distinguishable from the case at hand. See, e.g., McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991) (challenge to manner in which Special Agricultural Workers (SAW) provisions were administered); Smith v. Schlesinger, 513 F.2d 462, 473 (D.C. Cir.
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I-601 waiver application. Plaintiffs have made clear that they seek discovery only with regard to the issues presented in the motions for class certification and preliminary injunction. See supra p.2 (“[P]laintiffs contend that discovery is immediately appropriate with respect to the factual claims defendants make in opposing plaintiffs’ motions for preliminary injunction and class certification . . .”); see also Exhibit 1 (same). Indeed, the merits of Plaintiffs’ claims – i.e., that Section 3 of DOMA is unconstitutional – are questions of law for which there are no issues of fact to be elicited through discovery. See United States v. Lujan, 504 F.3d 1003, 1006 (9th Cir. 2007) (“[T]he constitutionality of a federal statute [is] a question of law that we review de novo.”); see also McCarthy, 381 F.3d 407, 420-21 (5th Cir. 2004) (“The constitutionality of these statutes is a purely legal question that can be resolved without the aid of either discovery or trial.”). Accordingly, no discovery is appropriate with regard to the merits of Plaintiffs’ claims. 2. No Discovery Is Needed Regarding the Issuance of a Preliminary Injunction. Likewise, whether Plaintiffs have suffered irreparable harm is at this point a legal question. Although Plaintiffs allege the existence of contested factual issues concerning irreparable harm to class members, see supra p.7, 10-11, Defendants did not challenge any of Plaintiffs’ factual allegations but rather accepted them as true for purposes of the opposition. See Dkt. No. 39 at 2 n.1 (“Defendants rely on the facts as alleged in the Complaint for purposes of this opposition.”). Indeed, all of

1975) (challenge to “the authorization and constitutionality of the procedures whereby [the
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Defendants’ arguments concerning the lack of irreparable harm are based on legal rather than factual assertions. For example, when discussing Plaintiffs’ alleged harm of arrest and removal due to their being out of status, Defendants simply point to the statutes and regulations that govern the removal process, including the regulations allowing aliens ordered removed to seek relief from removal. Dkt. No. 39 at 20-21. Defendants likewise point to the Morton Policy memos which describe ICE’s prioritization of immigrants for removal in order to demonstrate that Plaintiffs are not within the list of such priorities. Id. at 23. These arguments as well as all of Defendants’ other arguments against irreparable harm raise only legal, not factual, issues. The issues that Plaintiffs point to as examples of why discovery is needed with regard to the preliminary injunction either: (1) pertain more to issues of class certification than irreparable harm, see supra p.11 (“Again, by responding to plaintiffs’ discovery requests the parties, their counsel, and the [C]ourt would far better understand how many putative class members in fact face irreparable harm or ‘have lost work authorization based upon DOMA.’” (emphasis added)); or (2) seek hypothetical, prospective information regarding what Defendants might do if DOMA is ruled unconstitutional, information that is both anticipatory and protected from disclosure under the deliberative process privilege (and other applicable privileges), see supra p.10 (“Plaintiffs discovery seeks information on how defendants could, if at all, retroactively erase illegal employment and unauthorized presence . . . even if

plaintiff’s] clearance was denied”). Stipulation pursuant to LR 35-7

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the Supreme Court eventually agrees with defendants that DOMA is unconstitutional.”). Accordingly, Plaintiffs have not shown any need for discovery to respond to Defendants’ opposition to their motion for preliminary injunction. 3. No Discovery Is Warranted Regarding Class Certification Prior to the November 20, 2012 Hearing. As with the merits and the motion for a preliminary injunction, Defendants contend that Plaintiffs are not entitled to discovery prior to the November 20, 2012 hearing. The Supreme Court has stated that “discovery, like all matters of procedure, has ultimate and necessary boundaries.” Hickman v. Taylor, 329 U.S. 495 (1947). Under Rule 26(c), a “court may, for good cause, issue an order to protect a party or person from . . . undue burden or expense.” Fed. R. Civ. P. 26(c); see also Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004) (“After a showing of good cause, the district court may issue any protective order . . . ‘to protect a party or person from . . . undue burden or expense,’ including any order prohibiting the requested discovery altogether . . .”). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). Defendants note that Plaintiffs did not initially believe discovery was necessary for the resolution of their motion for class certification. Plaintiffs’ belief is evident from their decision not to seek a court order commencing expedited discovery, a procedure contemplated by the federal rules prior to filing their motion
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for class certification. See Fed. R. Civ. P. 26(d)(1) and 30(a)(2). Rather, Plaintiffs decided to file their class motion and notice it for the earliest possible hearing, September 24, 2012—approximately one month after filing. Indeed, Plaintiffs opposed Defendants’ request to move the hearing date to allow more time for briefing, further exhibiting their belief that the Court could rule on their motions quickly, without the aid of discovery. Defendants agree with Plaintiffs’ earlier position that discovery is not necessary for the Court to resolve Plaintiffs’ motion for class certification. Moreover, any benefit Plaintiffs might obtain from discovery is vastly outweighed by the substantial burden on Defendants. Plaintiffs are seeking (1) nationwide, class-wide discovery (2) on an extremely compressed timetable. See supra at 7-8, 12. Either of these aspects alone might justify the issuance a protective order due to undue burden or expense, but the combination is simply beyond comprehension. In essence, Plaintiffs ask this Court to deprive Defendants of their opportunity to raise legitimate objections as permitted under the Federal Rules of Civil Procedure, or to at least condense Defendants’ time frame for doing so, and to require extremely large government agencies to collect and produce nationwide, class-wide data, all within the next six weeks.11

Plaintiffs’ requested relief is not entirely clear. At times, it appears that they are asking this Court to order Defendants to follow the timeline laid out in the Federal Rules of Civil Procedure for responding to proper discovery requests. See supra p.8 n.2 (“Defendants’ point makes clear the importance of defendants providing response to plaintiffs’ limited discovery requests.”). Yet, in other places, it appears Plaintiffs seek not just responses, which would include all applicable objections to such discovery, but the actual production of documents and substantive responses
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Plaintiffs’ purported urgent need for such discovery is belied by their decision to wait until now to properly seek discovery. Indeed, as previously noted, Plaintiffs could have sought an order from this Court permitting expedited discovery with regard to class certification. They did not choose to do so. Plaintiffs have known they would be seeking class certification for at least three months and have been repeatedly reminded by Defendants of the proper procedural steps for seeking such discovery. Now, six weeks before the hearing, Plaintiffs seek an order compelling the production of nationwide, class-wide discovery prior to November 20, 2012. Such an accelerated schedule would result in extreme prejudice to Defendants, depriving them of their right under the Federal Rules of Civil Procedure to respond within 30 days to properly served discovery requests, and in particular their right to raise objections and assert all privileges against such discovery. See, e.g., Fed. R. Civ. P. 34(b)(2)(A). Any urgency Plaintiffs’ face is a product of their decision to wait until this late date, six weeks prior to the hearing, to seek discovery under the Federal Rules of Civil Procedure. Plaintiffs’ self-created urgency should not result in such extreme prejudice to Defendants. Furthermore, Plaintiffs fail to point to anything about Defendants’ opposition to the motion for class certification that they found so unexpected such as to

without regard to the validity of any objections. See supra p.12 (“Discovery . . . should accordingly proceed and defendants ordered to respond to the outstanding discovery requests prior to the scheduled hearing on plaintiffs’ motions . . . scheduled for November 6, 2012.”). Because Plaintiffs’ have no need for this motion if they are only seeking to obtain responses as anticipated under the federal rules, Defendants assume Plaintiffs must be seeking the latter, extraordinary relief. Plaintiffs seek this relief before Defendants are even required to respond to the requests under the federal rules, which is an attempt to significantly truncate the appropriate process.
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suddenly apprise them of the need for discovery. Defendants’ opposition, like most oppositions to class certification, challenged Plaintiffs’ class definition and challenged whether Plaintiffs had made the showing required by Federal Rule of Civil Procedure 23(a). Surely these arguments were to be expected, as was Plaintiffs’ purported need for discovery related to these issues. Indeed, Plaintiffs sent their Rule 30(b)(6) deposition notice, albeit improperly, before Defendants responded to their motions. Accordingly, this Court should refuse to compel discovery at this time. Indeed, as Defendants have noted above, this Court should stay all discovery until it has ruled on the pending motions to dismiss, which may obviate the need for any discovery at all. IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court stay any discovery in this case until it has ruled on the two pending motions to dismiss.

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submitted by: Dated: October 17, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguín /s/ Peter A. Schey Attorneys for Plaintiffs Dated: October 17, 2012 STUART F. DELERY Acting Assistant Attorney General Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director JESI J. CARLSON Senior Litigation Counsel TIMOTHY M. BELSAN Trial Attorney District Court Section Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 /s/ Jesi Carlson /s/ Timothy Belsan Attorneys for Defendants

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INDEX TO EXHIBITS
Exhibit 1 Exhibit 2 Exhibit 3 Plaintiffs meet and confer letter Plaintiffs’ September 10, 2012, Notice of Rule 36(b)(6) Depositions Defendants’ correspondence dated September 24, 2012, declining to appear for deposition Exhibit 4 Plaintiffs’ September 24, 2012, Requests for Admissions, Production of Documents, and Interrogatories Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8 Defendants’ Opposition to Plaintiffs’ Motion for Class Certification Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction Letter from J. Carlson to P. Schey (Oct. 2, 2012) E-mail from T. Belsan to P. Schey (Sept. 11, 2012, 17:31 EST)

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PROOF OF SERVICE BY MAIL

No. SACV12-1137 CMB-AJW) I hereby certify that on this 17th day of October, 2012, I electronically filed the foregoing by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Court’s CM/ECF system.

/s/ Peter Schey Dated: October 17, 2012

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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW
Foundation
256 S. OCCIDENTAL BOULEVARD LOS ANGELES, CA 90057 Telephone: (213) 388-8693 Facsimile: (213) 386-9484

September 28, 2012 Jesi J. Carlson, Esq. Timothy M. Belsan, Esq. United States Department of Justice, Civil Division Office of Immigration Litigation, District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 Via e-mail, telecopier, and first class mail. Re: Martin Aranas, et al., v. Napolitano, et al., No. CV 06-02816-PHX-RCBl.

Dear Counsel: We are in receipt of defendants’ correspondence dated September 24, 2012, declining to appear for deposition pursuant to plaintiffs’ notice of deposition upon oral examination of September 10, 2012. Although we assume defendants’ position as set out in your letter will pertain as well to plaintiffs’ interrogatories, requests for production of documents, and requests for admissions served September 25, 2012, in accordance with Local Rule 37-1, we nevertheless request to confer with defendants in a good faith effort to eliminate or narrow the parties' dispute regarding discovery and to finalize a joint stipulation pursuant to Local Rule 37-2, a proposed Stipulation is attached. As we discussed at length on the telephone yesterday, plaintiffs believe that the responses to the discovery sought are relevant and admissible, and would be important for the court to have when deciding the pending motions for class certification and a preliminary injunction. Only defendants possess the requested information. In summary, plaintiffs contend that discovery is immediately appropriate with respect to the factual claims defendants make in opposing plaintiffs' motions for preliminary injunction and class certification, including those regarding whether proposed class members will suffer irreparable injury in the absence of preliminary injunctive relief and whether common questions of law pertain to a sufficient number of similarly situated individuals as to make joinder impracticable. Defendants acknowledge that under Rule 30(a)(2), plaintiffs may seek leave to conduct early discovery. Plaintiffs contend that factual issues defendants’ oppositions raise constitute good cause for the court’s granting such leave. Plaintiffs encourage defendants to cooperate with early discovery so as to eliminate the necessity for the presentation and adjudication of a formal discovery motion.

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Jesi J. Carlson Timothy M. Belsan September 28, 2012 Page 2 of 2

Plaintiffs also disagree with defendants’ contention that class-wide judicial review of the constitutionality of DOMA § 3 is limited to the administrative record compiled in plaintiff DeLeon's individual case. Plaintiffs have a clear right to sue directly under the Constitution and independently of the APA to enjoin defendants from violating her and putative class members’ constitutional rights. Porter v. Califano, 592 F.2d 770, 781 (5th Cir. 1979); see also, e.g., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991) (constitutional challenge to decisions under INA § 210 Special Agricultural Worker program not limited to administrative record); Smith v. Schlesinger, 513 F.2d 462, 473 (D.C. Cir. 1975) (where “action in the District Court encompasses … an attack on … constitutionality of the procedures … judicial review must of necessity consider more than the formal administrative record.”); ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 185 (1999) (discovery appropriate even were review generally limited to administrative record “in cases where relief is at issue, especially at the preliminary injunction stage.”). Discovery in the instant action should accordingly proceed in accordance with the Federal Rules of Civil Procedure. Unless the parties can resolve their dispute, plaintiffs will seek an Order compelling responses to all outstanding discovery requests. Again, we encourage defendants to recede from the contrary position set out in their letter of September 24, 2012. As we discussed on the telephone yesterday, plaintiffs’ counsel remain available to confer at defendants’ counsels’ earliest convenience, and hope you will agree to meet and confer on Monday October 1, 2012 or Tuesday October 2, 2012. Please advise as soon as possible. Thank you,

Peter A. Schey, Esq. Executive Director Attachment cc:

Carlos Holguín, Esq. General Counsel

Kerry W. Kircher, General Counsel (w/ attach) William Pittard, Deputy General Counsel (w/ attach) Office of General Counsel, U.S. House of Representatives

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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holguín (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holguín 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 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) SACV12-01137 CBM (AJWx) NOTICE OF FED. R. CIV. P. 30(B)(6) DEPOSITION OF DEFENDANTS DEPARTMENT OF HOMELAND SECURITY AND UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

15 MARTIN R. ARANAS, 16 IRMA RODRIGUEZ, AND JANE DELEON, 17 18 19 20 -vs21 JANET NAPOLITANO, Secretary of the 22 Department of Homeland Security; DEPARTMENT OF HOMELAND 23 SECURITY; ALEJANDRO MAYORKAS, 24 Director, United States Citizenship and Immigration Services; and 25 UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, 26 27 28 Defendants. __________________________________ Plaintiffs,

Hearing: None

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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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TO: ALL PARTIES OF RECORD AND THEIR ATTORNEYS YOU ARE HEREBY NOTIFIED that, pursuant to Rules 26 and 30(b)(6), Federal Rules of Civil Procedure, the deposition of the Rule 30(b)(6) witnesses identified below will be taken upon oral examination at the time and place stated before an officer authorized by law to administer oaths. Pursuant to Rule 30(b)(6), you are requested to designate officers, directors, or managing agents, or other persons who consent to testify on your behalf, who are most knowledgeable with respect to each of the topics identified in Exhibit A to testify about such matters. TO BE EXAMINED: BEFORE WHOM APPEARANCE TO BE MADE: 30(b)(6) Representative(s) of the Department of Homeland Security Notary Public/Court Reporter

DATE AND TIME OF DHS DEPOSITION: Thursday, October 4, 2012 at 9:00 a.m. DATE AND TIME OF CIS DEPOSITION: Thursday, October 4, 2012 at 1:00 p.m. PLACE OF DEPOSITION: Law Office of Jim Tom Haynes

1555 Connecticut Ave., NW, Suite 200 Washington, DC 20036
These depositions shall be recorded by stenographic means. The oral examinations will continue from day-to-day thereafter on successive business days until completed.

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EXHIBIT A – TOPICS FOR EXAMINATION 1. The Rule 30(b)(6) designee’s relationship with defendants, including his or her employment history, current position, and responsibilities. 2. The allegations in paragraphs 14-68 of Plaintiffs’ Complaint for Declaratory and Injunctive Relief filed July 12, 2012. 3. The manner in which defendants have tracked the cases regarding petitions or applications for benefits under the INA involving same sex married couples. 4. The standards, procedures, guidelines and/or instructions issued or followed by defendants regarding the processing of applications or petitions under the INA involving same sex married couples or their children. 5. The standards, procedures, guidelines and/or instructions issued or followed by defendants regarding granting immigrants temporary work permits and/or deferred action status in cases involving petitions or applications under the INA filed by persons in same sex marriages pending a definitive court verdict on the constitutionality of DOMA. 6. The standards, procedures, guidelines and/or instructions issued or followed by defendants regarding notifying immigrants seeking benefits under the INA in same sex ///

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marriages about seeking or obtaining temporary work permits and/or deferred action status pending a definitive court verdict on the constitutionality of DOMA.

Dated: September 10, 2012.

CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguín PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner

Peter A. Schey Attorneys for Plaintiffs

CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 10th day of September, 2012, I served the foregoing on defendants’ counsel via email and overnight delivery as follows: Carlson, Jesi J. (CIV) <Jesi.J.Carlson@usdoj.gov> David (CIV) Kline <David.Kline@usdoj.gov> Belsan, Timothy M. (CIV) <Timothy.M.Belsan@usdoj.gov> Bill Orrick <Bill.Orrick@usdoj.gov> Jesi J. Carlson David Kline Timothy Belsan,
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Bill Orrick Office of Immigration Litigation Civil Division, U.S. Department of Justice Liberty Square Building 450 5th Street, N.W., Room LL111B (mail intake room) Washington, DC 20001

Dated: September 10, 2012 ///

Peter Schey

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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holguín (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holguín 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 ) ) ) ) ) Plaintiffs, ) ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; et ) ) al., ) ) ) Defendants. ) __________________________________ SACV12-01137 CBM (AJWx) PLAINTIFFS’ FIRST SET OF INTERROGATORIES, REQUESTS
FOR ADMISSIONS, AND

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

REQUESTS FOR PRODUCTION OF DOCUMENTS.

