Case 8:12-cv-01137-CBM-AJW Document 64

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

Hearing Date: November 20, 2012 Time: 10:00 a.m. Judge: Hon. Consuelo B. Marshall

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Jane DeLeon, Irma Rodriguez, and Martin Aranas (collectively Plaintiffs) challenge the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. 7 (DOMA), based on equal protection and substantive due process grounds. They also allege that the application of Section 3 discriminates based on sex in violation of the Immigration and Nationality Act, 8 U.S.C. 1152(a)(1)(A), in addition to raising claims in a motion for class certification and motion for preliminary injunction (See ECF Nos. 1, 12, 13). As discussed more fully in Defendants Memorandum in Support of Its Partial Motion to Dismiss (ECF No. 46), United States Citizenship and Immigration Services (USCIS) relied on Section 3 of DOMA in its denial of Ms. DeLeons application for a waiver of inadmissibility pursuant to 8 U.S.C. 1182(i) (I-601 waiver). While Defendants have already indicated that they agree that Section 3 of DOMA is unconstitutional as applied to same-sex couples whose

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marriages are legally recognized under state law, Defendants request that this Court
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dismiss Mr. Aranas and Ms. Rodriguez from this action for lack of standing and
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dismiss Plaintiffs sex discrimination claims raised pursuant to 8 U.S.C. 1152(a)(1)(A) and their substantive due process claims for failure to state a claim upon which relief can be granted. ARGUMENT I. Mr. Aranas and Ms. Rodriguez Lack Standing. Defendants do not dispute that Ms. DeLeon has standing to assert the claims in her Complaint, and, in fact, agree that because she has standing the case can proceed.1
In the Bipartisan Legal Advisory Groups (BLAG) Response to Defendants Procedural Motion to Dismiss and Partial Motion to Dismiss (BLAG Resp. to Ds MTD) (ECF No. 58), BLAG asserts that all three Plaintiffs lack standing to challenge Section 3 of DOMA because they failed to challenge INA 212(i)(1), 8 U.S.C. 1182(i)(1). As discussed in Defendants Memorandum in Support of Its Partial Motion to Dismiss (ECF No. 46 at 3), DOMA Section 3 not 8 U.S.C. 1182(i)(1) or Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) was the basis for the agencys denial of Ms. DeLeons application for a waiver of inadmissibility. BLAGs argument that 8 U.S.C. 1182(i)(1) is an independent basis to dismiss for lack of standing is incorrect, and Defendants do not dispute that Ms. DeLeon has standing to challenge Section 3 of DOMA. 1
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However, Defendants maintain that Plaintiffs Mr. Aranas and Ms. Rodriguez lack standing for the reasons set forth below and more fully in their partial motion to dismiss.2 Plaintiffs contend that this Court need not decide whether Mr. Aranas and Ms. Rodriguez have standing because Defendants have conceded that at least one PlaintiffMs. DeLeonhas standing. In support, Plaintiffs cite Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004). Although the court in Wasden did find it unnecessary to determine whether one of the parties before it had standing, it did so after noting that such a determination would have no impact on the resolution of the issue before it on appeal. Id. at 918 (As our jurisdiction and our duty to answer the questions raised here would be unaffected by the resolution of Idahos challenge to Planned Parenthoods standing, we decline to decide the issue. (emphasis added)).

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Here, unlike in Wasden, the determination of whether Mr. Aranas and Ms.
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Rodriguez have standing directly impacts this Courts evaluation of Plaintiffs motions
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for class certification and preliminary injunction. At a minimum, whether Mr. Aranas and Ms. Rodriguez have standing impacts: (1) whether Plaintiffs class definition includes individuals without standing;3 (2) whether Plaintiffs have met their burden of

