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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 Additional counsel listed next page Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) SACV12-01137 CBM (AJWx) REPLY TO OPPOSITION TO MOTION FOR CLASS CERTIFICATION.

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

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

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Additional counsel for plaintiff Aranas: PUBLIC LAW CENTER Julie Greenwald (Cal. Bar No. 233714) Monica Ashiku (Cal. Bar No. 263112) 601 Civic Center Drive West Santa Ana, CA 92701 Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249) Facsimile: (714) 541-5157 jgreenwald@publiclawcenter.org mashiku@publiclawcenter.org ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan (Cal. Bar No. 271064) 184 Jackson Street, San Jose, CA 95112 Telephone: (408) 287-9710 Facsimile: (408) 287-0864 Email: bpangilinan@asianlawalliance.org Additional counsel for plaintiffs Rodriguez and DeLeon: LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin (Cal. Bar No. 41469) Reyna M. Tanner (Cal. Bar No. 197931) 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708 Telephone: 714-963-8951 Facsimile: 714-968-4948 gmanulkin@mgblaw.com reynatanner@yahoo.com ///

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Cases

OUTLINE OF CONTENTS I The proposed class is adequately defined. .............................................................. 1 II The class meets all Rule 23(a) requirements for certification ............................... 4 A DOMA 3s constitutionality is a common question. ............................... 4 B Plaintiffs have no conflict with the proposed class. .................................... 5 C Proposed class members are too numerous to permit joinder. .................... 7 III Conclusion ............................................................................................................ 10

TABLE OF AUTHORITIES

Dragovich v. U.S. Department of the Treasury, 764 F.Supp.2d 1178 (N.D. Cal. 2011) ............................................................................................................. 3, 10 Fabricant v. Sears Roebuck & Co., 202 F.R.D. 310 (S.D. Fl. 2001) ............................ 6 In re Golinski, 587 F.3d 956 (9th Cir. 2011)................................................................. 3 Jordan v. Los Angeles County, 669 F.2d 1311 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982) ......................................................................... 10 Massachusetts v. United States HHS, 682 F.3d 1 (1st Cir. 2012) ................................. 3 Associated Gen. Contractor v. Jacksonville, 508 U.S. 656, 666; 113 S. Ct. 2297; 124 L. Ed. 2d 586 (1993).............................................................................. 2, 4 Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) .............................. 10 Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959 (D. Ariz. 2011), affd, _ F.3d _; 2012 U.S. App. LEXIS 20120 (9th Cir. 2012) ............................................... 3 Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ...................................................... 5 Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216 (7th Cir. 1994) ............ 2 Taniguchi v. Ashcroft, 303 F.3d 950 (9th Cir. 2002) .................................................. 10 Varnum v. Brien, 763 N.W.2d 862 (2009) .................................................................... 9
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White v. Laborers Intl Union, 90 F.R.D. 368 (D. Alaska 1981), affd in part and rev. in part on other grounds, 688 F.2d 850 (9th Cir. 1982) ....................... 6 Windsor v. United States, _ F.3d _, 2012 U.S. App. LEXIS 21785 (2d Cir. September 27, 2012) ................................................................................................... 3 Zepeda v. United States Immigration & Naturalization Service, 753 F.2d 719 (9th Cir. 1983) ..................................................................................................... 4
Statutes, rules and regulations

Rule 23, Fed. R. Civ. Proc. ............................................................................... passim 15 V.S.A. 8 (2012) ................................................................................................ 9 D.C. Code 46-401 (2012) ....................................................................................... 9 NY CLS Dom Rel 10-a (2012) ............................................................................. 9 RSA 457:1-a (2012) ................................................................................................. 9
Other authority

Gates, Gary J., Same-sex Couples and the Gay, Lesbian, Bisexual Population: New Estimates from the American Community Survey (October 2006) ....................... 19

