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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 Counsel for plaintiffs-in-intervention

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA MARTIN R. ARANAS, et al., ) ) Plaintiffs, ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; et al., ) ) Defendants. ) __________________________________ ) ) ALEXANDER BUSTOS GARCIA, RICHARD L. ) FITCH, HOLGA MARTINEZ, MARTHA ) REYES, ) ) Plaintiffs-in-intervention ) __________________________________ ) No. SACV12-01137 CBM (AJWx) NOTICE OF MOTION AND MOTION TO
INTERVENE

Hearing: August 5, 2013 Time: 10:00 a.m. Spring St., Courtroom No. 2 Hon. Consuelo B. Marshall

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Additional co-counsel for intervening plaintiffs Bustos Garcia and Fitch: 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 intervening plaintiffs Martinez and Reyes: 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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To defendants and their attorneys of record: PLEASE TAKE NOTICE that on August 5, 2013, at 10:00 a.m., or as soon thereafter as counsel may be heard, Alexander Bustos Garcia, Richard L. Fitch, Holga Martinez, and Martha Reyes, all members of the plaintiff class certified herein, will and do hereby move the Court for an order granting them leave to intervene as plaintiffs herein, as a matter of right pursuant to Rule 24(a)(2) or, alternatively, permissively pursuant to Rule 24(b), Fed.R.Civ.Proc. This motion is based upon the accompanying memorandum of law and exhibits, proposed complaint-in-intervention, and upon all other matters of record herein.

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This motion is made following conferences of counsel pursuant to Local Rule 7-3 which took place on May 2, 2013, and July 2, 2013. Plaintiff DeLeon supports the Courts granting this motion; defendants oppose, and intervenor Bipartisan Legal Advisory Group probably opposes, the instant motion. Dated: July 8, 2013. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Peter A. Schey /s/ Carlos R. Holgun Attorneys for plaintiffs-in-intervention

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 OF MOTION with

CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 8th day of July, 2013, I electronically filed the foregoing NOTICE OF MOTION AND MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT 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: July 8, 2013. /// /s/ Carlos Holgun __________________

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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-in-intervention

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION MARTIN R. ARANAS, et al., ) ) ) Plaintiffs, ) ) -vs) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; et al., ) ) Defendants. ) __________________________________ ) ) ALEXANDER BUSTOS GARCIA, RICHARD L. ) FITCH, MARTINEZ, MARTHA REYES, ) ) Plaintiffs-in-intervention. ) __________________________________ ) No. SACV12-01137 CBM (AJWx) MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO INTERVENE

Hearing: August 5, 2013 Time: 10:00 a.m. Spring St., Courtroom No. 2 Hon. Consuelo B. Marshall

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Additional counsel for intervening plaintiffs Bustos Garcia and Fitch: 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 intervening plaintiffs Martinez and Reyes: 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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OUTLINE OF CONTENTS I Introduction........................................................................................................... 1 II Intervening plaintiffs should be permitted to intevene as of right. ..................... 4 A Intervention is timely. ............................................................................... 5 B Intervening plaintiffs have significant interests at stake in this litigation. ............................................................................................... 6 C Resolution of this action will affect intervening plaintiffs ability to protect their interests......................................................................... 7 D Intervening plaintiffs are imperfectly represented by plaintiff DeLeon with respect to interim relief and federalism. ......................... 8 III In the alternative, intervening plaintiffs should be allowed permissive intervention. .................................................................................................... 9 IV Conclusion ....................................................................................................... 11 ///

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TABLE OF AUTHORITIES CASES Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir.), cert. denied, 540 U.S. 1017 (2003) 5 Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) .......................................................... 5 In re General Motors Corp. Pick-Up Truck Fuel Tank Prods Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995) ............................................................................................................. 7 Officers for Justice v. Civil Service Commission of the City of San Francisco, 934 F.2d 1092 (9th Cir. 1991) .......................................................................................................... 6 Rodriguez v. W. Publishing Corp., 563 F.3d 948 (9th Cir. 2009) ....................................... 7 Spangler v. Pasadena City Bd. of Education, 552 F.2d 1326 (9th Cir. 1977) .................. 11 United States v. Windsor, No. 12-307 ................................................................................. 4 STATUTES AND RULES Defense of Marriage Act, 1 U.S.C. 7 ............................................................................... 1 8 U.S.C. 1182(a)(9)(B) ..................................................................................................... 4 8 U.S.C. 1101, et seq ...................................................................................................... 1 Rule 24(a), Fed.R.Civ.Proc. ................................................................................................ 5 Rule 24(b)(1), Fed.R.Civ.Proc. ......................................................................................... 10 ///

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2 1

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION TO INTERVENE

INTRODUCTION This is an action for declaratory and injunctive relief challenging defendants

applying 3 of the Defense of Marriage Act, 1 U.S.C. 7 (DOMA),1 to deny immigrant members of lawfully married same-sex couples benefits under the Immigration and Nationality Act, 8 U.S.C. 1101, et seq. (INA). By order dated April 19, 2013 (Dkt. 126), the Court held that DOMA 3 is not rationally related to Congress interest in a uniform federal definition of marriage does not ensur[e] that similarly situated couples will be eligible for the same federal marital status regardless of the state in which they live and that Plaintiffs have stated a claim that DOMA 3 violates their equal protection rights. Id. at 14.2

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 agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