Plaintiffs contend that Courts have routinely allowed both members of lawfully married couples to challenge DOMA 3 and refer to a number of recent cases challenging the constitutionality of DOMA. However, the only immigration-related case cited, Revelis v. Napolitano, 844 F. Supp. 2d 915 (N.D. Ill. 2012), involved claims by a U.S. Citizen, who was the petitioner for an immediate relative visa petition a Form I-130 filed by him on behalf of his same-sex spouse. In that situation, the applicant for the immigration benefit is the U.S. Citizen (seeking the benefit on behalf of his alien spouse), which is different from this case, where the applicant for the immigration benefit is the alien (seeking the benefit for herself).
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All class members, not just class representatives, must have standing. See Mazza v. Am. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012). Moreover, a named plaintiff must be a member of the class he purports to represent and must possess the same interest and suffer the same injury as his fellow class members. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 94 S. Ct. 2925, 2929, 41 L.Ed. 2d 706 (1974); see also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1045 2

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showing numerosity; and (3) what individuals the Court may consider for purposes of determining whether there has been irreparable harm. Because the resolution of whether Mr. Aranas and Ms. Rodriguez have standing impacts the resolution of substantive issues before this Court, the Court should address it. Plaintiffs have not challenged Defendants contention that Mr. Aranas and Ms. Rodriguez fail to satisfy the test for third-party standing. Instead, Plaintiffs contend that Mr. Aranas and Ms. Rodriguez have independent standing and are asserting claims on their own behalf. Article III requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 14-35 (D.D.C. 2010) (citing Valley Forge Christian Coll. v. Am. United for Separation of

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Church & State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)).
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Closely related to the constitutional requirement that a plaintiff must suffer a

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personal injury to establish standing is the prudential requirement that a plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Al-Aulaqi, 727 F. Supp. 2d 1, 15 (citing Warth v. Seldin, 422 U.S. 490, 499, 501, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). As previously stated, Mr. Aranas, the son of Ms. DeLeon, lacks standing to claim that Section 3 of DOMA discriminates against him on the basis his sexual orientation. Accordingly, he lacks standing to challenge the constitutionality of Section 3 of DOMA. The fact that Mr. Aranas may be able to obtain the immigration benefit he seeks if Ms. DeLeon prevails does not alter that analysis.

(9th Cir. 1999) (Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief.). 3

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Similarly, Ms. Rodriguez Ms. DeLeons spouse lacks standing because she has not sought an immigration benefit in this case and therefore is not the proper plaintiff to challenge the denial.4 Although Ms. Rodriguez may be affected by USCISs denial of Ms. DeLeons I-601 waiver application, Ms. Rodriguez did not file the application at issue in this case. But, as with Mr. Aranas, should Ms. DeLeon prevail in her action challenging Section 3 of DOMA which she should any impact of Section 3 of DOMA on Ms. Rodriguez will be eliminated. Accordingly, this Court should dismiss Mr. Aranas and Ms. Rodriguez from this case. II. Section 3 of DOMA Does Not Violate Substantive Due Process. In their opposing brief, Plaintiffs indicate that they do not contend that Ms. DeLeon has a constitutional right to immigration benefits. Pl. Opp. to D. MTD at 13.

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They assert that they are instead challenging DOMAs intrusion upon their personal
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privacy rights and that they are entitled to autonomy in their personal decisions
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relating to marriage, procreation, . . . family relationships, [and] child rearing . . .. Id.

