Attorneys For Plaintiffs Additional Counsel Listed Next Page

Case 8:12-cv-01137-CBM-AJW Document 88
Filed 11/06/12 Page 1 of 15 Page ID #:2107
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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 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; ET ) AL. ) ) ) Defendants. ) ) ) ) __________________________________ ) SACV12-01137 CBM (AJWx) REPLY TO OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION.
15 MARTIN R. ARANAS, ET AL. 16 17 18 19 20 21 22 23 24 25 26 27 28
Hearing: November 20, 2012 Time: 10:00 am Hon. Consuelo B. Marshall
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Reply to Opposition to Motion for Preliminary Injunction - II Center 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 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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Cases

OUTLINE OF CONTENTS
I Plaintiffs are likely to prevail on their claim that DOMA 3 is unconstitutional. ............ 1 II. Plaintiffs Have Made the Requisite Showing of Irreparable Harm ....................................... 1
A. The issuance of an injunction would prevent plaintiffs and their proposed class members from suffering further irreparable harm ..................................................................................................... 1 B. The issuance of an injunction would not cause the United States any harm. .............................. 7 C. The Balance of Harms and Public Interest Weigh in Favor of Granting Temporary Injunctive Relief Until the Supreme Courts Resolution of DOMAs Constitutionality. ............ 8 D. This Court has jurisdiction to enjoin the Government from deporting plaintiffs and putative class members. ..................................................................................................................................... 9
III. Conclusion ................................................................................................................................................... 10
TABLE OF AUTHORITIES
Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999) ..................................... 10 Beltran v. Myers, 677 F.2d 1317 (9th Cir. 1982) ...................................................... 1 Catholic Social Services v. Meese, 664 F.Supp. 1378 (E.D. Cal. 1987) ................... 2 Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir. 2000) (en banc) ..... 10 Catholic Social Servs. v. INS, 232 F.3d 1139 (9th Cir. 2000) .................................... 2 Immigrant Assistance Project of the L.A. County Fed'n of Labor v. Immigration and Naturalization Service, 306 F.3d 842 (9th Cir. 2002) ........................................... 10 In re Golinski, 587 F.3d 956 (9th Cir. 2011)............................................................. 1 In re Lemus-Losa, 25 I. & N. Dec. 734 (BIA 2012) ................................................. 2 In re Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006) ........................................... 2
Reply to Opposition to Motion for Preliminary Injunction - III -
Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693
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Los Angeles Memorial Coliseum Comm v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980) ..................................................................................... 1 Massachusetts v. United States HHS, 682 F.3d 1 (1st Cir. 2012) ............................. 1 National Ctr. for Immigrants Rights v. INS, 743 F.2d 1365 (9th Cir. 1984) ............ 2 Ortiz v. Meissner, 179 F.3d 718 (9th Cir. 1999) ....................................................... 2 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010).................................................. 9 Sports Forum Ins. v. United Press, Inter., Inc., 686 F.2d 750 (9th Cir. 1982) ......... 1 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ..................................................... 10 Windsor v. United States, _ F.3d _, 2012 U.S. App. LEXIS 21785 (2d Cir. September 27, 2012) ............................................................................................... 1 Statutes, rules and regulations Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (1986)...................................................................................................................... 8 ///
Reply to Opposition to Motion for Preliminary Injunction - IV -
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PLAINTIFFS ARE LIKELY TO PREVAIL ON THEIR CLAIM THAT DOMA 3 IS UNCONSTITUTIONAL. Plaintiffs are entitled to a preliminary injunction if they establish that they "are
likely to succeed on the merits, that [they are] likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). Defendants and the Attorney General 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. Dkt. #39 at 6. The House Republicans argument that Section 3 of DOMA is constitutional has been rejected by the last six courts in a row to consider BLAGs position.1 Plaintiffs have clearly raised serious questions or shown probable success regarding DOMA Section 3s constitutionality.2 II. PLAINTIFFS HAVE MADE THE REQUISITE SHOWING OF IRREPARABLE HARM A. The issuance of an injunction would prevent plaintiffs and their proposed class members from suffering further irreparable harm
1 See, e.g., Windsor v. United States, _ F.3d _, 2012 U.S. App. LEXIS 21785 (2d Cir. September 27, 2012); Massachusetts v. United States HHS, 682 F.3d 1 (1st Cir. 2012); In re Golinski, 587 F.3d 956 (9th Cir. 2011). 2 The House Republicans arguments are fully set forth in their Memorandum of IntervenorDefendant the BiPartisan Legal Advisory Group of the U.S. House of Representatives in Support of Motion to Dismiss, Dkt. # 62, and their Memorandum of Intervenor-Defendant the BiPartisan Legal Advisory Group of the U.S. House of Representatives in Opposition to Motion for Preliminary Injunction, Dkt. #63. Plaintiffs have responded to these arguments in Plaintiffs Opposition to Defendant-Intervenors Motion To Dismiss. Dkt. #56. See also Notice of Motion and Motion for Preliminary Injunction, Dkt. #12 at 6-13; Plaintiffs Opposition to Defendants Partial Motion to Dismiss, Dkt. #56, at 13-16.