Requests for Admissions 1-21; Requests for Documents 1-15; Interrogatories 1-21.

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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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Plaintiffs request that defendants USCIS and DHS, by authorized officers or agents thereof, within 30 days or such other time as may be fixed by the Court, respond to the following requests for admissions, requests for production of documents, and interrogatories in accordance with Rules 33, 34, and 36 of the Federal Rules of Civil Procedure. I DEFINITIONS AND INSTRUCTIONS 1. When asked to produce a document, provide an admission or answer an interrogatory, the request pertains to information in the possession of the Department of Homeland Security (DHS), its subordinate agencies, including U.S. Citizenship and Immigration Services (CIS), past or present officers, employees, agents, consultants and contractors of the same. 2. If you object to the production of a portion of a document, but not the entire document, produce that portion of the document to which no objection is made and indicate your objection on the document or an accompanying document (referring to the portion produced by page number[s]). 3. If you object to providing a response to any portion of an interrogatory, but not the entire interrogatory, please respond to that portion of the interrogatory to which no objection is made and indicate in your response that you object to the remaining portion of the interrogatory. 4. Please set forth fully the factual and legal basis for each objection you make. If your objection relates to a document, please state (unless you
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believe this information is also privileged or objectionable) the date of the document, name of the author, if known, the agency or entity which generated the document, the recipient(s) of the document, the number of pages, the general subject matter of the document, any reference numbers on the document, and the identity of the present custodian of the document. If you believe the limited information sought in this paragraph is also privileged or objectionable, please explain fully the basis for your position. 5. If you object to any discovery request herein on the ground that it is too broad or burdensome, please respond to the request the extent you deem it not overly broad or burdensome. Please note your objection and provide a description of the quantity of the balance of the information not produced or responded to and explain why you believe that production of these documents or a response would be unduly burdensome. 6. These requests are continuing in nature and any documents or other information which you discover subsequent to the service of your responses should be brought to the attention of plaintiffs through supplemental responses. 7. In responding to requests, please ensure that each response may be linked to the request to which it responds. Please number the pages of all documents that you produce sequentially. In response to each request please separately state which documents respond to the request with reference to the document and its page number(s). Please do not answer a request for
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production of documents by simply stating the documents sought are provided in response to another request. Instead, specifically state the title(s) of the particular document(s) and page numbers as they appear in your responses. Plaintiffs will seek an order compelling appropriate management of your responses unless you make a good faith effort to comply with this instruction. As used herein — 1. The words “you” or “your” include the DHS, its subordinate agencies, including CIS, and the past and present officers, employees and agents of the DHS and/or CIS. 2. The term “document” means any written, recorded, taped or graphic matter, as well as information in electronic form, including all nonidentical copies and drafts thereof. “Document” specifically includes “electronically stored information” as that term is used in the Federal Rules of Civil Procedure, and any and all computer disks or other computer readable media, and any information from any e-mail system. 3. When used with respect to a place or office, the term “identify” means to provide the name of the place or office, its street and mailing addresses, its telephone number, and the identity of its officer-in-charge. When used with respect to a person, the term “identify” means to provide the person’s full name, job description or title (other than for immigrants), and last known U.S. mailing and street addresses and telephone number(s).
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Plaintiffs’ counsel will not make public any personnel information about third persons, including their names or addresses, and will enter into an appropriate stipulation protecting such information from unauthorized disclosure. If you nevertheless refuse to provide third parties’ names, please assign them each a number and provide that number in your response in place of their names. When used with respect to a document, the term “identify” means to (1) identify the custodian of the document, and (2) state the page number(s) of the document if produced by you for inspection and copying, or, if not produced, identify the author(s) of the document, and state the date of the document, number of pages, and its subject. When used with respect to a filing system, the term “identify” means (1) provide the name of the filing system, (2) identify the custodian of the filing system, (3) identify the location of the filing system, and (4) state whether, and if so where, an index to the filing system exists. 11. The term “present” (e.g., from January 2006 to the present) means the date on which you respond to these discovery requests. 12. The term “bi-national same-sex couple” (BNSSC) refers to two persons of the same sex, one of whom is a U.S. citizen or lawful permanent resident alien, and the other of whom is a foreign national, who are lawfully married pursuant to the laws of the jurisdiction in which their marriage was celebrated.

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13. The term “immigration benefit[s]” refers to any authorization, status, permission, waiver, or exercise of discretion pursuant to the Immigration and Nationality Act, 8 U.S.C. §§ 1101, et seq. (INA). II REQUESTS FOR ADMISSIONS 1. Admit that CIS has advised BNSSCs whose applications or petitions for immigration benefits it has denied pursuant to § 3 of the Defense of Marriage Act, 1 U.S.C. § 7 (DOMA), that the authorization of the alien spouse to accept employment is terminated pursuant to 8CFR274a.14(a)(1). 2. Admit that has advised BNSSCs whose applications or petitions for immigration benefits it has denied pursuant to DOMA § 3 that the foreign national spouse’s parole into the United States is terminated. 3. Admit that CIS has advised BNSSCs whose applications or petitions for immigration benefits it has denied pursuant to DOMA § 3 that the foreign national spouse is thereafter accruing ‘unlawful presence’ and that any alien over 18 years old who is illegally in the United States after April 1, 1997, and who accrues six months or more ‘unlawful presence’ will be prohibited from being admitted to the United States should that person depart this country and seek readmission within three years, and that any such foreign national spouse who is illegally in the United States for over one year after April 1, 1997, departs the United States, and seeks readmission within ten years, that person will be prohibited entry.

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4. Admit that you are aware of no records showing that when advising a member of a BNSSC whose application or petition for immigration benefits you have denied in writing pursuant to DOMA § 3, you have advised the member of the BNSSC that you or the Administration believe DOMA is unconstitutional or that the foreign born spouse may be granted any temporary authorized status and employment authorization pending a definitive ruling by the courts on the constitutionality of DOMA. 5. Admit that you are aware of no records showing that when advising a member of a BNSSC whose application or petition for immigration benefits you have denied in writing pursuant to DOMA § 3 you have advised the member of the BNSSC of any procedures that person may follow to retain or obtain temporary employment authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA. 6. Admit that you have not issued any written instructions or directives to USCIS or USICE officers directing them to advise members of BNSSCs whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA § 3 about any procedures such persons may follow to retain or obtain temporary employment authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA.

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7. Admit that you have not issued any written instructions or directives to USCIS or USICE officers instructing them to advise members of BNSSCs whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA § 3 about any procedures such persons may follow to retain or obtain temporary employment authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA. 8. Admit that you have not issued any written instructions or directives to USCIS or USICE officers instructing them to grant members of BNSSCs, whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA § 3, temporary employment authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA. 9. Aside from the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, admit that you have not made available to the public on your web site, in the Code of Federal Regulations, or in any other way readily available to members of BNSSCs or their counsel, the procedures and standards to be applied when you decide whether to grant or deny a member of a BNSSC temporary authorized status and employment authorization. 10. Admit that you are not aware of any BNSSCs or their counsel being notified about procedures available under the Memoranda from John
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Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, when members of BNSSCs or their counsel have been advised by you in writing that an application or petition for an immigration benefit cannot be approved or must be denied because of DOMA § 3. 11. Admit that plaintiff Jane DeLeon may be eligible for a waiver of inadmissibility were it not for DOMA § 3. 12. Admit that plaintiff Jane DeLeon is prima facie eligible for lawful permanent residence were she granted a waiver of inadmissibility. 13. Admit that plaintiff Martin Aranas is prima facie eligible for lawful permanent residence as a derivative beneficiary of plaintiff Jane DeLeon were plaintiff DeLeon’s application for adjustment of status granted. 14. Admit that CIS does not know how many applications and petitions for immigration benefits filed by members of BNSSCs it has denied pursuant to DOMA § 3. 15. Admit that you have not kept track of the number of foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3 who have departed the United States after receiving denial letters from you telling them their employment authorization and lawful status is terminated and they are acquiring unlawful presence towards the three and ten-year bars. 16. Admit that you have not kept track of the number of cases in which you have terminated employment authorizations of foreign nationals when
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you denied their applications or petitions for immigration benefits pursuant to DOMA § 3. 17. Admit that you do not know in how many cases you have terminated employment authorizations of foreign nationals when you denied their applications or petitions for immigration benefits pursuant to DOMA § 3. 18. Admit that you have issued no instructions or directives requiring your officers to inform members of BNSSCs denied temporary authorized presence or work authorization because their application or petition for an immigration benefit was denied pursuant to DOMA § 3 how to seek administrative review of the termination of any previously approved parole status or temporary authorized status and employment authorization. 19. Admit that you are not aware of the number of foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3 who qualify or do not qualify for an immigration benefit independently of their marriages. 20. Admit that foreign nationals working without authorization are more likely to be exploited on the job and to suffer violations of labor and health and safety laws. 21. Admit that the number of members of BNSSCs denied immigration benefits pursuant to DOMA § 3 is in the hundreds.

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III

REQUESTS FOR PRODUCTION OF DOCUMENTS 1. Please produce for inspection and copying all documents discussing

or referencing CIS’s policy, practice, or procedures for adjudicating applications or petitions for immigration benefits filed by members of BNSSCs. 2. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CIS’s policy, practice, or procedures for exercising prosecutorial discretion towards foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3. 3. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing how your officers should advise members of BNSSCs denied immigration benefits pursuant to DOMA § 3 or their counsel about CIS’s policy, practice, or procedures for exercising prosecutorial discretion towards foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3. 4. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CIS’s policy, practice, or procedures for granting or denying employment authorization to
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foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3. 5. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing how your officers should advise members of BNSSCs denied immigration benefits pursuant to DOMA § 3 or their counsel about CIS’s policy, practice, or procedures for granting or denying employment authorization to foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3. 6. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CIS’s policy, practice, or procedures for granting or denying temporary authorized status of any sort for national members of BNSSCs denied immigration benefits pursuant to DOMA § 3. 7. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing how your officers should advise members of BNSSCs denied immigration benefits pursuant to DOMA § 3 or their counsel about CIS’s policy, practice, or procedures for granting or denying temporary authorized status of any sort
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for national members of BNSSCs denied immigration benefits pursuant to DOMA § 3.5. Please produce for inspection and copying all statistical reports reflecting adjudications of applications or petitions for immigration benefits filed by members of BNSSCs. 8. Please produce for inspection and copying all reports, including statistical reports, reflecting the exercise of prosecutorial discretion pursuant to the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011 in cases of foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3. 9. Please produce for inspection and copying all reports, including statistical reports, reflecting the granting or denial of employment authorization to foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3. 10. Please produce for inspection and copying all reports, including statistical reports, reflecting the granting or denial of temporary authorized status of any sort in cases of foreign national members of BNSSCs denied immigration benefits pursuant to DOMA § 3. 11. Please produce for inspection and copying all press releases, public statements, and other documents advising members of BNSSCs denied immigration benefits pursuant to DOMA § 3 of their options to remain lawfully in the United States.

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12. Please produce for inspection and copying the most recent documents you possess describing the categories of aliens granted deferred action status (e.g. U visa applicants, VAWA applicants, etc.) and the numbers granted deferred action status. 13. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CIS’s policy, practice, or procedures for granting or denying employment authorization to foreign national beneficiaries of visa petitions filed by their U.S. citizen spouses and who have pending applications for adjustment of status. 14. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CIS’s policy, practice, or procedures for granting or denying deferred action status to foreign national beneficiaries of visa petitions filed by their U.S. citizen spouses and who have pending applications for adjustment of status. 15. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CIS’s policy, practice, or procedures for granting or denying temporary authorized status (other than deferred action status) for foreign national beneficiaries of visa

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petitions filed by their U.S. citizen spouses and who have pending applications for adjustment of status. IV INTERROGATORIES 1. To the extent that you deny any of the foregoing requests for admissions, please explain the factual basis for your denial. 2. Please state why when informing members of BNSSCs that their applications or benefits under the INA have been denied because of DOMA § 3 you do not also advise such persons that the Administration believes DOMA is unconstitutional and that the foreign national member of the BNSSC may be granted temporary authorized status and employment authorization pending a definitive court ruling on the constitutionality of DOMA. 3. If DOMA is declared unconstitutional by the U.S. Supreme Court, explain on what basis you may retroactively grant employment authorization to foreign nationals in BNSSCs who worked for longer than six months without authorization after you terminated their employment authorization or refused to grant them work authorization when you denied a petition or application based upon DOMA § 3, and who are therefore now ineligible for adjustment of status. 4. If DOMA is declared unconstitutional by the U.S. Supreme Court, explain on what basis you or a court may retroactively grant authorized

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presence so as to avoid application of the three and ten-year bars for foreign nationals not eligible for adjustment of status. 5. If DOMA is declared unconstitutional by the U.S. Supreme Court, explain on what basis the Department of State may approve visas despite the applicant having had more than six or twelve months of unauthorized presence because they were not granted temporary authorized status by you after their application or petition for immigration benefits was denied under DOMA § 3. 6. Identify any non-profit legal services organizations you have communicated with to determine the availability of free or low-cost immigration services to low-income members of BNSSCs seeking immigration benefits under the INA. 7. Identify the non-profit legal services organizations you have communicated with to inform them about the procedures available to BNSSC foreign nationals denied benefits based on DOMA § 3 to apply for temporary authorized status and temporary employment, and explain what such groups were informed by you. 8. Identify any lawyers or legal professional associations you have communicated with to inform them about the procedures available to BNSSC foreign nationals denied benefits based on DOMA § 3 to apply for temporary authorized status and temporary employment, and explain what such lawyers or professional associations were informed by you.
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9. Explain whether you have estimated or determined the staff hours required to implement your current policy and practice with respect to granting or denying some form of temporary authorized presence to BNSSC foreign nationals denied benefits based on DOMA § 3. 10. Explain whether you have estimated or determined the agency costs associated with your current policy and practice with respect to granting or denying some form of temporary authorized presence to BNSSC foreign nationals denied benefits based on DOMA § 3. 11. Explain whether you have made any effort, and if so describe those efforts, to determine the number of BNSSC foreign nationals denied benefits based on DOMA § 3 who are able to afford to retain private counsel or who are in fact represented by private counsel versus those who are not represented by private counsel. 12. Explain whether you have estimated or determined the staff hours required and agency costs associated with your current policy and practice with respect to granting or denying some form of temporary authorized presence to BNSSC foreign nationals denied benefits based on DOMA § 3. 13. Explain in detail (or produce) any instructions or directives issued to USCIS or USICE officers directing them to advise members of BNSSCs whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA § 3 about any procedures such persons may follow to retain or obtain temporary employment
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authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA. 14. Explain in detail (or produce) any instructions or directives issued to USCIS or USICE officers directing them on how to adjudicate requests for any sort of temporary authorized status and employment authorization made by members of BNSSCs whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA § 3. 15. Please identify each foreign national member of a BNSSC denied immigration benefits pursuant to DOMA § 3 upon whom CIS has conferred any form of lawful immigration status and employment authorization. 16. Describe in detail how and why your implementation of a preliminary injunction in the form proposed by plaintiffs in this case would require any greater or less dedication of agency resources than required following your present policy and practice with regards granting temporary authorized presence and employment authorization to persons denied immigration benefits under DOMA § 3. 17. Describe in detail how and why your implementation of a preliminary injunction in the form proposed by plaintiffs in this case would require any greater costs to the CIS or ICE than required following your present policy and practice with regards granting temporary authorized

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presence and employment authorization to persons denied immigration benefits under DOMA § 3. 18. State how many applications and petitions for immigration benefits filed by members of BNSSCs you have denied pursuant to DOMA § 3. 19. Of the number identified in response to Interrogatory No. 18, state how many such persons have been granted or extended on temporary authorized presence and/or employment authorization since the time of the denial you issued under DOMA § 3. 20. Explain any information that you have made available to the public on your web site, in the Code of Federal Regulations, or in any other way readily available to members of BNSSCs or their counsel regarding the procedures and standards to be applied when you decide whether to grant or deny a member of a BNSSC temporary authorized status and employment authorization. 21. Describe any training sessions or programs you have made available to your officers regarding the procedures and standards to be applied when they decide whether to grant or deny a member of a BNSSC denied a benefit under DOMA § 3 temporary authorized status and employment authorization. Dated: September 25, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguín
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PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner

Peter A. Schey Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 25th day of September, 2012, I caused the foregoing to be served via email to the following counsel: David Kline (CIV) David.Kline@usdoj.gov Jesi J. Carlson, (CIV) Jesi.J.Carlson@usdoj.gov Timothy Belsan, timothy.m.belsan@usdoj.gov Paul D. Clement pclement@bancroftpllc.com H. Christopher Bartolomucci cbartolomucci@bancroftpllc.com Nicholas J. Nelson nnelson@bancroftpllc.com Michael H. McGinley mmcginley@bancroftpllc.com Kerry W. Kircher, Kerry.Kircher@mail.house.gov William Pittard, William.Pittard@mail.house.gov Christine Davenport, Christine.Davenport@mail.house.gov Todd B. Tatelman, Todd.Tatelman@mail.house.gov Mary Beth Walker, MaryBeth.Walker@mail.house.gov And via overnight delivery on the following counsel: JESI J. CARLSON Senior Litigation Counsel TIMOTHY M. BELSAN (KS 24112) Trial Attorney Civil Division – Office of Immigration Litigation U.S. Department of Justice 450 Fifth Street, N.W. Washington, DC 20530 Paul D. Clement H. Christopher Bartolomucci BANCROFT PLLC 1919 M Street, N.W. Suite 470 Washington, D.C. 20036 Kerry W. Kircher, General Counsel William Pittard, Deputy General CounselMary Beth Walker, Assistant Counsel
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OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515

