Center for Human Rights and Constitutional Law
Gay and lesbian people fall in love. We settle down. We commit our lives to one another. We raise our children. We protect them. We try to be good citizens.
- Senator Sheila Kuehl
Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?
What is straight? A line can be straight, or a street, but the human heart, oh, no, it's curved like a road through mountains.
When I was in the military they gave me a medal for killing two men and a discharge for loving one.
- Epitaph of Leonard P. Matlovich
Caminante, no hay puentes, se hace puentes al andar.
(Voyager, there are no bridges, one builds them as one walks.)
- Gloria Anzaldua
CLASS ACTION DOMA-IMMIGRATION CASE ASK COURT AND
DHS FOR IMMEDIATE STEPS TO PROTECT IMMIGRANTS
PREVIOUSLY DENIED BENEFITS UNDER DOMA
Case Title: Arenas/Deleon, et al. v. Janet Napolitano, Secretary of the Department of Homeland Security; et al. Case No. SACV12-1137-JVS(MLGx) (United States District Court for the Central District of California)Los Angeles: In July 2012, Jane DeLeon filed a class action lawsuit in federal court in Los Angeles challenging the constitutionality of the Defense of Marriage Act (DOMA) as applied to deny immigration family benefits. The DOMA was enacted and signed into law by President Clinton in 1996.
In April 2013 Federal Judge Consuelo Marshall in Los Angeles, CA issued a long-awaited decision ruling that Jane DeLeon has standing to challenge DOMA in the courts and that DOMA violates the Fifth Amendment's guarantee of equal protection as applied to immigrants because it is irrational: "This Court finds that the broad distinction created by DOMA Section 3 is not rationally related to Congress' interest in a uniform federal definition of marriage." In June 2013 the U.S. Supreme Court issued its decision in the Windsor case also holding that DOMA Section 3 is unconstitutional.
Judge Marshall also ordered that the case proceed as nationwide class action for the benefit of a class of immigrants it defined as follows: "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. Section 1101 et seq. by the Department of Homeland Security solely due to Section 3 of the Defense of Marriage Act, 1 U.S.C. Section 7." The court decided that the class is so numerous and its members' legal claims so similar as to justify certifying the case as a class action.
In July 2013 Ms. DeLeon applied for a nationwide preliminary injunction giving her and class members immediate work permits and temporary authorized presence until a final procedure is adopted to reverse previous denials of immigration benefits under DOMA. The motion is scheduled for a court hearing on August 19, 2013. A copy of that motion may be read or downloaded by clicking here.
On July 15, 2013, the Center for Human Rights and Constitutional Law (CHRCL), on behalf of all class members sent a letter to the U.S. Department of Justice urging that its client, the DHS, immediately adopt steps to protect class members previously denied immigration benefits under DOMA. CHRCL also forwarded to the USDOJ a proposal regarding what immediate steps it believes DHS should take. To read or download a copy of the cover letter addressed to USDOJ, click here. To read or download a copy of the proposed steps DHS should take, click here.
Statement by plaintiffs' attorney Peter Schey, President of the Center for Human Rights and Constitutional Law: "We welcome the federal court's decision that DOMA violates the constitutional rights of immigrants in bi-national same-sex marriages. Of course, we also welcome and are relieved by the Supreme Court's similar decision that DOMA violates the equal protection and due process guarantees of the Fifth Amendment to the U.S. Constitution. We suspect there will be no further denials of visa applications based on DOMA. We will continue to dedicate our resources to ensure that the hundreds or thousands of immigrants in same-sex marriages with U.S. citizens previously denied immigration benefits because of DOMA now receive a prompt, efficient and fair remedy. They should not be required to file new applications; they should not be required to pay new fees; they should not be required to provide new biometrics; and their unlawful employment and unauthorized presence caused by the DHS's prior denial of their applications should be disregarded when their applications are now re-adjudicated. Class members' applications should be given priority and they should suffer no adverse consequences because of their prior unconstitutional treatment at the hands of USCIS."
July 19, 2013 -- The plaintiffs in the Aranas class action case involving all immigrants denied immigration benefits under DOMA have filed a motion asking the federal court to enter summary judgement based on the U.S. Supreme Court's decision in Windsor. To read or download a copy of the motion for summary judgement click here.Read the Order holding DOMA unconstitutional by clicking here
July 15, 2013 -- The Center for Human Rights and Constitutional Law, in its capacity as counsel for class members denied immigration benefits under DOMA, has written a letter to the Department of Justice proposing that DHS immediately implement steps to provide immigrants previously denied immigration benefits under DOMA with employment authorization and authorized presence in the U.S. To read or download a copy of the cover letter addressed to USDOJ, click here. To read or download a copy of the proposed steps DHS should take, click here.