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Defendants concede that they have informed plaintiff Deleon that because her application has been denied under DOMA Section 3, she cannot legally work in the United States and is now accruing unlawful presence in the United States. Dkt. #62 at 19.3 Defendants nevertheless argue that the inability to work (or, it seems, forced illegal employment) is simply an [o]rdinar[ ]y economic injury not sufficient to warrant a preliminary injunction Id. There is no serious question about the irreparable and extreme nature of the harms experienced by plaintiffs and their proposed class members as a result of defendants refusal to extend to them the same temporary protection provided heterosexual married couples pending the Supreme Courts review of DOMA Section 3.4
3 Defendants also acknowledge 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. Id., citing 8 U.S.C. 1182(a)(9)(B); In re Lemus-Losa, 25 I. & N. Dec. 734 (BIA 2012); In re Rodarte-Roman, 23 I. & N. Dec. 905 (BIA 2006). 4 The Ninth Circuit has held that the hardship to an alien from being unable to work to support oneself and one's family is beyond question. See, e.g., National Ctr. for Immigrants Rights v. INS, 743 F.2d 1365, 1369 (9th Cir. 1984); Catholic Social Services v. Meese, 664 F.Supp. 1378, 1388 (E.D. Cal. 1987) (injunction including temporary work permits and stays of deportation); Catholic Social Servs. v. INS, 232 F.3d 1139, 1141, 1145 (9th Cir. 2000) (the district court enjoined the government from executing final orders of removal or from revoking or denying work authorizations of any class member; the district court acted within its discretion in granting a preliminary injunction protecting members of the class).See also Ortiz v. Meissner, 179 F.3d 718, 722 (9th Cir. 1999) (Plaintiffs, according to the government, must wait until they have been ordered deported to seek interim work authorization in a court of appeals review of the deportation proceeding. Yet by that time, the period in which plaintiffs claim they are entitled to work authorization would already have passed. The legal issue would be moot.). Here, the application of DOMA to deny plaintiffs benefits under the INA, including interim relief extended to heterosexual couples, violates equal protection.
