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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 page

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

Martin R. ARANAS,Irma RODRIGUEZ, andJane DELEON,

Plaintiffs,

v.

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

Defendants.________________________________

)))))))))))

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

SACV12-01137 CBM (AJWx)

NOTICE OF MOTION AND MOTIONFORPROVISIONAL CLASSCERTIFICATION.

Hearing: September 24, 2012Time: 10:00 a.m.Hon. Consuelo B. MarshallSpring St., Courtroom No. 2

Case 8:12-cv-01137-CBM-AJW Document 13 Filed 08/23/12 Page 1 of 21 Page ID #:134

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Motion for Class Certification- 2 -

Center for Human Rights & Constitutional Law

256 S. Occidental Blvd.

Los Angeles, CA 90057

-

Additional counsel for plaintiff Aranas:

PUBLIC LAW CENTERJulie Greenwald (Cal. Bar No. 233714)

Monica Ashiku (Cal. Bar No. 263112)601 Civic Center Drive WestSanta Ana, CA 92701Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249)Facsimile: (714) 541-5157

[email protected]@publiclawcenter.org

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan (Cal. Bar No. 271064)184 Jackson Street, San Jose, CA 95112Telephone: (408) 287-9710Facsimile: (408) 287-0864Email: [email protected]

Additional counsel for plaintiffs Rodriguez and DeLeon:

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 September 24, 2012, at 10:00 a.m., or as soon

thereafter as counsel may be heard, plaintiffs will and do hereby move the Court for

an order provisionally certifying this case as a class action pursuant to Rule 23(b)(2)

of the Federal Rules of Civil Procedure on behalf of the following classes of

similarly situated persons:

All members of lawful same-sex marriages whom the Department of

Homeland Security, pursuant to 3 of the Defense of Marriage Act, 1 U.S.C.

7, has refused or will refuse to recognize as spouses for purposes of

conferring lawful status and related benefits under the Immigration and

Nationality Act, 8 U.S.C. 1101 et seq.

/ / /


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-

This motion is based upon the accompanying memorandum of law and

exhibits, and upon all other matters of record herein. A proposed order is lodged

concurrently herewith.

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

7-3 which took place on July19 and 26, and August 2, 9, and 13, 2012. Defendants

stated they decline to take a position on this motion until after they have had an

opportunity to review plaintiffs moving papers.

Dated: August 23, 2012. CENTER FORHUMAN RIGHTS ANDCONSTITUTIONAL LAW

Peter A. ScheyCarlos R. Holgun

PUBLIC LAW CENTERJulie Greenwald MarzoukMonica Ashiku

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan

LAW OFFICES OF MANULKIN &

BENNETTGary H. ManulkinReyna M. Tanner

/s/ Peter A. Schey________________

/s/ Carlos R. Holgun _____________



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-

Certificate of Service

SACV12-01137CBM(AJWX)

I hereby certify that on this 23rd day of August, 2012, I electronically filed the

foregoing NOTICE OF MOTION FORCLASS 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: August 23, 2012. /s/ Karena Heredia ______________

/ / /


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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)


Additional counsel listed next page



CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION


Plaintiffs,

v.

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

Defendants.________________________________

)))))))))))

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


MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFMOTION FORCLASSCERTIFICATION.

Hearing: September 24, 2012Time: 10:00 a.m.Hon. Consuelo B. MarshallSpring St., Courtroom No. 2


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Motion for Class Certification- II -




-


PUBLIC LAW CENTERJulie Greenwald (Cal. Bar No. 233714)Monica Ashiku (Cal. Bar No. 263112)601 Civic Center Drive West

Santa Ana, CA 92701Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249)Facsimile: (714) 541-5157


ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan (Cal. Bar No. 271064)184 Jackson Street, San Jose, CA 95112Telephone: (408) 287-9710

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


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 92708

Telephone: 714-963-8951Facsimile: [email protected]@yahoo.com

/ / /


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Motion for Class Certification- III -




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OUTLINE OF CONTENTS

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

II Proposed class definition. ..................................................................................... 3

III This action satisfies the requirements of rule 23(a). ............................................ 4

A Numerosity and impracticality of joinder. ................................................. 5

B Common questions of law or fact. .............................................................. 6

C Typicality of claims. ................................................................................... 7

D Adequacy of representation........................................................................ 8

IV This action satisfies the requirements of Rule 23(b)(2)....................................... 9

V Conclusion ............................................................................................................ 11

TABLE OF AUTHORITIESCases

Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980)....................................................4American Airlines, Inc. v. Transport Workers Union, 44 F.R.D. 47

(N.D. Okla. 1968)...................................................................................................6

Arkansas Education Association v. Board of Education, 446 F.2d 763(8th Cir. 1971) ........................................................................................................4

Carey v. Greyhound Bus Co., 500 F.2d 1372 (5th Cir. 1974) .....................................4Catholic Social Services, Inc. v. Reno, Civ. S-86-1343 LKK (E.D.