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1

REPLY TO OPPOSITION TO CLASS CERTIFICATION I THE PROPOSED CLASS IS ADEQUATELY DEFINED. Defendants first oppose class certification because the proposed class definitionthough it includes only persons against whom U.S. Citizenship and Immigration Services (CIS) has applied or will apply DOMA 3fails to differentiate between persons denied such benefits and those whose applications CIS has yet to deny. Opposition at 6. Defendants further object that the class definition should exclude persons whose applications CIS denies pursuant to DOMA as well as other grounds. Id. at 5. Defendants arguments are meritless. The evidence shows that CIS applies DOMA 3 at the outset of an adjudication and thereafter aborts deciding whether an applicant is otherwise eligible for immigration benefits. See, e.g., [Denial of] Motion to Reopen, etc., November 9, 2011, Exhibits re: Preliminary Injunction, etc. (Exhibits), Exhibit 1 at 2 (CIS ignores eligibility under INA where DOMA applies as a matter of federal law...); Notice of Decision, Sept. 26, 2011, Exhibit 13 (same); In re Handi Lui, Jan. 20, 2011, Exhibit 2 (same; Board of Immigration Appeals); In re Torres-Barragan (Oct. 23, 2009), Exhibit 14 (same).1 Further, whether or not a proposed class member may be ineligible for a

CIS would have no reason to evaluate an applicants eligibility under the labyrinthian INA where DOMA 3 is fatal. Unless CIS willy-nilly and superfluously decides eligibility under the INA even where DOMA 3 is dispositive, there are no individuals whose applications were denied pursuant to DOMA as well as on other grounds. Defendants offer no proof that CIS actually issues such superfluous hybrid denials.
Reply to Opposition to Class Certification -1Center 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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requested benefit on grounds other than DOMA 3 is irrelevant to the proposed class claims. What countsand what the class definition requiresis that defendants apply DOMA 3 to discriminate against proposed class members and their wholly lawful marriages. As elsewhere explained, the proposed class claims challenge defendants discriminating against same-sex couples. This discrimination confers standing whether or not class members ultimately qualify for immigration benefits. See Opposition to Motion to Dismiss (Dkt. 56) at 5-9, citing inter alia, Associated Gen. Contractor v. Jacksonville, 508 U.S. 656, 666; 113 S. Ct. 2297; 124 L. Ed. 2d 586 (1993) (discrimination confers standing regardless of ultimate eligibility for requested benefit). Thus, the class need not exclude members who may ultimately be ineligible for benefits on grounds other than DOMA 3. Defendants objection that the proposed class would encompass individuals who have not yet officially applied for benefits and may never do so, Opposition at 7, is similarly meritless. First, it is entirely proper to include in a (b)(2) class action same-sex couples against whom CIS will apply DOMA 3 in the future. Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 991-92 (D. Ariz. 2011), affd, _ F.3d _; 2012 U.S. App. LEXIS 20120 (9th Cir. 2012), citing Probe v. State Teachers Retirement Sys., 780 F.2d 776, 780 (9th Cir. 1986). (The fact that the class includes future members does not render

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the class definition so vague as to preclude certification.).2 Second, the proposed class does not include persons who may never apply for immigration benefits. It comprises only persons whom pursuant to [DOMA 3 CIS] has refused or will refuse to recognize as spouses for purposes of conferring benefits under the Immigration and Nationality Act [Proposed] Order, Aug. 24, 2012 (Dkt. 13-1) (emphasis added). Unless a class member actually applies, CIS would have no occasion to apply DOMA 3 for purposes of granting immigration benefits. Defendants lastly challenge the class definition on the ground that it could have a detrimental effect by foreclosing adjudication by a number of different courts and judges. Opposition at 7. Defendants point is meritless. At issue here is the constitutionality of DOMA 3, a statute defendants concede is unconstitutional. A Lexis search returns 87 federal decisions addressing DOMA and several declaring 3 unconstitutional. E.g., Windsor v. United States, _ F.3d _, 2012 U.S. App. LEXIS 21785 (2d Cir. 2012); Massachusetts v. United States HHS, 682 F.3d 1 (1st Cir. 2012); In re Golinski, 587 F.3d 956 (9th Cir. 2011). This Courts certifying the proposed class could not possibly pretermit other courts weighing in on DOMAs constitutionality. Truncating the class geographically would abandon identically situated couples to irreparable injury on the happenstance of location. Cf. Zepeda v. Immigration &