On June 26, 2013, the Supreme Court held that DOMA denies due process and equal protection in violation of the Fifth Amendment to the U.S. Constitution. United States v. Windsor, __U.S. __; 2013 U.S. LEXIS 4921, 2013 WL 3196928 (June 26, 2013). Shortly after the Supreme Courts ruling defendant Napolitano stated: Working with our federal partners, including the Department of Justice, we will implement today's decision
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However, the court then dismissed plaintiffs Martin Aranas and Irma Rodriguez, ruling that defendants applying DOMA 3 to deny plaintiff Jane DeLeon a waiver of inadmissibility and therefore adjustment of status did not sufficiently impact either her U.S. citizen spouse or son to confer standing. Id. at 7-8. The Court next certified this action to proceed on behalf of a nationwide class of same-sex couples denied immigration benefits pursuant to DOMA 3. Order Granting Provisional Class Certification, Dkt. 127, at 12. The Court rejected defendants argument that plaintiff DeLeons claims are atypical of those of U.S. citizen and immigrant class members denied family-based visasas opposed to a waiver of inadmissibility pursuant to DOMA 3, id. at 8-9, and appointed plaintiff DeLeon as the sole reprentative of the following class: 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

so that all married couples will be treated equally and fairly in the administration of our immigration laws. http://www.dhs.gov/news/2013/06/26/statement-secretary-homelandsecurity-janet-napolitano-supreme-court-ruling-defense (last checked July 1, 2013). To date, however, defendants have adopted no proceduresnor have they announced if or when they will do sofor (a) identifying class members; (b) providing notice to class members of relief from CISs prior application of DOMA 3 and how they may secure it; (c) reopening and reconsidering without additional fee applications for immigration benefits denied pursuant to DOMA 3; (d) providing class members priority in reconsideration of applications for immigration benefits denied pursuant to DOMA 3; or (e) ensuring that periods of unauthorized presence class members have accrued because of DOMA 3 do not render them inadmissible pursuant to 8 U.S.C. 1182, including 1182(a)(9)(B).
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U.S.C. 1101 et seq., by the Department of Homeland Security solely due to 3 by the Defense of Marriage Act, 1 U.S.C. 7. Id. at 12. Finally, the Court denied plaintiff DeLeons motion for a preliminary injunction, finding that [s]ince the October 5, 2012 amendment, immigrants in same-sex marriages may qualify for deferred action status, which includes the temporary work authorization and tolling of unlawful presence accrual that Plaintiff DeLeon seeks by this Motion. Indeed, none of the adverse immigration decisions provided by DeLeon post-date the October 5, 2012 amendment to the Morton Memo. The parties have filed with the Court several supplemental authorities following briefing and oral argument on this motion. None of these supplemental authorities include adverse immigration decisions affecting those in the plaintiff class after October 5, 2012. Order Denying Preliminary Injunction, Dkt. 128, at 8 (docket references omitted). As appears more fully in the proposed complaint-in-intervention and supplemental exhibits lodged concurrently herewith, intervening plaintiffs Alexander Bustos Garcia, Richard L. Fitch, Holga Martinez, and Martha Reyes, are two same-sex couples and members of the certified plaintiff class. See Declaration of Alexander Bustos Garcia, June 11, 2013, Exhibit 56 filed herewith; Declaration of Holga Martinez, November 6, 2012, Plaintiffs Exhibit 18 (Dkt. 93). They seek to intervene for two reasons.
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First, in contrast to plaintiff DeLeon, defendants applied DOMA 3 to deny U.S. citizen intervening plaintiffs Fitch and Reyes visa petitions to confer eligibility for lawful permanent residence on intervening plaintiffs Bustos Garcia and Martinez, respectively. The Courts permitting these class members to intervene and serve as additional class representatives would accordingly put to rest standing and adequacy of representation as potential issues for appeal. Second, defendants have applied DOMA 3 against intervening plaintiffs Fitch and Bustos Garcia subsequent to the October 5, 2012, amendment to the Morton Memo, which the Court (erroneously) found critical to the question of irreparable injury. Thus, the couple presents claims of irreparable injury qualitatively different from plaintiff DeLeons claims, and they should be permitted to intervene to seek preliminary injunctive relief on their own account. Despite the Supreme Courts striking down DOMA 3 on due process and equal protection grounds, defendants have done nothing to make intervening plaintiffs Martinez or Bustos Garcia whole. These class members continue to be without employment authorization and their presence continues to be unauthorized for purposes of inadmissibility pursuant to 8 U.S.C. 1182(a)(9)(B). This Court should accordingly allow them to intervene. II INTERVENING PLAINTIFFS SHOULD BE PERMITTED TO INTEVENE AS OF RIGHT. Rule 24(a), Fed.R.Civ.Proc., provides, On timely motion, the court must permit
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anyone to intervene who(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. Rule 24 is liberally construed in favor of intervention. Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998). A party seeking to intervene as of right must meet four requirements: (1) the applicant must timely move to intervene; (2) the applicant must have a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the partys ability to protect that interest; and (4) the applicants interest must not be adequately represented by existing parties. Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir.), cert. denied, 540 U.S. 1017 (2003). Intervening plaintiffs satisfy all four requirements. A Intervention is timely.

Whether intervention is timely is determined by (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of delay. Officers for Justice v. Civil Service Commission of the City of San Francisco, 934 F.2d 1092, 1095 (9th Cir. 1991). Applying the foregoing, intervening plaintiffs motion is timely. Proceedings herein have not yet progressed beyond motions to dismiss. No answer
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has been filed, and no discovery has yet been answered. Indeed, this Court has blocked any discovery at all from proceeding in this case. Neither defendants nor BLAG could possibly be prejudiced by the Courts allowing intervention. BLAG itself is an intervenor, while defendants have been zealous in attacking the existing plaintiffs standing and denying that class members could suffer irreparable injury pendente lite. Neither BLAG nor defendants are equitably positioned to oppose intervention. Finally, defendants applied DOMA 3 against intervening plaintiffs Fitch and Bustos Garcia after October 5, 2012. Defendants flagged this date as significant for the first time on November 6, 2012, see Dkt. 82, and some two months ago this Court held that date crucial. There has been no significant delay in seeking intervention. B Intervening plaintiffs have significant interests at stake in this litigation.