Cal.) ........................................................................................................................9Cullen v. New York State Civil Service Commission, 435 F. Supp. 546

(E.D.N.Y. 1977) .....................................................................................................6Eisen v. Carlisle and Jacqueline, 391 F.2d 555 (2nd Cir. 1968) ................................5Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982) ...............................7Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976),

modified, 548 F.2d 715 (7th Cir. 1977) ..................................................................9In re U.S. Financial Securities Litigation, 69 F.R.D. 24 (S.D.Cal.

1975).......................................................................................................................5Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir.

1969).......................................................................................................................7Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir. 1982) ...............................4League of United Latin American Citizens v. Wilson, 131 F.3d 1297


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Motion for Class Certification- IV -




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(9th Cir. 1997) ........................................................................................................8Mendez v. INS, 563 F.2d 956 (9th Cir. 1977) ..............................................................7Immigrant Assistance Project v. INS, 709 F. Supp. 998 (W.D.Wa.

1989).......................................................................................................................7Mersay v. First Republic Corp., 43 F.R.D. 465 (S.D.N.Y. 1968)...............................6National Center for Immigrants' Rights, Inc. v. INS, Civ. No. 83-

7927-KN (C.D. Cal.) ..............................................................................................9Newman, et al., v. Immigration & Naturalization Service, et al., No.CV 87-4757-WDK (C.D. Cal.)............................................................................... 9

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920(2nd Cir. 1968) .......................................................................................................6

Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) ......................5, 6, 7Plyler v. Doe, 457 U.S. 202; 102 S. Ct. 2382; 72 L. Ed. 2d 786 (1982) .....................7Ramon Sepulveda v. INS, 863 F.2d 1458 (9th Cir. 1988)............................................7Reno v. Catholic Social Services, 509 U.S. 43; 113 S. Ct. 2485; 125 L.

Ed. 2d 38 (1993) .....................................................................................................8

Reno v. Flores, 507 U.S. 292; 113 S. Ct. 1439; 123 L. Ed. 2d 1 (1993) .....................8Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976), cert.denied, 429 U.S. 870 (1976)................................................................................... 5

Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives &Composites, Inc., 209 F.R.D. 159 (C.D. Cal. 2002)...............................................3

Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972).......................................................3, 5

Statutes, Rules and Regulations

Rule 23, Fed.R.Civ.Proc. ....................................................................................passim

Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419,codified at1 U.S.C. 7..................................................................................................18 U.S.C. 1101, et seq ................................................................................................1

Other Authorities

7A Wright & Miller, FEDERAL PRACTICE AND PROCEDURE, 1775.........................87A Wright, Miller & Kane, Federal Practice and Procedure 1760.............................3


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MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FORCLASS CERTIFICATION

I INTRODUCTION

This is an action for declaratory and injunctive relief challenging

discrimination in the conferring of benefits under the Immigration and Nationality

Act, 8 U.S.C. 1101, et seq. (INA), against members of lawful marriages solely

because the spouses are of the same sex.

Plaintiffs contend that members of marriages lawful under the law of the state

of celebration are entitled to recognition as spouses under the INA regardless of

their members sex or sexual orientation. Defendant U.S. Citizenship &

Naturalization Services (CIS) declines to recognize these marriages in accord with

3(a) of the Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419,

codified at1 U.S.C. 7 (DOMA),1 though the agency concedes the statute is

unconstitutional.

