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CENTER FORHUMAN RIGHTS AND CONSTITUTIONAL LAWPeter A. Schey (Cal. Bar No. 58232)Carlos R. Holgun (Cal. Bar No. 90754)256 S. Occidental Blvd.Los Angeles, CA 90057Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309)

Facsimile: (213) [email protected]@centerforhumanrights.org

Additional counsel listed next pageAttorneys for plaintiffs

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

Jane DELEON,

Plaintiff,

v.

Janet NAPOLITANO, Secretary of theDepartment of Homeland Security;

Alejandro MAYORKAS, Director, UnitedStates Citizenship & ImmigrationServices;UNITED STATES CITIZENSHIP &IMMIGRATION SERVICES; andDEPARTMENT OF HOMELANDSECURITY,

Defendants._________________________________

AEXANDERBUSTOS GARCIA,RICHARDL.FITCH, HOLGA MARTINEZ,MARTHAREYES,

Proposed Plaintiffs-in-intervention_________________________________

))))))))))))

))))))))))))))

))))))))

SACV12-01137 CBM (AJWx)

NOTICE OF MOTION AND MOTIONFORSUMMARY JUDGMENT

Hearing: August 19, 2013Time: 10:00 a.m.Hon. Consuelo B. MarshallSpring St., Courtroom No. 2

Case 8:12-cv-01137-CBM-AJW Document 144 Filed 07/19/13 Page 1 of 19 Page ID #:3369

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Plaintiffs motion for summary judgment- 2 -

Center for Human Rights & Constitutional Law

256 S. Occidental Blvd.

Los Angeles, CA 90057

-

Additional counsel for plaintiff Aranas:

PUBLIC LAW CENTERA. Christian Abasto (Cal. Bar No. 190603)601 Civic Center Drive WestSanta Ana, CA 92701

Telephone: (714) 541-1010 (Ext. 277)Facsimile: (714) [email protected]

Additional counsel for plaintiff Aranas and for intervening plaintiffs Bustos Garciaand Fitch:

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan (Cal. Bar No. 271064)184 Jackson Street, San Jose, CA 95112

Telephone: (408) 287-9710Facsimile: (408) 287-0864Email: [email protected]

Additional counsel for plaintiffs DeLeon and for intervening plaintiffs Martinezand Reyes:

LAW OFFICES OF MANULKIN &BENNETTGary H. Manulkin (Cal. Bar No. 41469)Reyna M. Tanner (Cal. Bar No. 197931)

10175 Slater Avenue, Suite 111Fountain Valley, CA 92708Telephone: 714-963-8951Facsimile: [email protected]@yahoo.com

/ / /


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-

To defendants and their attorneys of record:

PLEASE TAKE NOTICE that on August 19, 2013, at 10:00 a.m., or as soon

thereafter as counsel may be heard, pursuant to Rule 56(a), Federal Rules of Civil

Procedure, plaintiff and proposed plaintiff intervenors will and do hereby move the

Court for the entry of final judgment that the Defense of Marriage Act 3, as applied

by defendants to plaintiff, the proposed plaintiff intervenors, and members of the

certified class violated the due process and equal protection guarantees of the Fifth

Amendment of the United States Constitution.

This motion is made following conferences of counsel pursuant to Local Rule

7-3 which took place on July 2, 2013.

This motion is based upon the accompanying memorandum of law and upon

all other matters of record herein. Proposed findings of fact and conclusions of law

are lodged concurrently herewith.

/ / /


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-

Dated: July 19, 2013. CENTER FORHUMAN RIGHTS ANDCONSTITUTIONAL LAWPeter A. ScheyCarlos R. Holgun

PUBLIC LAW CENTERA. Christian Abasto

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan

GARY H.MANULKINREYNA M.TANNERLaw Offices of Manulkin, Glaser& Bennett

/s/ Peter A. Schey________________

/s/ Carlos R. Holgun _____________

Attorneys for Plaintiffs


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-

Certificate of Service

SACV12-01137CBM(AJWX)

I hereby certify that on this day I electronically filed the foregoing NOTICE OF

MOTION AND MOTION FORSUMMARY JUDGMENT 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: July 19, 2013. /s/ Peter Schey

/ / /


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CENTER FORHUMAN RIGHTS AND CONSTITUTIONAL LAWPeter A. Schey (Cal. Bar No. 58232)Carlos R. Holgun (Cal. Bar No. 90754)256 S. Occidental Blvd.Los Angeles, CA 90057Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309)

Facsimile: (213) [email protected]@centerforhumanrights.org

Additional counsel listed next pageAttorneys for Plaintiffs



Jane DELEON,

Plaintiff,

v.

Janet NAPOLITANO, Secretary of the

Department of Homeland Security;Alejandro MAYORKAS, Director, UnitedStates Citizenship & ImmigrationServices;UNITED STATES CITIZENSHIP &IMMIGRATION SERVICES; andDEPARTMENT OF HOMELANDSECURITY,

Defendants.

_________________________________AEXANDERBUSTOS GARCIA,RICHARDL.FITCH, HOLGA MARTINEZ,MARTHAREYES,

Proposed Plaintiffs-in-intervention_________________________________

))))))))))))

))))))))))))))

)))))))))


MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFMOTION FORSUMMARYJUDGMENT.



