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

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION ) ) ) ) ) ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; et al., ) ) ) Defendants. ) __________________________________ ) /// SACV12-01137 CBM (AJWx) OPPOSITION TO MOTION TO STAY PROCEEDINGS.

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

Hearing: January 28, 2013 Time: 11:00 am Hon. Consuelo B. Marshall

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Opposition to Motion to Stay -2Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

Additional counsel for plaintiff Aranas: PUBLIC LAW CENTER Julie Greenwald (Cal. Bar No. 233714) Monica Ashiku (Cal. Bar No. 263112) 601 Civic Center Drive West Santa Ana, CA 92701 Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249) Facsimile: (714) 541-5157 [email protected] [email protected] 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: [email protected] 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 [email protected] [email protected] ///

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OPPOSITION TO MOTION TO STAY This action challenges the discriminatory denial of benefits under the Immigration and Nationality Act, 8 U.S.C. 1101, et seq., to members of lawful marriages solely because the spouses are of the same sex. Plaintiffs contend that members of marriages lawful under the law of the state of celebration are entitled to recognition as spouses under the INA regardless of their members sex or sexual orientation. Defendants concede as much, yet refuse to recognize same-sex marriages as valid predicates for the granting of immigration benefits pursuant to 3(a) of the Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7 (DOMA), a statue defendants themselves concede is unconstitutional. Defendants refuse to extend to plaintiffs and those similarly situated even temporary protection from illegal status, forced unemployment or illegal employment, and detention or removal pending a final determination whether the courts agree with defendants that DOMA is unconstitutional. For a second time, defendants move the Court to stay all proceedings herein including argued and submitted motions aimed at saving plaintiffs and those similarly situated from irreparable injuryon the ground the Supreme Court may decide in another action whether DOMA 3 denies equal protection. Compare Petition for Writ of Certiorari, United States v. Windsor, No. 12-307 (S. Ct. Sept. 11, 2012), 2012 WL 3991414, at I (asking Court to decide [w]hether Section 3 of DOMA violates the Fifth Amendments guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.); and United States v.
Opposition to Motion to Stay -1Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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Windsor, 81 U.S.L.W. 3324 (December 7, 2012) (directing parties to brief [w]hether the Executive Branchs agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.). Defendants motion should be denied. Granting a stay requires the weigh[ing of] competing interests and maintain[ing] an even balance. Landis v. N. Am. Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 166, 81 L. Ed. 153 (1936). Defendants must justify [a stay] by clear and convincing circumstances outweighing potential harm to the party against whom it is operative. Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983). Defendants fall far short of satisfying this standard.1 First, the Courts grant of certiorari in Windsor explicitly recognizes that whether DOMA 3 denies equal protection may not even be a question that is justiciable as presented in Windsor. Given this explicit concern, it is wholly speculative whether the Supreme Court will even reach the issue of DOMA 3s constitutionality under the equal protection guarantee of the Fifth Amendment. Second, even were the Court in Windsor to uphold DOMA 3 against an equal