Reply to Opposition to Motion for Preliminary Injunction -2Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693
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Lambda Legal, founded in 1973, is the largest and oldest national organization committed to achieving full recognition of the civil rights of lesbian, gay, bisexual and transgender (LGBT) people through impact litigation, education, and public policy work. Declaration of Kevin Cathcart, Exhibit 3, 2, filed herewith. Declarant Cathcart has a long history of advocating on behalf of and representing LGBT people. Id. at 4-5. Indeed, there may be no one in the country as familiar with the issues addressed here. Based on Lambda Legals experience working with and representing binational same-sex couples, it believes that, as a result of the Administrations position, there 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 Id. 10 (emphasis added). Although, as defendants agree, immigration officials may sometimes exercise prosecutorial discretion under the Morton Memo on a case-by-case basis to postpone a removal hearing or execution of a final order of removal, these individualized and discretionary determinations are leaving many immigrants in same-sex relationships, as well as their loved ones, without protection and relief. Id. 11.5
5 Lambda Legal also is aware that the case-by-case approach for prosecutorial discretion is administered by many officials in immigration field offices across the country who do not have the training, expertise, cultural competency, and sensitivity to properly address sexual orientationReply to Opposition to Motion for Preliminary Injunction -3Center for Human Rights & Constitutional Law Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693
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Immigrants in same-sex marriages are encouraged [by defendants] to depart the United States to avoid triggering the bars to future admission ... Id.6 It is not uncommon for same-sex spouses forced into such circumstances to 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. 15. Whether they self-deport, separate, or endure the hardships of undocumented status, these couples are clearly experiencing severe and irreparable injury. Id.7 Todd Fernandez is a leading voice in the United States on behalf of bi-national LGBT married couples and works with numerous groups advocating for the equal treatment of such couples. Declaration of Todd Fernandez, Exhibit 6, 2-3. Unlike similarly situated immigrants in heterosexual marriages, immigrants in same-sex marriages who would qualify for benefits under the INA but for DOMA are told to
related issues, making consistency across such decisions highly unlikely. Id. 12. Many if not most immigrants married to same-sex partners are afraid to come forward and apply to ICE the enforcement branch of the Department of Homeland Security for prosecutorial discretion to withhold commencement of removal proceedings. Id. 14. In addition, the cost for private counsel to assist in the preparation of such an application is substantial, and very few free legal services programs around the country are available to represent such immigrants. Id. 6 Furthermore, few bi-national same-sex couples have the resources to mount federal litigation challenging the constitutionality of Section 3 of DOMA as applied to deny them immigration benefits or temporary employment authorization and temporary authorized presence. Id. See also Declaration of Gary Manulkin, Ex. 16, 7-8 (there are very few individuals who have the monetary means to launch a federal challenge to 3 [of DOMA] [T]he only way my clients will have the ability to challenge the constitutionality of 3 of the DOMA is via a representative class action on behalf of all same-sex lawfully married bi-national couples ) 7 See also Ex. 16, 9 (Regardless of whether the client chooses to leave his spouse or remain in the U.S. in unlawful status, both alternatives are intolerable I have witnessesd my clients, and their families, become depressed, insecure, and traumatized by this decision.)
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depart the country when their applications are denied, their work permits are terminated, [and] they start to acquire unauthorized status Id. 11. This places enormous pressure on immigrants in same-sex marriages to self-deport, with or without their spouses. Id.8 Finally, Mr. Fernandez declares that defendants refusal to grant interim relief to class members causes extreme psychological hardships. Putative class member families routinely suffer from anxiety, fear of family separation, fear of deportation, sleeplessness, depression, etc. Id. 15. Elissa Barrett is an attorney admitted to practice law in the state of California and Vice-President and General Counsel at Bet Tzedek Legal Services (Bet Tzedek). Declaration of Elissa Barrett, Ex. 12 2.9 While defendants argue that having plaintiffs DeLeon and Aranas and their proposed class members work illegally is not of immediate concern, in Bet Tzedeks experience underground employers routinely violate labor, wage and safety laws
8 Defendants policy also leaves immigrants in same-sex marriages subject to arrest and detention by federal immigration authorities at any time because of their unauthorized presence, and [i]n many states such immigrants also face detention by local police agencies cooperating with federal authorities to identify undocumented immigrants. Id. 13. Class members are also afraid to travel domestically because of airport and highway immigration checkpoints. Id.
9 Her responsibilities include management of the organizations legal projects, such as the Employment Rights Project (ERP) and the Lesbian, Gay, Bisexual, Trangender, Queer Access to Justice Project (LGBTQ A2J).