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Motion for Summary Judgment - ii -

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Additional counsel for plaintiffs DeLeon and for intervening plaintiffs Martinezand Reyes:



/ / /


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Motion for Summary Judgment - iii -

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TABLE OF CONTENTS

I Introduction ...................................................................................................... 1

II Windsormakes clear that Plaintiff and the proposed PlaintiffIntervenors are entitled to Summary Judgment................................................ 4

VI Conclusion........................................................................................................ 9

TABLE OF AUTHORITIES

CasesBollingv. Sharpe, 347 U. S. 497 (1954) ..................................................................... 9

Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32, 3738 (1928)......................... 7Romerv.Evans, 517 U. S. 620, 633 (1996) ................................................................ 7

United States v. Windsor, __U.S. __; 2013 U.S. LEXIS 4921, 2013 WL 3196928

(June 26, 2013) ........................................................................................................ 4

Williams v.North Carolina, 317 U. S. 287, 298 (1942).............................................. 5

Other Authorities1 U.S.C. 7.......................................................................................................... passim

8 U.S.C. 1101, et seq .............................................................................................. 1

28 U. S. C. 530D........................................................................................................ 5

U.S. Const., Fifth Amendment ........................................................................... passim

Rule 23(b)(2), Fed.R.Civ.Proc..................................................................................... 1

GAO, D. Shah, Defense of Marriage Act: Update to Prior Report 1 (GAO04353R,

2004) ........................................................................................................................ 5


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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FORSUMMARY JUDGMENT

I INTRODUCTION

Plaintiff Jane DeLeon (Plaintiff or DeLeon) challenges the

constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C.

7, as applied to preclude her from receiving certain immigration benefits that are

available to immigrants in heterosexual marriages. DeLeon seeks declaratory and

injunctive relief pursuant to 28 U.S.C. 2201-2202 and Fed. R. Civ. R. 57 as well

as review of agency action pursuant to 5 U.S.C. 701-706. (Complaint (Compl.)

at 4, Docket No. 1.)This is an action for declaratory and injunctive relief

challenging defendants applying 3 of the Defense of Marriage Act, 1 U.S.C. 7

(DOMA),1 to deny immigrant members of lawfully married same-sex couples

marriage-based benefits under the Immigration and Nationality Act, 8 U.S.C.

1101, et seq. (INA).

By order dated April 19, 2013 (Dkt. 126), this Court held that DOMA 3 is

not rationally related to Congress interest in a uniform federal definition of marriage

does not ensur[e] that similarly situated couples will be eligible for the same

1 DOMA 3 provides:

In determining the meaning of any Act of Congress, or of any ruling,regulation, or interpretation of the various administrative bureaus and agenciesof the United States, the word marriage means only a legal union between


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federal marital status regardless of the state in which they live and that Plaintiffs

have stated a claim that DOMA 3 violates their equal protection rights.Id. at 14.

The Court certified this action pursuant to Rule 23(b)(2), Fed.R.Civ.Proc., on

behalf of the following class:

All members of lawful same-sex marriages who have been denied or will be

denied lawful status or related benefits under the Immigration and Nationality

Act, 8 U.S.C. 1101 et seq., by the Department of Homeland Security solely

due to 3 by the Defense of Marriage Act, 1 U.S.C. 7.

Order Granting Provisional Class Certification, Dkt. 127, at 12.

On April 24, 2013, the Court stayed further proceedings in this action pending

the ruling of the United States Supreme Court in United States v. Windsor, No. 12-

307, on the ground that the Supreme Courts ruling will simplify the issues before

this Court. Dkt. 129 at 2.

The Court denied a class wide preliminary injunction. The Court mistakenly

found that:

[s]ince [defendants issued their] October 5, 2012 amendment to the Morton

memoranda], immigrants in same-sex marriages may qualify for deferred

action status, which includes the temporary work authorization and tolling of

unlawful presence accrual that Plaintiff DeLeon seeks by this Motion.Indeed,

none of the adverse immigration decisions provided by DeLeon post-date the

one man and one woman as husband and wife, and the word spouse refersonly to a person of the opposite sex who is a husband or a wife.

Case 8:12-cv-01137-CBM-AJW Document 144 Filed 07/19/13 Page 10 of 19 Page ID#:3378

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October 5, 2012 amendment to the Morton Memo.

Dkt. 128, Order Denying Preliminary Injunction,supra, at 8 (docket references

omitted) (emphasis added). As the Court is now aware, the Morton Memorandum

and its October 5, 2012 supplement address only the exercise of prosecutorial

discretion to stay removal proceedings or execution of orders of removal of certain

immigrants, and have nothing to do with eligibility for deferred action or

employment authorization.

On April 26, 2013, defendants filed a notice correcting the factual findings

underlying the Courts having denied preliminary injunctive relief. Therein,

defendants made clear that

1) USCIS has, in fact, denied I-130 Petitions for Alien Relative since October 5,

2012, based on DOMA 3, Dkt. 131 at 2;

2) CIS will continue to [issue such denials] until there is a definitive ruling

striking down DOMA 3, idat 3; and

3) defendants grant class members deferred action and employment

authorization only in extraordinary circumstances

Dkt. 131 at 4 (emphasis added).2

2 Defendants further clarified that their prosecutorial discretion memos address onlywhether DHS immigration enforcement agencies, typically ICE, will proceed againsta class member in removal or deportation proceedings. See Dkt. 131 at 3-4 and n.3(USCIS [the agency that denied petitions based on DOMA] therefore does notexercise prosecutorial discretion pursuant to the Morton memo. (Emphasissupplied)).


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Defendants now admit having made numerous adverse immigration decisions

affecting those in the plaintiff class [before and] after October 5, 2012. See Dkt.