As applied to plaintiffs and those similarly situated, the DOMA takes a unitary

class of married couples and divides it in two: opposite-sex couples who are treated

as married and have access to interim and final benefits under the INA, and 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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sex couples whose marriages do not exist insofar as conferring interim or permanent

lawful status under the INA. Denied lawful status solely on account of their sex and

sexual orientation, immigrant spouses of U.S. citizens and lawfully present aliens

(and their immigrant children, as in the case of plaintiff Aranas), unlike their

heterosexual counterparts, are often consigned to the undocumented underground

where they are subject to detention and removal, denied the right to work lawfully in

the United States so they may survive and support their families, face a range of

exploitative situations, and are treated by the Government as being in unauthorized

status which triggers future bars to admission as lawful permanent residents.

As shown in plaintiffs concurrently filed motion for preliminary injunction,

this discrimination and sundering of families denies both substantive due process and

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

Constitution. DOMA 3 must survive heightened scrutiny because it discriminates

based on sex and sexual orientation, intimate matters which lie at the heart of

individual autonomy and liberty, and as such, are not proper bases for governmental

classification absent an important reason for making them so. As plaintiffs motion

for preliminary injunction demonstrates, the Government has no important, nor even

rational, basis for discriminating against same-sex couples.

There is no dispute that defendants have applied and will continue to apply

DOMA 3 to deny recognition to same-sex marriages when implementing the INA.

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.


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It is equally clear that whether their doing so comports with the constitutional

guarantees of due process and equal protection is a question of law common to all

members of same-sex marriages refused immigration benefits under the INA solely

because of DOMA 3. This is a question of law that effects immigrants and their

U.S. citizen and lawful resident spouses throughout the country and should be settled

in a single proceeding: if any such marriages are entitled to recognition under the

INA, all are. Furthermore, and importantly in this case, what temporary protection

plaintiffs and their proposed class members receive while the courts address

DOMAs constitutionality should be uniform and its availability known to plaintiffs

and putative class members. This action is a paradigmatic candidate for class

treatment; it should accordingly be certified pursuant to Rule 23, Fed. R. Civ. Proc.2

II PROPOSED CLASS DEFINITION.

Rule 23 contains an implicit requirement that the class be defined so that the

class membership is ascertainable. Thomas & Thomas Rodmakers, Inc. v. Newport

Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D. Cal. 2002).

A Rule 23(b)(2) class, is adequately defined so long as the general outlines of

2 Rule 23 provides that class certification should be sought as soon as practicable.

Plaintiffs recognize this motion is made early in these proceedings, but proposedclass members are suffering irreparable injury as a result of defendants applying theDOMA 3 to deny them lawful status and the right to work in the United States.Class certification, even if provisional, should be granted in order to protect absentclass members from irreparable injury.Zepeda v. United States Immigration &

Naturalization Service, 753 F.2d 719, 727 (9th Cir. 1983) (class-wide preliminaryinjunctive relief may only be granted if the court has certified or provisionallycertified a class).


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the membership of the class are determinable at the outset of the litigation, 7A

Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE 1760 at 118, and

it is administratively feasible for the court to determine whether a particular

individual is a member.Id. at 121.

Plaintiffs seek provisional certification under Rule 23(b)(2) of the following

class:






As proposed, the class definition comprises a group whose path to lawful

status defendants uniformly block pursuant to DOMA 3. These proposed class

members have all suffered [] statutory violations warranting some relief.Adashunas

v. Negley, 626 F.2d 600, 604 (7th Cir. 1980). Class members may be readily

identified by whether they have suffered the specified injury. Defendants apply

DOMA 3 uniformly to every immigrant who is married to a person of the same

sex. Defendants uniformly deny recognition they would otherwise grant if only the

proposed class members were married to someone of a different sex.

The proposed class definition accordingly satisfies Rule 23.

III THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23(a).

To receive class treatment an action must also satisfy the four requirements of


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Rule 23(a) of the Federal Rules of Civil Procedure. The instant action does so.

A Numerosity and impracticality of joinder.

Rule 23(a)(1) requires that the class be so numerous that joinder is

impractical.

Courts generally find the numerosity requirement of Rule 23(a)(1) satisfied

when relatively few class members are involved. See, e.g., Jordan v. County of Los

Angeles, 669 F.2d 1311, 1319 (9th Cir. 1982); Carey v. Greyhound Bus Co., 500

F.2d 1372, 1381 (5th Cir. 1974) (number of class members assumed to be 28);

Arkansas Education Association v. Board of Education, 446 F.2d 763, 765-66 (8th

Cir. 1971) (class membership of 20 persons).