In response to defendants earlier bid to stay proceedings this Court ruled, Defendants have not shown good cause for continuing the motions for class certification and preliminary injunction to a later date. Accordingly, the Application is DENIED. Civil Minutes, December 12, 2012 (Dkt. 98). Defendants offer no good reason why this Court should change course now. Indeed, the only change in circumstances since defendants last stay request is the Supreme Courts granting certiorari in Windsor. As explained in the text, the Courts action does nothing to shore up defendants failed bid to stay this action.
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protection challenge, plaintiffs herein challenge DOMA 3 not only on the ground that it denies equal protection, but also on the ground it denies due process. Plaintiffs due process claim is no less viable than their equal protection claim, see Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008), and it would remain viable no matter how the Supreme Court decides Windsor. Third, the Courts having granted certiorari in Windsor is no reason whatsoever to delay ruling on plaintiffs pending motions for preliminary injunction (Dkt. 12) and class certification (Dkt. 13). These motions seek to protect plaintiffs and those similarly situated from irreparable injury pendente lite. Neither motion requires the Court to pass final judgment on whether DOMA 3 denies equal protection. 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.). Defendants dispute none of the foregoing. Instead, they baldly deny that plaintiffs and their proposed class members will suffer irreparable injury should they remain free to continue casting them into the undocumented underground pendente lite. Irreparable injury is an issue the parties have fully briefed and argued in connection with plaintiffs motion for a preliminary injunction; staying proceedings at this juncture would not save defendants the slightest time or effort. More importantly, the Supreme Courts granting certiorari in Windsor does nothing to ameliorate the irreparable injury plaintiffs and their proposed class members are experiencing now. As Kevin Cathcart, director of Lambda Legal, the largest and oldest advocate for
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lesbians and gays in the United States, explains, [T]here are likely hundreds of immigrants around the country who are legally married to partners of the same sex who currently are unable to extend or secure temporary employment authorization or temporary authorized status because there is not yet a final, definitive Judicial Branch decision holding Section 3 of DOMA unconstitutional. Declaration of K. Cathcart, November 23, 2012, Plaintiffs Exhibit 3, Dkt. 83 at 11. Families in such circumstances experience psychological trauma, including depression and despair, so profound as to tear apart otherwise strong and stable families, or else to compel foreign-born spouses and their U.S. citizen partners to leave the United States entirely. Id. at 13. Whether they self-deport, separate, or endure the hardships of undocumented status, these couples are clearly experiencing severe and irreparable injury. Id. Attorney Gary Manulkin, an immigration specialist and adjunct professor of law at Loyola Law School, the University of Southern California, and Southwestern University School of Law, describes the desperate circumstances in which defendants place bi-national families as follows: I have been forced to advise same-sex bi-national couples they are barred by [DOMA 3] from obtaining any immigration benefit for the foreign-born spouse because they are of the same sex. My clients fortunate enough to have an alternative means of immigrating are forced into lengthy waiting periods of up to 20 years. My clients without alternative means of immigrating are forced [to] choose a life of living in the shadows in unlawful status, without
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employment authorization, and without the hope of ever immigrating, or leaving their spouse, thereby destroying their family unit. Regardless of whether the client chooses to leave his spouse or remain the U.S. in unlawful status, both alternatives are intolerable. A person should not be forced between violating the law or destroying his/her family. Absent a preliminary injunction, my clients are left with nothing but a Hobsons choice: to break the law or destroy their family. Declaration of G. Manulkin, November 5, 2012, Plaintiffs Exhibit 16, Dkt. 83 at 12021. Gloria Curiel is a Los Angeles immigration attorney who also regularly advises bi-national couples hoping to regularize the status of foreign-born spouses. She declares: The plight of same-sex couples [whose immigration applications are] denied is dire. Such couples endure substantial residual public opprobrium directed against their sexual orientation and marriages. Denied lawful immigration status, foreign-born spouses of U.S. citizens and permanent residents are then consigned to the undocumented underground, where they must live in constant fear of arrest and removal and are denied even the ability to support their families through lawful employment in the United States. Declaration of G. Curiel, Nov. 5, 2012, Exhibit 11, Dkt. 83 at 98. Todd Fernandez, a leading advocate for bi-national LGBT married couples, emphasizes that immigrants in same-sex marriages are told to depart the country when
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their applications are denied, their work permits are terminated, [and] they start to acquire unauthorized status Declaration of Todd Fernandez, Exhibit 6, Dkt. 89 at 52 (emphasis added). This places enormous pressure on immigrants in same-sex marriages to self-deport, with or without their spouses. Id. Whether or not defendants actually deport foreign-born members of same-sex marriages, their policy and practice expose such immigrants to the constant threat of arrest and detention both by federal authorities and [i]n many states by local police agencies .... Id. Such couples are understandably afraid to travel domestically because of airport and highway immigration checkpoints. Id. And in stark contrast to immigrants in heterosexual marriages with pending visa applications, immigrant spouses in same-sex marriages cannot travel abroad [even] for family emergencies ... Id. 14. Stripped of lawful immigration status, LGBT spouses who remain in the United States confront hardships even more onerous than those unauthorized entrants typically experience. Elissa Barrett, Vice-President and General Counsel of Bet Tzedek Legal Services (Bet Tzedek), reports that underground employers routinely violate labor, wage and safety lawsengaging in wage theft, unlawful retaliation and other, more extreme abuses, such as human trafficking and physical violenceagainst LGBTs. Declaration of Elissa Barrett, November 5, 2012, Exhibit 12, Dkt. 89 at 102. Ms. Barrett explains: The numerous challenges faced by LGBTQ individuals are exacerbated if they do not have lawful immigration status. Many LGBTQ people struggle the