Defendants are also wrong in asserting that proposed class members actually applying for immigration benefits is a requirement of standing. See Dragovich v. U.S. Department of the Treasury, 764 F.Supp.2d 1178, 1186 (N.D. Cal. 2011).
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Naturalization Service, 753 F.2d 719, 727 (9th Cir. 1983) (in absence of class certification preliminary injunction must be limited to named plaintiffs). CISs consigning a same-sex spouse in Oregon to the undocumented underground, but not an identically situated person in California, makes no sense. If they wish to justify such arbitrariness, defendants should offer more than hollow demands that even more courts consider a statute they concede is unconstitutional. Defendants next oppose class certification on the grounds that Rule 23(a) commonality, typicality, and numerosity are wanting. Again, defendants objections are without merit. II THE CLASS MEETS ALL RULE 23(a) REQUIREMENTS FOR CERTIFICATION A DOMA 3s constitutionality is a common question.

Reprising their standing theory, defendants assert that plaintiffs fail to present a common question because CIS denied plaintiff DeLeon a discretionary waiver, while in the typical immigration case challenging DOMA, the injury is caused by the denial of an I-130 petition which is filed by the U.S. Citizen spouse on behalf of his or her alien spouse and is non-discretionary. Opposition at 11. What matters here, however, is not whether a particular couple seeks this or that immigration benefit: it is whether CIS may discriminatorily throw up a barrier against their obtaining it. Ne. Fla. Chap. of Associated Gen. Contractors of Am., supra, 508 U.S. at 666. The particular benefit class members seek is no more relevant than the color of their skin. In any event, CIS never denied plaintiffs a waiver as a matter of discretion. It did
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so on the sole ground that Ms. DeLeon was legally ineligible for one because DOMA says her marriage counts for nothing. Exhibit 1. Thus, whether a given immigration benefit is discretionary is irrelevant. If it turns on marriage, same-sex couples will be denied it no matter how clearly they are otherwise eligible. The fact that some class members may have suffered no injury or different injuries from the challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2). Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010). What matters is that class members seek uniform relief from a practice applicable to all of them. Id. Here DOMA 3s constitutionality is the only question before this Court. Enjoining CIS from applying 3 would uniformly benefit all members of the proposed class whatever marriage-based immigration benefit they seek.3 B Plaintiffs have no conflict with the proposed class.

Defendants next argue that plaintiffs are inadequate class representatives because (1) Ms. DeLeon could abandon [her waiver application] in favor of other available relief, Opposition at 16; and because (2) it is likely that not all members of the proposed class desire to have the adjudication of their petitions for immigration benefits stalled or removal proceedings enjoined Id.4

3The

typicality requirement of Rule 23(a)(3) largely duplicates the commonality requirement of Rule 23(a)(1). Orantes-Hernandez v. Smith, 541 F. Supp. 351, 371 (C.D. Cal. 1982). Defendants objection to typicality has accordingly been fully answered above.
4Defendants