131;see also Dkt. 135, Plaintiffs Exhibits 37-41 (post-October 5, 2012, denials of

multiple class members immigration applications). Defendants also now admit that

neither their prosecutorial discretion memos nor the unlikely possibility of getting

deferred action afforded class members whose applications for pre-adjudication

employment authorization and for adjustment of status CIS unconstitutionally denied

any real protection from joblessness or inadmissibility.

On June 26, 2013, the Supreme Court held that DOMA denies due process

and equal protection in violation of the Fifth Amendment to the U.S. Constitution.

United States v. Windsor, U.S. ; 2013 U.S. LEXIS 4921, 2013 WL 3196928 (June

26, 2013).

Plaintiff class representative DeLeon and the proposed intervening plaintiffs

accordingly now move the Court to enter summary judgment in this case.

II WINDSOR MAKES CLEAR THAT PLAINTIFF AND THE PROPOSED PLAINTIFF

INTERVENORS ARE ENTITLED TO SUMMARY JUDGMENT.

Section 3 of DOMA provides as follows:

In determining the meaning of any Act of Congress, or of any ruling,

regulation, or interpretation of the various administrative bureaus and agencies

of the United States, the word marriage means only a legal union between


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one man and one woman as husband and wife, and the word spouse refers

only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. 7.

The definitional provision does not by its terms forbid States from enacting

laws permitting same-sex marriages or civil unions or providing state benefits to

residents in that status. The enactments comprehensive definition of marriage for

purposes of all federal statutes and other regulations or directives covered by its

terms, however, does control over 1,000 federal laws in which marital or spousal

status is addressed as a matter of federal law, including the Immigration and

Nationality Act. See GAO, D. Shah, Defense of Marriage Act: Update to Prior

Report 1 (GAO04353R, 2004).

On February 23, 2011, the Attorney General of the United States notified the

Speaker of the House of Representatives, pursuant to 28 U. S. C. 530D, that the

Department of Justice would no longer defend the constitutionality of DOMAs 3.

Noting that the Department has previously defended DOMA against . . . challenges

involving legally married same-sex couples, the Attorney General informed

Congress that the President has concluded that given a number of factors, including

a documented history of discrimination, classifications based on sexual orientation

should be subject to a heightened standard of scrutiny. SeeWindsor, Slip Op. at 3-4.

Although the President . . . instructed the Department not to defend the

statute in Windsor, he also decided that Section 3 will continue to be enforced by

the Executive Branch Id. at 4.


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In response to the notice from the Attorney General, the Bipartisan Legal

Advisory Group (BLAG) of the House of Representatives voted to intervene in

litigation challenging DOMA to defend its constitutionality.Id. The Department of

Justice did not oppose limited intervention by BLAG in Windsoror in this case.

The recognition of civil marriages is central to state domestic relations law

applicable to its residents and citizens. Windsor, Slip Op. at 17, citingWilliams v.

North Carolina, 317 U. S. 287, 298 (1942) (Each state as a sovereign has a rightful

and legitimate concern in the marital status of persons domiciled within its borders).

The definition of marriage is the foundation of the States broader authority to

regulate the subject of domestic relations with respect to the [p]rotection of

offspring, property interests, and the enforcement of marital responsibilities.Id.

quotingWilliams v.North Carolina, 317 U. S. at 298.

Consistent with this allocation of authority, the Federal Government, through

our history, has deferred to state-law policy decisions with respect to domestic

relations.Id.

DOMA rejects the long-established precept that the incidents, benefits, and

obligations of marriage are uniform for all married couples within each State, though

they may vary, subject to constitutional guarantees, from one State to the next.Id. at

18.

Despite these considerations, the Supreme Court held in Windsorthat it was

unnecessary to decide whether this federal intrusion on state power was a violation

of the Constitution because the States power in defining the marital relation is of


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central relevance in this case quite apart from principles of federalism.Id.

The States decision to give this class of persons the right to marry conferred

upon them a dignity and status of immense import.Id. When the State used its

historic and essential authority to define the marital relation in this way, its role and

its power in making the decision enhanced the recognition, dignity, and protection of

the class in their own community.Id.

DOMA, because of its reach and extent, departs from this history and tradition

of reliance on state law to define marriage.Id. at 18-19. [D]iscriminations of an

unusual character especially suggest careful consideration to determine whether they

are obnoxious to the constitutional provision.Id. at 19, quotingRomerv.Evans,

517 U. S. 620, 633 (1996) (quotingLouisville Gas & Elec. Co. v. Coleman, 277 U.

S. 32, 3738 (1928)).

DOMA 3 uses this state-defined class for the opposite purposeto impose

restrictions and disabilities.Id. at 19. That result required the Supreme Court to

address whether the resulting injury and indignity is a deprivation of an essential part

of the liberty protected by the Fifth Amendment.Id.

DOMA seeks to injure the very classes certain states sought to protect when

they legalized same sex marriages.Id. at 20. The Constitutions guarantee of equality

must at the very least mean that a bare congressional desire to harm a politically

unpopular group cannot justify disparate treatment of that group.Id. quoting

Department of Agriculture v.Moreno, 413 U. S. 528, 534535 (1973). The history of

DOMAs enactment and its own text demonstrate that interference with the equal


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dignity of same-sex marriages, a dignity conferred by the States in the exercise of

their sovereign power, was more than an incidental effect of the federal statute.Id. at

21. It was its essence.Id.3

The principal effect of Defendants implementation of DOMA, even after

defendants decided it was unconstitutional and were told so by numerous courts, was

to identify a subset of state-sanctioned marriages and make them unequal for

purposes of benefits otherwise available under the Immigration and Nationality Act.