Intervening plaintiffs also easily satisfy the second requirment for intervention as of right: they have a significant interest at stake in this action. First, as members of the certified class their interests are by definition at stake in this action. Second, the interests intervening plaintiffs seek to protect are not only equal to, but in some respects greater than, those of plaintiff DeLeon. Intervening plaintiffs share plaintiff DeLeons goal of undoing the effects of a harshly discriminatory, irrational law that denies immigrant members of same-sex marriages benefits routinely granted to
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members of different-sex marriages. Intervening plaintiff Bustos Garcia and Fitch are also suffering irreparable injury because of defendants applying DOMA 3 against them even after October 5, 2012. Third, intervening plaintiffs have an interest in putting to rest defendants challenge to plaintiff DeLeons standing and adequacy as a class representative. Having representatives with unquestioned standing is clearly in the plaintiff classs best interests, and intervention should be granted in order to obviate standing as a potential issue on appeal. Cf. Rodriguez v. W. Publishing Corp., 563 F.3d 948, 968 (9th Cir. 2009) (class counsel fiduciaries to class); In re General Motors Corp. Pick-Up Truck Fuel Tank Prods Liab. Litig., 55 F.3d 768, 785 (3d Cir. 1995) (Court acts as a fiduciary who must serve as a guardian of the rights of absent class members[.] (internal quotation marks and citation omitted)). C Resolution of this action will affect intervening plaintiffs ability to protect their interests. Intervening plaintiffs have a clear stake in presenting their claims directly to this Court. The Court has indicated class members against whom defendants applied DOMA 3 subsequent to October 2012 may have a stronger claim for interim relief than do class members with older injuries. That ruling indicates that the Court should evaluate

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intervening plaintiffs claims for interim relief separately.3 D Intervening plaintiffs are possibly imperfectly represented by plaintiff DeLeon with respect to interim relief and standing. What has been argued above likewise establishes that intervenors satisfy the final prong for intervention as of right: they are possibly imperfectly represented by plaintiff DeLeon with respect to interim relief and standing. Intervening plaintiffs agree with the Court that plaintiff DeLeon will adequately represents the class insofar as DOMA 3s consonance with due process and equal protection are concerned. On the other hand, intervening plaintiffs experiences prove that defendants October 5, 2012, memo did nothing to improve class members access to

However, on April 26, 2013, defendants filed a notice undercutting the factual basis for the Courts denying plaintiff DeLeons motion for preliminary injunctive relief. Therein, defendants admit that 1) 2) 3) USCIS has, in fact, denied I-130 Petitions for Alien Relative since October 5, 2012, based on DOMA 3, Dkt. 131 at 2; CIS will continue to [issue such denials] until there is a definitive ruling striking down DOMA 3, id at 3; and defendants grant class members deferred action and employment authorization only in extraordinary circumstances Id. at 4 (emphasis added).

Defendants filing furnishes prima facie grounds for this Court to reconsider its order denying class-wide preliminary injunctive relief. The Courts granting class-wide relief would, of course, obviate the need to protect intervening plaintiffs separately. But should the Court remain of the view that a class-wide preliminary injunction is unwarranted, it should at least save intervening plaintiffs from irreparable injury pendente lite; its granting the instant motion would greatly facilitate doing so.
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work authorization or protection against becoming inadmissible for excess unauthorized presence. The Court, however, has thus far been persuaded to the contrary with respect to the class as a whole. Intervening plaintiffs should be permitted to intervene to seek individual relief notwithstanding the Courts provisional (and plaintiffs believe entirely incorrect) conclusion that the class as a whole is not suffering irreparably pendente lite. III IN THE ALTERNATIVE, INTERVENING PLAINTIFFS SHOULD BE ALLOWED PERMISSIVE
INTERVENTION.

In the alternative, intervening plaintiffs should be permitted to join this action pursusant to Rule 24(b)(1), Fed.R.Civ.Proc., which provides, On timely motion, the court may permit anyone to intervene who: (B) has a claim or defense that shares with the main action a common question of law or fact.. The rule further provides, In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties rights. As members of the certified class, intervening plaintiffs claims and the claims of plaintiff DeLeon clearly present multiple common questions of law and fact, and what has been argued previously regarding prejudice to the existing parties supports permissive intervention, just as it does intervention of right. If the trial court determines that the[se] initial conditions for permissive intervention are met, it is then entitled to consider other factors..., includ[ing]
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[1] the nature and extent of the intervenors interest, [2] their standing to raise relevant legal issues, [3] the legal position they seek to advance, and its probable relation to the merits of the case. The court may also consider [4] whether the intervenors' interests are adequately represented by other parties, [5] whether intervention will prolong or unduly delay the litigation, and [6] whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented. Spangler v. Pasadena City Bd. of Education, 552 F.2d 1326, 1329 (9th Cir. 1977). Each of these factors has been addressed: intervening plaintiffs have a clear interest in joining this action; their having been denied immigration benefits per se confers standing impervious to defendants argument against plaintiff DeLeons standing; intervention will in no way delay resolution of this litigation; intervening plaintiffs offer new and important facts that will contribute to full development of the record in this litigation.

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IV

CONCLUSION For the foregoing reasons, the Court should grant the instant motion and permit

class members Bustos Garcia, Fitch, Martinez, and Reyes to intervene as party-plaintiffs in this action. Dated: July 8, 2013. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Peter A. Schey /s/ Carlos R. Holgun Attorneys for plaintiffs-in-intervention

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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 8th day of July, 2013, I electronically filed the foregoing NOTICE OF MOTION AND MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT 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: July 8, 2013. /// /s/ Carlos Holgun __________________

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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-in-intervention

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION MARTIN R. ARANAS, et al., ) ) Plaintiffs, ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; et al., ) ) Defendants. ) __________________________________ ) ) HOLGA MARTINEZ, MARTHA REYES, ) RICHARD L. FITCH, and ALEXANDER ) BUSTOS GARCIA, ) ) Plaintiffs-in-intervention ) __________________________________ ) No. SACV12-01137 CBM (AJWx) COMPLAINT-IN-INTERVENTION FOR
DECLARATORY AND INJUNCTIVE RELIEF

(CLASS ACTION)