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However, Plaintiffs substantive due process interests in this case must be viewed
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narrowly, Raich v. Gonzales, 500 F.3d 850, 862-63 (9th Cir. 2007) (concluding that
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Courts must adopt a narrow definition of the interest at stake in substantive due process cases) and in this case DOMA works to specifically prevent Plaintiffs from obtaining a particular federal benefit to which Plaintiffs have no substantive due process right.
Plaintiffs contend that Ms. Rodriguez automatically has standing because she asserts that Defendants have treated her marriage as inferior and she has therefore been denied equal protection. Pl. Opp. to D. MTD at 7. However, the cases Plaintiffs cite for this proposition pertain to individuals or entities directly subject to either differential treatment or a barrier to a benefit they were seeking on their own behalf. See, e.g., Ne. Fla. Chap. of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666, 113 S. Ct. 2297, 124 L. Ed. 2d. 586 (1993) (concluding that members of a group seeking to challenge a barrier need not allege that they would have obtained the benefit but for the barrier in order to establish standing); Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir. 1994) (holding that plaintiff presented a cognizable equal protection claim since it alleged that it was subjected to differential treatment by the defendants based upon the defendants anti-Semitic animus.). 4
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Viewed through the appropriate narrow lens, the specific interest at stake is Plaintiffs ability to obtain benefits under federal immigration law. The Ninth Circuit has recognized that the denial of a discretionary immigration benefit cannot violate a substantive liberty or property interest purportedly protected by the Due Process Clause. See Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003) (Since discretionary relief is a privilege created by Congress, denial of such relief cannot violate a substantive interest protected by the Due Process clause.). Thus, while denial of those benefits pursuant to Section 3 of DOMA violates the equal protection component of the Due Process Clause in these circumstances, there is no substantive due process right to them. In their opposing brief, Plaintiffs rely heavily on Witt v. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008). The Witt decision provides little support here. In Witt, the

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plaintiff was deprived of rights she already possessed. In the instant case, Ms. DeLeon
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possesses no right to a discretionary I-601 waiver. Thus, she has not been stripped of
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an immigration benefit she already had because of DOMA. As Defendants stated in their motion, this Court should analyze the unfairness created by Section 3 of DOMA under the equal protection component of the Fifth Amendment Due Process Clause, rather than under principles of substantive due process. Accordingly, Plaintiffs substantive due process claims should be dismissed.5 III. Defendants Procedural Motion to Dismiss In their Response to Defendants Procedural Motion to Dismiss and Partial Motion to Dismiss, BLAG takes issue with Defendants filing of a procedural motion to dismiss this matter. See BLAG Resp. to D. MTD at 8-11. However, the

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To the extent that Plaintiffs raise sex discrimination claims pursuant to 8 U.S.C. 1152(a)(1)(A), these claims should also be dismissed for failure to state a claim upon which relief can be granted. See Defendants Memorandum in Support of Its Partial Motion to Dismiss (ECF No. 46 at 10) Plaintiffs did not address this argument in their Opposition to Defendants Motion to Dismiss, and impliedly concede that they failed to raise these claims. 5

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Governments motion was filed in an abundance of caution because the claims presented in this case are brought against the Government Defendants, not BLAG. In the event that BLAGs broad perspective concerning its standing to litigate this case is not accepted by the courts at any stage of this matter, Defendants believe it is prudent and necessary to have facilitated BLAGs ability to present its arguments in support of the constitutionality of Section 3 of DOMA by filing a procedural motion to

dismiss, in accordance with the commitment made by the Attorney General to

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providing Congress with a full and fair opportunity to participate in this litigation. The
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continuing role of the Executive Branch in this litigation ensures the existence of a justiciable case or controversy. CONCLUSION For the reasons set forth above and as stated in Defendants Procedural Motion to Dismiss, Partial Motion to Dismiss and Memorandum in Support (See ECF 46), Defendants request that this Court dismiss Plaintiffs Mr. Aranas and Ms. Rodriguez from this action for lack of standing and Plaintiffs substantive due process claim under the Fifth Amendment and sex discrimination claims raised pursuant to 8 U.S.C. 1152(a)(1)(A) for failure to state a claim upon which relief can be granted. DATED: October 22, 2012 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director Office of Immigration Litigation

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JEFFREY S. ROBINS Assistant Director s/ Jesi J. Carlson JESI J. CARLSON Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 532-4067 Fax: (202) 305-7000 Email: jesi.j.carlson@usdoj.gov TIMOTHY M. BELSAN Trial Attorney