Id. at 22.

By creating two contradictory marriage regimes within the same States,

DOMA forced same-sex couples to live as married for the purpose of state law but

unmarried for the purpose of federal law, thus diminishing the stability and

predictability of basic personal relations [certain] State[s] [have] found it proper to

acknowledge and protect.Id.

As the record in this case makes clear, defendants application of DOMA and

refusal to hold these cases in abeyance has, as it did in Windsor, place[d] same-sex

couples in an unstable position of being in a second-tier marriage.Id. at 23.

The declarations on file in this case fully confirm the Supreme Courts

observation that [u]nder DOMA, same-sex married couples have their lives

burdened, by reason of government decree, in visible and public ways.Id. at 23.

3 For a detailed discussion of DOMAs legislative history,see Plaintiffs Oppositionto Defendant-Intervenors Motion to Dismiss, Dkt. 71, at pp. 18-24.


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The power the Constitution grants it also restrains. [T]hough Congress has

great authority to design laws to fit its own conception of sound national policy, it

cannot deny the liberty protected by the Due Process Clause of the Fifth

Amendment.Id. at 25.

DOMA is invalid for no legitimate purpose overcomes the purpose and effect

to disparage and to injure those whom the State, by its marriage laws, sought to

protect in personhood and dignity.Id. 25-26.

By seeking to displace this protection and treating those persons as living in

marriages less respected than others, [DOMA] violates basic due process and equal

protection principles applicable to the Federal Government.Id. at 20 (emphasis

added), citingU.S. Const., Fifth Amendment;Bollingv. Sharpe, 347 U. S. 497

(1954) (emphasis added),

VI CONCLUSION

For the foregoing reasons, plaintiff and proposed plaintiff intervenors

respectfully move for the entry of summary judgment.


PUBLIC LAW CENTER

A. Christian Abasto



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LAW OFFICES OF MANULKIN &BENNETTGary H. ManulkinReyna M. Tanner

/s/ Peter A. Schey________________


Attorneys for plaintiffs


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CERTIFICATEOFSERVICE


I hereby certify that on this day I electronically filed the foregoing

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR

SUMMARY JUDGMENT 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: July 19, 2013. /s/ Peter Schey

///


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CENTER FORHUMAN RIGHTS AND CONSTITUTIONAL LAWPeter 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) [email protected]@centerforhumanrights.org

Additional counsel listed next page




Jane DELEON,

Plaintiff,v.

Janet NAPOLITANO, Secretary of theDepartment of Homeland Security; et al.,SECURITY,

Defendants._________________________________ALEXANDERBUSTOS GARCIA,RICHARDL.FITCH, HOLGA MARTINEZ,MARTHAREYES,

Plaintiffs-in-intervention_________________________________

)))))))

)))))))))))))))))


STATEMENT OF

UNCONTROVERTED FACTS AND

CONCLUSIONS OF LAW


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Statement of Uncontroverted Facts & Conclusions of Law - ii -

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Additional counsel for plaintiffs DeLeon and Rodriguez and interveningplaintiffs Martinez and Reyes:



/ / /


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Statement of Uncontroverted Facts & Conclusions of Law - 1 -

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STATEMENT OF UNCONTROVERTED FACT

1. Plaintiff filed the Complaint in this case on July 12, 2012, challenging

defendants enforcement of DOMA 3 as being in violation of her due process and

equal protection rights under the Fifth Amendment of the United States Constitution

and sought declaratory and injunctive relief. (Compl., Docket No. 1.)

2. The proposedIntervening plaintiffs filed their Complaint in Intervention

and Motion to Intervene on July 8, 2013. (Motion to Intervene, Docket No. 133);

(Compl. in Intervention, Docket No. 133, Attachment 1).

3. Plaintiff and members of the certified class are members of lawful same-sex

marriages denied benefits under the INA by defendants solely due to DOMA 3.

4. Plaintiff Jane DeLeon is the spouse of a U. S. Citizen, former plaintiff Irma

Rodriguez. On November 9, 2011, defendants denied plaintiff DeLeon a waiver of

inadmissibility solely because, under DOMA 3, plaintiff DeLeon and her spouse

are of the sex. (USCIS denial of Motion to Reopen or Reconsider, Docket No. 12,

Exhibit 1). Defendants informed plaintiff DeLeon that she was no longer authorized

for employment, that her authorized presence was also terminated, and that she

would thereafter accrue unauthorized presence that could render her inadmissible to

the United States pursuant to 8 U.S.C. 1182(a)(9)(B). (USCIS Decision, Docket

No. 12, Exhibit 2, p. 4.)

5. Intervening plaintiff Martha Reyes is a U.S. citizen; intervening plaintiff

Holga Martinez is a citizen and national of Mexico. (Declaration of Holga Martinez,

Docket No. 93, Exhibit 18;see also USCIS Sept. 26, 2011, Notice of Decision,


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Docket No. 89, Exhibits 13 and 17). Intervening plaintiffs Martinez and Reyes are

lawfully married, of the same sex, and reside together in Anaheim, California.Id. On

or about September 26, 2011, defendants denied temporary authorized presence,

employment authorization, and lawful permanent residence to intervening plaintiff

Martinez solely pursuant to DOMA 3 because both she and intervening plaintiff

Reyes are women.Id. Defendants notified intervening plaintiff Martinez that your

authorization to accept employment is terminated, that her authorized presence is

also terminated, and that she would thereafter accrue unauthorized presence that

could render her inadmissible to the United States pursuant to 8 U.S.C.

