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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 NOTICE OF MOTION, PROCEDURAL MOTION TO DISMISS, AND PARTIAL MOTION TO DISMISS

Hearing Date: November 6, 2012 Time: 10:00 a.m. Judge: Hon. Consuelo B. Marshall

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1. PLEASE TAKE NOTICE that on November 6, 2012 at 10:00 a.m. or as soon thereafter as the parties may be heard, Defendants will bring for hearing a Partial Motion to Dismiss Plaintiffs Martin Aranas and Irma Rodriguez from this action for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1) and to dismiss Plaintiffs substantive due process claims under the Fifth Amendment and sex discrimination claims raised pursuant to 8 U.S.C. 1152(a)(1)(A), pursuant to Federal Rule of Civil Procedure 12(b)(6).1 See Compl. 3, 42, 53-54, 67, 70-73. The hearing will take place before the Honorable Consuelo B. Marshall, in Courtroom 2, 312 N. Spring Street, Los Angeles, CA, 90012. This Motion is based on the Memorandum of Points and Authorities attached hereto, all pleadings, papers and files in this action, and such oral argument as may be presented at the hearing on the Motion. This Motion is also made following

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conferences between counsel for the Plaintiffs and Defendants pursuant to L.R. 7-3,
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which took place telephonically on September 18, 2012 and September 27, 2012 and
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via email on September 13, 2012. During the September 27, 2012 conference, Plaintiffs counsel confirmed that Plaintiffs oppose Defendants Motion to Dismiss in its entirety (including Defendants Procedural Motion to Dismiss, as set forth below). In addition, conferences between counsel for Defendants and the Bipartisan Legal Advisory Group (BLAG) took place via email on September 13, 2012, where counsel for BLAG indicated that BLAG opposes Defendants procedural motion to dismiss on their behalf, as set forth below, as as unnecessary and improper. On September 28, 2012, in a telephone conference, counsel for BLAG reiterated its opposition to Defendants procedural motion to dismiss on their behalf, but indicated that BLAG does not oppose Defendants Partial Motion to Dismiss Plaintiffs Martin Aranas and Irma Rodriguez from this action for lack of standing and to dismiss
Plaintiffs raise sex discrimination claims pursuant to equal protection component of the Fifth Amendment and under the Immigration and Nationality Act (INA) at 8 U.S.C. 1152(a)(1)(A). 1
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Plaintiffs substantive due process claims under the Fifth Amendment and sex discrimination claims raised pursuant to 8 U.S.C. 1152(a)(1)(A). 2. Defendants also bring a Procedural Motion to Dismiss to be heard in conjunction with BLAGs Motion to Dismiss (ECF No. 29) on November 6, 2012. Defendants respectfully request that the Court rule on Plaintiffs challenge to the constitutionality of Section 3 of the Defense of Marriage Act, 1 U.S.C. 7 (DOMA). As the President and the Attorney General have stated, the Department will no longer defend the constitutionality of Section 3 of DOMA as applied to legally married samesex couples. Pursuant to the Presidents direction, however, Executive departments and agencies will continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional. The Secretary of the Department of Homeland Security (DHS), the

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Director of United States Citizenship and Immigration Services (USCIS), and

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USCIS are the named Defendants in this case, and the Department of Justice represents
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these Defendants. Only a judgment against Defendants could afford Plaintiffs the relief they seek, and only a judgment for or against Defendants can definitively resolve the case or controversy between Plaintiffs and Defendants. BLAG moved to intervene in this case for the purpose of defending the constitutionality of Section 3 of DOMA, ECF No. 18. 2 BLAG moved, as a proposed intervenor, to dismiss Plaintiffs constitutional challenge to Section 3 of DOMA. Congresss interest in the constitutional validity of a law does not itself confer standing to enter an action as a party. The Attorney General, however, is committed to providing Congress a full and fair opportunity to participate in this litigation. The

This Court granted BLAGs motion on September 26, 2012, ordering that BLAG is permitted to intervene to defend the constitutionality of Section 3 of the Defense of Marriage Act (1 U.S.C. 7). See ECF No. 43. 2