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Additional counsel for intervening plaintiffs Bustos Garcia and Fitch: 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 intervening plaintiffs Martinez and Reyes: 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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Plaintiffs allege as follows: I PRELIMINARY STATEMENT 1. Intervening plaintiffs are members of lawful same-sex marriages who have been denied interim relief, visa petitions, and adjustment to lawful permanent resident status under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., by defendant Department of Homeland Security solely due to 3 of the Defense of Marriage Act, 1 U.S.C. 7, and they are accordingly members of the class certified herein. 2. Intervening plaintiff Martha Reyes is a U.S. citizen; intervening plaintiff Holga Martinez is a citizen and national of Mexico. Intervening plaintiffs Martinez and Reyes are lawfully married, of the same sex, and reside together in Anaheim, California. They intend to remain together for the rest of their lives and accept all of the duties and responsibilities commonly associated with marriage. 3. Intervening plaintiff Richard L. Fitch is a U.S. citizen; intervening plaintiff Alexander Bustos Garcia is a citizen and national of Colombia. Intervening plaintiffs Fitch and Bustos lawfully married in Buenos Aires, Argentina, on September 25, 2012, are of the same sex, and reside together in San Francisco, California. They intend to remain together for the rest of their lives and accept all of the duties and responsibilities commonly associated with marriage 4. As alleged herein, defendants have refused to grant marriage-based immigration

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benefits, including interim authorizerd presence, temporary employment authorization, and lawful permanent residence, to intervening plaintiffs Martinez and Bustos Garcia solely because their respective spouses are of the same sex. 5. Defendants past refusal to recognize intervening plaintiffs marriages as valid predicates for the granting of immigration benefits violated the equal protection and due process guarantees of the Fifth Amendment to the United States Constitution and usurped the prerogatives of the several states in violation of the Tenth Amendment to the United States Constitution. 6. Intervening plaintiffs bring this action for declaratory and injunctive relief pursuant to 28 U.S.C. 2201-2202 and Fed.R.Civ.Proc. Rule 57, and for review of agency action pursuant to the Administrative Procedure Act, 5 U.S.C. 701-706. As a direct and proximate result of the violations of the Constitution alleged herein, intervening plaintiffs have been denied legal protections and benefits under the INA that would be routinely conferred upon them were their spouses of a different sex. Intervening plaintiffs seek a declaration that DOMA 3, 1 U.S.C. 7, as applied to plaintiffs and those similarly situated, violates the equal protection and due process guarantees of the Fifth Amendment to the United States Constitution and usurps the prerogatives of the several states in violation of the Tenth Amendment to the United States Constitution, and temporary and permanent relief to remedy such unlawful discrimination.