Dated: September 24,, 2012 Peter Schey ///

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STUART F. DELERY Acting Assistant Attorney General, Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation District Court Section JEFFREY S. ROBINS Assistant Director JESI J. CARLSON (DC 975478) Senior Litigation Counsel P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 305-7037 Facsimile: (202) 305-7000 Email: jesi.j.carlson@usdoj.gov TIMOTHY M. BELSAN Trial Attorney Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA MARTIN ARANAS, et al., ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ______________________________ ) No. 8:12-cv-1137-CBM (AJWx)

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Hearing Date: October 9, 2012 Time: 11:00 a.m. Judge: Hon. Consuelo B. Marshall

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TABLE OF CONTENTS INTRODUCTION ........................................................................................................... 1 FACTUAL AND PROCEDURAL HISTORY ............................................................... 3 ARGUMENT ................................................................................................................... 5 I. The Class Definition Is Defective and Overly Broad Because It Includes Individuals Who Lack Article III Standing. ........................................................... 5

II. Plaintiffs’ Proposed Class Fails to Satisfy the Requirements of Rule 23. ............. 8 A. The Proposed Class Fails to Satisfy Rule 23(a)(2)’s Commonality Requirement. ............................................................................................................ 10 B. The Named Plaintiffs Fail to Satisfy Rule 23(a)(3)’s Typicality Requirement. ............................................................................................................ 12 C. The Named Plaintiffs Fail to Satisfy Rule 23(a)(4)’s Adequacy of Representation Requirement. ................................................................................... 14 D. Plaintiffs Fail to Satisfy Rule 23(a)(1)’s Numerosity Requirement. ................ 16

CONCLUSION .............................................................................................................. 18

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TABLE OF AUTHORITIES CASES Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp. L.P., 247 F.R.D. 156 (C.D. Cal. 2007) ........................................................................ 14 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) ................................. 14 Barragan v. Holder, No. 09-cv-8564 (C.D. Cal.) ...................................................................11, passim Baxter v. Rodale, Inc., 12-cv-585, 2012 WL 1267880, at *2 (C.D. Cal. Apr. 12, 2012) ......................... 5 Berry v. Baca, 226 F.R.D. 398 (C.D. Cal. 2005) .................................................................. 12, 13 Blesch v. Holder, No. 12-cv-1578 (E.D.N.Y.) .....................................................................8, passim Bright v. Parra, 919 F.2d 31 (5th Cir. 1990) .................................................................................. 6 Califano v. Yamasaki, 442 U.S. 682, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979) ................................... 7, 8 Celano v. Marriott Int'l, Inc., 242 F.R.D. 544 (N.D. Cal. 2007) ....................................................................... 16 Costelo v. Chertoff, 258 F.R.D. 600 (C.D. Cal. 2009) .......................................................................... 7 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974) ....................................... 9 Franco-Gonzalez, et al. v. Napolitano, et al., No. 10-cv-02211, ECF No. 455, at *4-6 (C.D. Cal. Aug. 27, 2012).................. 5

ii

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Gen. Tel. Co. v. EEOC, 446 U.S. 318, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980) ................................... 16 Gen. Tel. Co. v. Falcon, 457 U.S. 147, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982) ............................... 9, 12 Guido v. L’Oreal USA, Inc., No. 11-cv-1067, 2012 WL 1616912, at *3 (C.D. Cal. May 7, 2012) .................. 5 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ............................................................................ 10 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) .............................................................................. 12 Harik v. Cal. Teachers Ass’n, 326 F.3d 1042 (9th Cir. 2003) ............................................................................ 17 Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999) .............................................................................. 6 Lui v. Holder, No. 11-cv-01267 (C.D. Cal.) ............................................................ 11, 14, 15, 18 Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ...................................... 7 Mazza v. Am. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012) ........................................................................ 5, 7, 8 Nguyen Da Yen v. Kissinger, 70 F.R.D. 663-64 (N.D. Cal. 1976) .............................................................. 10, 17 Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) ..................................................................... 17 Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008) ........................................................................ 17

iii

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Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill.) .......................................................................8, passim Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668 (9th Cir. 1975) ................................................................................ 9 Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) .............................................................................. 7 Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L.Ed. 2d 706 (1974) ....................................... 6 Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) .............................................................................. 14 United States v. Mendoza, 464 U.S. 154, 104 S. Ct. 568, 78 L. Ed. 2d 379 (1984) ....................................... 7 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011)............................................. 10, 11, 16 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001) .............................................................................. 9 STATUTES 1 U.S.C. § 7 ................................................................................................................ 1 8 U.S.C. § 1101 ......................................................................................................... 1

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8 U.S.C. § 1152(a)(1)(A) ........................................................................................... 5 8 U.S.C. § 1152(a)(2)................................................................................................. 5 8 U.S.C. § 1182(a)(6)(C) ......................................................................................... 15 8 U.S.C. § 1182(a)(6)(C)(i) ....................................................................................... 4 8 U.S.C. § 1182(a)(6)(C)(iii) ..................................................................................... 4

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8 U.S.C. § 1182(a)(9)(B) ........................................................................................... 5 8 U.S.C. § 1182(a)(9)(B)(i) ....................................................................................... 2 8 U.S.C. § 1182(i) .......................................................................................... 4, 11, 16 8 U.S.C. § 1229b(b) ................................................................................................. 16 8 U.S.C. § 1231(b)(3) .............................................................................................. 16

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8 U.S.C. § 1255 .......................................................................................................... 3 28 U.S.C. § 530D ....................................................................................................... 1 FEDERAL RULES OF CIVIL PROCEDURE Fed. R. Civ. P. 23(a) .............................................................................................. 8, 9 Fed. R. Civ. P. 23(a)(1) ...................................................................................... 16, 18

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Fed. R. Civ. P. 23(a)(2). ............................................................................................. 9 Fed. R. Civ. P. 23(a)(3) ............................................................................................ 12 Fed. R. Civ. P. 23(a)(4) ............................................................................................ 14 Fed. R. Civ. P. 23(b). ................................................................................................. 9 Fed. R. Civ. P. 23(b)(1). ...................................................................................... 9, 16

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Fed. R. Civ. P. 23(b)(2) ....................................................................................... 9, 16 Fed. R. Civ. P. 23(b)(3) ............................................................................................. 9 REGULATIONS 8 C.F.R. § 1208.16 ................................................................................................... 16

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1

INTRODUCTION This case involves a constitutional challenge to Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7 (“DOMA”), which defines “marriage” under federal law as “only a legal union between one man and one woman as husband and wife.” Plaintiffs challenge Section 3 of DOMA as it applies to the immigration rights of a married same-sex couple.1 The suit is brought by individual Plaintiffs Jane DeLeon, Irma Rodriguez, and Jane DeLeon’s son, Martin Aranas (collectively, “Plaintiffs” or “named Plaintiffs”), and on behalf of the following proposed class: All members of lawful same-sex marriages whom the Department of Homeland Security, pursuant to § 3 of the Defense of Marriage Act, 1 U.S.C. § 7, has refused or will refuse to recognize as spouses for purposes of conferring lawful status and related benefits under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq. Mot. for Class Certification (“Class Mot.”) at 3, ECF No. 13. In their Complaint, Plaintiffs seek a declaratory judgment that Defendants’ application of Section 3 of DOMA in this case, as well as Defendants’ regulations, policies and practices applying Section 3 against Plaintiffs and those similarly situated, are unlawful. Compl. at 29, ECF No. 1. Plaintiffs also seek a preliminary injunction enjoining Defendants from: (1) deporting or removing immigrants denied lawful status solely because they and their U.S. citizen or permanent
As explained by the Attorney General on February 23, 2011, the Attorney General and the President have determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples whose marriages are legally recognized under state law, and the Department of Justice will not defend the constitutionality of Section 3 of DOMA under the equal protection component of the Fifth Amendment. The President, however, has instructed the Executive Branch, including the Department of Homeland Security (“DHS”) and U.S. Citizenship and Immigration Services (“USCIS”), “to continue to comply with Section 3 of DOMA unless and until Congress repeals Section 3 or the judicial branch renders a definitive decision against the law’s constitutionality.” 28 U.S.C. § 530D Letter from Attorney General Eric H. Holder, Jr. (Feb. 23, 2011), at 5. See ECF No. 5-2. 1

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resident spouses are of the same sex, and from instructing or advising such immigrants to depart the United States; (2) denying employment authorization to immigrants lacking lawful permanent resident status solely because they and their U.S. citizen or permanent resident spouses are of the same sex; (3) denying immigration benefits under the INA solely because the immigrant or the non-immigrant has a spouse of the same sex; and (4) treating immigrants who have applied for benefits under the INA as acquiring “unlawful presence” thereby triggering the three- and ten-year bars to future lawful admission set out in 8 U.S.C. § 1182(a)(9)(B)(i) solely because they and their U.S. citizen or permanent resident spouses are of the same sex. Mot. Prelim. Inj. Mem. at 2-3, ECF No. 12.2 Finally, Plaintiffs seek a permanent injunction enjoining Defendants from denying U.S. citizen petitioners and their immigrant spouses’ applications for benefits under the INA solely because the lawfully married U.S. citizens and immigrant beneficiaries are of the same sex. Compl. at 29-30. Plaintiffs’ present motion for class certification should be denied for the following reasons: (1) the class definition is defective because it is overly broad and is not limited to individuals who have standing; and (2) the putative class fails to meet

Plaintiffs have set forth three different requests for relief (in their Motion for Preliminary Injunction, Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction and in the Proposed Order). While the language is similar in many respects, it is not identical and does not request identical relief. In this Opposition, Defendants are responding to the language set forth in the body of Plaintiffs’ Memorandum in Support of Motion for a Preliminary Injunction (ECF No. 12, at 2-3). 2

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the requirements for class certification set forth in Rule 23 of the Federal Rules of Civil Procedure. FACTUAL AND PROCEDURAL HISTORY3 Plaintiff Jane DeLeon is a native and citizen of the Philippines. Compl. ¶ 19. Ms. DeLeon lived with Joseph Randolph Aranas from approximately 1984 to 1989. Id. Ms. DeLeon and Joseph Aranas have two sons born in the Philippines, Mikkel R. Aranas and Plaintiff Martin Aranas (“Mr. Aranas”). Id. Ms. DeLeon was admitted to the United States on or about December 18, 1989, on a nonimmigrant B-2 visitor visa. Id. ¶ 20. When Ms. DeLeon entered the United States in 1989, her passport listed her occupation as “housewife” and her name as “Jane Francis L. Aranas,” although she was not legally married to Joseph Aranas. Id. ¶ 22. Ms. DeLeon and Joseph Aranas resided together in the United States until 1991. Id. ¶ 24. Ms. DeLeon met Plaintiff Irma Rodriguez in 1992, and they have resided together for 20 years. Id. ¶ 25. The couple married in California on August 22, 2008. Id. In March 2006, Ms. DeLeon’s employer submitted an immigrant visa petition on her behalf. Id. ¶ 26. It was approved approximately two months later. Id. On or about August 16, 2007, Ms. DeLeon filed an application for adjustment of status to that of a lawful permanent resident under 8 U.S.C. § 1255. Id. At the time she applied for adjustment of status, her priority date was current (meaning, there was a visa available to her). Id. Ms. DeLeon’s son, Mr. Aranas, also applied for adjustment of status as a derivative beneficiary of his mother. Id. On April 14, 2011, U.S. Citizenship and Immigration Services (“USCIS”) notified Ms. DeLeon that she was inadmissible to the United States and therefore ineligible for adjustment of status. Id. ¶ 27. The September 1, 2011 letter said that she entered the United States in 1989 by misrepresenting that her name was “Jane L.
3

Because Plaintiffs have sought class certification prior to the filing of an Answer, and because even as alleged, Plaintiffs’ facts do not support class certification, Defendants rely on the facts as alleged in the Complaint for purposes of this opposition. 3

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Aranas” and that she was married to Joseph Aranas. See Mot. Prelim. Inj. Mem., Ex. 2. Ms. DeLeon was deemed inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). Id. Section 1182(a)(6)(C)(i) makes inadmissible anyone who seeks to obtain a visa, other documentation, or admission to the United States by any fraud or misrepresenting a material fact. Compl. ¶ 27. Defendants provided Ms. DeLeon with instructions on how to apply for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i). See 8 U.S.C. § 1182(a)(6)(C)(iii); Compl. ¶ 28. Section 1182(i) requires a showing that an alien’s removal or denial of adjustment of status would “result in extreme hardship to [her] citizen . . . spouse or parent.” Id. On July 5, 2011, Ms. DeLeon filed a Form I-601 application for waiver of inadmissibility (“I-601 waiver”) based on the hardship that denial of adjustment of status would cause her 92-year old U.S. citizen father, who resides both in the United States and in the Philippines. Compl. ¶ 29. On September 1, 2011, Defendants denied Ms. DeLeon’s waiver application because USCIS determined that Ms. DeLeon failed to establish that the denial of adjustment of status would cause extreme hardship to her U.S. citizen father. Compl. ¶ 30; see Mot. Prelim. Inj. Mem., Ex. 2. The denial of the waiver automatically resulted in a denial of her application for adjustment of status and a denial of Mr. Aranas’ application for derivative status. Compl. ¶ 30. On September 27, 2011, Ms. DeLeon submitted a timely Motion to Reopen/Reconsider the I-601 denial on the ground that denying her application of adjustment of status and requiring her departure from the United States would cause extreme hardship to her U.S. citizen spouse, Ms. Rodriguez. Id. ¶ 32. On November 9, 2011, USCIS reopened and reconsidered the denial of the I-601 waiver, but again denied the I-601 waiver pursuant to Section 3 of DOMA. Id. ¶ 37; Mot. Prelim. Inj. Mem., Ex. 1. The new denial states that, under DOMA, “Jane DeLeon’s ‘same-sex spouse’ does not qualify as a relative for purposes of establishing hardship.” Mot. Prelim. Inj. Mem., Ex. 1. In the September 1, 2011 letter Ms. DeLeon received, USCIS informed her that she is no longer authorized to work and that she
4

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now is accruing “unlawful presence” in this country for purposes of 8 U.S.C. § 1182(a)(9)(B). Mot. Prelim. Inj. Mem., Ex. 2. The denial states that, if she accrues more than six months of unlawful presence, she “will be prohibited from being admitted to the United States should [she] depart . . . and seek readmission within three years.” Id. It also states that if she remains for more than one year, she will be barred from readmission for ten years. Id. On July 12, 2012, eight months after USCIS denied the I-601 Motion to Reopen, Plaintiffs filed the instant action wherein they challenge the constitutionality of Section 3 of DOMA based on equal protection and substantive due process grounds and allege that the application of Section 3 discriminates based on “sex” in violation of the Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A).4 See Compl. On August 23, 2012, Plaintiffs filed the instant motion for class certification. ECF No. 13. Defendants oppose Plaintiffs’ motion for class certification. ARGUMENT I. The Class Definition Is Defective and Overly Broad Because It Includes Individuals Who Lack Article III Standing. Plaintiffs’ motion for class certification should be denied due to the defective and overly broad nature of their class definition. In particular, Plaintiffs propose a class which, as defined, would include individuals who lack Article III standing. The Ninth Circuit recently made clear: All class members, not just class representatives, must have standing. See Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012); see also Baxter v. Rodale, Inc., No. 12-cv-585, 2012 WL 1267880, at *2 (C.D. Cal. Apr. 12, 2012), but see Franco-Gonzalez, et al. v. Napolitano, et al., No. 10-cv02211, ECF No. 455, at *4-6 (C.D. Cal. Aug. 27, 2012) (attached as Ex. A); Guido v.