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continuing role of the Executive Branch in this litigation ensures the existence of a justiciable case or controversy. Accordingly, the Department of Justice has committed to taking the procedural steps necessary to enable BLAG to present arguments in support of the constitutionality of Section 3 of DOMA. Thus, although the Department intends to file a brief that presents the governments position on Plaintiffs equal protection challenge to Section 3 of DOMA and intends to do so by the October 9, 2012 deadline Defendants submit this motion as a procedural matter (with regard to Section 3 of DOMA), to ensure that this Court can consider arguments on both sides of the constitutional issue and to ensure that this Court has jurisdiction to enter judgment on the basis of those arguments. If this Court agrees with BLAG on the constitutionality of Section 3 of DOMA,

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it should dismiss Plaintiffs Complaint and enter judgment for Defendants. If this
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Court agrees with Plaintiffs and the United States as to the constitutionality of
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Section 3 of DOMA, it should not dismiss the Complaint, but rather should enter such relief as is appropriate given the procedural posture of this action at the time of such determination. DATED: September 28, 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

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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 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PARTIAL MOTION TO DISMISS

Hearing Date: November 6, 2012 Time: 10:00 a.m. Judge: Hon. Consuelo B. Marshall

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INTRODUCTION 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) under the equal protection component of the Fifth Amendment. United States Citizenship and Immigration Services (USCIS) relied on Section 3 of DOMA in its denial of Ms. DeLeons application for waiver of inadmissibility pursuant to 8 U.S.C. 1182(i) (I-601 waiver). As explained by the Attorney General on February 23, 2011, the Attorney General and the President have determined that Section 3 of DOMA is unconstitutional as applied to same-sex couples whose marriages are legally recognized under state law, and the Department of Justice (DOJ) will not defend the constitutionality of Section 3 of DOMA under the equal protection component of the Fifth Amendment. The President, however, has instructed the Executive Branch,

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including the Department of Homeland Security (DHS) and USCIS, to continue to

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comply with Section 3 of DOMA unless and until Congress repeals Section 3 or the
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Judicial Branch renders a definitive decision against the laws constitutionality. 28 U.S.C. 530D Letter from Attorney General Eric H. Holder, Jr. (Feb. 23, 2011), at 5. See ECF No. 5, Attachment 2. However, consistent with the Attorney Generals direction, the Department of Justice will defend DOMA Section 3 against claims that do not involve the equal protection component of the Fifth Amendment, and will defend against other challenges unrelated to DOMA. On that basis, the Secretary of DHS, the Director of USCIS, and USCIS (collectively Defendants) move to dismiss Plaintiffs Martin Aranas and Irma Rodriguez from this action for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1). The Defendants also move to dismiss Plaintiffs substantive due process claim and Plaintiffs sex discrimination claim brought under

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the Immigration and Nationality Act at 8 U.S.C. 1152(a)(1)(A), pursuant to Federal Rule of Civil Procedure 12(b)(6).1 See Compl. 3, 42, 53-54, 67, 70-73. FACTUAL AND PROCEDURAL HISTORY2 Plaintiff Jane DeLeon is a native and citizen of the Philippines. Compl. 19. Ms. DeLeon lived with Joseph Randolph Aranas from approximately 1984 to 1989. Id. Ms. DeLeon and Joseph Aranas have two sons born in the Philippines, Mikkel R. Aranas and Plaintiff Martin Aranas (Mr. Aranas). Id. Ms. DeLeon was admitted to the United States on or about December 18, 1989, on a nonimmigrant B-2 visitor visa. Id. 20. When Ms. DeLeon entered the United States in 1989, her passport listed her occupation as housewife and her name as Jane Francis L. Aranas, although she was not legally married to Joseph Aranas. Id. 22. Ms. DeLeon and Joseph Aranas resided together in the United States until 1991. Id. 24. Ms. DeLeon met Plaintiff Irma Rodriguez in 1992, and they have resided together for 20 years. Id. 25. The couple married in California on August 22, 2008. Id. In March 2006, Ms. DeLeons employer submitted an immigrant visa petition on her behalf. Id. 26. It was approved approximately two months later. Id. On or about August 16, 2007, Ms. DeLeon filed an application for adjustment of status to that of a lawful permanent resident under 8 U.S.C. 1255. Id. At the time she applied for adjustment of status, her priority date was current (meaning, there was a visa available to her). Id. Ms. DeLeons son, Mr. Aranas, also applied for adjustment of status as a derivative beneficiary of his mother. Id.