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II JURISDICTION 7. This Court has jurisdiction pursuant to U.S. Const. Art. III; 28 U.S.C. 1331 (federal question jurisdiction); 28 U.S.C. 1361 (mandamus jurisdiction), and 28 U.S.C. 2241 (habeas corpus jurisdiction). 8. Plaintiffs prayer for declaratory relief is brought pursuant to 28 U.S.C. 2201 and 2202. 9. Venue is properly in this court pursuant to 28 U.S.C. 1391(b) and (e)(1), (2), and (4), because some of the acts complained of occurred in this district, defendants have offices in this district, intervening plaintiffs Martinez and Reyes reside in this district, the class of which intervening plaintiffs are members was certified in this district, and no real property is involved in this action. III PARTIES 10. Intervening plaintiff Martha Reyes is a U.S. citizen, a resident of California, and is the lawful spouse of intervening plaintiff Holga Martinez. 11. Intervening plaintiff Holga Martinez is a citizen of Mexico, a resident of California, and the lawful spouse of intervening plaintiff Reyes. 12. On or about September 26, 2011, defendants denied temporary authorized presence, employment authorization, and lawful permanent residence to intervening
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plaintiff Martinez solely pursuant to DOMA 3 because both she and intervening plaintiff Reyes are women. 13. Intervening plaintiff Richard L. Fitch is a U.S. citizen, a resident of California, and the lawful spouse of intervening plaintiff Bustos. 14. Intervening plaintiff Alexander Bustos Garcia is a citizen of Colombia, a resident of California, and the lawful spouse of intervening plaintiff Fitch. 15. On or about June 14, 2013, defendants denied intervening plaintiff Bustos Garcia temporary authorized presence, employment authorization, and lawful permanent residence. On information and belief, said denials were based solely on DOMA 3 because both intervening plaintiffs Fitch and Bustos are men. 16. Defendant Janet Napolitano is the Secretary of the United States Department of Homeland Security. Defendant Napolitano is charged with the administration of the United States Department of Homeland Security. Defendant United States Citizenship and Immigration Services is a subordinate agency within the Department of Homeland Security, and as such is under the authority and supervision of defendant Napolitano. She is sued in her official capacity. 17. Defendant Alejandro Mayorkas is the Director of defendant the United States Citizenship and Immigration Services, an entity within the United States Department of Homeland Security (DHS) with statutory responsibility for adjudicating petitions filed by United States citizens and lawful permanent residents to grant lawful immigration
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status to immediate relative immigrant family members, including lawful spouses of United States citizens and lawful permanent residents. He is sued in his official capacity. 18. Defendant the United States Citizenship and Immigration Service (USCIS) is an entity within the DHS with statutory responsibility to adjudicate petitions and applications filed by United States citizens and lawful permanent residents to grant lawful immigration status to immigrant family members, including lawful spouses of United States citizens and lawful permanent residents. IV CLASS ACTION ALLEGATIONS 19. Pursuant to Rules 23(a)(1)-(4) and (b)(2) of the Federal Rules of Civil Procedure, intervening plaintiffs seek to serve as representatives of the certified class in this case: 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. 1101 et seq., by the Department of Homeland Security solely due to 3 of the Defense of Marriage Act, 1 U.S.C. 7 20. The class are so numerous that joinder is impracticable, as this Court has so found. 21. The claims of intervening plaintiffs and those of the proposed class members raise common questions of law and fact concerning the constitutionality of DOMA 3 as
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applied to deny family-based immigration benefits under the INA. This question is common to the named parties and to the members of the proposed class because defendants have acted or will act on grounds generally applicable to both the named parties and proposed class members. Intervening plaintiffs claims are typical of the class claims. 22. The prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications establishing incompatible standards of conduct for defendants, as this Court has so found. Prosecution of separate actions would also create the risk that individual class members will secure court orders that would as a practical matter be dispositive of the claims of other class members not named parties to this litigation, thereby substantially impeding the ability of unrepresented class members to protect their interests. 23. Defendants, their agents, employees, and predecessors and successors in office have acted or refused to act, or will act or refuse to act, on grounds generally applicable to the intervening plaintiffs and the class, thereby making appropriate injunctive relief or corresponding declaratory relief with respect to the class as a whole. Intervening plaintiffs will vigorously represent the interests of unnamed class members. All members of the plaintiff class will benefit by the action joined by intervening plaintiffs. The interests of the intervening plaintiffs and those of the proposed class members are identical. Intervening plaintiffs counsel include attorneys highly experienced in federal
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class action litigation and litigation involving the INA and the Fifth Amendment of the United States Constitution. V FACTUAL ALLEGATIONS 24. Intervening plaintiff Martinez was born On October 19, 1953, in Oaxaca, Mexico, and she remains a citizen and national of Mexico. Intervening plaintiff Martinez was admitted to the United States in 1993 on a non-immigrant visa, and has resided here continuously since overstaying her non-immigrant visa some 20 years ago. 25. On July 3, 2008, intervening plaintiffs Martinez and Reyes were married in Santa Ana, California. 26. At all relevant times, intervening plaintiff Martinez was eligible for lawful permanent residence pursuant to the INA, and she remains eligible for lawful permanent residence pursuant to the INA. 27. On June 20, 2011, intervening plaintiff Reyes filed with the USCIS a Petition for Alien Relative (Form I-130) seeking to classify intervening plaintiff Martinez as the immediate relative spouse of a U.S. citizen. See INA 204(a)(1)(A)(i) and (B)(i), 8 U.S.C. 1154(a)(1)(A)(i) and (B)(i). 28. On June 20, 2011, intervening plaintiff Martinez filed an Application to Register Permanent Resident or Adjust Status (Form I-485) pursuant to 245 of the Immigration and Nationality Act. USCIS thereafter acknowledged receipt of intervening
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plaintiffs Reyes petition and Martinezs application, and issued intervening plaintiff Martinez temporary employment authorization pending adjudication of her application for lawful permanent residence. 29. On September 26, 2011, USCIS denied intervening plaintiff Reyes Petition for Alien Relative (Form I-130) based solely on DOMA 3 because both both you [intervening plaintiff Reyes] and the beneficiary [intervening plaintiff Martinez] are female. (Emphasis in original). 30. On information and belief, intervening plaintiff Reyes alleges that her Alien Relative petition would be approved but for defendants application of DOMA 3. 31. On September 26, 2011, defendants also issued a written denial of intervening plaintiff Reyes application for adjustment of status to permanent resident status because [t]he visa petition supporting your application was denied September 26, 2011. 32. The written denial also notified intervening plaintiff Martinez that your authorization to accept employment is terminated Defendants informed intervening plaintiff Martinez that her authorized presence is also terminated and advised that she would thereafter accrue unauthorized presence that could render her inadmissible to the United States pursuant to 8 U.S.C. 1182(a)(9)(B). Finally, she was informed that therre is no appeal to this decision, but she could pay a fee of $630.00 and file a motion to reopen or reconsider pursuant to 8 C.F.R. 103.5. On information and belief, intervening plaintiff Martinez alleges that she would be granted temporary authorized