It is not necessary to determine the exact size of the class in order to satisfy

Rule 23(a)(1), especially where it would do no practical good to identify all

individual class members when ruling on a certification motion.In re U.S. Financial

Securities Litigation, 69 F.R.D. 24, 34 (S.D.Cal. 1975).

Rather, the conduct complained of is the benchmark for determining whether

a subdivision (b)(2) class exists, making it uniquely suited to civil rights actions in

which the members of the class are often incapable of specific enumeration. Yaffe,

supra, 454 F.2d at 1366 (emphasis supplied). Where the exact size of the class is

unknown but general knowledge and common sense indicate that it is large, the

numerosity requirement is satisfied. Orantes-Hernandez v. Smith, 541 F. Supp. 351,

371 (C.D. Cal. 1982).

The numerosity requirement of Rule 23(a)(1) is satisfied here. Plaintiffs


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challenge a statute that is uniformly applied against a constantly increasing number

of lawfully married same-sex couples and their immigrant children. This action

accordingly satisfies the numerosity requirement of Rule 23(a)(1).

B Common questions of law or fact.

Rule 23(a)(2) requires that there be questions of law or fact common to the

class.

Even where there are individual variations in the facts or legal issues as they

relate to a particular named plaintiff or proposed class member, the commonality

requirement is satisfied so long as the class shares some common question of law or

fact. See, e.g., Eisen v. Carlisle and Jacqueline, 391 F.2d 555, 562 (2nd Cir. 1968)

(class certification granted notwithstanding varying fact patterns underlying each

individual ... transaction ...); Senter v. General Motors Corp., 532 F.2d 511, 524

(6th Cir. 1976), cert. denied, 429 U.S. 870 (1976) (class certification granted in

employment discrimination action brought on behalf of Black employees even

though it was manifest that every decision to hire, fire or discharge an employee

may involve individual considerations);Norwalk CORE v. Norwalk Redevelopment

Agency, 395 F.2d 920, 937 (2nd Cir. 1968) (class certified in challenge to relocation

practices of urban renewal project despite the different treatment suffered by each

tenant during the relocation process); Cullen v. New York State Civil Service

Commission, 435 F. Supp. 546, 559 (E.D.N.Y. 1977) (class certification granted in

lawsuit challenging coercive practices in obtaining political contributions from

public employees even though fact questions specific to each instance of the alleged


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coercion will remain).

Common questions of law presented in this proposed class action include

whether defendants applying DOMA 3 to deny recognition to same-sex marriages

under the INA denies plaintiffs and their proposed class members due process or

equal protection under the Fifth Amendment.

It is clear that the claims plaintiffs present here raise questions of law (due

process and equal protection) and fact (same-sex marriages) common to all proposed

class members.

C Typicality of claims.

Rule 23(a)(3) requires that the claims of the named plaintiffs be typical of the

claims ... of the class. Meeting this requirement usually follows from the presence

of common questions of law, and courts have thus construed subdivisions (a)(2) and

(a)(3) as largely duplicative. Orantes-Hernandez v. INS,supra, 541 F. Supp. at 371;

American Airlines, Inc. v. Transport Workers Union, 44 F.R.D. 47, 48 (N.D. Okla.

1968) (holding (a)(3) met by representatives sharing common with the class any

claim or defense it has);Mersay v. First Republic Corp., 43 F.R.D. 465, 468-69

(S.D.N.Y. 1968) (allegation that defendants engage in scheme common to all

members of class held to support finding that claims of representative party typical).

As has been seen, the case at bar presents only common questions. Plaintiff DeLeon

has applied for an immigration benefit under the INA based upon her same-sex

marriage to plaintiff Rodriguez, and her application has been denied solely based

upon DOMA. Her son, plaintiff Aranas, is eligible for accompanying relative status


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but his eligibility is strictly linked to the eligibility of his mother, plaintiff DeLeon.

Plaintiffs claims are clearly typical of those of the proposed class.

D Adequacy of representation.