Plaintiffs also raise a sex discrimination claim under the Fifth Amendment. As we explained in our opposition to the preliminary injunction, given that Section 3 distinguishes between two different classes of married couples same sex and opposite sex it is better analyzed as a classification based on sexual orientation. Defendants rely primarily on the facts as alleged in the Complaint and as set forth in Exhibits to Plaintiffs filings for purposes of this memorandum. 2
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On April 14, 2011, USCIS notified Ms. DeLeon that she was inadmissible to the United States and therefore ineligible for adjustment of status. Id. 27. A September 1, 2011 letter stated that she entered the United States in 1989 by misrepresenting that her name was Jane L. Aranas and that she was married to Joseph Aranas. See Mot. Prelim. Inj. Mem., Ex. 2. Ms. DeLeon was deemed inadmissible under 8 U.S.C. 1182(a)(6)(C)(i). Id. Section 1182(a)(6)(C)(i) makes inadmissible anyone who seeks to obtain a visa, other documentation, or admission to the United States by any fraud or misrepresenting a material fact. Compl. 27. Defendants provided Ms. DeLeon with instructions on how to apply for a waiver of inadmissibility pursuant to 8 U.S.C. 1182(i). See 8 U.S.C. 1182(a)(6)(C)(iii); Compl. 28. Section 1182(i) requires a showing that an aliens removal or denial of adjustment of status would result in extreme hardship to [her] citizen . . . spouse or parent. Id. On July 5, 2011, Ms. DeLeon filed a Form I-601 application for waiver of inadmissibility (I-601 waiver) based on the hardship that denial of adjustment of status would cause her 92-year old U.S. citizen father, who resides both in the United States and in the Philippines. Compl. 29. On September 1, 2011, Defendants denied Ms. DeLeons waiver application because USCIS determined that Ms. DeLeon failed to establish that the denial of adjustment of status would cause extreme hardship to her U.S. citizen father. Compl. 30; see Mot. Prelim. Inj. Mem., Ex. 2. The denial of the waiver automatically resulted in a denial of her application for adjustment of status and a denial of Mr. Aranas application for derivative status. Compl. 30. On September 27, 2011, Ms. DeLeon submitted a timely Motion to Reopen/Reconsider the I-601 denial on the ground that denying her application of adjustment of status and requiring her departure from the United States would cause extreme hardship to her U.S. citizen spouse, Ms. Rodriguez. Id. 32. On November 9, 2011, USCIS reopened and reconsidered the denial of the I-601 waiver, but again denied the I-601 waiver pursuant to Section 3 of DOMA. Id. 37; Mot. Prelim. Inj. Mem., Ex. 1. The new denial states that, under DOMA, Jane
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DeLeons same-sex spouse does not qualify as a relative for purposes of establishing hardship. Mot. Prelim. Inj. Mem., Ex. 1. In the September 1, 2011 letter Ms. DeLeon received, USCIS informed her that she is no longer authorized to work and that she now is accruing unlawful presence in this country for purposes of 8 U.S.C. 1182(a)(9)(B). Mot. Prelim. Inj. Mem., Ex. 2. The denial states that, if she accrues more than six months of unlawful presence, she will be prohibited from being admitted to the United States should [she] depart . . . and seek readmission within three years. Id. It also states that if she remains for more than one year, she will be barred from readmission for ten years. Id. On July 12, 2012, eight months after USCIS denied the I-601 Motion to Reopen, Plaintiffs filed the instant action wherein they challenge the constitutionality of Section 3 of DOMA based on equal protection and substantive due process grounds and 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).3 See Compl. In their Complaint, Plaintiffs seek a declaratory judgment that Defendants application of Section 3 of DOMA in this case, as well as Defendants regulations, policies and practices applying Section 3 against Plaintiffs and those similarly situated, are unlawful. Compl. at 29, ECF No. 1. On August 23, 2012, Plaintiffs also filed a Motion for Class Certification and a Motion for a Preliminary Injunction. See ECF No(s). 