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Justice Department opposes class certification, preliminary injunction barring deportation of plaintiffs in DOMA challenge Aranas v. Napolitano
September 21, 2012
By Scottie Thomaston
In Aranas v. Napolitano, the class-action challenge to Section 3 of the Defense of Marriage Act as it applies to immigration, there is an ongoing dispute over the filing of briefs and the defense of the law. The Bipartisan Legal Advisory Group (BLAG) is tasked with defending Section 3, and it has filed a motion to intervene in the case which has not been granted. Meanwhile it is arguing that it should be allowed to defend the statute in full, filing large briefs in opposition to the motion for class certification and the motion for a preliminary injunction to bar deportation of the plaintiffs. In defense of its arguments, BLAG has suggested that the Justice Department would not adequately oppose these motions, since it supports the plaintiffs’ legal position on Section 3 of DOMA.
The Justice Department has now filed its opposition to class certification and its opposition to a preliminary injunction, as well as a motion to exceed the page limit for the latter motion.
Writing in its request for a 28 page brief instead of the standard 25, the Justice Department suggests that, “Plaintiffs’ Motion for a Preliminary Injunction advances legal arguments involving complex constitutional issues of equal protection and substantive due process. In addition, the preliminary injunction touches on technical immigration issues, which cannot be adequately addressed in a cursory manner.”
They suggest in their opposition to class certification (which would allow the parties to challenge Section 3 of DOMA as a class-action) that the definition used by the plaintiffs to form their class is defective and overly broad. They write that some of the people in the class would lack Article III standing, the legal right to appear in federal court to redress an injury. The brief goes on to say that the request fails all four of the requirements for class certification: commonality (the class has to be challenging common questions of law or fact, in essence, suffering the same injury); typicality, the claims of the class have to be the same as the claims of the parties to the class, and one of the plaintiffs is seeking a different form of redress than the others; adequacy of representation, meaning they have to show that their claims represent that of the class, and these don’t because previous DOMA challenges as applied to immigration “have all involved situations where a U.S. citizen spouse petitioned or is petitioning for their same-sex alien spouse through an I-130 Petition for Alien Relative (a non-discretionary benefit). Not a situation where an alien is seeking discretionary relief on her own behalf,” and the lead plaintiff is doing just that; and lastly, the numerosity requirement, that the class must show that it is so numerous the challenge should only go forward as a class action, and “[i]n their motion for class certification, Plaintiffs have not suggested or even speculated as to the number of members in the proposed class, nor have they introduced any evidence from which an estimate could reasonably be inferred. Instead, Plaintiffs state as fact — without citing any support — that there is a “constantly increasing number of lawfully married same-sex couples and their immigrant children.”.”
While continuing to suggest that Section 3 of DOMA is unconstitutional and laws classifying on the basis of sexual orientation are suspect and warrant a heightened form of judicial scrutiny, the Justice Department opposes a preliminary injunction barring deportation of the plaintiffs. The Justice Department makes four points: (1) plaintiffs have not made a showing of irreparable harm, because any harm, they write, can be remedied by narrower relief, and the alleged harm to the class that is asking to be formed is speculative, (2) issuing an injunction would cause the United States irreparable harm, because the executive branch is enforcing DOMA: “there remains a tangible and significant institutional harm that is caused by a broad lower court injunction against the enforcement of Section 3 of DOMA that militates against the issuance of a broad injunction here”, (3) the balance of harms weighs against issuing the injunction until the Supreme Court rules on this issue, likely this year, and (4) the court has no authority to issue an injunction against deportation, and has no authority to grant a class-wide injunction, anyway. So, the Justice Department is asking the judge to deny the injunction and to wait on the Supreme Court to finally rule before the law goes unenforced.
h/t to Kathleen for these filings
DOJ opposition to class certification:8:12-cv-01137 #35
Motion to exceed page limit:8:12-cv-01137 #38
Opposition to preliminary injunction:8:12-cv-01137 #39
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
15 Comments Leave a Comment
1.