In their Complaint, Plaintiffs cite to 8 U.S.C. § 1152(a)(2), but Defendants believe Plaintiffs intended to cite to 8 U.S.C. § 1152(a)(1)(A). 5

4

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L’Oreal USA, Inc., No. 11-cv-1067, 2012 WL 1616912, at *3 (C.D. Cal. May 7, 2012).5 Plaintiffs’ class definition seeks to encompass “[a]ll members of lawful samesex marriages whom the Department of Homeland Security, pursuant to § 3 of [DOMA], has refused or will refuse to recognize as spouses for purposes of conferring lawful status and related benefits under the [INA].” Class Mot. at 3. Plaintiffs’ proposed class definition does not, however, distinguish between class members who: (1) have applied for immigration benefits under the INA and have had such requests denied pursuant to Section 3 of DOMA; (2) have applied for immigration benefits under the INA but whose applications remain pending; and (3) have not applied for immigration benefits under the INA, but would be denied if they applied and their application were adjudicated. See id. Moreover, Plaintiffs’ proposed class definition fails to distinguish between individuals who have had their applications denied solely based on DOMA and those whose applications were denied pursuant to DOMA as well as on other grounds.6 See id. As a result, Plaintiffs’ proposed class would, inter alia, include individuals who have had their applications denied but are ineligible to obtain
5

Mr. Aranas, the son of Ms. DeLeon, lacks standing to challenge the constitutionality of Section 3 of DOMA because he does not allege that Defendants harmed him directly. A named plaintiff must be a member of the class he purports to represent and must “possess the same interest and suffer the same injury” as his fellow class members. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 94 S. Ct. 2925, 2929, 41 L.Ed. 2d 706 (1974); see also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 (9th Cir. 1999) (“Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief.”). Mr. Aranas is not even a member of his own proposed class, because he is not a member of a “lawful same-sex marriage” that the Department of Homeland Security has refused or will refuse to recognize. Ms. Rodriguez is the spouse of Ms. DeLeon. While she may be affected by USCIS’s denial of Ms. DeLeon’s waiver of inadmissibility, she did not file an I-601 waiver and does not have standing. Furthermore, in the immigration context, an individual does not have standing based solely on alleged harm to his or her spouse. See, e.g., Bright v. Parra, 919 F.2d 31, 33 (5th Cir. 1990) (holding that citizen spouses have no constitutional right to prevent an alien spouse from being deported). 6 Although Plaintiffs do at times refer to denials based solely on Section 3 of DOMA, see, e.g., Class Mot. Mem. p. 3, none of Plaintiffs’ proposed class definitions contain such limiting language. See Compl. at 6-7; Class Mot. p. 3; Class Mot. Mem. p. 4; Proposed Order Provisionally Certifying Class Action, p. 3, ECF No. 13-2. 6

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the immigration benefits they seek even in the absence of Section 3 of DOMA. Those individuals lack standing because unless they also challenge the non-DOMA basis for denial, even a favorable decision by this Court will not afford them relief. See Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008) (a plaintiff lacks standing unless “the injury is likely to be redressed by a favorable court decision”). Similarly, Plaintiffs’ class would also encompass individuals who have not yet officially applied for benefits and may never do so. Such individuals lack standing to pursue the claims Plaintiffs bring in this action because there is no telling when or if they will ever apply for immigration benefits; thus, to allege that those future applications would be denied solely based on DOMA is entirely hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“‘[S]ome day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that our cases require [for standing].”). Under Mazza, Plaintiffs’ proposed class is improper and cannot be certified. 666 F.3d at 594 (“[N]o class may be certified that contains members lacking Article III standing.”) (internal citations and quotation marks omitted). The Court should therefore deny class certification. See Costelo v. Chertoff, 258 F.R.D. 600, 604-05 (C.D. Cal. 2009) (“The Court is bound to class definitions provided in the complaint and, absent an amended complaint, will not consider certification beyond it.”). This Court should also refuse to certify Plaintiffs’ proposed class because the definition is not limited in geographic scope. Although there is no per se prohibition against the certification of a nationwide class, the Supreme Court has made clear that nationwide class actions are disfavored because they “may have a detrimental effect by foreclosing adjudication by a number of different courts and judges.” Califano v. Yamasaki, 442 U.S. 682, 702, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979); see also United States v. Mendoza, 464 U.S. 154, 160, 104 S. Ct. 568, 78 L. Ed. 2d 379 (1984)
7

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(“Allowing only one final adjudication would deprive this Court of the benefit it receives from permitting several courts of appeals to explore a difficult question before this Court grants certiorari.”). The Supreme Court has instructed that “a federal court when asked to certify a nationwide class should take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certification of such a class would not improperly interfere with the litigation of similar issues in other judicial districts.” Califano, 442 U.S. at 702. Accordingly, this Court should refuse to certify a nationwide class in order to allow potential class members in other jurisdictions to bring separate lawsuits — should they desire to do so — and thereby permit other courts to explore and develop the legal question presented.7 II. Plaintiffs’ Proposed Class Fails to Satisfy the Requirements of Rule 23. In addition to the fact that certification of Plaintiffs’ proposed class must be denied because the class definition is defective, certification must also be denied because the proposed class fails to meet the prerequisites for class certification under Rule 23 of the Federal Rules of Civil Procedure. A party seeking certification of a proposed class must demonstrate the existence of the four required elements set forth in Rule 23(a), namely: (1) the class is so numerous that joinder of all members is impracticable (“numerosity”), (2) there are questions of law or fact common to the class (“commonality”), (3) the claims or defenses of the named plaintiffs are typical of claims or defenses of the class (“typicality”), and (4) the named plaintiffs will fairly and adequately protect the interests of the class (“adequacy of representation”).

7

28

See, e.g., Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill.); Blesch v. Holder, No. 12-cv-1578 (E.D.N.Y.). 8

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See Fed. R. Civ. P. 23(a); see also, e.g., Mazza, 666 F.3d at 588. In addition to meeting the requirements set forth in Rule 23(a), the proposed class must also qualify under Rule 23(b)(1), (2), or (3). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Here, Plaintiffs ask the Court to certify a class under Rule 23(b)(2). Class Mot. at 3. Rule 23(b)(2) permits class actions for declaratory or injunctive relief where “the party opposing the class has acted or refused to act on grounds that generally apply to the class.” Fed. R. Civ. P. 23(b)(2). The party seeking class certification bears the burden of proof in demonstrating that they have satisfied all four Rule 23(a) prerequisites and that their class lawsuit falls within one of the three types of actions permitted under Rule 23(b). Zinser, 253 F.3d at 1186. The failure to meet “any one of Rule 23’s requirements destroys the alleged class action.” Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975). The Supreme Court has held that “actual, not presumed, conformance with Rule 23(a) [is] indispensable.” Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982) (emphasis added). Consequently, a district court must conduct a rigorous analysis to determine that the requirements of Rule 23 have been met. Id. at 161. If a court is not fully satisfied, the class cannot be certified. Id. Even when all of Rule 23’s requirements are met, the district court retains “broad discretion” to determine whether a class should be certified, and to modify or de-certify the class as appropriate even after a class has been certified. Zinser, 253 F.3d at 1186. When reviewing a motion for class certification, a court should only analyze the portions of the merits of a claim that does not overlap with Rule 23’s requirements. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974). Here, Plaintiffs fail to carry their burden of proof that their proposed class satisfies all four requirements listed in Rule 23(a).

9

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A. The Proposed Class Fails to Satisfy Rule 23(a)(2)’s Commonality Requirement. First, a class should not be certified because Plaintiffs fail to satisfy Rule 23(a)’s requirement that there be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551, 180 L. Ed. 2d 374 (2011) (quoting Falcon, 457 U.S. at 157). It is not sufficient for a plaintiff to allege merely that all of the proposed class members have “suffered a violation of the same provision of law” or raise some “common questions.” Id. (“[The commonality] language is easy to misread, since any competently crafted class complaint literally raises common ‘questions.’”). Rather, the proposed class members’ claims must depend upon a common contention, the determination of which “will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Thus, although “[t]he existence of shared legal issues with divergent factual predicates is sufficient [to establish commonality],” see Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998), commonality cannot be established where there is wide factual variation requiring individual adjudications of each class member’s claims. See Nguyen Da Yen v. Kissinger, 70 F.R.D. 663-64 (N.D. Cal. 1976). Indeed, “[d]issimilarities within the proposed class are what have the potential to impede the generation of common answers.” Wal-Mart Stores, Inc., 131 S. Ct. at 2551 (quotation omitted). Here, Plaintiffs cannot show that the proposed class members have a common contention the resolution of which would, in “one stroke,” resolve an issue “central to the validity of each” of their claims. Indeed, Ms. DeLeon herself, as the only potential class member identified thus far, highlights why commonality would be lacking within the proposed class. As discussed above, Ms. DeLeon entered the United States in 1989 by misrepresenting her name and marital status, and thus sought an I-601 waiver. Her initial I-601 waiver, which was based on the alleged hardship to her U.S. citizen father,
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was denied, so Ms. DeLeon filed a motion to reopen and reconsider her case based on the alleged hardship to her same-sex spouse, Ms. Rodriguez. It was in that unique context that Ms. DeLeon received a denial from USCIS pursuant to Section 3 of DOMA. On the other hand, in the typical immigration case challenging DOMA, the injury is caused by the denial of an I-130 petition which is filed by the U.S. Citizen spouse on behalf of his or her alien spouse and is non-discretionary. See, e.g., Barragan v. Holder, No. 09-cv-8564 (C.D. Cal.) (same-sex married couple sought nondiscretionary I-130 Petition for Alien Relative); Lui v. Holder, No. 11-cv-01267 (C.D. Cal.) (same); Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill.) (same); Blesch v. Holder, No. 12-cv-1578 (E.D.N.Y.) (same). Thus, Ms. DeLeon’s case presents very specific and novel circumstances, which are unlikely to exist among other potential class members and which constitute the type of “wide factual variation” and “[d]issimilarities within the proposed class” that render commonality unmet. Further, since this case involves a waiver of inadmissibility for an inadmissible alien, the statutory right of a U.S. Citizen to obtain the grant of an I-130 petition is not reflected in this litigation in any way. It is important to this inquiry that the underlying agency action here is the denial of an I-601 waiver of inadmissibility, which is discretionary, unlike an I-130 application filed by a U.S. citizen. See 8 U.S.C. § 1182(i). In light of the discretionary nature of the remedy she ultimately seeks, a favorable resolution on the constitutionality of Section 3 of DOMA alone would not resolve Ms. DeLeon’s case and is thus not “central to the validity of” her claim. Indeed, even in the absence of DOMA, Ms. DeLeon’s I-601 application might still be denied on discretionary grounds based on the severity of her prior misrepresentations. Thus, even though all members of the proposed class may contend that Section 3 of DOMA violates equal protection principles, the constitutionality of Section 3 is not a “common contention” sufficient to satisfy Rule 23(a)’s requirement. See Wal-Mart Stores, Inc., 131 S. Ct. at
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2551 (“[Commonality] does not mean merely that they have all suffered a violation of the same provision of law.”) B. The Named Plaintiffs Fail to Satisfy Rule 23(a)(3)’s Typicality Requirement. Second, and for similar reasons, Plaintiffs have failed to demonstrate that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). As one court has explained: A plaintiff’s claim meets the typicality requirement if it arises from the same event or course of conduct that gives rise to claims of other class members and the claims are based on the same legal theory. The test generally is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct. Berry v. Baca, 226 F.R.D. 398, 404 (C.D. Cal. 2005) (quotations and alterations omitted); see also Falcon, 457 U.S. at 156 (“We have repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same injury as the class member.”) (citations and quotations omitted). “The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Here, as the only potential class representative, Ms. DeLeon must show that: (1) she has suffered the same injury as the rest of the proposed class members; (2) the action which caused the injury is based on conduct which is not unique to her; and (3) that other class members have been injured by the same course of conduct. Berry, 226 F.R.D. at 404. Ms. DeLeon fails all three prongs of the typicality test.

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First, Ms. DeLeon’s injury is that she was denied an I-601 waiver of inadmissibility. Plaintiffs have not identified even one other proposed class member who has suffered the same injury, nor is the denial of a different immigration benefit “similar” since the majority of such benefits — and the denials of I-130 petitions at issue in other DOMA immigration cases — are non-discretionary. Second, the course of conduct which led to the denial of Ms. DeLeon’s I-601 waiver application is inextricably tied to her prior material misrepresentation at the time she entered the United States. Plaintiffs have not identified another proposed class member who made a similar material misrepresentation and who thus is likewise seeking or has been denied an I-601 waiver. Third, for the same reasons Ms. DeLeon fails the first two prongs of the typicality test, she cannot establish that “other class members have been injured by the same course of conduct.” Berry, 226 F.R.D. at 404 (citations and quotations omitted). In sum, because Ms. DeLeon was deemed inadmissible prior to the application of Section 3 of DOMA, the action taken in Ms. DeLeon’s case is unique to her situation. Although her claims might be typical of potential class members who have been injured by the same course of conduct, i.e., the denial of a discretionary I-601 waiver based on DOMA, Plaintiffs have not identified any such potential class members. Rather, it is likely that any potential class members would have been injured by the denial of an I-130 petition, which is filed by the U.S. Citizen spouse on behalf of his or her alien spouse. See, e.g., Barragan, No. 09-cv-8564 (C.D. Cal.) (same-sex married couple sought non-discretionary I-130 Petition for Alien Relative); Lui v. Holder, No. 11-cv-01267 (C.D. Cal.) (same); Revelis v. Napolitano, No. 11-cv1991 (N.D. Ill.) (same); Blesch v. Holder, No. 12-cv-1578 (E.D.N.Y.) (same). Ms. DeLeon, however, has never been the beneficiary of an I-130 petition filed on her behalf by Ms. Rodriguez. And importantly, for that reason, the statutory interests of a U.S. Citizen spouse to obtain an I-130 approval for his or her alien spouse are not

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represented at all in this litigation. Accordingly, Ms. DeLeon’s claims are not typical of the claims or defenses of the class proposed by Plaintiffs. C. The Named Plaintiffs Fail to Satisfy Rule 23(a)(4)’s Adequacy of Representation Requirement. Plaintiffs also cannot demonstrate that they are adequate representatives of the class they purport to represent. See Fed. R. Civ. P. 23(a)(4). The adequacy of representation factor requires: (1) that the proposed class representatives do not have any conflicts of interest with other class members; and (2) that the plaintiffs are represented by qualified and competent counsel. See Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir. 2003). Courts also inquire whether the proposed class representative and their counsel will prosecute the action vigorously on behalf of the class. Id. “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997). “Class certification will be inappropriate if fundamental conflicts of interest are determined to exist among the proposed class members.” Allied Orthopedic Appliances, Inc. v. Tyco Healthcare Grp. L.P., 247 F.R.D. 156, 177 (C.D. Cal. 2007). The named Plaintiffs are not adequate representatives for the proposed class for several reasons. Ms. DeLeon — the only potentially eligible class representative — has interests that may conflict with other members of the proposed class. 8 As we have

Under Plaintiffs’ own proposed class definition, Mr. Aranas does not qualify because he is not a “member[] of [a] lawful same-sex marriage.” Class Mot. p. 3. While Ms. Rodriguez technically falls within Plaintiffs’ broad proposed class definition, she is not an appropriate class representative. First, as discussed infra, see p.6, n.5, Ms. Rodriguez lacks standing. Second, because she is a U.S. citizen, Ms. Rodriguez is not in need of, or seeking the relief requested in the motion for preliminary injunction, which applies only to immigrants. See Mot. Prelim. Inj. Mem. at 2-3, ECF No. 12. Third, Ms. Rodriguez does not qualify for the remaining relief sought in Plaintiffs’ Complaint. Plaintiffs ask the Court to “issue a permanent injunction enjoining defendants from denying U.S. citizen petitioners and their immigrant spouses approvals of benefits under the INA solely because the lawfully married U.S. citizens and immigrant beneficiaries are of the same sex.” Compl. at 29-30. Ms. Rodriguez is not a petitioner for any immigration benefit for her spouse, nor do Plaintiffs allege 14

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explained, the Plaintiffs in other immigration cases challenging the constitutionality of Section 3 of DOMA, see, e.g., Barragan v. Holder, No. 09-cv-8564 (C.D. Cal.); Lui v. Holder, No. 11-cv-01267 (C.D. Cal.); Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill.); Blesch v. Holder, No. 12-cv-1578 (E.D.N.Y.), have all involved situations where a U.S. citizen spouse petitioned or is petitioning for their same-sex alien spouse through an I-130 Petition for Alien Relative (a non-discretionary benefit). Not a situation where an alien is seeking discretionary relief on her own behalf. Ms. DeLeon seeks such discretionary relief because she is inadmissible to the United States pursuant to 8 U.S.C. § 1182(a)(6)(C), which makes anyone who obtains a visa or admission to the United States by misrepresenting a material fact inadmissible. See Mot. Prelim. Inj. Mem., Ex. 2. Ms. DeLeon entered the United States in 1989 by misrepresenting her name and marital status. As a result, she was required to file an application for an I-601 waiver of inadmissibility. Her I-601 waiver, which was based on the alleged hardship her father would suffer if she were required to leave the United States (a discretionary form of relief), was denied. Ms. DeLeon then filed a motion to reopen and reconsider her case based on the alleged hardship to her same-sex spouse, Ms. Rodriguez. It was in that unique context — after her material misrepresentation and after her initial I-601 waiver application had been denied—that Ms. DeLeon received a denial from USCIS pursuant to Section 3 of DOMA. Plaintiffs assert that there are no conflicts of interest because they seek the same relief for the class as they do for themselves. Class Mot. Mem. at 8. However, Ms. DeLeon’s interests are notably different from other potential class members. Even if Ms. DeLeon prevails in striking down DOMA, the relief she seeks is entirely discretionary. Moreover, Ms. DeLeon has sought several different avenues of relief to

that Ms. Rodriguez plans to file such a petition. Accordingly, her interests are not adequate to represent interests of the proposed class. 15