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engaging in wage theft, unlawful retaliation and other, more extreme abuses, such as human trafficking and physical violence. Id. at 4.10 With regards the acquisition of unlawful presence caused by defendants refusal to extend the same interim protection they grant heterosexual married couples to same-sex couples, defendants suggest that if DOMA is ultimately struck down, the accrual of unlawful presence would be subject to subsequent remediation. Dkt. #39 at 19. What defendants fail to address is how retroactive relief may be granted in the future to effectively wipe out the harms caused by unemployment, or unauthorized employment and unlawful presence, both of which make immigrants inadmissible in the future.11 Defendants further argue that plaintiffs have provided no evidence that there are putative class members in a similar circumstance who have lost work authorization based upon DOMA. Dkt. #39 at 22. The accompanying declarations
10 Bet Tzedeks Vice-President and General Counsel declares: Many LGBTQ people are already low-income 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. 6. 11 Defendants argue that plaintiffs have not established irreparable injury based on their alleged fear of removal. Dkt. #39 at 20; see Mot. Prelim. Inj. Mem. at 22. Defendants point out that no removal proceedings have been commenced against plaintiffs DeLeon or Aranas. Id. At the same time, defendants give no assurances that such proceedings may not be initiated any time soon, nor do they say they do not possess the authority to arrest plaintiffs DeLoen and Aranas and initiate
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and exhibits make clear that there are likely hundreds of putative class members who have been denied interim relief by defendants pursuant to DOMA.12 Defendants finally argue that some class members whose applications have not yet been adjudicated cannot show any immediate harm Dkt. #39 at 22. This is true if defendants granted them temporary authorized employment and presence when their applications or petitions were filed. However, plaintiffs do not seek a preliminary injunction for those who have temporary status and temporary employment authorization, they seek it for those who have been denied these temporary protections. B. The issuance of an injunction would not cause the United States any harm.
Defendants here argue that [u]ntil 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 DOMA Dkt. #39 at 24.
removal proceedings. They clearly do possess that authority and plaintiffs DeLoen and Aranas reasonable fear that such action could be initiated by defendants at any time. 12 Martha Reyes, for example, filed a family-based visa petition on behalf of her spouse, Holga Martinez. Declaration of Holga Martinez, Exhibit 4. On September 26, 2011, as they routinely do, defendants advised Ms. Reyes that her petition was denied solely because [b]oth you and the [visa] beneficiary are female. Exhibit 13 (emphasis in original). On the same day, defendants issued a final denial of Ms. Martinezs concurrent application for adjustment of status because her spouses visa petition naming Ms. Martinez as the beneficiary was denied and informing her that there is no appeal to this decision. Ex. 17 p. 2-3. Ms. Martinez, like Ms. DeLoen and countless others similarly situated, was informed that her authorization to accept employment is terminated, and her temporary authorized status was also terminated. Id.
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What defendants entirely miss is that plaintiffs are not seeking an injunction requiring that defendants adjudicate applications under the INA without regard to DOMA Section 3. All plaintiffs seek is to avoid suffering severe injury until the Supreme Court issues a final determination on DOMAs constitutionality.13 Defendants also entirely ignore the harm suffered by US citizen workers by the hiring of undocumented workers.14 C. The Balance of Harms and Public Interest Weigh in Favor of Granting Temporary Injunctive Relief Until the Supreme Courts Resolution of DOMAs Constitutionality.