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status and employment authorization, and lawful permanent residence, but for defendants application of DOMA 3 to deny intervening plaintiff Reyes Petition for Alien Relative. 33. On or about February 16, 2012, USCIS denied intervening plaintiff Martinezs motion to reconsider granting her lawful permanent residence soley on the ground that DOMA 3 precluded recognition of her lawful marriage to intervening plaintiff Reyes. 34. On or about August 9, 2012, intervening plaintiff Reyes requested that the Board of Immigration Appeals of the Departrment of Justice (BIA) review the denial of the USCIS decision denying her Petition for Alien Relative (Form I-130). 35. Intervening plaintiff Reyes is informed and believes that the appeal remains pending without decision. She is informed and believes that defendants submitted a written position to the BIA stating [t]he record as whole indicates that the Board should not disturb the decision in this case. The BIA however has no authority over defendants termination of intervening plaintiff Martinezs employment authorization and temporary authorized presence. 36. Defendants refusal to grant interim relief to intervening plaintiff Martinez has caused and continues to cause intervening plaintiffs Reyes and Martinez extreme and irreparable emotional and economic hardship. 37. Intervening plaintiff Alexander Bustos Garcia was born August 26, 1978, in Colombia. Intervening plaintiffs Fitch and Bustos were lawfully married in Buenos Aires,
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Argentina, on September 25, 2012. Intervening plaintiff Bustos Garcia entered the United States most recently on November 14, 2012, with a non-immigrant visitors visa and was authorized to stay through May 13, 2013. 38. At all relevant times, intervening plaintiff Bustos Garcia was and remains eligible for authorized presence, employment authorization, and lawful permanent resident status pursuant to the INA. 39. On or about May 5, 2013, intervening plaintiff Fitch filed with the USCIS a Petition for Alien Relative (Form I-130) seeking to classify intervening plaintiff Bustos Garcia as the immediate relative spouse of a U.S. citizen. See INA 204(a)(1)(A)(i) and (B)(i), 8 U.S.C. 1154(a)(1)(A)(i) and (B)(i). 40. On or about May 5, 2013, intervening plaintiff Bustos Garcia filed with the USCIS an I-485 Application for Adjustment of Status and an I-765 Application for Employment Authorization. At the time of the filing of the Application for Adjustment of Status, Bustos Garcia was legally present in the United States with non-immigrant status. 41. On or about June 14, 2013, defendants denied intervening plaintiff Fitchs Petition for Alien Relative (Form I-130) seeking to classify intervening plaintiff Bustos Garcia as the immediate relative spouse of a U.S. citizen. 42. On or about June 14, 2013, defendants denied intervening plaintiff Bustos Garcias applications to Adjust Status to lawful permanent resident status and for employment authorization. On information and belief, defendants acted solely on the
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basis of DOMA 3, because both intervening plaintiffs Fitch and Bustos Garcia are men. 43. Pursuant to defendants policy and practice, intervening plaintiff Bustos Garcia is now precluded from lawful employment in the United States and is accruing unauthorized presence that may render him inadmissible pursuant to 8 U.S.C. 1182(a)(9)(B). Defendants refusal to grant interim relief to intervening plaintiff Bustos Garcia has caused and continues to cause extreme and irreparable emotional hardship to intervening plaintiffs Fitch and Bustos Garcia. 44. Intervening plaintiff Bustos Garcia lacks any viable administrative remedy for the constitutional violations he sues herein to redress. On information and belief, intervening plaintiff Bustos Garcia alleges that retaining counsel to assist him to seek Deferred Action would cost between $5,000 and $15,000, and that he does not qualify for deferred action because neither he nor intervening plaintiff Fitch have suffered a major illness or other catastrophy that defendants require to grant Deferred Action. Intervening plaintiff Bustos Garcia is unemployed and is not authorized to work in the United States. Intervening plaintiff Fitch is employed part-time and has very modest income. Intervening plaintiffs are accordingly unable to retain counsel to represent them before the USCIS. The couple is unable to afford the basic necessities of life unless intervening plaintiff Bustos is authorized to work in the United States. 44. At no time did defendants advise intervening plaintiffs Martinez or Bustos Garcia that they may qualify for deferred action or any other form of lawful temporary
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status, nor did they advise intervening plaintiffs that there was any means by which they could be authorized to work in the United States. 45. Deferred action is not a viable administrative remedy by which bi-national same-sex couples may avoid irreparable injury pendente lite, including being denied the right to work in the United States and the accrual of unauthorized status leading to possible inadmissibility pursuant to 8 U.S.C. 1182(a)(9)(B). Deferred action is a nonstatutory, wholly discretionary form of temporary authorization to remain in the United States. It is no more available to foreign-born members of same-sex marriages than it is to foreign-born relatives of U.S. citizens generally. It is available only in exceptional circumstances, which intervening plaintiffs Martinez and Bustos Garcia, and the vast majority of class members, are unable to prove. 46. Intervening plaintiffs Martinez and Bustos Garcia have no authorization to work in the United States, nor do they or their class members have any prompt and viable means of obtaining such authorization pendent lite. 47. Plaintiffs seek preliminary relief to save intervening plaintiffs Martinez and Bustos Garcia, and those similarly situated from irreparable injury, pendent lite, inluding forced unemployment or illegal employment and accrual of unauthorized presence that may lead to inadmissibility pursuant to 8 U.S.C. 1182(a)(9)(B). They seek permanent relief restoring intervening plaintiffs and those similarly situated to the position in which they would now be but for the constitutional violations alleged herein.
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Application of the INA 48. A fundamental goal of the INA is unifying families. In cases involving married couples of different sexes, defendants have routinely administered the INA so as to preserve family units comprising U.S. citizens or lawful permanent residents and their immigrant spouses. 49. The INA nowhere defines the terms marriage or spouse to exclude samesex couples lawfully married pursuant to the law of one of the several sovereign States. The INA expressly proscribes discrimination in the issuance of visas on the basis of sex. 8 U.S.C. 1152(a)(2). 50. In 1990, Congress amended the INA to provide that immigrants could not be denied visas or admission to the United States based on sexual orientation. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990). 51. In most circumstances a marriage is valid for immigration purposes if it is recognized by the law of the state where it occurs. Matter of Lovo-Lara, 23 I&N Dec. 746, 748 (BIA 2005). Historically, as long as two people intend to establish a life together at the time of the marriage, the marriage is valid for immigration purposes. Bark v. INS, 511 F.2d 1200 (9th Cir. 1975). Under the Tenth Amendment to the U.S. Constitution, states reserve all powers not assigned to the federal government, including the classification of a persons sex and determining the lawfulness of marriages. Matter of Lovo-Lara, 23 I&N Dec. at 748. Defendants refusing to recognize same-sex couples
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lawful marriages as valid for purposes of conferring immigration benefits is accordingly not a function of the INA, but rather of DOMA 3 alone. DOMAs Enactment 52. The legislative history of DOMA 3 identifies several interests that Congress purportedly sought to advance through the laws enactment. The House Report acknowledges that federalism constrains Congresss power to regulate marriage and that [t]he determination of who may marry in the United States is uniquely a function of state law. H.R. Rep. No. 104-664, at 3 (1996), reprinted in 1996 U.S. Code Cong. & Admin. News 2905, 2906-07 (H. Rep.). 53. The House Report neverthess states that Congress need not be supportive of (or even indifferent to) the notion of same-sex marriage. Id. at 12. The authoritative House Report recites several purported federal interests supporting enactment of DOMA 3: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources. Id. The House Report also recites purported federal interests underlying DOMA 3 in encouraging responsible procreation and child-rearing, and conserving scarce resources. Id. at 13, 18. 54. Although DOMA 3 altered eligibility criteria for a vast number of federal benefits, rights, and privileges dependent upon marital status, either directly under federal