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obtain lawful immigration status; if another option for her to obtain relief were to arise, Ms. DeLeon could abandon this discretionary claim in favor of other available relief. Further, it is likely that not all members of the proposed class desire to have the adjudication of their petitions for immigration benefits stalled or to have the initiation of removal proceedings enjoined — both aspects of the relief Plaintiffs seek on behalf of the entire proposed class. Indeed, some types of immigration relief are only available within removal proceedings. And, aliens might prefer going forward with removal proceedings, where they can appear in formal proceedings before immigration judges. Once in removal proceedings, an alien may apply for withholding of removal in those proceedings (8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16), cancellation of removal (8 U.S.C. § 1229b(b)) or a waiver of inadmissibility (8 U.S.C. § 1182(i)). Moreover, Federal Rule of Civil Procedure 23(b)(2) would govern the proposed class, so members of the proposed class could not opt-out of the class. See Wal-Mart Stores, Inc., 131 S. Ct. at 2558 (“[Rule 23] provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action.”). Thus, any member of the broadly drawn putative class could be subject to the requested preliminary injunction, which would put their applications for an immigration benefit on hold and preclude DHS from placing the alien in removal proceedings. The existence of these conflicting interests between members of the proposed class and Ms. DeLeon renders her an inadequate representative. D. Plaintiffs Fail to Satisfy Rule 23(a)(1)’s Numerosity Requirement. In order to satisfy Rule 23(a)(1), Plaintiffs must demonstrate that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Analysis of numerosity “requires examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330, 100 S. Ct. 1698, 64 L. Ed. 2d 319 (1980). While a class of at least forty members may satisfy numerosity, courts generally “find that it has not been satisfied when the class comprises 21 or fewer.” Celano v. Marriott Int’l, Inc., 242 F.R.D. 544, 549 (N.D. Cal.
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2007). Indeed, the Supreme Court has explained that a putative class of fifteen members “would be too small to meet the numerosity requirement.” Gen. Tel. Co., 446 U.S. at 330. Thus, in Harik v. Cal. Teachers Ass’n, 326 F.3d 1042, 1051 (9th Cir. 2003), the Ninth Circuit refused to extend certification to classes consisting of seven, nine, and ten members for lack of numerosity. While plaintiffs need not calculate the precise number of class members, they “must show some evidence of or reasonably estimate the number of class members.” Nguyen Da Yen, 70 F.R.D. at 661. “[M]ere speculation” as to satisfaction of the numerosity requirement does not satisfy Rule 23(a)(1). Perez-Olano v. Gonzalez, 248 F.R.D. 248, 256 (C.D. Cal. 2008). In their motion for class certification, Plaintiffs have not suggested or even speculated as to the number of members in the proposed class, nor have they introduced any evidence from which an estimate could reasonably be inferred. Instead, Plaintiffs state as fact — without citing any support — that there is a “constantly increasing number of lawfully married same-sex couples and their immigrant children.” Class Mot. Mem. at 6. They thus appear to hinge their analysis solely on what “general knowledge and common sense indicate” concerning the number of proposed class members. Id. at 5 (citing Orantes-Hernandez v. Smith, 541 F. Supp. 351, 371 (C.D. Cal. 1982)). While Plaintiffs’ statement that the number of lawfully married same-sex couples is increasing may be true, the statement is in no way limited to, nor does it address the number of proposed class members who exist, i.e. lawfully married, same-sex bi-national couples in the United States who have applied for immigration benefits. It is Plaintiffs’ burden to establish numerosity, and they have wholly failed to put forth in their motion for class certification any basis for such a conclusion. Moreover, to the extent Plaintiffs have presented the Court with the names of any potential class members, they have provided only the three named Plaintiffs. As discussed above, under Plaintiffs’ own proposed class definition, Mr. Aranas does not qualify because he is not a “member[] of [a] lawful same-sex marriage.” Class Mot. at
17

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3. Ms. Rodriguez also lacks standing, and as a U.S. citizen who has not filed any petitions to adjust the immigration status of her same-sex immigrant spouse, does not qualify for any of the relief Plaintiffs seek. Thus, Plaintiffs have identified only one viable member of the proposed class — Ms. DeLeon. Ms. DeLeon, however, has a unique set of facts and circumstances, rendering her capable of representing only a discrete class of individuals. Unlike the plaintiffs in other immigration cases that challenge the constitutionality of Section 3 of DOMA, Ms. DeLeon has been deemed inadmissible based on earlier misrepresentations, and has twice sought and been denied discretionary relief, first for failing to demonstrate adequate hardship on her U.S. citizen father and second, because of Section 3 of DOMA. Compare Barragan v. Holder, No. 09-cv-8564 (C.D. Cal.) (same-sex married couple sought nondiscretionary I-130 Petition for Alien Relative); Lui v. Holder, No. 11-cv-01267 (C.D. Cal.) (same); Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill.) (same); Blesch v. Holder, No. 12-cv-1578 (E.D.N.Y.) (same). Plaintiffs have provided no evidence regarding the numerosity of such a narrow class of individuals, and the size of such a class hardly qualifies as “general knowledge” or susceptible to a “common sense” determination. Accordingly, Plaintiffs have failed to satisfy their burden of showing that the class is so numerous that joinder is impracticable under Rule 23(a)(1). If the numbers were as large as Plaintiffs appear to believe, surely Plaintiffs should have been able to identify additional class members. CONCLUSION This Court should deny class certification because as defined by Plaintiffs, the proposed class is overly broad and would include individuals who lack Article III standing. Moreover, Plaintiffs have not met their burden on any of Rule 23(a)’s four prerequisites to class certification. Ms. DeLeon has not shown that she will fairly and adequately represent the class proposed by Plaintiffs or that her claims are typical of the proposed class members’ claims. Plaintiffs have also failed to show that the
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proposed class is so numerous that joinder of all members is impracticable and that the proposed class members raise common issues of law or fact. Accordingly, Defendants ask this Court to deny Plaintiffs’ motion for class certification in its entirety. DATED: September 14, 2012 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director s/ Jesi J. Carlson JESI J. CARLSON Senior Litigation Counsel District Court Section Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 TIMOTHY M. BELSAN Trial Attorney Attorneys for Defendants

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STUART F. DELERY Acting Assistant Attorney General, Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director JESI J. CARLSON Senior Litigation Counsel LANA L. VAHAB (DC Bar No. 976203 ) Trial Attorney KATHERINE E.M. GOETTEL (IA Bar No. 23821) Trial Attorney Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4115 Email: kate.goettel@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ______________________________ ) MARTIN ARANAS, et al., No. 12-cv-1137-CBM (AJWx) DEFENDANTS’ OPPOSITION TO TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Hearing Date: October 9, 2012 Time: 11:00 a.m. Judge: Hon. Consuelo B. Marshall

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TABLE OF CONTENTS INTRODUCTION ..................................................................................................... 1 FACTUAL AND PROCEDURAL HISTORY ......................................................... 2 PRELIMINARY INJUNCTION STANDARD ........................................................ 5 ARGUMENT ............................................................................................................. 6

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I.

Section 3 of DOMA Unconstitutionally Discriminates on the Basis of Sexual Orientation. ................................................................................ 7 A. Section 3 of DOMA Violates the Fifth Amendment’s Equal Protection Guaranty by Discriminating on the Basis of Sexual Orientation .................................................................................. 7 1. Gay and Lesbian People Are a Suspect or Quasi-Suspect Class under the Relevant Factors Identified by the Supreme Court. .............................................................................. 10 a. Gay and Lesbian People Have Been Subject to a History of Discrimination……………………... 10 Gay and Lesbian People Share An Immutable Characteristic that Distinguishes Them as a Group .................................................................... 11 Gay and Lesbian People Are Minorities with Limited Political Power ..................................................... 13 Sexual Orientation Bears No Relation to Legitimate Policy Objectives or Ability to Perform or Contribute to Society. ............................................................. 14

b.

c.
21 22

d.
23 24 25 26 27 28

2.

DOMA Fails Heightened Scrutiny. ................................ 15

i

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B.

Section 3 of DOMA Does Not Violate Substantive Due Process. ..................................................................................... 17

II.

The Remaining Preliminary Injunction Factors. ................................. 18 A. Plaintiffs Have Not Made the Requisite Showing of Irreparable Harm………………………………………………………….18 1. Any Harm Can Be Remedied by Relief Far Narrower Than That Requested. .............................................................. 18 The Alleged Harm to Putative Class Members Is Speculative...................................................................... 22

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2.

B.

The Issuance of an Injunction Would Cause the United States Irreparable Harm. ..................................................................... 24 The Balance of Harms and Public Interest Weigh In Favor of Foregoing Injunctive Relief Until Supreme Court Resolution of This Issue .................................................................................. 25 This Court Lacks Jurisdiction to Enjoin the Government from Initiating Removal Proceedings or Removing Named Alien Plaintiffs. ................................................................................... 27

C.

D.

CONCLUSION ........................................................................................................ 28

ii

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TABLE OF AUTHORITIES CASES Able v. United States, 968 F. Supp. 850 (E.D.N.Y. 1997), rev'd, 155 F.3d 628 (2d Cir. 1998) ............ 13 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) ....................................................................... 9, 10 Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 64 S. Ct. 1215, 88 L. Ed. 1488 (1944) ........................................ 19 A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 82 S. Ct. 337, 7 L. Ed. 2d 317 (1961) ......................................... 27 Aleman v. Glickman, 217 F.3d 1191 (9th Cir. 2000) ............................................................................ 10 Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) .............................................................................. 5 Barragan v. Holder, No. 09-cv-8564 (C.D. Cal.) ................................................................................ 22 Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) .............................................................................. 10 Blesch v. Holder, No. 12-cv-1578 (E.D.N.Y.) ................................................................................ 22 Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954) .............................................. 7 Bowen v. Gilliard, 483 U.S. 587, 107 S. Ct. 3008, 97 L. Ed. 2d 485 (1987) ..................................... 9 Bowers v. Hardwick, 478 U.S. 186 (1986)........................................................................................ 8, 11

iii

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Christian Legal Soc'y v. Martinez, 130 S. Ct. 2971 (2010).......................................................................................... 8 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985) ................................. 7, 9 Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910, 100 L. Ed. 2d 465 (1988) ........................... 15, 16 Dragovich v. U.S. Dep't of Treasury, No. 10-1564, 2012 WL 1909603 (N.D. Cal. May 24, 2012) ............................. 16 Fiallo v. Bell, 430 U.S. 787 (1977)............................................................................................ 10 Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) ................................................................................ 6 Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973) ..................................... 14 Golinski v. Office of Personnel Mgmt., 824 F.Supp.2d 968 (N.D. Cal. 2012) .................................................................. 16 Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613, 164 L. Ed. 2d 358 (2006)……… ....................... 8 Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000) ........................................................................ 8, 11 High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) ..................................................................... 8, 10,11 Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir. 2002) .............................................................................. 27 Lawrence v. Texas, 539 U.S. 558 (2003).................................................................................. 8, 11, 12

iv

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Lui v. Holder, No. 11-cv-01267 (C.D. Cal.) ........................................................................ 22, 26 Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) ..................................... 14 Massachusetts v. Dep't of Health and Hum. Servs., 683 F.3d 1 (1st Cir. 2012)............................................................................. 15, 16 Mathews v. Diaz, 426 U.S. 67 (1976).............................................................................................. 10 Mathews v. Lucas, 427 U.S. 495, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976) ..................................... 12 Miller v. Albright, 523 U.S. 420, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) ................................... 7 Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003) .............................................................................. 17 Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) .............................................................................. 19 Pedersen v. Office of Personnel Mgmt., No, 10-1750, 2012 WL 3113883 (D. Conn. July 31, 2012) ............................... 15 Philips v. Perry, 109 F.3d 1420, 1424-25 (9th Cir. 1997) ............................................................... 8 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999)...................................................................................... 25, 27 Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill.) ............................................................................ 22, 26 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ............................................................................ 27

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Romer v. Evans, 517 U.S. 620 (1996)............................................................................................ 16 Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 95 S. Ct. 2069, 45 L. Ed. 2d 12 (1975) ......................................... 20 Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415 (9th Cir. 1984) .............................................................................. 5 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ............................................................................ 19 Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc) ......................................................... 8 U.S. v. Virginia (“VMI”), 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) ................................. 15 Windsor v. United States, 833 F.Supp.2d 394 (S.D.N.Y. 2012) .................................................................. 16 Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008) ........................ 5, 6, 24, 25 Witt v. Dep't of the Air Force, 527 F.3d 806 (9th Cir. 2008) ................................................................................ 8 Zepeda v. INS, 753 F.2d 719 (internal quotations omitted) (9th Cir. 1984) ................................. 6 ADMINISTRATIVE DECISIONS In re Balas, 449 B.R. 567 (C.D. Cal. 2011) ........................................................................... 16 In re Lemus-Losa, 25 I. & N. Dec. 734 (BIA 2012) ......................................................................... 19 In re Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006) ......................................................................... 19
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Matter of Diaz-Garcia, 25 I. & N. Dec. 794 (BIA 2012) ......................................................................... 21 Matter of Quintero, 18 I. & N. Dec. 348 (BIA Nov. 16, 1982) .......................................................... 25 STATUTES 1 U.S.C. § 7 ................................................................................................................ 1 6 U.S.C. § 557 .......................................................................................................... 17 8 U.S.C. § 1103(a) ................................................................................................... 17 8 U.S.C. § 1103(g) ................................................................................................... 17 8 U.S.C. § 1104(a) ................................................................................................... 17 8 U.S.C. § 1152(a)(1)(A) ........................................................................................... 4 8 U.S.C. § 1152(a)(2)................................................................................................. 4 8 U.S.C. § 1154 ........................................................................................................ 23 8 U.S.C. § 1182(a)(6)(C)(i) ................................................................................... 1, 3 8 U.S.C. § 1182(a)(6)(C)(iii) ..................................................................................... 3 8 U.S.C. § 1182(a)(9)(B) ............................................................................... 4, 19, 22 8 U.S.C. § 1182(a)(9)(B)(i) ....................................................................................... 5

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8 U.S.C. § 1182(i) ...................................................................................... 1, 3, 17, 20 8 U.S.C. § 1184(a)(4)................................................................................................. 9 8 U.S.C. § 1184(g)(4) .............................................................................................. 23 8 U.S.C. § 1226(a) ................................................................................................... 21
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8 U.S.C. § 1229 ........................................................................................................ 28 8 U.S.C. § 1229b ...................................................................................................... 20 8 U.S.C. § 1231(b)(3) .............................................................................................. 20

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8 U.S.C. § 1252(b)(9) .............................................................................................. 28 8 U.S.C. § 1252(f)(1) ......................................................................................... 27, 28 8 U.S.C. § 1252(g) ....................................................................................... 21, 25, 27 8 U.S.C. § 1255 .............................................................................................. 2, 17, 23 HOMELAND SECURITY ACT Pub. L. No. 107-296, 116 Stat. 2311 ....................................................................... 17 REGULATIONS 8 C.F.R. § 1003.6(a) ................................................................................................ 21 8 C.F.R. § 1003.38(b) .............................................................................................. 21 8 C.F.R. § 1208.16 ................................................................................................... 20 MISCELLANEOUS Am. Psychological Ass’n, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, at v (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf.......... 12 General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance Process (1995) ............................................................................ 11 G.M. Herek, et al., Demographic, Psychological, and Social Characteristics of SelfIdentified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, Sexuality Res. & Soc. Pol’y 7:176, 190 (2010), available at http://www.springerlink.com/content/k186244647272924/fulltext.pdf ............. 11,12
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Andrew Koppelman, The Difference the Mini-DOMAs Make, 38 Loy. U. Chi. L.J. 265, 265–66 (2007). ......................................................................................................... 13 Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 (1975) ........................................................................................................ 14 Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement (“ICE”) to All ICE Employees (Mar. 2, 2011) ................................. 23 Memorandum from John Morton, Director, ICE to all ICE Employees (June 17, 2011) ................................................................................................................................. 23 National Conference of State Legislatures, State Laws Limiting Marriage to OppositeSex Couples, available at http://www.ncsl.org/issues-research/human-services/statedoma-laws.aspx ........................................................................................................ 13 Public Statute Laws of the State of Connecticut, 1808 tit. LXVI, ch. 1, § 2, 294-95 & n.1 ........................................................................................... 11 H.R. Rep. at 12 ......................................................................................................... 15 H.R. Rep. at 13 ......................................................................................................... 15 H.R. Rep. at 18 ......................................................................................................... 15 H.R. Rep. No. 104-664, reprinted in 1996 U.S.C.C.A.N. 2905 .................................................................................................. 15 Resolution of the Am. Psychiatric Ass’n (Dec. 15, 1973); reprinted in 131 Am. J. Psychiatry 497 (1974) ............................................................................................. 14 S. Res. 280 at 9 (81st Congress) .............................................................................. 11

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INTRODUCTION This case involves Defendants’ application, or potential application of Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7 (“DOMA”) to a putative class of Plaintiffs. Defendants agree with Plaintiffs that Section 3 of DOMA discriminates on the basis of sexual orientation in violation of the equal protection component of the Fifth Amendment. That is why the Attorney General informed the Speaker of the House of Representatives on February 23, 2011 that he would instruct the Department of Justice to stop defending Section 3’s constitutionality. See February 23, 2011 Letter from U.S. Attorney General Eric H. Holder, Jr. to U.S. House of Representatives Speaker, John A. Boehner, Notice to the Court, Ex. 2, ECF No. 5-2. Indeed, Plaintiff Jane DeLeon’s consideration for an immigration benefit – a discretionary waiver under 8 U.S.C. § 1182(i) of her inadmissibility under 8 U.S.C. § 1182(a)(6)(C)(i) – has been

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curtailed because of the application of Section 3 of DOMA, a statute that violates the
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Constitution. But Defendants disagree with Plaintiffs’ efforts to obtain a broad
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preliminary injunction against the enforcement of Section 3 of DOMA for a nationwide class because they have not shown a likelihood that there are class members who are suffering imminent and irreparable harm. Further, such harm is even less likely in the time frame presented. The Supreme Court is currently considering petitions for certiorari in four cases involving the constitutionality of Section 3 of DOMA. If the Court grants one of these petitions, the constitutionality of Section 3 will be resolved in the next year. Thus, the balance of harms and the public interest weigh in favor of foregoing a class-wide injunction at this time. Rather than a broad, class-wide injunction, the injury caused to Ms. DeLeon – and the derivative injury caused to the other two named plaintiffs – can and should be remediated by a final judgment on the merits that Section 3 of DOMA is unconstitutional and that Ms. DeLeon’s waiver request must be considered without regard to DOMA.