12-13. Plaintiffs seek a preliminary injunction enjoining Defendants from: (1) deporting or removing immigrants denied lawful status solely because they and their U.S. citizen or permanent resident spouses are of the same sex, and from instructing or advising such immigrants to depart the United States; (2) denying employment authorization to immigrants lacking lawful permanent resident status solely because they and
In their Complaint, Plaintiffs cite to 8 U.S.C. 1152(a)(2), but Plaintiffs probably intended to cite to 8 U.S.C. 1152(a)(1)(A). 4
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their U.S. citizen or permanent resident spouses are of the same sex; (3) denying immigration benefits under the INA solely because the immigrant or the non-immigrant has a spouse of the same sex; and (4) treating immigrants who have applied for benefits under the INA as acquiring unlawful presence thereby triggering the three- and ten-year bars to future lawful admission set out in 8 U.S.C. 1182(a)(9)(B)(i) solely because they and their U.S. citizen or permanent resident spouses are of the same sex. Mot. Prelim. Inj. Mem. at 2-3, ECF No. 12.4 On September 14, 2012, Defendants responded to Plaintiffs Motion for Class Certification and Motion for a Preliminary Injunction. See ECF No. 35, 39. On the same date, BLAG responded to the Motion for a Preliminary Injunction and filed a Motion to Dismiss Plaintiffs claims that Section 3 of DOMA is unconstitutional. See ECF No. 29. STANDARD OF REVIEW I. Federal Rule of Civil Procedure 12(b)(1) Because federal courts are courts of limited jurisdiction, a court must dismiss any case if it lacks subject matter jurisdiction over those claims. Fed. R. Civ. P. 12(b)(1); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 57 L. Ed. 2d 274 (1978). A motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(1) challenges the courts subject matter jurisdiction and may be either facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
Plaintiffs have set forth three different requests for relief (in their Motion for Preliminary Injunction, Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction and in the Proposed Order). While the language is similar in many respects, it is not identical and does not request identical relief. 5
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2004). In reviewing a facial challenge, which contests the sufficiency of the pleadings, the court considers only the allegations of the complaint, accepting such allegations as true and drawing reasonable inferences in favor of the plaintiff. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In resolving a factual attack, however, the district court may review evidence beyond the complaint and need not presume the truthfulness of the plaintiffs allegations. Safe Air for Everyone, 373 F.3d at 1039. II. Federal Rule of Civil Procedure 12(b)(6) A motion to dismiss a complaint under Rule 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When considering a Rule 12(b)(6) motion for failure to state a claim, the court must accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party. Assn for Los Angeles Deputy