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law or controlled in some fashion by federal law, the relevant committees did not engage in any meaningful examination of the scope or effect of the law, much less detail the ways in which federal interests underlying numerous programs would be affected. 55. As this Court has held, the interests identified by Congress and all other interests that might be advanced to justify DOMA 3s constitutionality are irrational in the context of federal immigration benefits, and discriminating against married same-sex couples in the granting of immigration benefits is arbitrary and capricious. 56. Defendants having applied DOMA 3 to intervening plaintiffs and their class members denies due process by burdening the integrity of lawful marriages, penalizing intimate family relationships, and arbitrarily infringing the personal autonomy of intervening plaintiffs and their class members. 57. DOMA 3 discriminates explicitly on the basis of sex and implicitly on the basis of sexual orientation, and regulates in an area traditionally the prerogative of the several States. DOMA 3 therefore merits heightened constitutional scrutiny. 58. Intervening plaintiffs and their class members have suffered a history of invidious discrimination. [F]or centuries there have been powerful voices to condemn homosexual conduct as immoral, Lawrence v. Texas, 539 U.S. 558, 571 (2003), and state-sponsored condemnation of homosexuality has led to discrimination both in the public and in the private spheres. Id. at 575. To this day, lesbians and gay men remain the subjects of public opprobrium, face the ever-present threat of homophobic violence,
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and remain vulnerable to discrimination in employment, housing, and public accommodations. 59. The characteristics that distinguish intervening plaintiffs and their class members bear no relation to their ability to perform or contribute to society. There exists no credible evidence that sexual orientation bears any relation to ones ability to perform or contribute to society. The psychological and medical community has long confirmed that homosexuality necessarily entails no impairment in judgment, stability, reliability or general social or vocational abilities. Gay men and lesbians serve in Congress, in the federal judiciary, and in the Executive Branch of government. Empirical studies have consistently found that lesbians and gay men are as able as heterosexuals to form loving, committed relationships. Like millions of lesbians and gay men, intervening plaintiffs are woven into the fabric of everyday America, leading productive lives as spouses, family members, friends, neighbors, and coworkers. 60. The obstacles to political power for gay men and lesbians are well known. Gay men and lesbians are, both nationally and locally, a minority, comprising about 3.5 percent of the population. They are geographically dispersed, and, unlike many minorities, may go unidentified out of fear of ostracism and even violence, further eroding their potential for political mobilization. Political opposition to legal protections and benefits for gay men and lesbians is powerful, mobilized, and well-funded. There is no federal prohibition against discrimination based on sexual orientation in employment,
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housing, public accommodations, or education, nor any such protection in 29 states. Openly gay officials are significantly underrepresented in political office in proportion to the gay and lesbian population. 61. Laws that discriminate based on obvious, immutable, or distinguishing characteristics that define persons as a discrete group may trigger heightened scrutiny. Sexual orientation and sexual identity are entirely or largely immutable; they are so fundamental to ones identity that a person should not be required to abandon them. Sexual orientation is inherent to one's very identity as a person. It would work a fundamental injustice to require gay men and lesbians to chose between retaining their identity and somehow changing (if that were even possible) to gain parity with their heterosexual brethren. 62. Heightened scrutiny is also warranted because DOMA 3 unequally burdens plaintiffs constitutionally protected interest in the integrity of their families. By its sweeping reclassification of the plaintiffs as single or unmarried for all federal purposes, DOMA 3 erases their marriages under federal law. By throwing plaintiffs marriages into a confusing legal status in which their marriages count for some purposes but not others, DOMA 3 erases much of the meaning their marriages would otherwise havein both public and private settingsand relegates them to second-class status. The right to maintain family relationships free from undue government interference is a longestablished and fundamental liberty interest.
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63. DOMA 3 intrudes into an area of traditional state prerogativeregulation of marriage and familyand accordingly raises federalism concerns. DOMA 3 is the first time that the federal government has mandated a uniform definition of marriage. In extending legal recognition to class members marriages, a growing number of states protect same-sex couples dignity and equality before the law. DOMA 3 does the opposite. The absence of precedent for federal regulation of marriage evinces an impermissible animus and hostility toward same-sex couples and the members thereof based upon sexual orientation. 64. There exists no fairly conceivable set of facts showing a substantial or rational relationship between DOMA 3 and a legitimate government objective. Congress has no legitimate reason to deny individuals who are lawfully married to someone of the same sex immigration benefits that are readily available to persons who are married to someone of a different sex. Singling out members of married same-sex couples among all married persons for denial of marriage-based immigration benefits exhibits a bare intent to discriminate against gay people. DOMA 3 is motivated by an irrational disapproval of gay men and lesbians and their relationships. 65. On February 23, 2011, the Attorney General notified congressional leadership that the Administration had determined that DOMA 3 is unconstitutional as applied to same-sex couples whose marriages are legally recognized under state law and that the Department of Justice would no longer defend DOMA 3 before the federal courts. The
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Department of Justice concludes that discrimination on the basis of sexual orientation must withstand heightened scrutiny and that DOMA 3 fails to do so. 66. While defendants relied on DOMA 3 to deny same-sex couples marriagebased immigration benefits, defendants routinely granted marriage-based immigration benefits to non-citizen couples who entered as temporary visitors (students, temporary employees, investors, etc.). See, e.g., INA 101(a)(15)(E) (Treaty Investor Spouse), 101(a)(15)(F) (student spouse); 101(a)(15)(H)(temporary worker spouse). There never was a rational basis for permitting non-citizen visitors to confer immigration benefits on their different-sex spouses, while barring U.S. citizens from conferring such benefits on their spouses solely because they are of the same sex. 67. Defendants have routinely granted family-based immigration benefits to, inter alia, different-sex married couples who remain childless for whatever reason, immigrant beneficiaries convicted of crimes or who have engaged in other conduct involving moral turpitude, unmarried fiancs of U.S. citizens, and different-sex married couples who met over the internet and have been married for only a few days or weeks. Defendants automatically denying like treatment to plaintiffs and their class members was wholly irrational, arbitrary and capricious. VI IRREPARABLE INJURY 68. Intervening plaintiffs and their class members have suffered and are continuing
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to suffer irreparable harm because of defendants application of DOMA 3 as alleged herein. Defendants policies and practices have deprived and will continue to deprive intervening plaintiffs and their class members of due process and equal protection in violation of the Fifth Amendment to the United States Constitution. DOMA 3 usurps the prerogatives of the sovereign States to regulate marriage in violation of the Tenth Amendment and to the United States Constitution. 69. As a result of defendants applying DOMA 3 as alleged herein, intervening plaintiffs and many class members have suffered and continue to suffer irreparable harm including severe emotional distress and anxiety, the accumulation of unauthorized presence, denial of the right to lawful employment, and denial of their family-based applications and petitions. Since the U.S. Supreme Courts decision in Windsor, supra, holding that DOMA 3 violates the Fifth Amendments guarantee of equal protection of law, defendants have not identified aggrieved class members, granted them any form of interim relief, or otherwise undone the adverse consequences of defendants having unconstitutionally and discriminatorily denied class members immigration benefits pursuant to DOMA 3.