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most with poverty. If they cannot work or are forced to give up work because of their immigration status, they cannot afford the basic necessities of life including food, rent, and medicine. Moreover, if they decide to risk employment in the underground economy, they may be subject to the same exploitation as other immigrants, whose employers routinely violate labor, wage and safety laws. The situation may cause increased stress and stigmatization, which in turn, places additional pressure on family relationships, tests the bonds of marriage and can lead to negative health consequences. Id. at 103 (emphasis added). Examples of such irreparable injury afflicting members of the proposed class are a matter of record. When proposed class member Martha Reyes applied for lawful status for her spouse, Holga Martinez, defendants advised that her petition was denied because [b]oth you and the [visa] beneficiary are female. Declaration of Holga Martinez, Plaintiffs Supplemental Exhibit18, Dkt. 93 at 3 (emphasis in original). On the same day, defendants denied Ms. Martinezs application for lawful status and informed her that there is no appeal to this decision. Plaintiffs Exhibit 17, Dkt. 89 at 122 (emphasis added). As they routinely advise countless other similarly situated immigrant spouses, defendants further informed Ms. Martinez that her authorization to accept employment is terminated and that her temporary authorized status was summarily terminated. Id. at 122-23. After denying plaintiff Jane DeLeons application pursuant to DOMA 3, CIS
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warned Jane she could no longer work in the United States and should leave the United States lest she accrue unlawful presence that would bar her from entering the United States for 10 years. Plaintiffs Exhibit 7, Dkt. 89 at 58. Defendants warned that [t]he accrual of unlawful presence can lead to significant bars to admission to the United States, should Ms. DeLeon leave the country [to obtain an immigrant visa] and attempt to re-enter. Dkt. 62 at 19. Jane describes the impact of defendants policy and practice on her and her ailing U.S. citizen spouse, plaintiff Irma Rodriguez: The termination of my authorized presence has caused and continues to cause extreme hardship on our family. I have not left the U.S. out of fear that this may trigger a ten-year bar to my readmission even if DOMA is declared unconstitutional. At the same time, Irma suffers from stenosis of the left brain that causes extreme pain, disorientation, and numbness. Due to her illnesses, Irma is required to take several prescription medications. I play a significant role in caring for my spouse ... The Governments termination of my temporary status and threats regarding future inadmissibility if I fail to depart the country have caused us to suffer severe anxiety, depression, despair, sleeplessness, nightmares, and fear of arrest or family separation. This has placed a tremendous strain on our family and our relationship. Plaintiffs Exhibit 19, Dkt. 93 at 8-9. Janes and Holgas are hardly isolated cases. To the contrary, DOMA 3 has
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resulted in some 8,000 spouses of U.S. citizens being cast into the undocumented underground solely because of a statute defendants concede is unconstitutional and which multiple federal courts of appeal have uniformly disapproved. See Reply to Opposition to Class Certification (Dkt. 87) at 9-10 (collecting statistics on bi-national same-sex couples in U.S.). Defendants have failed to make a clear and convincing case for staying all proceedings herein. In Windsor, the Supreme Court will decide at most whether DOMA 3 denies equal protection. If it decides that it lacks jurisdiction or that BLAG lacks standing, it will not even decide whether DOMA 3 violates the equal protection guarantee. If it decides it does have jurisdiction and that DOMA 3 does deny equal protection, staying plaintiffs pending motions will have needlessly exposed plaintiffs and innocent class members to many months of grievous injury. See de Jesus Ortega Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (well established that the deprivation of constitutional rights unquestionably constitutes irreparable injury.). Should the Court decide both that it has jurisdiction and that DOMA 3 is consonant with equal protection, plaintiffs will still have established (1) that they are likely to succeed on the merits of their due process claim, (2) that they and their proposed class members are likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that an injunction is in the public interest. Plaintiffs are thus entitled to a preliminary injunction no matter what the outcome of Windsor. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (prescribing requirements for preliminary injunction). Defendants
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offer no good reason proposed class members should be left to suffer grievously on the off-chance that some months hence the Supreme Court may undercut one of plaintiffs claims for relief. Cf. Brierwood Shoe Corp. v. Sears, Roebuck & Co., 479 F. Supp. 563, 567 (S.D. N.Y. 1979) (cases involving preliminary injunctions or other matters of great moment are entitled to priority ). Although defendants fail to justify any stay whatsoever, plaintiffs have no objection to staying so much of the instant proceedings as would finally determine whether DOMA 3 denies equal protection. 2 Plaintiffs do, however, oppose a general stay, and most of all, one that would delay decision on their motions for a preliminary injunction and class certification. A stay should not leave defendants at liberty to visit irreparable injury on lawfully married couples and their children pendente lite. Dated: January 7, 2013. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun /s/ Carlos R. Holgun _____________ /s/ Peter Schey __________________ Attorneys for Plaintiffs

In its current posture, then, defendants motion, to the extent it should be granted at all, should extend only to intervenors motion to dismiss, which does call upon this Court to rule dispositively on whether DOMA 3 denies equal protection.
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Opposition to Motion to Stay

CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 7th day of January 2013, I electronically filed the foregoing PARTIAL OPPOSITION TO MOTION TO STAY with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system. Dated: January 7, 2013. /// /s/ Carlos Holguin

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