badly mischaracterize plaintiffs proposed preliminary injunction. That order does not entail stalling class members immigration petitions. Rather, it would bar CIS from issuing final
Reply to Opposition to Class Certification -5Center 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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Defendants offer no authority for the notion that a victim of unlawful discrimination is an inadequate class representative because she might someday find a way around discrimination. Discrimination does not vanish because one may find another lunch counter or another school, or someday qualify for an immigration benefit DOMA 3 does not block.5 Defendants objection that some proposed class members may not want the preliminary relief plaintiffs seek is even further afield. It is well established that a class proponent does not need to show that other potential class members want to be part of the class or desire the relief sought. See In re Potash Antitrust Litig., 159 F.R.D. 682, 692 (D. Minn. 1995); Joseph v. GMC, 109 F.R.D. 635, 640 (D. Colo. 1986) (explaining that the fact that some class members do not want to pursue claims has no bearing on class certification). Fabricant v. Sears Roebuck & Co., 202 F.R.D. 310, 315 (S.D. Fl. 2001) (parenthetical omitted); see also White v. Laborers Intl Union, 90 F.R.D. 368, (D. Alaska 1981), affd in part and rev. in part on other grounds, 688 F.2d 850 (9th Cir. 1982) (Any class members who do not wish to have their statutory rights vindicated may decide not to avail themselves of the relief obtained by a successful

administrative denials solely because the petitioners or applicants lawful spouse is of the same sex. [Proposed] Preliminary Injunction (Dkt. 12-1) at 4 (emphasis added). Nor does plaintiffs proposed order preclude defendants from proceeding against proposed class members in removal proceedings. The order instead would enjoin defendants against removing or detaining physically expellingclass members. Nothing would prevent class members from leaving the United States should they so desire. Adopting defendants first point would, of course, disqualify all potential class representatives because it is always possible that any given class member might develop an alternative path to lawful status not blocked by DOMA.
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class. They may not however, prevent others from asserting claims on behalf of the class for whose benefit those statutory rights were created.). C Proposed class members are too numerous to permit joinder.

Defendants next complain that plaintiffs case for numerosity is purely speculative. Opposition at 17. Of course, only defendants know how many same-sex couples CIS has applied DOMA 3 against, and they arent telling.6 Were the number of same-sex couples denied benefits pursuant to DOMA 3 small, defendants would surely be trumpeting the fact; they are not. Still, there is no serious question that proposed class members are too numerous and geographically dispersed to make joinder practicable. Defendants concede that plaintiffs are not the only couple whose petition CIS has denied pursuant to DOMA 3. Opposition at 18 (listing actions challenging DOMA 3 by bi-national couples). Defendants, of course, mention only those few couples with the wherewithal to mount court challenges to DOMA 3. Those who sue are not alone in having being denied immigration benefits pursuant to DOMA 3. E.g., Notice of Decision, Sept. 26, 2011, Exhibit 13. Kevin Cathcart directs Lambda Legal, the largest and oldest advocate for lesbians and gays in the United States. Declaration of K. Cathcart, November 23, 2012,

On September 10, 2012, plaintiffs noticed CISs deposition aimed at discovering, inter alia, the size of the proposed class. Exhibit 8. Defendants refused to appear for deposition. Exhibit 9. On September 26, 2012, plaintiffs served limited written discovery directed to the same issue. Exhibit 10. Again, defendants refused to cooperate and moved to stay discovery entirely (Dkt. 68).
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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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Exhibit 3, at 1. Few, if any, are better informed regarding the impact of DOMA 3 on same-sex couples. He declares: [T]here are likely hundreds of immigrants around the country who are legally married to partners of the same sex who currently are unable to extend or secure temporary employment authorization or temporary authorized status because there is not yet a final, definitive Judicial Branch decision holding Section 3 of DOMA unconstitutional. Id. at 10. Gloria Curiel is a Los Angeles immigration specialist who regularly advises binational couples hoping to regularize the immigration status of foreign-born spouses of U.S. citizens and lawful permanent residents. Declaration of G. Curiel, Nov. 5, 2012, Exhibit 11. She has counseled some 100 same-sex couples seeking immigration benefits in the U.S. Id. at 3. Ms. Curiel advises such couples that CIS continues to apply DOMA 3 to deny marriage-based immigration benefits to foreign-born members of same-sex marriages. [M]y clients nearly always decline to pursue marriage-based immigration benefits after being so advised. Few such couples are able and willing to incur the substantial expense involved in prosecuting applications that will only be denied. In my judgment, the only way these couples will have a day in court is through a representative class action ... Id. at 4-6; see also Declaration of G. Manulkin, November 5, 2012, Exhibit 16, at (I routinely encounter bi-national couples [who seek] to legalize the status of the foreign-born spouse.). Empirical data likewise indicates numerosity. Between 2000 and 2005 the
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number of same-sex couples in the U.S. grew by more than 30 percent, to almost 777,000. Gates, Gary J., Same-sex Couples and the Gay, Lesbian, Bisexual Population (October 2006), Exhibit 4, at 1. The number of such couples is certainly much larger today. These couples live in nearly every county and in all Congressional districts of the United States Exhibit 4 at 1, 2. Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, and the District of Columbia all grant marriage equality.7 Given the number of same-sex couples and the multiple states where they may marry, it is a statistical certainty that hundreds have sought or will seek immigration benefits.8 This is an action for equitable relief, and it is unnecessary to determine the exact size of the class. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). It is enough that general knowledge and common sense indicate that [the class] is large Orantes-