Mike in Baltimore | September 21, 2012 at 1:22 pm
Opposition to class action means multiple trials. If BLAG is certified to be a party, and 'tasked with defending Section 3 of DOMA', that means BLAG will have to participate in multiple trials. Each trial is expensive; multiple trials do not reduce that expense very much through 'mass production'.
Could be a smart move by Justice to argue against a class action suit. Eventually, someone will ask, and get an answer, as to where the money for BLAG is coming from, and BLAG will be ordered to shut up shop.
2.
Sagesse | September 21, 2012 at 1:34 pm
Also, the DOJ has an interest in maintaining control of immigration enforcement, pending true immigration reform. There are broader policy implications to DOMA as it affects immigration that the DOJ would prefer to keep out of the courts.
3.
George | September 21, 2012 at 2:33 pm
WTF !!!!
Easy said – because you don't live in exile with your family !!!
The Obama administration could be giving humanitarian Visas for all LG&B families caught in this nightmare.
Enough said…is Friday…and I am tired of the Bullshit…
4.
Sagesse | September 21, 2012 at 2:50 pm
Sorry. I skipped over the part where the challenge to section 3 should be sufficient, if upheld, to have married, bi-national couples treated like other married couples. What the DOJ is opposing is the class action and the injunction.
5.
Alex | September 22, 2012 at 12:07 am
Don't worry George, hopefully in some months the supreme court will overturn the section 3 of DOMA and you and your family will be able to apply for a green card. I know how you feel, I'm going through the same with my family and waiting for the supreme court decision really bad…
6.
Jude | September 22, 2012 at 4:55 am
I'm still wondering whether, if section 3 of DOMA is overturned, all couples, regardless of the state they live in would then be able to apply for a green card or whether this would just apply to people living in states where there is marriage equality.
7.
W. Kevin Vicklund | September 22, 2012 at 6:16 am
Based on the underlying law, in general it would be whether the marriage was valid where they got married, not where they live, but there are other factors involved (for example, polygamous marriages aren't recognized even if it is legal in the country where they were performed).
8.
Steve | September 22, 2012 at 7:47 am
It depends on the law in question. Some are explicit about the place of residence, while others allow a marriage that was valid where it was registered.
Personally, I find it extremely silly for the federal government to defer to the state of residence where its laws are concerned. It makes a mockery out of the idea that people are citizens of the whole country.
9.
W. Kevin Vicklund | September 22, 2012 at 12:38 pm
True, but I was only referring to the green card question.
10.
jason walter | September 23, 2012 at 2:17 pm
<img src="http://storeshopnow.com/mm/imada/otot.jpg"/>No follow up comments on this article now? <img src="http://storeshopnow.com/mm/imada/toto2.jpg"/>
11.
nealinLA | September 23, 2012 at 4:01 pm
Off topic, but has anyone seen the article on BuzzFeed saying that AFER put out then partially retracted a statement that the Supreme Court will not consider Proposition 8 this Monday, September 24, and may wait until after the election to consider it and the DOMA cases? I am not that familiar with the accuracy of BuzzFeed, but hope this is not the case. I could find no press releases on AFER to confirm this. To see this article go to BuzzFeed, click on LGBT and the article "Supreme Court May Push Marriage Cases Until After Election".
12. Prop 8 Trial Tracker &raq&hellip | September 24, 2012 at 10:34 am
[...] Justice Department opposes class certification, preliminary injunction barring deportation of plaint… [...]
13.
Mike in Baltimore | September 24, 2012 at 3:56 pm
How about YOU posting the original AFER announcement, then 'partial retraction'? Reliance on a single 'source' is generally not a reliable way of conducting business.
And if you can't link to any AFER announcement, then maybe AFER didn't actually 'put out then partially retract' any statement? Maybe the author of the article at Buzzfeed just made it up?
14.
Alex | September 24, 2012 at 4:35 pm
So, if section 3 of DOMA was overturned next year by the Supreme Court, would same-sex binational still not be able to apply for a green card?
15. Prop 8 Trial Tracker &raq&hellip | October 18, 2012 at 8:31 am
[...] Justice Department had previously filed a motion opposing class certification and a preliminary injunction barring deportation of the plaintiffs and those [...]
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