The final requirement for class certification set out in Rule 23(a)(4), is that the

named plaintiffs will fairly and adequately protect the interest of the class. The two

principal elements of this requirement are (1) that the class representatives interests

are co-extensive and not antagonistic to the class members; and (2) that counsel for

the named representatives are qualified.Johnson v. Georgia Highway Express, Inc.,

417 F.2d 1122, 1124-25 (5th Cir. 1969).

Plaintiffs here have no interests in conflict with those of the proposed class

members. The named plaintiffs seek the same injunctive and declaratory relief for

the class as they do for themselves. Plaintiffs seek to vindicate rights that are violated

through the uniform application of the DOMA. Their goal is to declare defendants

applying DOMA 3 against members of same-sex couples unlawful and to enjoin

further application of DOMA 3 when defendants adjudicate applications for

benefits available under the INA.

Plaintiffs lead counsel are employed by a non-profit organization specializing

in complex federal litigation on behalf of immigrants and refugees. They have

successfully litigated numerous class actions and individual cases in the federal

courts involving the rights of immigrants. See, e.g., Plyler v. Doe, 457 U.S. 202

(1982);Ramon Sepulveda v. INS, 863 F.2d 1458 (9th Cir. 1988);Haitian Refugee

Center v. Smith, 676 F.2d 1023 (5th Cir. 1982);Mendez v. INS, 563 F.2d 956 (9th


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Cir. 1977);Immigrant Assistance Project v. INS, 709 F. Supp. 998 (W.D.Wa. 1989);

Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982);League of United

Latin American Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997);Reno v. Catholic

Social Services, 509 U.S. 43 (1993);Reno v. Flores, 507 U.S. 292 (1993);Perez-

Olano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008).

Counsel will adequately represent the proposed class. The requirements of

Rule 23(a)(4) are accordingly satisfied.

IV THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23(b)(2).

In addition to satisfying the four requirements of Rule 23(a), a class action

must meet one of the requirements of Rule 23(b).

This action meets the requirements of Rule 23(b)(2): i.e., the party opposing

the class has acted or refused to act on grounds generally applicable to the class

thereby making appropriate final injunctive relief or corresponding declaratory relief

with respect to the class as a whole ...

In a (b)(2) class action the party opposing the class does not have to act

directly against each member of the class. As long as his actions would affect all

persons similarly situated, his acts apply generally to the whole class. 7A Wright &

Miller, FEDERAL PRACTICE AND PROCEDURE, 1775, at 19.

In this case defendants uniformly apply DOMA 3 to deny lawfully married

couples and their immigrant children immigration benefits. Plaintiffs allege they do

so in violation of the equal protection and due process guarantees of the Fifth

Amendment to the United States Constitution. The proposed class in this case is


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created by the policies and practices at issue.

Courts have repeatedly certified classes consisting of immigrants subject to

challenged statutes, regulations, practices or policies. See, e.g., Catholic Social

Services, Inc. v. Reno, Civ. S-86-1343 LKK (E.D. Cal.);Newman, et al., v.

Immigration & Naturalization Service, et al., No. CV 87-4757-WDK (C.D. Cal.);

Immigrant Assistance Project v. INS, Civil No. C-88-379R (W.D. Wa.);National

Center for Immigrants' Rights, Inc. v. INS, Civ. No. 83-7927-KN (C.D. Cal.) (order

issued July 9, 1985, certifying a nationwide class of all persons subjected to an INS

regulation under challenge);see generallyIllinois Migrant Council v. Pilliod, 540

F.2d 1062, 1072 (7th Cir. 1976), modified, 548 F.2d 715 (7th Cir. 1977).

The requirements of subsection (b)(2) have accordingly been met.


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V CONCLUSION

For the foregoing reasons, this action should be certified as a class action

pursuant to Rule 23(b), Fed.R.Civ.Proc.

Dated: August 23, 2012. CENTER FORHUMAN RIGHTS ANDCONSTITUTIONAL LAWPeter A. ScheyCarlos R. Holgun

PUBLIC LAW CENTERJulie Greenwald MarzoukMonica Ashiku

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan

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

/s/ Peter A. Schey________________

/s/ Carlos R. Holgun _____________

Attorneys for Plaintiffs/ / /


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CERTIFICATEOFSERVICE

SACV12-01137CBM(AJWX)

I hereby certify that on this 23rd day of August, 2012, I electronically filed the

foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 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: August 23, 2012. /s/ Karena Heredia ______________

///


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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)


Counsel for PlaintiffsAdditional counsel for plaintiffs listed next page


CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION


Plaintiffs,

v.