1182(a)(9)(B). (USCIS Decision, Docket No. 89, Exhibit 17).

6. Intervening plaintiff Richard L. Fitch is a U.S. citizen; intervening plaintiff

Alexander Bustos Garcia is a citizen and national of Colombia. Intervening plaintiffs

Fitch and Bustos are lawfully married, of the same sex, and reside together in San

Francisco, California. (Declarations of Richard L. Fitch and Alexander Bustos

Garcia, Docket No. 135, Exhibits 56 and 57.) On or about June 14, 2013, defendants

denied intervening plaintiff Bustos Garcia temporary authorized presence,

employment authorization, and lawful permanent residence solely pursuant to

DOMA 3 because both intervening plaintiffs Fitch and Bustos are men. (Id.;see

also USCIS case status report, Docket No. 135, Exhibit 61.) Pursuant to defendants

policy and practice, intervening plaintiff Bustos Garcia was thereafter precluded

from lawful employment in the United States and began accruing unauthorized

presence that may render him inadmissible pursuant to 8 U.S.C. 1182(a)(9)(B).Id.


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7. Defendant Janet Napolitano is the Secretary of the United States

Department of Homeland Security. Defendant Napolitano is charged with the

administration of the United States Department of Homeland Security. Defendant

United States Citizenship and Immigration Services is a subordinate agency within

the Department of Homeland Security, and as such is under the authority and

supervision of defendant Napolitano. She is sued in her official capacity. (Compl.,

Docket No. 1, p. 5, 11;see also 8 C.F.R. 2.1 (as amended March 6, 2003).)

8. Defendant Alejandro Mayorkas is the Director of defendant the United

States Citizenship and Immigration Services, an entity within the United States

Department of Homeland Security (DHS) with statutory responsibility for

adjudicating petitions filed by United States citizens and lawful permanent residents

to grant lawful immigration status to immediate relative immigrant family

members, including lawful spouses of United States citizens and lawful permanent

residents. He is sued in his official capacity. (Id., p. 6, 12;see also 8 C.F.R.

2.1(d) (as amended March 6, 2003).)

7. Defendant the United States Citizenship and Immigration Service

(USCIS) is an entity within the DHS with statutory responsibility to adjudicate

petitions and applications filed by United States citizens and lawful permanent

residents to grant lawful immigration status to immigrant family members, including

lawful spouses of United States citizens and lawful permanent residents. (Id., p. 6,

13;see also 8 C.F.R. 2.1(x) (as amended March 6, 2003).)

8. April 19, 2013, the Court certified this action on behalf of the following


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class of similarly situated persons:





(Order Granting Provisional Class Certification, Docket No. 127, at 12.) The Court

appointed plaintiff DeLeon as class representative. (Id. at 12.)

9. Plaintiff and intervening plaintiffs and their class members have suffered

irreparable harm because of defendants application of DOMA 3, including

emotional distress and anxiety,1 the accumulation of unauthorized presence and

denial of the right to lawful employment,2 and denial of their family-based

applications and petitions.3 Defendants policies and practices have deprived

plaintiff, intervening plaintiffs, and members of the certified class of due process and

1 (See, e.g., Declarations of Richard L. Fitch and Alexander Bustos Garcia, Dkt. 135,Exhibits 56 and 57; Declaration of Holga Martinez, Docket No. 93, Exhibit 18, 5;Declaration of Samuel Conlon, Docket No. 135, Exhibit 50, 12-13; The Impact ofInstitutional Discrimination on Psychiatric Disorders in Lesbian, Gay, and BisexualPopulations: A Prospective Study, Docket No. 135, Exhibit 55.)

2 (Defendants Opposition to Plaintiffs Motion for Preliminary Injunction, Docket

No. 39, 19:8-16.)3 (See, e.g., Defendants Notice to the Court, Docket No. 131, p. 2 (denials issuedafter October 5, 2012;see also denial of Motion to Reopen or Reconsider (DeLeon),Docket No. 12, Exhibit 1; USCIS Decision (DeLeon), Docket No. 12, Exhibit 2;USCIS case status report (class members Firtch and Bustos), Docket No. 135,Exhibit 61; Notice of Decision (class members Reyes and Martinez), Docket No. 89,


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equal protection in violation of the Fifth Amendment to the United States

Constitution.10. Any conclusion of law set forth herein that is more properly deemed an

uncontroverted fact is hereby incorporated into this statement of uncontroverted

facts.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331.

Venue is properly in this Court pursuant to 28 U.S.C. 1391(b) and (e)(1), (2), and

(4), because acts complained of occurred in this district, plaintiff DeLeon resides in

this district, defendant has offices in this district, and no real property is involved in

this action.

2. Plaintiffs [if applicable: and intervening plaintiffs] action for declaratory

and injunctive relief is authorized by 28 U.S.C. 2201-2202 and Fed.R.Civ.Proc.

Rule 57, and for review of agency action pursuant to the Administrative Procedure

Act, 5 U.S.C. 701-706.

3. A motion for summary judgment should be granted when there is no

genuine issue as to material fact[s], and the moving party is entitled to [judgment]

as a matter of law. Fed. R. Civ. P. 56(c);Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986). A genuine issue of material fact exists only if the evidence is

Exhibits 13 and 17; Plaintiffs Exhibits 34-61, Docket No. 135, Exhibits 37-45(denials of various class members applications).)


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such that a reasonable jury could return a verdict for the non-moving party. Id., at

248.