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For these and other reasons, the Court should deny Plaintiffs’ motion for a preliminary injunction. FACTUAL AND PROCEDURAL HISTORY1 Plaintiff Jane DeLeon is a native and citizen of the Philippines. Compl. ¶ 19. Ms. DeLeon lived with Joseph Randolph Aranas from approximately 1984 to 1989. Id. Ms. DeLeon and Joseph Aranas have two sons born in the Philippines, Mikkel R. Aranas and Plaintiff Martin Aranas. Id. Ms. DeLeon was admitted to the United States on or about December 18, 1989 on a B-2 nonimmigrant visitor visa. Id. ¶ 19. When Ms. DeLeon entered the United States in 1989, her passport listed her occupation as “housewife” and her name as “Jane Francis L. Aranas,” although she was not legally married to Joseph Aranas. Id. ¶ 22. Ms. DeLeon and Joseph Aranas resided together in the United States until 1991.

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Id. ¶ 24.
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Ms. DeLeon met Plaintiff Irma Rodriguez in 1992, and they have resided
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together for 20 years. Id. ¶ 25. The couple was married in California on August 22, 2008. Id. In March 2006, Ms. DeLeon’s employer submitted an immigrant visa petition on her behalf. Id. ¶ 26. It was approved approximately two months later. Id. On or about August 16, 2007, Ms. DeLeon filed an application for adjustment of status to that of a lawful permanent resident under 8 U.S.C. § 1255. Id. At the time she applied for adjustment of status, her visa priority date was current (meaning, there was a visa available to her). Id. Ms. DeLeon’s son, Plaintiff Martin Aranas, also applied for adjustment of status as a derivative beneficiary of his mother. Id. On April 14, 2011, U.S. Citizenship and Immigration Services (“USCIS”) notified Ms. DeLeon that she was inadmissible to the United States and therefore
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Because Plaintiffs have sought injunctive relief prior to the filing of an Answer, and because even as alleged, Plaintiffs’ facts do not support a preliminary injunction, Defendants rely on the facts as alleged in the Complaint for purposes of this opposition. 2

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ineligible for adjustment of status. Id. ¶ 27. The September 1, 2011 letter said that she entered the United States in 1989 by misrepresenting that her name was “Jane L. Aranas” and that she was married to Joseph Aranas. See Mot. Prelim. Inj. Mem., Ex. 2. Ms. DeLeon was deemed inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). Section 1182(a)(6)(C)(i) makes inadmissible anyone who seeks to obtain a visa, other documentation, or admission to the United States by fraud or misrepresenting a material fact. Compl. ¶ 27. Defendants provided Ms. DeLeon with instructions on how to apply for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i) (I-601 Waiver). See 8 U.S.C. § 1182(a)(6)(C)(iii). Compl. ¶ 28. Section 1182(i) requires a showing that an alien’s removal or denial of adjustment of status would “result in extreme hardship to [her] citizen . . . spouse or parent.” Id. ¶ 28. On July 5, 2011, Ms. DeLeon filed a Form I-601 inadmissibility waiver (“I-601

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waiver”) based on the hardship that the denial of adjustment of status would cause her
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92-year-old U.S. citizen father, who resides both in the United States and in the
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Philippines. Id. ¶ 29. On September 1, 2011, Defendants denied Ms. DeLeon’s waiver application because USCIS determined that Ms. DeLeon failed to establish that the denial of adjustment of status would cause extreme hardship to her U.S. citizen father. Id. ¶ 30; see Mot. Prelim. Inj. Mem., Ex. 2. The denial of the waiver automatically resulted in a denial of her application for adjustment of status and a denial of Plaintiff Aranas’ application for derivative status. Id.¶ 30. On September 27, 2011, Ms. DeLeon submitted a timely Motion to Reopen/Reconsider the I-601 Denial on the ground that denying her application for adjustment of status and requiring her departure from the United States would cause extreme hardship to her U.S. citizen spouse, Ms. Rodriguez. Id. ¶ 32. On November 9, 2011, USCIS reopened and reconsidered the denial of the I-601 waiver, but again denied the I-601 waiver pursuant to Section 3 of DOMA. Id. ¶ 37; Mot. Prelim. Inj. Mem., Ex. 1. The new denial states that, under DOMA, “Jane
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DeLeon’s ‘same-sex spouse’ does not qualify as a relative for purposes of establishing hardship.” Id. ¶ 37; Mot. Prel. Inj. Mem., Ex. 1. In the September 1, 2011 letter Ms. DeLeon received, USCIS informed her that she is no longer authorized to work and that she now is accruing “unlawful presence” in this country for purposes of 8 U.S.C. § 1182(a)(9)(B). Mot. Prelim. Inj. Mem., Ex. 2. The denial states that if she accrues more than six months of unlawful presence, she “will be prohibited from being admitted to the United States should [she] depart . . . and seek readmission within three years.” It also said that, if she remains in the U.S. for more than one year and then departs, she will be barred from readmission for ten years. Id. On July 12, 2012, eight months after USCIS denied the I-601 Motion to Reopen, Plaintiffs filed the instant action wherein they challenge the constitutionality of Section 3 of DOMA based on equal protection and substantive due process grounds and allege

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that the application of Section 3 discriminates based on “sex” in violation of the INA,
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8 U.S.C. § 1152(a)(1)(A).2 See Compl. On August 23, 2012, Plaintiffs moved for a preliminary injunction, asking the Court to enjoin Defendants from: (1) deporting or removing immigrants denied lawful status solely because they and their U.S. citizen or permanent resident spouses are of the same sex, and from instructing or advising such immigrants to depart the United States; (2) denying employment authorization to immigrants lacking lawful permanent resident status solely because they and their U.S. citizen or permanent resident spouses are of the same sex; (3) denying immigration benefits under the INA solely because the immigrant or the non-immigrant has a spouse of the same sex; and

In their Complaint, Plaintiffs cite to 8 U.S.C. § 1152(a)(2), but Defendants believe Plaintiffs intended to cite to 8 U.S.C. § 1152(a)(1)(A). 4

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(4) treating immigrants who have applied for benefits under the INA as acquiring “unlawful presence” thereby triggering the threeand ten-year bars to future lawful admission set out in 8 U.S.C. § 1182(a)(9)(B)(i) solely because they and their U.S. citizen or permanent resident spouses are of the same sex. Mot. Prelim. Inj. Mem. at 2-3.3 PRELIMINARY INJUNCTION STANDARD Preliminary injunctions are intended to preserve the relative positions of the parties until a judgment on the merits can be rendered. 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.”). This Court

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may not award a preliminary injunction unless Plaintiffs show: (1) a strong likelihood
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of success on the merits; (2) that they are likely to suffer irreparable injury absent
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preliminary relief; (3) the balance of hardships favors them; and (4) the public interest favors a preliminary injunction. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008). Plaintiffs must satisfy each factor. Id. In assessing these four factors, the Ninth Circuit employs a “sliding scale” approach where “the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). To show harm, Plaintiffs must do more than allege a possibility of future harm. See Winter, 555 U.S. at 22. Rather, they must allege that concrete, imminent harm is
Plaintiffs have set forth three differently worded requests for relief in their Motion for Preliminary Injunction, Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction, and in the Proposed Order. While the language is similar in many respects, it is not identical and does not request identical relief. Defendants have responded to the language set forth in the body of Plaintiffs’ Memorandum in Support of Motion for a Preliminary Injunction (ECF No. 12 at 2-3). 5
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likely with particularized facts. Id.; see also Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 1000 (9th Cir. 2011) (noting the Supreme Court’s rejection of the “possibility” standard and remanding to the district court to conduct fact-finding regarding irreparable harm). This standard reflects the idea that a preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. This Court may not issue a class-wide preliminary injunction that applies to an uncertified class. See Zepeda v. INS, 753 F.2d 719, 729, n.1 (internal quotations omitted) (9th Cir. 1984). “This limitation is consistent with the traditional rule that injunctive relief should be narrowly tailored to remedy the specific harms shown by plaintiffs, rather than to enjoin all possible breaches of the law.” Id. at 729 n.1. Thus, in order to grant a class-wide preliminary injunction, the Court must first certify this

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suit as a class action and then ensure that the named Plaintiffs can satisfy the
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preliminary injunction standard as to themselves and the other class members.
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ARGUMENT Defendants agree with Plaintiffs that Section 3 of DOMA discriminates on the basis of sexual orientation in violation of the equal protection component of the Fifth Amendment, but regardless of whether Plaintiffs are likely to succeed on the merits in this Court, preliminary injunctive relief is unwarranted. The balance of the harms and the public interest weigh against granting a preliminary injunction. A preliminary injunction would greatly alter the status quo, not maintain it. Plaintiffs seek to require the agency to change its processes and effectively grant substantive relief before a final judgment. That is not truly “preliminary” relief. Rather than a broad, class-wide injunction, the injury caused to Ms. DeLeon – and the derivative injury caused to the other two named Plaintiffs – can and should be remediated by a straightforward order on the merits that Section 3 of DOMA is
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unconstitutional and that Ms. DeLeon’s waiver request must be considered without regard to DOMA. I. Section 3 of DOMA Unconstitutionally Discriminates on the Basis of Sexual Orientation. Defendants have explained in their contemporaneous filing why a class should not be certified. Ms. DeLeon – while injured by DOMA – is an inadequate representative of the class given her unique circumstances, and the other two named Plaintiffs do not have standing, so cannot serve as class representatives.4 But the government agrees with Plaintiffs that Section 3 of DOMA discriminates on the basis of sexual orientation in violation of the equal protection component of the Fifth Amendment. However, Plaintiffs have not shown they are likely to succeed on the merits of their substantive Due Process Clause claim.

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A. Section 3 of DOMA Violates the Fifth Amendment’s Equal Protection Guaranty by Discriminating on the Basis of Sexual Orientation. The Constitution’s guarantee of equal protection of the laws, applicable to the federal government through the Due Process Clause of the Fifth Amendment, see

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Bolling v. Sharpe, 347 U.S. 497, 500, 74 S. Ct. 693, 98 L. Ed. 884 (1954), embodies a
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fundamental requirement that “all persons similarly situated should be treated alike,”
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City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). Section 3 of DOMA is inconsistent with that principle of equality because it denies legally married same-sex couples federal benefits that are available to similarly situated opposite-sex couples.
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Two of the three plaintiffs have not established standing, as Defendants explained in the class certification opposition. Mr. Aranas, the son of Ms. DeLeon, lacks standing to claim that Section 3 of DOMA discriminates against him on the basis of sexual orientation because he is not being discriminated against on the basis of his orientation. See Miller v. Albright, 523 U.S. 420, 446, 118 S. Ct. 1428, 140 L. Ed. 2d 575 (1998) (O’Connor, J., concurring in the judgment). Ms. Rodriguez – Ms. DeLeon’s spouse – would plainly be impacted by the denial of Ms. DeLeon’s waiver of inadmissibility. However, she has not sought an immigration benefit in this case and therefore is not the proper plaintiff to challenge its denial. 7

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The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. In High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990), the Ninth Circuit held that classifications based on sexual orientation are subject to rational basis review. High Tech Gays, however, has been undermined by subsequent decisions of the Ninth Circuit and the Supreme Court. See Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000) (finding that sexual orientation is immutable), overruled in part on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (en banc); vacated and remanded by Gonzales v. Thomas, 547 U.S. 183, 126 S. Ct. 1613, 164 L. Ed. 2d 358 (2006); Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010). Indeed, the reasoning of High Tech Gays traces directly back to Bowers v. Hardwick, 478 U.S. 186 (1986). The Supreme Court subsequently overruled Bowers in Lawrence

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v. Texas, 539 U.S. 558 (2003), and the reasoning of High Tech Gays thus no longer
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withstands scrutiny. We acknowledge that in Witt v. Dep’t of the Air Force, 527 F.3d
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806, 821 (9th Cir. 2008), the Ninth Circuit concluded that its previous holding “that [the military’s Don’t Ask, Don’t Tell policy] does not violate equal protection under rational basis review” was “not disturbed by Lawrence” because the Supreme Court’s decision in that case rested on due process, rather than equal protection principles. Id. (citing Philips v. Perry, 106 F.3d 1420, 1424 – 25 (9th Cir. 1997), which relied on High Tech Gays). While the holding in Witt is binding on this Court, the Ninth Circuit’s brief equal protection discussion failed to examine the extent to which High Tech Gays relied on inferences from the Supreme Court’s now-overruled decision in Bowers, and also failed to consider the inconsistency between the reasoning of High Tech Gays and that of Hernandez-Montiel. See 527 F.3d at 821. The Ninth Circuit’s rational basis precedent has been seriously undermined by intervening decisions and fails to grapple fully with the factors that, as discussed below, necessarily lead to the

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conclusion that sexual orientation classifications must be subject to heightened scrutiny. The Supreme Court has established and repeatedly confirmed a set of factors that guides the determination of whether heightened scrutiny applies to a classification that singles out a particular group. The Supreme Court has identified the following factors to guide whether heightened scrutiny applies to a specific group: (1) whether the group in question has suffered a history of discrimination; (2) whether members of the group “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group;” (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” Bowen v. Gilliard, 483 U.S. 587, 602-03, 107 S. Ct. 3008, 97 L.

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Ed. 2d 485 (1987); see also Cleburne, 473 U.S. at 439-42. Careful application of these
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factors to gays and lesbians demonstrates that sexual orientation classifications should
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be subject to heightened scrutiny. Under that standard of review, Section 3 of DOMA is unconstitutional.5
Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), does not dictate a contrary result. In Adams, a same-sex couple of a U.S. citizen and an alien claimed that they were married under Colorado law and that this marriage entitled the alien spouse to immigration benefits under the INA. Id. at 1038. Adams first set forth the operative two-part test applied by agencies when determining whether a marriage is valid under the INA: (1) is the marriage valid under state law?; and (2) does the stateapproved marriage qualify under the INA? Id. The Ninth Circuit assumed that plaintiffs were parties to a valid same-sex marriage under state law, but that, under part two, a same-sex marriage does not qualify as a marriage under the INA. Id. at 1039–41. The Court went on to apply rational basis review and uphold the constitutionality of this interpretation against plaintiffs’ equal protection challenge. Id. at 1041–43. USCIS relied on DOMA, and not Adams or the Adams courts’ interpretation of the INA, in denying Ms. DeLeon’s I-601 waiver. Mot. Prelim. Inj. Mem., Ex. 1. The proper interpretation of the term “spouse” in the INA, absent DOMA, is therefore not before this Court in deciding Plaintiffs’ Motion for a Preliminary Injunction. The reasons the Ninth Circuit affirmed the denial of immigration benefits in Adams are no longer valid today. Decided nearly thirty years ago, Adams’ interpretation of the INA relied heavily on 8 U.S.C. § 1184(a)(4), an INA provision that rendered homosexual aliens inadmissible and was repealed in 1990. Id. at 1040–41. In upholding the constitutionality of this interpretation of the INA, 9
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1.

Gay and Lesbian People Are a Suspect or Quasi-Suspect Class under the Relevant Factors Identified by the Supreme Court. a. Gay and Lesbian People Have Been Subject to a History of Discrimination.

Gay and lesbian individuals have suffered a long and significant history of purposeful discrimination. See High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir. 1990) (“[W]e do agree that homosexuals have suffered a history of discrimination . . . .”); see also Massachusetts v. HHS, slip op. at 18 (“[G]ays and lesbians have long been the subject of discrimination.”); Ben-Shalom v. Marsh, 881 F.2d 454, 465-66 (7th Cir. 1989) (noting that “[h]omosexuals have suffered a history of discrimination and still do, though possibly now in less degree”). So far as Defendants are aware, no court to consider this question has ever ruled otherwise. Discrimination against gay and lesbian individuals has a long history in this
Adams referred to antiquated rationales for excluding same-sex couples from immigration benefits, such as a same-sex couple’s inability to produce offspring, the fact that same-sex marriages were not recognized by the states, and the notion that same-sex marriages violated “traditional and often prevailing societal mores.” Id. at 1040–43. Moreover, the Ninth Circuit determined that strict scrutiny could not apply because of Congress’s “almost plenary power to admit or exclude aliens.” See id. at 1042. Unlike the immigration and nationality statute challenged in Adams and other immigration statutes where equal protection review is highly deferential, see, e.g., Fiallo v. Bell, 430 U.S. 787, 794-95 (1977) (involving a challenge to INA provisions), neither DOMA nor its legislative history suggests that DOMA was enacted as an exercise of Congress’s plenary power to regulate immigration and naturalization. And unlike other statutes that include explicit references to the immigration and nationality laws or otherwise regulate aliens in the United States, see, e.g., Mathews v. Diaz, 426 U.S. 67, 78–83 (1976) (applying deferential standard of review to Medicare provisions governing eligibility of aliens); Aleman v. Glickman, 217 F.3d 1191, 1197–99 (9th Cir. 2000) (relying on Mathews and applying deferential standard to classifications drawn among classes of aliens in Personal Responsibility and Work Opportunity Reconciliation Act of 1996 with respect to eligibility for public benefits), DOMA contains no such provisions and the legislative record of DOMA is devoid of any immigration-specific rationale. Nor have the responsible federal agencies identified an immigration specific purpose or need for DOMA. Accordingly, the traditional deference to the judgments of the political branches regarding immigration matters does not support applying deferential review to Section 3 of DOMA as applied in the immigration context or sustaining its application on that basis.