See Kerrigan v. Commr of Pub. Health, 289 Conn. 135; 957 A.2d 407 (2008); Varnum v. Brien, 763 N.W.2d 862 (2009); Goodridge v. Dept of Pub. Health, 440 Mass. 309; 798 N.E.2d 941 (2003); RSA 457:1-a (2012); NY CLS Dom Rel 10-a (2012); 15 V.S.A. 8 (2012); D.C. Code 46-401 (2012). California for a time also permitted same-sex couples to marry. In re Marriage Cases, 43 Cal. 4th 757; 76 Cal. Rptr. 3d 683 (2008).
7 8The

Census Bureau reports that as of 2010 there were 56,510,377 legally married couples in the U.S. www.census.gov/population/www/cen2010/briefs/tables/appendix.pdf. The Bureau estimates that of these, 131,729, or .2 percent, were same-sex couples. www.census.gov/newsroom/releases/archives/2010_census/cb11-cn181.html. Immediate relatives account for about 43 percent of the roughly 1 million persons granted lawful permanent residence (LPR) yearly, and spouses of U.S. citizens comprise 57 percent of those. Office of Immigration Statistics, Annual Flow Report (April 2012), Exhibit 15 at 3.Therefore, some 245,100 spouses of U.S. citizens yearly attain LPR status. Assuming same-sex couples seek legal status for foreign-born spouses commensurate their incidence in the general population, 570 such couples would be expected to apply for LPR status annually. Including foreign-born spouses of LPRs would increase this number substantially.
Reply to Opposition to Class Certification -9Center 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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Hernandez v. Smith, supra, 541 F. Supp. at 371. And even were the class not literally numerous, Rule 23(a)(1) would be satisfied here because the geographical diversity of class members [and] the ability of individual claimants to institute separate suits make joinder impracticable. Jordan v. Los Angeles County, 669 F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982). Expert testimony, statistics, and common sense all point to a growing, geographically dispersed class comprising hundreds. Given the number of states that now grant marriage equality, the number of lawfully married same-sex couples is growing. Hundreds of these couples have almost certainly sought immigration benefits (or would seek them were it not for DOMA).9 If defendants seriously question this, they need only produce the data they alone control. III CONCLUSION For the foregoing reasons, the Court should certify this as a class action. Dated: November 6, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun /s/ Carlos R. Holgun _____________ Attorneys for Plaintiffs

Nor must a same-sex couple actually apply for immigration benefits to have standing. See, e.g., Taniguchi v. Ashcroft, 303 F.3d 950, 957 (9th Cir. 2002) (plaintiff never applied for waiver, but statute clearly precluded CISs granting one; applying would have been futile and, therefore, does not result in a lack of standing.); Dragovich, supra, 764 F.Supp.2d at 1186 (same-sex couple need not apply for benefit to challenge DOMA 3 where formal application futile).
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Reply to Opposition to Class Certification

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 OPPOSITION TO CLASS CERTIFICATION 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 Holgun________

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