4. In 1996 Congress enacted the Defense of Marriage Act (DOMA), 110 Stat.

2419, 1 U.S.C. 7. DOMA contains two operative sections: Section 2, which is not

challenged here, allows States to refuse to recognize same-sex marriages performed

under the laws of other States. Section 3, which is at issue here, amends the

Dictionary Act in Title 1, 7, of the United States Code to provide a federal

definition of marriage and spouse. Section 3 of DOMA provides as follows: In

determining the meaning of any Act of Congress, or of any ruling, regulation, or

interpretation of the various administrative bureaus and agencies of the United

States, the word marriage means only a legal union between one man and one

woman as husband and wife, and the word spouse refers only to a person of the

opposite sex who is a husband or a wife. 1 U. S. C. 7.

5. The enactments comprehensive definition of marriage for purposes of all

federal statutes and other regulations or directives covered by its terms controls over

1,000 federal laws in which marital or spousal status is addressed as a matter of

federal law, including the Immigration and Nationality Act, 8 U.S.C. 1101 et seq.

(INA). United States v. Windsor, _U.S. _; 81 U.S.L.W. 4633 (June 26, 2013), Slip.

Op. at 1-2.

6. In general, a marriage is valid for immigration purposes if it is valid under

the law of the state where it was celebrated.Matter of Lovo-Lara, 23 I&N Dec. 746,

748 (BIA 2005). Historically, as long as two people intend to establish a life together


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at the time of the marriage, the marriage is valid for immigration purposes.Bark v.

INS, 511 F.2d 1200 (9th Cir. 1975). Defendants refusing to recognize same-sex

couples lawful marriages as valid for purposes of conferring immigration benefits

was accordingly not a function of the INA, but rather of DOMA 3.

7. In Windsor,supra, the Supreme Court struck down DOMA 3 because it

seeks to injure the very class [states authorizing same-sex marriage] seek[ ] to

protect. By doing so it violates basic due process and equal protection principles

applicable to the Federal Government. Slip. Op. at 20.

8. Defendants pre-Windsorrefusal to recognize lawfully married same-sex

couples marriages pursuant to DOMA 3 as valid predicates for the granting of

immigration benefits accordingly violated the equal protection and due process

guarantees of the Fifth Amendment to the United States Constitution.

9. The accrual of unlawful presence can lead to significant bars to admission

to the United States, should DeLeon or class members leave the country (including

to obtain a visa) and attempt to re-enter. (Defendants Opposition to Plaintiffs

Motion for Preliminary Injunction, Docket No. 39, 19:8-16 (citing8 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).)

10. Any injury suffered by DeLeon and members of the certified class may be

be ended by an order by this Court ultimately declaring DOMA to be

unconstitutional and directing USCIS to reopen and adjudicate [DeLeons and class

members] applications without regard to DOMA (Defendants Opposition to


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Plaintiffs Motion for Preliminary Injunction, Docket No. 39, 19:27-20:2.)

11. Any fact set forth above as an uncontroverted fact that is more properly

deemed a conclusion of law is hereby incorporated into these conclusions of law.


PUBLIC LAW CENTERA. Christian Abasto


GARY H.MANULKINREYNA M.TANNERLaw Offices of Manulkin, Glaser& Bennett

/s/ Peter A. Schey________________


Attorneys for Plaintiffs


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I hereby certify that on this day I electronically filed the foregoing

STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW 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: July 19, 2013. /s/ ___________________________Peter Schey

///


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CENTER FORHUMAN RIGHTS AND CONSTITUTIONAL LAWPeter 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) [email protected]@centerforhumanrights.org

Additional counsel listed next page




Jane DELEON,

Plaintiff,v.

Janet NAPOLITANO, Secretary of theDepartment of Homeland Security; et al.,SECURITY,

Defendants._________________________________ALEXANDERBUSTOS GARCIA,RICHARDL.FITCH, HOLGA MARTINEZ,MARTHAREYES,

Plaintiffs-in-intervention_________________________________

)))))))

)))))))))))))))))


FINDINGS OF UNCONTROVERTED

FACT AND CONCLUSIONS OF

LAW;ORDER GRANTINGSUMMARY JUDGMENT.

[Proposed]



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[Proposed] Order & Findings of Fact & Conclusions of Law - ii -

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Additional counsel for plaintiffs DeLeon and Rodriguez and interveningplaintiffs Martinez and Reyes:



/ / /


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[Proposed] Order & Findings of Fact & Conclusions of Law - 1 -

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Plaintiff Jane DeLeon (Plaintiff or DeLeon) challenges the

constitutionality of Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C.

7, as applied to deny her certain immigration benefits that have been and continue to

be available to immigrants in heterosexual marriages. DeLeon seeks declaratory and

injunctive relief pursuant to 28 U.S.C. 2201-2202 and Fed. R. Civ. R. 57 as well

as review of agency action pursuant to 5 U.S.C. 701-706. (Complaint (Compl.)

at 4, Docket No. 1.)

The matter before the Court, the Honorable Consuelo B. Marshall, United

States District Judge presiding, is Plaintiff DeLeons Motion for Summary Judgment

(Motion). [Docket No. __.]

FINDINGS OF UNCONTROVERTED FACT

1. Plaintiff filed the Complaint in this case on July 12, 2012, challenging

defendants enforcement of DOMA 3 as being in violation of her due process and

equal protection rights under the Fifth Amendment of the United States Constitution

and sought declaratory and injunctive relief. (Compl., Docket No. 1.)

2. Intervening plaintiffs filed their Complaint in Intervention and Motion to

Intervene on July 8, 2013. (Motion to Intervene, Docket No. 133); (Compl. in

Intervention, Docket No. 133, Attachment 1). The Court ___________ [granted or

denied] the motion to intervene.