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country, Bowers v. Hardwick, 478 U.S. 186, 192, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), from colonial laws ordering the death of “any man [that] shall lie with mankind, as he lieth with womankind,” see, e.g., Public Statute Laws of the State of Connecticut, 1808 tit. LXVI, ch. 1, § 2, 294–95 & n.1 (enacted Dec. 1, 1642; revised 1750), to state laws that, until very recently, have “demean[ed] the[] existence” of gay and lesbian people “by making their private sexual conduct a crime,” Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). In addition to the discrimination reflected in DOMA itself, the federal government, state and local governments, and private parties all have contributed to this long history of discrimination.6 b. Gay and Lesbian People Share An Immutable Characteristic that Distinguishes Them as a Group.

In considering whether gay and lesbian people constituted a “particular social group” for asylum purposes, the Ninth Circuit has recognized that “[s]exual orientation and sexual identity are immutable,” and that “[h]omosexuality is as deeply ingrained as heterosexuality.” Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000)

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(quotation omitted). But see High Tech Gays, 895 F.2d at 573 (stating that sexual
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orientation is not immutable because “it is behavioral”). Sexual orientation, the Ninth
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Circuit explained, is “fundamental to one’s identity,” and gay and lesbian individuals “should not be required to abandon” it. Hernandez-Montiel, 225 F.3d at 1093. That conclusion is consistent with the overwhelming consensus in the scientific community that sexual orientation is an immutable characteristic. See, e.g., G.M.
For example, for many years, the federal government deemed gay and lesbian people unfit for employment, barring them from federal jobs on the basis of their sexual orientation. See Employment of Homosexuals and Other Sex Perverts in Government, Interim Report submitted to the Committee by its Subcommittee on Investigations pursuant to S. Res. 280 at 9 (81st Congress), December 15, 1950, (“Interim Report”). Indeed, it was not until 1975 that the Civil Service Commission prohibited discrimination on the basis of sexual orientation in federal civilian hiring. See General Accounting Office, Security Clearances: Consideration of Sexual Orientation in the Clearance Process (1995) (describing the federal government’s restrictions on the employment of gay and lesbian individuals). 11
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Herek, et al., Demographic, Psychological, and Social Characteristics of SelfIdentified Lesbian, Gay, and Bisexual Adults in a US Probability Sample, Sexuality Res. & Soc. Pol’y 7:176, 190 (2010), available at http://www.springerlink.com/content/k186244647272924/fulltext.pdf (noting that in a national survey conducted with a representative sample of more than 650 selfidentified lesbian, gay, and bisexual adults, 95 percent of the gay men and 83 percent of lesbian women reported that they experienced “no choice at all” or “small amount of choice” about their sexual orientation). There is also a consensus among the established medical community that efforts to change an individual’s sexual orientation are generally futile and potentially dangerous to an individual’s well-being. See, e.g., Am. Psychological Ass’n, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation, at v (2009),

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available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (“[E]fforts
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to change sexual orientation are unlikely to be successful and involve some risk of
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harm.”). Furthermore, sexual orientation need not be a “visible badge” that distinguishes gay and lesbian people as a discrete group for the classification to warrant heightened scrutiny. As the Supreme Court has made clear, a classification may be “constitutionally suspect” even if it rests on a characteristic that is not readily visible, such as illegitimacy. Mathews v. Lucas, 427 U.S. 495, 504, 506, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976) (noting that “illegitimacy does not carry an obvious badge, as race or sex do,” but nonetheless applying heightened scrutiny). Whether or not gay and lesbian people could hide their identities in order to avoid discrimination, they are not required to do so. As the Supreme Court has recognized, sexual orientation is a core aspect of identity, and its expression is an “integral part of human freedom.” Lawrence, 539 U.S. at 562, 577.

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c.

Gay and Lesbian People Are Minorities with Limited Political Power.

Gay and lesbian people are a minority group, Able v. United States, 968 F. Supp. 850, 863 (E.D.N.Y. 1997), rev’d, 155 F.3d 628 (2d Cir. 1998), that has historically lacked political power. To be sure, many of the forms of historical discrimination have subsided or been repealed. But efforts to combat discrimination have frequently led to successful initiatives to scale back protections afforded to gay and lesbian individuals. The adoption of ballot initiatives specifically repealing laws protecting gay and lesbian people from discrimination are examples of such responses. In fact, “[f]rom 1974 to 1993, at least 21 referendums were held on the sole question of whether an existing law or executive order prohibiting sexual orientation discrimination should be repealed or retained. In 15 of these 21 cases, a majority voted to repeal the law or executive

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order.” Robert Wintemute, Sexual Orientation and Human Rights 56 (1995).
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Recent developments concerning same-sex marriage reinforce that gay and
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lesbian people continue to lack the consistent “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. In 1996, at the time DOMA was enacted, only three states had statutes restricting marriage to opposite-sex couples. See Andrew Koppelman, The Difference the Mini-DOMAs Make, 38 Loy. U. Chi. L.J. 265, 265–66 (2007). Today, thirty-nine states have such laws, including thirty states that have constitutional amendments explicitly restricting marriage to opposite-sex couples. National Conference of State Legislatures, State Laws Limiting Marriage to Opposite-Sex Couples, available at http://www.ncsl.org/issues-research/humanservices/state-doma-laws.aspx (last updated May 15, 2012). Indeed, North Carolina became the thirtieth state to amend its constitution to prohibit same-sex marriages on May 8, 2012. This is not to say that the political process is closed entirely to gay and lesbian people. But complete foreclosure from meaningful political participation is not the
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standard by which the Supreme Court has judged “political powerlessness.” When the Court ruled in 1973 that gender-based classifications were subject to heightened scrutiny, Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), women already had won major political victories, including a constitutional amendment granting the right to vote and protection against employment discrimination under Title VII. As Frontiero makes clear, the “political power” factor does not require a complete absence of political protection, and its application is not intended to change with every political success. d. Sexual Orientation Bears No Relation to Legitimate Policy Objectives or Ability to Perform or Contribute to Society.

Even where other factors might point toward heightened scrutiny, the Supreme Court has declined to treat as suspect those classifications that generally bear on “ability to perform or contribute to society.” See Cleburne, 473 U.S. at 441 (holding that mental disability is not a suspect classification) (quotation omitted); see also Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312-14, 96 S. Ct. 2562, 49 L. Ed. 2d 520 (1976) (holding that age is not a suspect classification).

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Sexual orientation is not such a classification. As the history described above
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makes clear, prior discrimination against gay and lesbian people has rested not on their
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ability to contribute to society, but on the basis of invidious and long-discredited views that gay and lesbian people are, for example, sexual deviants or mentally ill. As the American Psychiatric Association stated more than 35 years ago, “homosexuality per se implies no impairment in judgment, stability, reliability or general social or vocational capabilities.” Resolution of the Am. Psychiatric Ass’n (Dec. 15, 1973); reprinted in 131 Am. J. Psychiatry 497 (1974); see also Minutes of the Annual Meeting of the Council of Representatives, 30 Am. Psychologist 620, 633 (1975) (reflecting a similar American Psychological Association statement). Just as a person’s gender, race, or religion does not bear an inherent relation to a person’s ability or capacity to
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contribute to society, a person’s sexual orientation bears no inherent relation to ability to perform or contribute. Whether premised on pernicious stereotypes or simple moral disapproval, laws classifying on the basis of sexual orientation rest on a “factor [that] generally provides no sensible ground for differential treatment,” see Cleburne, 473 U.S. at 440, and thus such laws merit heightened scrutiny. 2. DOMA Fails Heightened Scrutiny.

Section 3 of DOMA cannot survive heightened scrutiny. Under that standard of review, a law must, at a minimum, be “substantially related to an important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910, 1914, 100 L. Ed. 2d 465 (1988). Moreover, under any form of heightened scrutiny, a statute must be defended by reference to the “actual [governmental] purposes” behind it, not

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different interested hypothesized post hoc in response to litigation U.S. v. Virginia
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(“VMI”), 518 U.S. 515, 533, 116 S. Ct. 2264, 2275-76, 135 L. Ed. 2d 735 (1996).
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The House Report that accompanied DOMA, details four government purposes behind Section 3: (1) “defending traditional notions of morality” and “promoting heterosexuality,” H.R. Rep. No. 104-664, at 15 & n.53 (1996), reprinted in 1996 U.S.C.C.A.N. 2905 (“H.R. Rep.”); (2) “defending and nurturing the institution of traditional, heterosexual marriage,” H.R. Rep. at 12; (3) promoting “responsible procreation and child-rearing,” H.R. Rep. at 13; and (4) “preserving scare government resources,” H.R. Rep. at 18. Every court to have recently considered an equal protection challenge to Section 3, applying either rational basis review or heightened scrutiny, has squarely rejected the sufficiency of these purposes and held Section 3 unconstitutional. See Massachusetts v. Dep’t of Health and Hum. Servs., 683 F.3d 1, 13-15 (1st Cir. 2012) (rejecting preservation of scarce government resources, child-rearing, and moral disapproval rationales under a “more careful” form of rational basis review); Pedersen
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v. Office of Personnel Mgmt., No, 10-1750, 2012 WL 3113883, at *37- 45 (D. Conn. July 31, 2012) (finding that heightened scrutiny should apply to sexual orientation classifications, but rejecting traditional marriage, child-rearing, moral disapproval, and preservation of scarce resources under rational basis review); Windsor v. United States, 833 F.Supp.2d 394, 403-06 (S.D.N.Y. 2012) (rejecting traditional marriage, childrearing, and preservation of scarce resources rationales under rational basis review); Dragovich v. U.S. Dep’t of Treasury, No. 10-1564, 2012 WL 1909603, at *10-14 (N.D. Cal. May 24, 2012) (same); Golinski v. Office of Personnel Mgmt., 824 F.Supp.2d 968, 991-99 (N.D. Cal. 2012) (rejecting child-rearing, traditional marriage, moral disapproval, and preservation of scarce resources rationales under heightened scrutiny and rational basis review); In re Balas, 449 B.R. 567, 578-79 (C.D. Cal. 2011) (rejecting traditional marriage, child-rearing, and preservation of scarce resources

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rationales under heightened scrutiny review); see also Superseding Br. of United
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States, Massachusetts v. Dep’t of Health and Hum Servs., Nos. 10-2204 & 10-2214, at
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45-53 (discussing inadequacy of purposes animating Section 3 under heightened scrutiny). For the reasons explained in these opinions, Section 3 of DOMA’s exclusion of same-sex couples lawfully married under state law is not “substantially related to an important governmental objective.” Clark, 486 U.S. at 461. The mismatch between Section 3’s stated ends and means raises an inference that Section 3 classifies gay and lesbian individuals “not to further a proper legislative end but to make them unequal to everyone else.” Romer v. Evans, 517 U.S. 620, 635 (1996). The government therefore agrees with Plaintiffs that Section 3 violates the equal protection component of the Fifth Amendment.7

Plaintiffs also argue that Section 3 of DOMA is a classification based on sex. See Mot. Prelim. Inj. Mem. at 17. Given that Section 3 distinguishes between two different classes of married couples – same sex and opposite sex – it is better analyzed as a classification based on sexual orientation. 16

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B. Section 3 of DOMA Does Not Violate Substantive Due Process. Plaintiffs’ substantive due process argument cannot prevail because DOMA works in this case to prevent Plaintiffs from obtaining a federal benefit, and there is no substantive due process right to a federal benefit. Here, the specific interest at stake is Plaintiffs’ ability to obtain benefits under federal immigration law. In particular, Ms. DeLeon challenges the denial of her I-601 waiver application and, ultimately, her application for adjustment of status. The granting of both, however, is a decision ultimately left to the discretion of the Secretary of Homeland Security or the Attorney General. See 8 U.S.C. § 1182(i) (“The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) of this section [rendering an individual inadmissible for material misrepresentation or fraud].”) and § 1255(a) (“The status of an alien . . . may be adjusted by the Attorney General, in his discretion.”).8 The Ninth Circuit has recognized that the denial of a discretionary benefit cannot violate a

15

substantive liberty or property interest purportedly protected by the Due Process
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Clause. See Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (“Since
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discretionary relief is a privilege created by Congress, denial of such relief cannot violate a substantive interest protected by the Due Process clause.”). Thus, while denial of those benefits under Section 3 of DOMA violates the equal protection
Although 8 U.S.C. §§ 1182(i) and 1255(a) refer to the Attorney General, the authority to adjudicate applications for waivers of inadmissibility and adjustment of status also lies with the Secretary of Homeland Security by operation of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2311. See 6 U.S.C. § 557 (“With respect to any function transferred by or under this Act . . . reference in any other Federal law to any department, commission, or agency or any officer or office the functions of which are so transferred [by the HSA] shall be deemed to refer to the Secretary, other official, or component of the Department to which such function is so transferred.”), 271(b) (transferring from the former INS Commissioner to the USCIS Director Service all functions relating to the adjudication of immigration benefit applications); see also 8 U.S.C. §§ 1103(a) (vesting in the Secretary of Homeland Security all authorities “relating to the immigration and naturalization of aliens” except those expressly reserved to the President, the Attorney General, or the Secretary of State), 1103(g) (describing primary immigration authorities of the Attorney General), 1104(a) (describing primary immigration authorities of the Secretary of State). 17
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component of the Due Process Clause in these circumstances, there is no substantive due process right to them. Accordingly, Plaintiffs do not possess a fundamental right to immigration benefits. Rather, the Court should analyze the unfairness created by Section 3 of DOMA under the equal protection component of the Fifth Amendment Due Process Clause, rather than under principles of substantive due process. Plaintiffs thus have satisfied their burden of showing a strong likelihood of success on the merits of their sexual-orientation discrimination claim. II. The Remaining Preliminary Injunction Factors. Defendants agree with Plaintiffs that Section 3 of DOMA discriminates on the basis of sexual orientation in violation of the equal protection component of the Fifth Amendment. Yet regardless of Plaintiffs’ likelihood of success on the merits in this

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Court, a preliminary injunction is unwarranted. Defendants disagree with Plaintiffs’
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efforts to obtain a preliminary injunction against Section 3 of DOMA for a nationwide
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class. Accordingly, as shown below, Plaintiff’s preliminary injunction motion should be denied. A. Plaintiffs Have Not Made the Requisite Showing of Irreparable Harm. 1. Any Harm Can Be Remedied by Relief Far Narrower Than That Requested.