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VII FIRST CLAIM FOR RELIEF [Denial of Equal Protection] 70. Plaintiffs hereby incorporate by reference 1-69 of this Complaint in intervention as though fully set forth herein. 71. Defendants application of DOMA 3 to deny family-based immigration waivers and petitions solely because of a married couples sex or sexual orientation, and/or because the petitioning party and the immigrant beneficiary are of the same sex, violated the equal protection guarantee of the Fifth Amendment inasmuch as DOMA 3 treats identically situated married persons differently based on their sexual orientation and sex, with no permissible or constitutionally adequate justification. VIII SECOND CLAIM FOR RELIEF [Denial of due process] 72. Plaintiffs hereby incorporate by reference 1-71 of this Complaint as

though fully set forth herein. 73. DOMA 3 and its application to intervening plaintiffs and those similarly

situated denies due process by burdening the integrity of lawful marriage, personal autonomy, and intimate family relationships. The right to maintain family relationships and personal choice in matters of marriage and family life free from undue government
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restrictions is a fundamental liberty interest. Lawrence v. Texas, 539 U.S. 558 (2003). DOMA 3 substantially burdens plaintiffs fundamental interest in their existing familial relationships without a rational, substantial, or compelling reason for doing so. Although this Court previously ruled that DOMA 3 does not deny due process, the Supreme Court held in Windsor, supra, that DOMA seeks to injure the very class [some state marriage law] seeks to protect. By doing so it violates basic due process , Slip. Op. at 20, and that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. Id. at 25. 74. When the government intrudes upon the personal and private lives of lesbians and gay men in a manner that implicates the rights identified in Lawrence v. Texas, supra, the government must advance an important governmental interest, which it has not done in this case; the government must show that the intrusion significantly furthers that interest, which has not been shown in this case; and the government must show that the intrusion is necessary to further that interest, which it does not have and cannot show. VIII THIRD CLAIM FOR RELIEF [Violation of Constitutional Principles of Federalism] 75. Plaintiffs hereby incorporate by reference 1-74 of this Complaint in intervention as though fully set forth herein. 76. The Tenth Amendment to the United States Constitution expressly reserves to
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the states all powers except those limited powers granted to the federal government. The Tenth Amendment ensures the division of powers between the states and federal government that is necessary for the dual sovereignty of the federal system. 77. The Tenth Amendment preserves for the several States the authority to regulate and define marriage for their citizens. Congress lacks the authority under Article I of the United States Constitution to regulate the field of domestic relations, including marriage. 78. DOMA 3 violates the Tenth Amendment, exceeds Congresss Article I powers, and runs afoul of the Constitutions principles of federalism by creating an extensive federal regulatory scheme that interferes with and undermines the several States sovereign authority to define marriage and to regulate the marital status of its citizens. X PRAYER FOR RELIEF WHEREFORE, plaintiffs pray that this Court 1. assume jurisdiction of intervening plaintiffs instant action; 2. Order that intervening plaintiffs may serve as representatives of the class certified in this case; 3. enter declaratory judgment that defendants application of DOMA 3 against intervening plaintiffs, and defendants regulations, policies and practices that applied DOMA 3 against intervening plaintiffs, were unlawful;
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4. issue a temporary injunction promptly enjoining defendants (a) to vacate their denials of employment authorization to intervening plaintiffs Martinez and Bustos Garcia, and those similarly situated, and promptly grant them employment authorization; and (b) from continuing to deem intervening plaintiffs Martinez and Bustos Garcia, and those similarly situated as being in unauthorized presence pursuant to 8 U.S.C. 1182(a)(9)(B)(i), where such persons would not be deemed unlawfully present but for DOMA 3 combined with defendants prior refusal to hold in abeyance applications and petitions filed by the intervening plaintiffs and members of the certified class; 5. issue a permanent injunction (a) enjoining defendants from denying lawful status and related benefits under the INA solely because lawfully married spouses are of the same sex; (b) vacating denials of applications and petitions filed by the intervening plaintiffs and class members issued by defendants solely based on DOMA 3; (c) requiring defendants to identify class members and to notify them, including the intervening plaintiffs, that denials issued by defendants solely based on DOMA 3 are vacated and will be readjudicated without additional fee and consistent with the Supreme Courts having declared DOMA 3 unconstitutional; (d) requiring that defendants extend to intervening plaintiffs and all class members the same interim benefits extended to different sex couples seeking family-based benefits
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under the INA; (e) enjoinging defendants from denying the intervening plaintiffs and class members lawful permanent resident status for reasons that would not be present but for defendants' refusal to hold DOMA-related cases in abeyance and their application of DOMA to plaintiff's, the intervening plaintiffs and class members petitions and applications; 6. award plaintiffs their costs and attorneys fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 2412; and 7. issue such further relief as the Court deems just and proper. Dated: July 8, 2013. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Peter A. Schey /s/ Carlos R. Holgun Attorneys for plaintiffs-in-intervention

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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 8th day of July, 2013, I electronically filed the foregoing COMPLAINT-IN-INTERVENTION FOR DECLARATORYAND INJUNCTIVE RELIEF 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: July 8, 2013.
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/s/ Carlos Holgun _________________