3. Plaintiff and members of the certified class are members of lawful same-sex

marriages denied benefits under the INA by defendants solely due to DOMA 3.

4. Plaintiff Jane DeLeon is the spouse of a U. S. Citizen, former plaintiff Irma


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Rodriguez. On November 9, 2011, defendants denied plaintiff DeLeon a waiver of

inadmissibility solely because, under DOMA 3, plaintiff DeLeon and her spouse

are of the sex. (USCIS denial of Motion to Reopen or Reconsider, Docket No. 12,

Exhibit 1). Defendants informed plaintiff DeLeon that she was no longer authorized

for employment, that her authorized presence was also terminated, and that she

would thereafter accrue unauthorized presence that could render her inadmissible to

the United States pursuant to 8 U.S.C. 1182(a)(9)(B). (USCIS Decision, Docket

No. 12, Exhibit 2, p. 4.)

5. Intervening plaintiff Martha Reyes is a U.S. citizen; intervening plaintiff

Holga Martinez is a citizen and national of Mexico. (Declaration of Holga Martinez,

Docket No. 93, Exhibit 18;see also USCIS Sept. 26, 2011, Notice of Decision,

Docket No. 89, Exhibits 13 and 17). Intervening plaintiffs Martinez and Reyes are

lawfully married, of the same sex, and reside together in Anaheim, California.Id. On

or about September 26, 2011, defendants denied temporary authorized presence,

employment authorization, and lawful permanent residence to intervening plaintiff

Martinez solely pursuant to DOMA 3 because both she and intervening plaintiff

Reyes are women.Id. Defendants notified intervening plaintiff Martinez that your

authorization to accept employment is terminated, that her authorized presence is

also terminated, and that she would thereafter accrue unauthorized presence that

could render her inadmissible to the United States pursuant to 8 U.S.C.

1182(a)(9)(B). (USCIS Decision, Docket No. 89, Exhibit 17).

6. Intervening plaintiff Richard L. Fitch is a U.S. citizen; intervening plaintiff


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Alexander Bustos Garcia is a citizen and national of Colombia. Intervening plaintiffs

Fitch and Bustos are lawfully married, of the same sex, and reside together in San

Francisco, California. (Declarations of Richard L. Fitch and Alexander Bustos

Garcia, Docket No. 135, Exhibits 56 and 57.) On or about June 14, 2013, defendants

denied intervening plaintiff Bustos Garcia temporary authorized presence,

employment authorization, and lawful permanent residence solely pursuant to

DOMA 3 because both intervening plaintiffs Fitch and Bustos are men. (Id.;see

also USCIS case status report, Docket No. 135, Exhibit 61.) Pursuant to defendants

policy and practice, intervening plaintiff Bustos Garcia was thereafter precluded

from lawful employment in the United States and began accruing unauthorized

presence that may render him inadmissible pursuant to 8 U.S.C. 1182(a)(9)(B).Id.

7. Defendant Janet Napolitano is the Secretary of the United States

Department of Homeland Security. Defendant Napolitano is charged with the

administration of the United States Department of Homeland Security. Defendant

United States Citizenship and Immigration Services is a subordinate agency within

the Department of Homeland Security, and as such is under the authority and

supervision of defendant Napolitano. She is sued in her official capacity. (Compl.,

Docket No. 1, p. 5, 11;see also 8 C.F.R. 2.1 (as amended March 6, 2003).)

8. Defendant Alejandro Mayorkas is the Director of defendant the United

States Citizenship and Immigration Services, an entity within the United States

Department of Homeland Security (DHS) with statutory responsibility for

adjudicating petitions filed by United States citizens and lawful permanent residents


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to grant lawful immigration status to immediate relative immigrant family

members, including lawful spouses of United States citizens and lawful permanent

residents. He is sued in his official capacity. (Id., p. 6, 12;see also 8 C.F.R.

2.1(d) (as amended March 6, 2003).)

7. Defendant the United States Citizenship and Immigration Service

(USCIS) is an entity within the DHS with statutory responsibility to adjudicate

petitions and applications filed by United States citizens and lawful permanent

residents to grant lawful immigration status to immigrant family members, including

lawful spouses of United States citizens and lawful permanent residents. (Id., p. 6,

13;see also 8 C.F.R. 2.1(x) (as amended March 6, 2003).)

8. April 19, 2013, the Court certified this action on behalf of the following

class of similarly situated persons:





(Order Granting Provisional Class Certification, Docket No. 127, at 12.) The Court

appointed plaintiff DeLeon as class representative. (Id. at 12.) The Courts findings

and conclusions regarding the propriety of class certification are incorporated here

by reference.

9. Plaintiff and intervening plaintiffs and their class members have suffered

irreparable harm because of defendants application of DOMA 3, including


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emotional distress and anxiety,1 the accumulation of unauthorized presence and

denial of the right to lawful employment,2 and denial of their family-based

applications and petitions.3 Defendants policies and practices have deprived

plaintiff, intervening plaintiffs, and members of the certified class of due process and

equal protection in violation of the Fifth Amendment to the United States

Constitution.10. Any conclusion of law set forth below that is more properly deemed a

finding of fact is hereby incorporated into these findings of fact.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331.