July 8, 2013 -- Plaintiff Jane DeLeon in the DOMA-immigration federal court case has filed a motion asking the Court to issue a nationwide preliminary injunction requiring that the DHS immediately start issuing work permits and grant temporary authorized presence to class members previously denied immigration benefits because of DOMA. This motion will encourage the DHS to move promptly to begin issuing relief to class members in order to avoid the entry of an injunction. The motion is scheduled for hearing in the federal court August 19, 2013. To read or download a copy of the motion for a nationwide preliminary injunction, click here.
July 8, 2013 -- Two couples have filed a motion to intervene in the Aranas class action litigation. Both couples were denied immigration benefits under DOMA and the immigrants' work permits were terminated and they were told their presence would be unauthorized going forward. To read or download a copy of the motion to intervene in the litigation, click here.
April 19, 2013 -- The federal Court in the case of Aranas/DeLeon v. Department of Homeland Security today issued several orders impacting immigrants in same sex marriages: The court ruled that DOMA is "irrational" and therefore denying immigrant visas based on DOMA is unconstitutional.
The court also certified a nationwide class of "[a]ll members of lawful same-sex marriage who have been denied or will be denied lawful status or related benefits under the Immigration and Nationality Act,...by the Department of Homeland Security solely due to Section 3 of the Defense of Marriage Act." The court denied a preliminary injunction to temporarily provide additional protections to immigrants in same sex marriage pending its issuance of a final judgement, which will be sought promptly.
Read the Order making this a nationwide class action case by clicking here
Read the Order denying a preliminary injunction by clicking here
Class members may email class counsel Peter Schey firstname.lastname@example.org and
Carlos Holguin email@example.com for additional information or assistance.
Cases in which class members have been wronged by DHS conduct can be brought to the attention of the judge for remedial action.
August 23, 2012 -- CHRCL filed a motion for nationwide preliminary injunction to protect immigrants in same-sex marriages and a motion for class certification in the DeLeon lawsuit. Read the motion for a preliminary injunction by clicking here. Read the motion for class certification by clicking here.
DeLeon Lawsuit Documents
Recent Media Coverage of DOMA
"DOMA Unconstitutional: Federal Judge In Connecticut Says Marriage Definition Violates Equal Protection." Huffington Post, July 31, 2012Editorial. "Towards a Supreme Court Showdown." The New York Times, July 11, 2012
Max Rosenthal. "Nancy Pelosi and House Democrats File Brief Supporting DOMA Repeal in California Court." The Huffington Post, July 11, 2012 .
Anthony M. Stevens-Arroyo. "Should Catholics defend DOMA? Washington Post, June 2012.
Jonathan Capehart. "Roberts's health care ruling raises DOMA worry." Washington Post, June 2012.
"DOMA: Attorneys for Boehner file an appeal in Supreme Court." LGBT Weekly, May 2012.
Denise Lavoie. "DOMA ruled unconstitutional by federal appeals court." Huffington Post, May 2012.
Andrew Cohen. "The Losing Argument for the Defense of Marriage Act." The Atlantic, April 2012.
DOMA's Effect on Bi-national and Same-sex Couples
For the time being, the immigrant spouses of U.S. citizens and lawful permanent residents would be lawful residents only if they were of a different sex. Today they remain relegated to the status of undocumented immigrants. Immigrant spouses denied lawful status solely because they are of the "wrong" sex often receive letters informing them they have been denied lawful residence and ordering them to leave the United States without delay.
Such spouses are not permitted to work and accrue time in the United States unlawfully, which operates to exclude them from lawful residence even if they have some basis to seek lawful status other than their marriage. Whether they are subject to arrest, detention, and removal is committed to the prosecutorial discretion of local ICE officials.
The Center is seeking preliminary injunctive relief barring the arrest or removal of same-sex immigrant spouses and requiring CIS to issue them work authorization.
Read the US District Courts 2/22/12 decision in Golinsky v. US Office of Personnel Management
Read the US Court of Appeals for the 9th Circuit 2/7/12 decision Perry v. Brown.
Read the First Circuit Court of Appeals 5/31/12 decision in Gill v. US Office of Personnel Management
Sonia Bychkov Green. "Currency of Love: Customary International Law and the Battle for Same-Sex Marriage in the United States." 2011.
David Schraub. "The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement." The University of Chicago Law Review, 2010.