Janet NAPOLITANO, Secretary of theDepartment of Homeland Security;Alejandro MAYORKAS, Director, UnitedStates Citizenship & ImmigrationServices;

UNITED STATES CITIZENSHIP &IMMIGRATION SERVICES; andDEPARTMENT OF HOMELANDSECURITY,

Defendants._______________________________

)))))

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

)))))))))


[PROPOSED]ORDER

PROVISIONALLY CERTIFYINGCLASS ACTION.

Hearing: Sept. 24, 2012Time: 10:00 a.m.Hon. Consuelo B. Marshall

Case 8:12-cv-01137-CBM-AJW Document 13-1 Filed 08/23/12 Page 1 of 10 Page ID#:155

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[Proposed] Order re: Class Certification

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PUBLIC LAW CENTERJulie Greenwald (Cal. Bar No. 233714)Monica Ashiku (Cal. Bar No. 263112)601 Civic Center Drive West

Santa Ana, CA 92701Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249)Facsimile: (714) 541-5157


ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan (Cal. Bar No. 271064)184 Jackson Street, San Jose, CA 95112Telephone: (408) 287-9710

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


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 92708

Telephone: 714-963-8951Facsimile: [email protected]@yahoo.com

/ / /


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This matter came on regularly for hearing on the plaintiffs motion for class

certification. The Court has considered the briefs, evidence, and argument in support

of and in opposition to plaintiffs motion and now rules on plaintiffs motion as

follows:

In this action plaintiffs seek declaratory and injunctive relief barring

defendants Secretary of U.S. Department of Homeland Security (DHS) and United

States Citizenship and Immigration Services (CIS) from discriminating against

lawfully married couples applying for benefits under the Immigration and

Nationality Act (INA) on the basis of sex or sexual orientation.

Plaintiffs contend that 3 of the Defense of Marriage Act, Pub. L. 104-199,

3(a), 110 Stat. 2419, codified at1 U.S.C. 7 (DOMA), as CIS applies it against

same-sex couples, is irrational, serves no cognizable governmental interest, and

accordingly denies due process and equal protection in violation of the Fifth

Amendment to the United States Constitution.

Plaintiffs move the Court to certify this case as a class action pursuant to Rule

23(b)(2), Fed.R.Civ.Proc., on behalf of the following class of similarly situated

persons:







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The question before the Court is whether this action meets the requirements

for class treatment under Rule 23, Fed.R.Civ.Proc.

Rule 23 outlines a two-step process for determining whether class certification

is appropriate. First, Rule 23(a) sets forth four prerequisites that must be met for any

class: (1) the class is so numerous that joinder of all members is impracticable; (2)

there are questions of law or fact common to the class; (3) the claims or defenses of

the representative parties are typical of the claims or defenses of the class; and (4)

the representative parties will fairly and adequately protect the interests of the class.

Fed.R.Civ. Proc. 23(a).Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

1992).

Second, the party seeking class certification must demonstrate that the action

falls within one of the three kinds of actions permitted under Rule 23(b).Id. at 153.

Rule 23 includes an implicit requirement that the class be adequately defined

so that the class membership is ascertainable. Thomas & Thomas Rodmakers, Inc. v.

Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D. Cal. 2002).

Defining a class as consisting of all persons who have been or will be affected by

the conduct charged to the defendants is entirely appropriate where only injunctive

or declaratory relief is sought. Indeed, the principal beneficiaries of an injunctive

decree would seem likely to be those class members whose rights have not yet been

violated.Fischer v. Dallas Federal Sav. & Loan Asso., 106 F.R.D. 465, 470 (N.D.

Tx. 1985), affd, 835 F.2d 567 (5th Cir. 1988).


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requirement is satisfied so long as the class shares some common question of law or

fact. See, e.g., Eisen v. Carlisle and Jacqueline, 391 F.2d 555, 562 (2nd Cir. 1968).

The common questions of fact presented in this action include whether CIS

denies immigration benefits to the foreign born spouses of U.S. citizens and lawful

permanent residents solely because they are of the same sex as their spouses.

Common questions of law presented in this proposed class action include

whether the DOMA, as applied to deny immigration benefits to bi-national same-sex

couples, denies due process or equal protection in violation of the Fifth Amendment

to the United States Constitution. Plaintiffs accordingly satisfy the commonality

requirement of Rule 23(a)(2).