Venue is properly in this Court pursuant to 28 U.S.C. 1391(b) and (e)(1), (2), and

(4), because acts complained of occurred in this district, plaintiff DeLeon resides in

1 (See, e.g., Declarations of Richard L. Fitch and Alexander Bustos Garcia, Dkt. 135,Exhibits 56 and 57; Declaration of Holga Martinez, Docket No. 93, Exhibit 18, 5;Declaration of Samuel Conlon, Docket No. 135, Exhibit 50, 12-13; The Impact ofInstitutional Discrimination on Psychiatric Disorders in Lesbian, Gay, and BisexualPopulations: A Prospective Study, Docket No. 135, Exhibit 55.)

2 (Defendants Opposition to Plaintiffs Motion for Preliminary Injunction, DocketNo. 39, 19:8-16.)

3 (See, e.g., Defendants Notice to the Court, Docket No. 131, p. 2 (denials issuedafter October 5, 2012;see also denial of Motion to Reopen or Reconsider (DeLeon),Docket No. 12, Exhibit 1; USCIS Decision (DeLeon), Docket No. 12, Exhibit 2;USCIS case status report (class members Firtch and Bustos), Docket No. 135,Exhibit 61; Notice of Decision (class members Reyes and Martinez), Docket No. 89,Exhibits 13 and 17; Plaintiffs Exhibits 34-61, Docket No. 135, Exhibits 37-45(denials of various class members applications).)


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this district, defendant has offices in this district, and no real property is involved in

this action.

2. Plaintiffs [if applicable: and intervening plaintiffs] action for declaratory

and injunctive relief is authorized by 28 U.S.C. 2201-2202 and Fed.R.Civ.Proc.

Rule 57, and for review of agency action pursuant to the Administrative Procedure

Act, 5 U.S.C. 701-706.

3. A motion for summary judgment should be granted when there is no

genuine issue as to material fact[s], and the moving party is entitled to [judgment]

as a matter of law. Fed. R. Civ. P. 56(c);Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247-48 (1986). A genuine issue of material fact exists only if the evidence is

such that a reasonable jury could return a verdict for the non-moving party. Id., at

248.

4. In 1996 Congress enacted the Defense of Marriage Act (DOMA), 110 Stat.

2419, 1 U.S.C. 7. DOMA contains two operative sections: Section 2, which is not

challenged here, allows States to refuse to recognize same-sex marriages performed

under the laws of other States. Section 3, which is at issue here, amends the

Dictionary Act in Title 1, 7, of the United States Code to provide a federal

definition of marriage and spouse. Section 3 of DOMA provides as follows: In

determining the meaning of any Act of Congress, or of any ruling, regulation, or

interpretation of the various administrative bureaus and agencies of the United

States, the word marriage means only a legal union between one man and one


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woman as husband and wife, and the word spouse refers only to a person of the

opposite sex who is a husband or a wife. 1 U. S. C. 7.

5. The enactments comprehensive definition of marriage for purposes of all

federal statutes and other regulations or directives covered by its terms controls over

1,000 federal laws in which marital or spousal status is addressed as a matter of

federal law, including the Immigration and Nationality Act, 8 U.S.C. 1101 et seq.

(INA). United States v. Windsor, _U.S. _; 81 U.S.L.W. 4633 (June 26, 2013), Slip.

Op. at 1-2.

6. In general, a marriage is valid for immigration purposes if it is valid under

the law of the state where it was celebrated.Matter of Lovo-Lara, 23 I&N Dec. 746,

748 (BIA 2005). Historically, as long as two people intend to establish a life together

at the time of the marriage, the marriage is valid for immigration purposes.Bark v.

INS, 511 F.2d 1200 (9th Cir. 1975). Defendants refusing to recognize same-sex

couples lawful marriages as valid for purposes of conferring immigration benefits

was accordingly not a function of the INA, but rather of DOMA 3.

7. In Windsor,supra, the Supreme Court struck down DOMA 3 because it

seeks to injure the very class [states authorizing same-sex marriage] seek[ ] to

protect. By doing so it violates basic due process and equal protection principles

applicable to the Federal Government. Slip. Op. at 20.

8. Defendants pre-Windsorrefusal to recognize lawfully married same-sex

couples marriages pursuant to DOMA 3 as valid predicates for the granting of

immigration benefits accordingly violated the equal protection and due process


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guarantees of the Fifth Amendment to the United States Constitution.

9. The accrual of unlawful presence can lead to significant bars to admission

to the United States, should DeLeon or class members leave the country (including

to obtain a visa) and attempt to re-enter. (Defendants Opposition to Plaintiffs

Motion for Preliminary Injunction, Docket No. 39, 19:8-16 (citing8 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).)

10. Any injury suffered by DeLeon and members of the certified class may be

be ended by an order by this Court ultimately declaring DOMA to be

unconstitutional and directing USCIS to reopen and adjudicate [DeLeons and class

members] applications without regard to DOMA (Defendants Opposition to

Plaintiffs Motion for Preliminary Injunction, Docket No. 39, 19:27-20:2.)

11. Any finding of fact set forth above that is more properly deemed a

conclusion of law is hereby incorporated into these conclusions of law.

For the reasons stated above, the Court GRANTS Plaintiffs Motion for

Summary Judgment.

DATED: August __ 2013.

______________________________

CONSUELO B. MARSHALLUNITED STATES DISTRICT JUDGE

Presented by

Peter Schey and Carlos Holgun

Attorneys for plaintiff, intervening plaintiffs,

and members of the certified class


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I hereby certify that on this day I electronically filed the foregoing PROPOSED

FINDINGS OF FACT AND CONCLUSIONS OF LAW 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: July 19, 2013. /s/ ___________________________Peter Schey

///


8:12-cv-01137 #144

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