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Sheriffs v. Cnty. of Los Angeles, 648 F.3d 986, 991 (9th Cir. 2011) (quotations
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omitted). To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face. Hinds Inv., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011) (quotation omitted). ARGUMENT I. Plaintiffs Mr. Aranas and Ms. Rodriguez Lack Standing. As with any action, a plaintiff must first meet the jurisdictional element of standing before seeking injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S. Ct. 1660, 75 L.Ed.2d 675 (1983). Here, Mr. Aranas and Ms. Rodriguez have no standing to pursue this case.5

Similarly, some of Plaintiffs proposed class members also lack standing. Their lack of standing was addressed in Defendants Opposition to Plaintiffs Motion for a Preliminary Injunction as well as Defendants Opposition to Plaintiffs Motion for Class Certification. See ECF No(s). 35, 39. 6

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A. Mr. Aranas Lacks Standing to Bring This Action. Mr. Aranas is the son of Ms. DeLeon. He lacks standing to assert the claims set forth in the Complaint because he does not allege that Defendants harmed him directly. Instead, Mr. Aranas asserts that, by discriminating against his mother based on her sexual orientation, Section 3 of DOMA has injured him by leaving him without valid immigration status. Had USCIS granted his mothers I-601 waiver, he argues, he

could have been the beneficiary of his mothers adjustment of status application. But a
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party ordinarily cannot rest his claim to relief on the legal rights or interests of third
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parties. Secy of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (quotation marks omitted)). A litigant may only assert the constitutional rights of an absent third party if there is some hindrance to the third partys ability to protect his or her own interests and there is a close relation between the litigant and third party. Powers v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, 113 L.Ed.2d 411 (1991). This is because third parties themselves usually will be the best proponents of their rights. Miller v. Albright, 523 U.S. 420, 446, 118 S. Ct. 1428, 140 L.Ed.2d 575 (1998) (OConnor, J., concurring in the judgment) (internal citations and quotations marks omitted). Because Mr. Aranass mother Ms. DeLeon is a Plaintiff in this action, she can protect her own constitutional rights, and, should she prevail, Mr. Aranas may be able to obtain the immigration benefit he seeks. Indeed, her constitutional claim has merit because Section 3 of DOMA violates her equal protection rights under the Due Process Clause. Therefore, Mr. Aranas cannot demonstrate that his mother is unable to protect these interests and cannot, therefore, assert third party standing. Singleton v. Wulff, 428 U.S. 106, 113-14, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976).

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B. Ms. Rodriguez Lacks Standing to Bring this Action. Ms. Rodriguez is the spouse of Ms. DeLeon. While she may be affected by USCISs denial of Ms. DeLeons waiver of inadmissibility, she did not file the I-601 waiver and does not have standing. Phany Poeng v. United States, 167 F. Supp. 2d 1136, 1142 (S.D. Cal. 2001) ([T]he traditional irreparable injury standard examines the possibility of injury to Plaintiff and not third parties); see also Colo. River Indian Tribes v. Parker, 776 F.2d 846, 850 (9th Cir. 1985) ([I]njury must be suffered by a party seeking relief.). As a U.S. citizen, Ms. Rodriguez does not and cannot realistically allege that the Government has threatened to remove her, to take away her work authorization, or to impose any immigration consequences on her. Furthermore, in the immigration context, an individual does not have standing based solely on alleged harm to his or her spouse. See, e.g., Bright v. Parra, 919 F.2d 31, 33 (5th Cir. 1990) (holding that citizen spouses have no constitutional right to prevent an alien spouse from being deported).6 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. Further, like Mr. Aranas, Ms. Rodriguez cannot show a need to assert Ms. DeLeons rights and interests since Ms. DeLeon is herself pursuing this challenge to DOMA, and therefore Ms. Rodriguez lacks third party standing to pursue Ms. DeLeons constitutional claim. See Miller, 523 U.S. at 446. II. Section 3 of DOMA Does Not Violate Substantive Due Process. Plaintiffs substantive due process argument cannot prevail because DOMA works in this case to prevent Plaintiffs from obtaining a federal benefit, and there is no substantive due process right to a federal benefit.
See also Anetekhai v. INS, 876 F.2d 1218, 1222 n.5 (5th Cir. 1989) (same); Kounitz v. Slaatten, 901 F. Supp. 650 (S.D.N.Y. 1995) (holding spouse lacked standing where he himself had suffered no injury in fact); cf. Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958) (finding that citizen wife has no constitutional right that is infringed by deportation of spouse); Escobar v. INS, 700 F. Supp. 609, 612 (D.D.C. 1988) (citing Swartz for the proposition that a citizen spouse has no constitutional right to have his or her alien spouse enter or remain in the United States). 8
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The Ninth Circuit requires courts to adopt a narrow definition of the interest at stake in substantive due process cases. Raich v. Gonzales, 500 F.3d 850, 862-63 (9th Cir. 2007). Here, the specific interest at stake is Plaintiffs ability to obtain benefits under federal immigration law. In particular, Ms. DeLeon challenges the denial of her I-601 waiver application and, ultimately, her application for adjustment of status. The granting of both, however, is a decision ultimately left to the discretion of the Secretary of Homeland Security or the Attorney General. See 8 U.S.C. 1182(i) (The Attorney General may, in the discretion of the Attorney General, waive the application of clause (i) of subsection (a)(6)(C) of this section [rendering an individual inadmissible for material misrepresentation or fraud].) and 1255(a) (The status of an alien . . . may be adjusted by the Attorney General, in his discretion.).7 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 under 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. Plaintiffs do not possess a fundamental right to immigration benefits. Rather, the 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. See Compl. 3, 53, 67, 71-73.