The public interest militates in favor of granting injunctive relief pending the dispositive resolution of this issue by the Supreme Court. First, as we have explained, the relief sought is temporary and narrowly tailored to address the harm caused by defendants refusal to extend interim temporary status to lawfully married bi-national couples seeking benefits under the INA. Second, while defendants again argue that because their treatment of plaintiff DeLeon is purportedly not
13 Plaintiffs are not seeking a class-wide injunction preventing USCIS from continuing to enforce Section 3 of DOMA during the pendency of this case Dkt. #39 at 23. Under the proposed preliminary injunction defendants may continue to deny applications based on DOMA or hold them in abeyance, as they see fit. 14 See, e.g., Abate, Tom (24 June 2011). "Weak outlook for state seen / Many are working under the table, UCLA group says". The San Francisco Chronicle (2005 UCLA study showed that a weak economy in the state of California was the result of more than two million workers who were receiving their pay off the books without paying taxes); Miller, Debra A. Illegal Immigration (2007), Reference Point Press. 20-23 (The presence of illegal workers and the exploitation of them drives down wages for certain sectors of the American populace, further widening the socioeconomic gulf between rich and poor). These concerns lead to the enactment of the Immigration Reform and Control Act (IRCA), which for the first time imposed civil and criminal penalties on employers who knowingly hire undocumented workers. Immigration Reform and
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widespread, the harm can be remedied without issuance of a class-wide preliminary injunction. Id. at 36. As the declarations filed concurrently herewith make clear, defendants have likely applied DOMA to deny benefits to at least hundreds of samesex married couples and the harms suffered by plaintiffs and their proposed class members are virtually identical. D. This Court has jurisdiction to enjoin the Government from deporting plaintiffs and putative class members.
Defendants argue that this Court cannot block the execution of removal orders because the INA 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]. Dkt. #39 at 27, citing 8 U.S.C. 1252(g), 1252(f)(1). However, the Ninth Circuit has held that 1252(f)(1) only limits a district courts authority to enjoin the operation of the immigration detention 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.).15 Defendants disagree with
Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (1986) (employer sanctions codified at INA 274). 15 See also Catholic Social Services, Inc. v. INS, 232 F.3d 1139, 1145, 1149-50 (9th Cir. 2000) (en banc) (CSS) (held that 1252(f)(1)'s limitation on injunctive relief did not apply to a district court order enjoining the INS from deporting class members, granting class members interim work permits, and barring further implementation of an unlawful advance parole policy that prevented a class members from adjusting status). See also Immigrant Assistance Project of the L.A. County Fed'n of Labor v. Immigration and Naturalization Service, 306 F.3d 842 (9th Cir. 2002) (upholding district courts class certification and preliminary injunction enjoining defendants from deporting class members, and requiring that their legalization applications be processed without regard to unlawful rules); Gonzales v. Dep't of Homeland Sec., 508 F.3d 1227, 1233 (9th Cir. 2007)
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the Ninth Circuits law on 1252(f)(1). Dkt. 39 at 28. This Court is bound by that law regardless whether defendants agree or disagree with it.16 III. CONCLUSION For all the reasons stated above, the Court should grant Plaintiffs motion for a preliminary injunction. Dated: November 6, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun /s/ Peter A. Schey ________________ /s/ Carlos R. Holgun _____________ Attorneys for Plaintiffs
(upholding injunction finding CSS controlling); Walters v. Reno, 145 F.3d 1032, 1051-53 (9th Cir. 1998) (Ninth Circuit upheld the district court's grant of class-wide injunctive relief and specifically declined to apply the limitation on jurisdiction in 1252(g) to the district court's exercise of jurisdiction over due process challenges brought by a class of immigrants directly against deportation procedures); Barahona-Gomez v. Reno, 167 F.3d 1228, 1234 (9th Cir. 1999) (affirmed exercise of jurisdiction and the grant of a stay of deportation to a class of immigrants in order to allow them to pursue their challenges to regulations promulgated by the INS). 16 Numerous district courts have enjoined the deportation of immigrant classes. See footnote 16 supra.
Reply to Opposition to Motion for Preliminary Injunction - 10 Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693
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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 6th day of November, 2012, I electronically filed the foregoing REPLY TO DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION 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: November 6, 2012 /// /s/ _Carlos Holguin________
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Case 8:12-cv-01137-CBM-AJW Document 88

Filed 11/06/12 Page 1 of 15 Page ID #:2107

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

Hearing: November 20, 2012 Time: 10:00 am Hon. Consuelo B. Marshall

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Additional counsel for plaintiff Aranas:

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III. Conclusion ................................................................................................................................................... 10

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