Rule 23(a)(3) requires that the claims of the named plaintiffs be typical of the

claims ... of the class. Meeting this requirement usually follows from the presence

of common questions of law.Mersay v. First Republic Corp., 43 F.R.D. 465, 468-69

(S.D.N.Y. 1968). Where an action challenges a policy or practice, named plaintiffs

that suffer one specific injury from the practice may represent a class suffering

additional injuries, so long as all the injuries are shown to result from the practice.

General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157-59, 102 S. Ct. 2364, 72

L. Ed. 2d 740 (1982). As set forth above, plaintiffs claims present common

questions of law and fact surrounding the constitutionality of the DOMA.

Furthermore, plaintiffs claims are typical of the proposed class. They are legally

married, their spouses are of the same sex, they have applied for benefits under the

INA based upon their marriage, and they have been denied benefits under the INA


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solely because they are in a same sex marriage. The typicality requirement of Rule

23(a)(3) is therefore satisfied.

The final requirement for class certification is that the named plaintiff will

fairly and adequately protect the interest of the class. Rule 23(a)(4), Fed.R.Civ.Proc.

This requirement is satisfied where (1) the class representatives interests are not

antagonistic to the class members; and (2) counsel for the named representatives are

qualified to represent the proposed class.Burkhalter Travel Agency v. MacFarms

Int'l. Inc., 141 F.R.D. 144, 153 (N.D. Cal. 1991).

Here the interests of the class representatives are not antagonistic to those of

the proposed class members. Their mutual goal is to declare the DOMA unlawful

and to enjoin its further application.

Class counsel are also qualified to prosecute this action on behalf of the class.

Plaintiffs lead counsel are employed by a non-profit organization specializing in

federal litigation on behalf of immigrants and refugees. They have litigated

numerous class actions in the federal courts involving the rights of immigrants.E.g.,

Plyler v. Doe, 457 U.S. 202 (1982);Reno v. Catholic Social Services, 509 U.S. 43

(1993);Reno v. Flores, 507 U.S. 292 (1993);League of United Latin American

Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997);Perez-Olano v. Gonzalez, 248

F.R.D. 248 (C.D. Cal 2008).

Rule 23(a)(4) is accordingly satisfied in this case.

In addition to satisfying the four requirements of Rule 23(a), a proposed class

action must meet one of the requirements of Rule 23(b).


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Plaintiffs contend this action meets the requirements of Rule 23(b)(2): i.e., that

the party opposing the class has acted or refused to act on grounds generally

applicable to the class thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a whole ...

An action may be certified under subsection (b)(2) where the defendants acts

apply generally to the whole class. See generallyIllinois Migrant Council v. Pilliod,

540 F.2d 1062, 1072 (7th Cir. 1976), modified, 548 F.2d 715 (7th Cir. 1977).

Here the DOMA directs defendants to deny immigration benefits under the

INA to all who seek them based upon a same-sex marriage. This does not depend on

individual differences, but is rather a universal directive where individuals seek

immigration benefits based on a same-sex marriage. Certification under Rule

23(b)(2) is accordingly appropriate.Perez-Olano v. Gonzalez,supra, 248 F.R.D. at

258-59.

* * * * *

For the foregoing reasons, IT IS HEREBY ORDERED that this action is

provisionally certified as a class action pursuant to Rule 23(b), Fed.R.Civ.Proc. The

class shall be defined as set forth above.


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IT IS FURTHER ORDERED pursuant to Rule 23(g), Fed.R.Civ.Proc., that Peter

A. Schey and Carlos R. Holguin of the Center for Human Rights & Constitutional

Law, Julie Greenwald and Monica Ashiku of the Public Law Center, Beatrice Ann

M. Pangilinan of the Asian Law Alliance, and Gary H. Manulkin and Reyna M.

Tanner, of the Law Offices of Manulkin & Bennett, be appointed class counsel.

Dated: _________________, 2012 _____________________________United States District Judge

Presented by:

/s/_ Peter Schey_________/s/_ Carlos Holgun_________Attorneys for plaintiffs

/ / /


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CERTIFICATE OF SERVICE


I hereby certify that on this 23rd day of August 2012, I electronically filed the

foregoing [PROPOSED]ORDERCERTIFYING CLASS 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.

/s/ Karena Heredia ______________

Dated: August 23, 2012.

/ / /


8:12-cv-01137 #13

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