Although 8 U.S.C. 1182(i) and 1255(a) refer to the Attorney General, the authority to adjudicate applications for waivers of inadmissibility and adjustment of status also lies with the Secretary of Homeland Security by operation of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2311. 9

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III.

Plaintiffs Fail to State a Claim that Defendants Denial of Ms. DeLeons I601 Waiver Pursuant to Section 3 of DOMA Violates INA 1152(a)(1)(A). Plaintiffs allege that USCISs denial of Ms. DeLeons I-601 waiver pursuant to

Section 3 of DOMA constitutes sex discrimination under 8 U.S.C. 1152(a)(1)(A). See Compl. 3, 42.8 However, Defendants denial of Ms. DeLeons I-601 waiver does not implicate this provision. Section 1152(a)(1)(A) states that, . . . no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth, or place of residence. 8 U.S.C. 1152(a)(1)(A) (emphasis added). This case, however, does not involve the issuance of an immigrant visa; it involves the denial of a discretionary waiver of inadmissibility under 8 U.S.C. 1182(i). Thus, the provision does not apply to USCISs adjudication of I-601 waivers. Further, the record reflects that Defendants denial of Ms. DeLeons I-601 waiver resulted solely from the application of Section 3 of DOMA, a statute that more specifically addressed Ms. DeLeons marriage and that was enacted after 8 U.S.C. 1152(a)(1)(A). The denial could not, therefore, have violated Section 1152(a)(1)(A). Fullilove v. Klutznick, 448 U.S. 448, 491 n.77 (1980) (To the extent any statutory inconsistencies might be asserted, . . . the later, more specific enactment must be deemed to control.). CONCLUSION For the reasons set forth above, Defendants request that this Court dismiss Plaintiffs Martin Aranas and Irma Rodriguez from this action for lack of standing and Plaintiffs substantive due process claim under the Fifth Amendment and sex

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discrimination claims raised pursuant to 8 U.S.C. 1152(a)(1)(A) for failure to state a

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claim upon which relief can be granted.

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Plaintiffs also argue that Section 3 of DOMA is an unconstitutional classification based on sex. As we explained in our opposition to Plaintiffs Motion for a Preliminary Injunction, given that Section 3 distinguishes between two different classes of married couples same sex and opposite sex it is better analyzed as a classification based on sexual orientation. 10

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DATED: September 28, 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 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

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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)

[PROPOSED] ORDER

Hearing Date: November 6, 2012 Time: 10:00 a.m. Judge: Hon. Consuelo B. Marshall

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This Court, having considered the pleadings, exhibits, memorandum of points and authorities, and any oral argument: HEREBY ORDERS that Plaintiffs Martin Aranas and Irma Rodriguez are dismissed from this action for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1); FURTHER ORDERED that Plaintiffs substantive due process claim under the Fifth Amendment and sex discrimination claim raised pursuant to 8 U.S.C. 1152(a)(1)(A) are dismissed for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

SO ORDERED this ______ day of __________________, 2012.

Hon. Consuelo B. Marshall United States District Court Judge