Plaintiffs contend that Ms. DeLeon is being harmed by DOMA – primarily because she lost her work authorization. Ordinarily economic injury of this sort would not be sufficient to warrant a preliminary injunction, especially one that alters the status quo. Moreover, Plaintiffs do not allege in the preliminary injunction motion that Ms. DeLeon would seek work or be employed absent the loss of her work authorization. Plaintiffs’ injury can instead be remedied by relief far narrower than the proposed injunction, through the relief called for on judicial review of agency action: a
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final judgment setting aside the particular final agency action affecting the parties in this case. See Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir. 1990) (“[A]n injunction must be narrowly tailored to give only the relief to which plaintiffs are entitled.”). Moreover, in this case, Ms. DeLeon waited ten months after the denial of administrative relief and the loss of her work authorization to seek injunctive relief in this Court. This shows the limited impact of the harm under these specific circumstances. The denial of Ms. DeLeon’s I-601 application for a waiver of inadmissibility – and, in turn, her loss of work authorization – was based on Section 3 of DOMA. As a result of that denial, she cannot legally work in the United States and is now accruing unlawful presence in the United States. See Mot. Prelim. Inj. Mem. at 3, 5, 22-23. The accrual of unlawful presence can lead to significant bars to admission to the

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United States, should Ms. DeLeon leave the country and attempt to re-enter. See 8
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U.S.C. § 1182(a)(9)(B); In re Lemus-Losa, 25 I. & N. Dec. 734 (BIA 2012); In re
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Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006). However, Ms. DeLeon has not indicated any plan to leave the country, and if DOMA is ultimately struck down, the accrual of unlawful presence would be subject to subsequent remediation. Addison v. Holly Hill Fruit Prods., Inc., 322 U.S. 607, 622, 64 S. Ct. 1215, 1218, 88 L. Ed. 1488 (1944) (courts maintain “flexibility in shaping [their] remedies” and may grant retroactive relief). Further, the harm Ms. DeLeon alleges can be fully remedied by an order on the merits far narrower than that sought here. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (“Injunctive relief must be tailored to remedy the specific harm alleged. An overbroad injunction is an abuse of discretion.”) (alterations and citations omitted). The effect of USCIS’s denial of Ms. DeLeon’s I-601 waiver would be ended by an order by this Court ultimately declaring DOMA to be unconstitutional
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and directing USCIS to reopen and adjudicate her I-601 waiver application without regard to DOMA at that time. That very narrow relief would also fully remedy whatever injuries DOMA is derivatively causing the other two named Plaintiffs here. A preliminary injunction, and a broader injunctive order concerning others, is not warranted. See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61, 95 S. Ct. 2069, 45 L. Ed. 2d 12 (1975) (“[T]he essence of equity jurisdiction has been the power of the Chancellor to do equity and to mold each decree to the necessities of the particular case.”). The named Plaintiffs similarly have not established irreparable injury based on their alleged fear of removal. See Mot. Prelim. Inj. Mem. at 22. No removal proceedings have been commenced against Ms. DeLeon or Mr. Aranas, and nothing in the September 1, 2011 or the November 9, 2011 agency decisions threatens Ms. DeLeon or Mr. Aranas with the initiation of removal proceedings.9 And Ms. DeLeon and Mr. Aranas do not allege that Defendants have issued either of them a Notice to Appear (“NTA”) in a removal proceeding, which is the notice that initiates removal proceedings. Even if any of the named Plaintiffs were placed in removal proceedings today, the threat of actual removal still would be speculative. For example, if placed in removal proceedings, Ms. DeLeon could apply for withholding of removal in those proceedings. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16. She might also qualify for cancellation of removal (8 U.S.C. § 1229b) or a waiver of inadmissibility (8 U.S.C. § 1182(i)). The fact that Section 3 of DOMA rendered her subject to removal – and

9

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Ms. Rodriguez, of course, cannot fear removal given that she is a U.S. Citizen. 20

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did so in violation of the Constitution – could also be challenged in a Petition for Review in the Court of Appeals challenging a removal order.10 Even if an immigration judge were to order Ms. DeLeon to be removed, a removal order still would not immediately and automatically result in Ms. DeLeon’s removal or detention. Ms. DeLeon would have thirty days to file a notice of appeal of the immigration judge’s decision to the Board of Immigration Appeals. See 8 C.F.R § 1003.38(b). During this time for filing an appeal, the Government is precluded from executing her removal order, unless she affirmatively chooses to waive the appeal. 8 C.F.R. § 1003.6(a); see also Matter of Diaz-Garcia, 25 I. & N. Dec. 794, 795-96 (BIA 2012). Furthermore, if Ms. DeLeon filed an appeal with the BIA, the immigration judge’s order would be stayed throughout the pendency of the appeal. 8 C.F.R § 1003.6(a). Review in the appropriate court of appeals – along with the ability to obtain a stay in that court – would then be available to Ms. DeLeon.11 Finally, the issue of removal must be viewed in the context of the ongoing

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litigation of DOMA as a whole. The Supreme Court is currently considering multiple certiorari petitions in four cases challenging the constitutionality of Section 3 of DOMA. If the Court grants at least one of the petitions, the issue will be definitively resolved within a year. The prospect of Ms. DeLeon being removed within that time period is negligible. Thus, the asserted harm of “arrest and deportation” has not been shown here, especially when viewed in the context of a constitutional challenge that is very likely to be definitively resolved within the year.
This Court also lacks jurisdiction to review the “decision or action of the Attorney General to . . . execute removal orders.” 8 U.S.C. § 1252(g); see infra, p. 26-27. 11 There is also nothing in the record to suggest that ICE would detain Ms. DeLeon during the pendency of removal proceedings. Aliens in removal proceedings (other than arriving aliens and criminal aliens subject to mandatory detention) are entitled to ask for bond from the U.S. Immigration and Customs Enforcement field office director and for a bond hearing from an immigration judge. See 8 U.S.C. § 1226(a). 21
10

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2. The Alleged Harm to Putative Class Members Is Speculative. Plaintiffs have offered no evidence at all that there are putative class members who face irreparable harm here. First, as Defendants explain in the concurrently filed opposition to the class certification, beyond the named Plaintiffs – only one of whom has standing – Plaintiffs have been unable to identify any putative class members at all. This is understandable given the unique circumstances presented by Ms. DeLeon and her effort to obtain waiver of inadmissibility after making a misrepresentation of a material fact on her original admission paperwork. Plaintiffs have provided no evidence that there are putative class members in a similar circumstance who have lost work authorization based upon DOMA. They have not identified anyone accruing unlawful presence. And they have pointed to no person facing removal. There have been several suits where individuals have challenged the

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application of Section 3 of DOMA to deny immigration benefits. See, e.g., Barragan
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v. Holder, No. 09-cv-8564 (C.D. Cal.); Lui v. Holder, No. 11-cv-01267 (C.D. Cal.);
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Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill.); Blesch v. Holder, No. 12-cv-1578 (E.D.N.Y.). But those plaintiffs have different circumstances than Plaintiffs here, and in this case, Plaintiffs have identified no class members (other than Jane DeLeon herself) who have filed applications for discretionary immigration benefits that might be denied based upon DOMA, or any whose applications have already been denied based on DOMA. Further, Plaintiffs have assumed, without explaining, that everyone who applies for a same-sex marriage-based benefit would be or fall out of status but for the grant of that benefit. See Mot. Prelim. Inj. Mem. at 5. That is not the case.12 Applicants who
In any event, individuals with pending applications are not accruing unlawful presence, so those class members whose applications have not yet been adjudicated cannot show any immediate harm in terms of the potential applicability of the three- and ten-year bars under 8 U.S.C. § 1182(a)(9)(B) were the individual to depart from the United States and later apply for admission. 22

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apply for marriage-based immigration benefits may otherwise be in lawful immigration status. Thus, those putative class members would not be without status if USCIS denies them a marriage-based immigration benefit. For example, a person could be lawfully present in the United States in H-1B (specialty occupation) nonimmigrant status for up to six years. See 8 U.S.C. § 1184(g)(4). That person could then marry a U.S. citizen of the same sex and apply to adjust her immigration status based on their marriage. See 8 U.S.C. §§ 1154, 1255. Assuming that the benefit were denied solely on the application of Section 3 of DOMA, that alien still would retain her valid H-1B status wherein she would be allowed to remain in this country and work. The same holds true for other aliens with lawful immigration status, such as students. All of this must be considered in conjunction with the reality that the constitutionality of Section 3 of DOMA will very likely be definitively resolved within the year,

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making it less likely that the consequences Plaintiffs allege will occur within this
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period.
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Finally, for the same reasons discussed above, putative class members cannot show that falling out of status would automatically cause DHS to place them in removal proceedings, let alone that they would actually be removed. In fact, removal proceedings are not inevitable for all those who find themselves out of status due to a benefit denial. See Memorandum from John Morton, Director, U.S. Immigration and Customs Enforcement (“ICE”) to All ICE Employees (Mar. 2, 2011) (“Morton Memo”), Ex. A; see also Memorandum from John Morton, Director, ICE to all ICE Employees (June 17, 2011) (discussing prosecutorial discretion), Ex. B. ICE’s removal priorities are geared to aliens who are threats to the Nation’s security, criminals, dangers to the community, recent entrants, and fugitives. Id. Thus, this alleged harm for putative class members whose applications are still pending is far too speculative to justify relief. Accordingly, Plaintiffs’ assertion that every class member

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will be irreparably injured by falling out of status is not grounded in reality. See Winter, 555 U.S. at 22. B. The Issuance of an Injunction Would Cause the United States Irreparable Harm.

Section 3 of DOMA should be found unconstitutional, and the government supports such a holding. But, as we have noted, multiple petitions for certiorari are currently pending before the Court, and if the Court grants at least one them, the constitutionality of Section 3 of DOMA will almost certainly be resolved within the next year. Until the constitutionality of Section 3 of DOMA is definitively resolved by the Supreme Court, there remains a tangible and significant institutional harm that is caused by a broad lower court injunction against the enforcement of Section 3 of

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DOMA that militates against the issuance of a broad injunction here. That harm
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extends to the Executive Branch in this case, even though the government has
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determined that Section 3 of DOMA is unconstitutional. While concluding the law to be unconstitutional, the President has instructed Executive agencies to continue to enforce Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the Judicial Branch renders a definitive verdict against the law’s constitutionality. See February 23, 2011 Letter from U.S. Attorney General Eric H. Holder, Jr. to U.S. House of Representatives Speaker, John A. Boehner, Notice to the Court, Ex. 2, ECF No. 5-2. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the Judiciary as the final arbiter of the constitutional claims raised. Id. A nationwide, class-wide injunction preventing USCIS from continuing to enforce Section 3 of DOMA during the pendency of this case would therefore upset the careful and deliberate balance struck by the President and the Attorney General.

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Plaintiffs have argued that the harm identified here is minimal because “defendants routinely grant ‘deferred action status’ to other immigrants in need of temporary protection.” Mot. Prelim. Inj. Mem. at 24. But an injunction would cause real institutional harm, as it would interfere with the agency’s ability to exercise deferred action or prosecutorial discretion to decide whether to commence proceedings, adjudicate cases, or execute removal orders. Deferred action decisions are purely discretionary decisions to defer the initiation of removal proceedings. See USCIS AFM 40.9.2(b)(3)(J). Moreover, deferred action decisions are unreviewable. See 8 U.S.C. § 1252(g); Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (“AADC”). Only the DHS Field Office Director may grant deferred action in her prosecutorial discretion. See AFM 40.9.2(b)(3)(J). Neither the immigration courts nor federal courts may grant deferred action or review a decision of the Field

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Office Director to deny deferred action. Matter of Quintero 18 I. & N. Dec. 348, 350
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(BIA Nov. 16, 1982); AADC, 525 U.S. at 483. Indeed, the Supreme Court has stated
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that, “Section 1252(g) seems clearly designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” AADC, 525 U.S. at 485. Accordingly, this Court should not take Plaintiffs’ invitation to treat this litigation seeking court-administered injunctive relief as similar to the discretionary decision by DHS to grant deferred action. C. The Balance of Harms and Public Interest Weigh In Favor of Foregoing Injunctive Relief Until Supreme Court Resolution of This Issue. The Supreme Court has stated that a court must “give serious consideration to the public interest factor.” Winter, 555 U.S. at 27. In this case, the public interest militates in favor of foregoing broad injunctive relief — particularly a program-wide preliminary injunction — in this case pending the dispositive resolution of this issue by
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the Supreme Court. This is true in light of two primary considerations. First, as we have explained, narrower and proper relief is available that could fully address any harm DOMA may cause Ms. DeLeon – as well as any derivative harm caused to Ms. DeLeon’s spouse and her son. More specifically, Ms. DeLeon could file a motion for judgment on the merits, rather than a motion for preliminary injunction, seeking to have DOMA declared unconstitutional and directing USCIS to reopen and adjudicate her I-601 waiver application without regard to DOMA. That relief would comport with normal procedures of judicial review of final agency action; would afford the relief contemplated by the APA; and would relieve the harm that DOMA is causing the three Plaintiffs. Ms. DeLeon has had more than adequate time to seek this relief, since her I-601 application was denied over ten months ago. Second, as Defendants explain in our response to Plaintiffs’ motion for class

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certification, there is no indication that many, if any, people are experiencing
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consequences similar to those afflicting Ms. DeLeon. Some individuals have filed
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suits challenging DOMA in circumstances where they are unable to obtain approval of a Form I-130 immigrant visa petition for their same-sex alien spouse. See, e.g., Lui v. Holder, No. 11-cv-01267 (C.D. Cal.); Revelis v. Napolitano, No. 11-cv-1991 (N.D. Ill.). Defendants have agreed with the plaintiffs in those suits that DOMA has unconstitutionally prevented the I-130 petitions from being approved. But there is no case that has presented a claim like the one here involving a discretionary waiver of inadmissibility. The lack of any indication that there are many people in Ms. DeLeon’s situation is both a reason to deny class certification, as well as a sign that the particular consequences this motion seeks to immediately address, prior to final judgment, are not widespread. Thus, there is no suggestion that this case presents circumstances beyond those for a single family, which can be remedied in the simple way identified above. On balance, the better course here is for this Court to stay its hand and decline to issue a broad preliminary injunction that would significantly alter,
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not maintain, the status quo pending final judgment in this case, and not to issue any broad injunctive relief pending resolution of the constitutionality of Section 3 of DOMA by the Supreme Court. Cf. A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 331, 82 S. Ct. 337, 7 L. Ed. 2d 317 (1961) (“[S]ound discretion withholds the remedy where 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.”). No preliminary injunction should issue in this case. D. This Court Lacks Jurisdiction to Enjoin the Government from Initiating Removal Proceedings or Removing Named Alien Plaintiffs.

Irrespective of this Court’s conclusions on the injunction factors, one aspect of the requested relief cannot be properly granted by this Court because Congress has

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specifically withdrawn jurisdiction and created a separate judicial review mechanism.
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The named Plaintiffs seek an injunction prohibiting DHS from “deporting or removing
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immigrants denied lawful status solely because they and their U.S. citizen spouses or permanent residents are of the same sex.” Mot. Prelim. Inj. Mem. at 2-3 (emphasis added). But the INA clearly provides that “no court shall have jurisdiction to review . . . the decision or action of the Attorney General to . . . execute removal orders against any alien under [the INA].” 8 U.S.C. § 1252(g); see AADC, 525 U.S. at 483; Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 598-99 (9th Cir. 2002).13 It is also the position of the Executive Department Defendants that under 8 U.S.C. § 1252(f)(1), this Court does not have jurisdiction to grant a class-wide injunction halting removal. That provision states that no court has “jurisdiction or authority to enjoin or restrain” any action listed under Part IV of the Immigration and

Importantly, this withdrawal of jurisdiction will not cause harm to Plaintiffs here or any other putative class member because a challenge to Section 3 of DOMA could be brought in a Petition for Review before the Court of Appeals challenging an order of removal. 27

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Nationality Act, except as it applies to an individual alien. Part IV, in turn, pertains to “Inspection, Apprehension, Examination, Exclusion, and Removal.” Here, Plaintiffs ask the Court to enjoin removal, of a class of people, Mot. Prelim. Inj. Mem. at 2-3, directly implicating Part IV of the INA. Because of this, the Court lacks authority to grant them the injunction they seek under Section 1252(f)(1). Defendants recognize that the Ninth Circuit has read Section 1252(f)(1) more narrowly, holding that it only limits a district court’s authority to “enjoin the operation of the immigration detention statutes,” but not to enjoin conduct that allegedly is “not authorized by the statutes.” Rodriguez v. Hayes, 591 F.3d 1105, 1120 (9th Cir. 2010) (“Petitioner here does not seek to enjoin the operation of the immigration detention statutes, but to enjoin conduct it asserts is not authorized by the statutes.”). Defendants respectfully disagree with the Ninth Circuit’s interpretation of Section 1252(f)(1) and are hereby preserving

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the argument that the Ninth Circuit is mistaken.
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Moreover, the INA plainly contemplates that all issues concerning a
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determination of removability and whether an actual removal order should issue will be channeled through the specific statutory procedures in 8 U.S.C. §§ 1229 and 1252 for administrative and judicial review. See 8 U.S.C. § 1252(b)(9); AADC, 525 U.S. at 483. CONCLUSION For all the reasons stated above, the Court should deny Plaintiffs’ motion for a preliminary injunction.

DATED: September 14, 2012

Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General Civil Division

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AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director JESI J. CARLSON Senior Litigation Counsel s/ Lana L. Vahab LANA L. VAHAB DC Bar No. 976203 Trial Attorney Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 532-4067 Fax: (202) 305-7000 Email: lana.vahab@usdoj.gov s/ Katherine E.M. Goettel KATHERINE E.M. GOETTEL IA Bar No. 23821 Trial Attorney Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 532-4115 Fax: (202) 305-7000 Email: kate.goettel@usdoj.gov

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From: Belsan, Timothy M. (CIV) To: "Peter Schey"; Carlson, Jesi J. (CIV); Kline, David (CIV) Cc: Carlos Holguin; Reyna Tanner; Julie Greenwald; Bea Pangilinan; Monica Ashiku Subject: RE: Aranas v. Napolitano Date: Tuesday, September 11, 2012 5:31:00 PM Peter, Defendants oppose engaging in discovery prior to the October 9, 2012 hearing date. We believe that the case should be resolved based upon the record of the agency under the APA. In any event, it is improper at this stage of the litigation. Sincerely, Tim

From: Peter Schey [mailto:pschey@centerforhumanrights.org] Sent: Monday, September 10, 2012 8:54 PM To: Carlson, Jesi J. (CIV); Kline, David (CIV); Belsan, Timothy M. (CIV); Bill Orrick Cc: Carlos Holguin; Reyna Tanner; Julie Greenwald; Bea Pangilinan; Monica Ashiku Subject: Re: Aranas v. Napolitano Dear Jesi, Tim, David and Bill, I would like to chat with one or more of you tomorrow (Tuesday) if possible to discuss plaintiffs' interest in conducting a Rule 30(b)(6) deposition before the hearing on plaintiffs' motions for a preliminary injunction and class certification. If you like, I am also prepared to discuss other issues under Rule 26(d). I have attached a Rule 30(b)(6) deposition notice. We are flexible on dates but do believe it would be helpful to all parties and the Court to get this deposition done before the October 9, 2012 hearing date. You may reach me at 323-251-3223. Thank you. best wishes, Peter Schey Center for Human Rights and Constitutional Law www.centerforhumanrights.org

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