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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 20044Telephone: (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
MARTIN ARANAS, et al., ) No. 8:12-cv-1137-CBM (AJWx)
)
Plaintiffs, ) DEFENDANTS NOTICE OF MOTION
) AND MOTION TO STAY DISCOVERY
v. ) PROCEEDINGS
)
JANET NAPOLITANO, Secretary, )
Department of Homeland Security, )
et al., ) Hearing Date: November 26, 2012Defendants. ) Time: 11:00 a.m.
______________________________ ) Judge: Hon. Consuelo B. Marshall
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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 20044Telephone: (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
MARTIN ARANAS, et al., ) No. 8:12-cv-1137-CBM (AJWx)
)
Plaintiffs, ) DEFENDANTS MEMORANDUM OF
) POINTS AND AUTHORITIES IN
v. ) SUPPORT OF MOTION TO STAY
) DISCOVERY PROCEEDINGS
JANET NAPOLITANO, Secretary, ) PENDING RESOLUTIONOF THE
Department of Homeland Security, ) MOTIONS TO DISMISS
et al., )Defendants. ) Hearing Date: November 26, 2012
) Time: 11:00 a.m.
______________________________ ) Judge: Hon. Consuelo B. Marshall
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INTRODUCTION
This Court should stay discovery proceedings. As Magistrate Judge Wistrich
concluded in his October 25, 2012 Order, Defendants previously made a persuasive
showing that they may be entitled to a stay of discovery in light of the characteristics
and potentially dispositive nature of the pending motions. See Dkt. No. 66.
Defendants and the Bipartisan Legal Advisory Group (BLAG) filed motions to
dismiss pending before this Court, which could resolve the entire case. The resolution
of the motions to dismiss does not turn on any contested factual matter. As a result, a
stay of discovery furthers the interests of judicial economy and preservation of
government resources.
Additionally, a stay of discovery would not prejudice Plaintiffs. Plaintiffs have
not sought, nor are they entitled to, discovery concerning the merits of their claims
the same claims at issue in the pending motions to dismiss. Moreover, although
Plaintiffs contend that discovery is necessary for the resolution of their motions for
class certification and for a preliminary injunction, this Court can decide both motions
without discovery, as evidenced by the fact that Plaintiffs waited until after filing those
motions to serve discovery. Accordingly, this Court should stay any discovery until it
has ruled on the motions to dismiss.
PROCEDURAL HISTORY
Plaintiffs filed this action on July 14, 2012. Dkt. No. 1. That same day,
Plaintiffs sent to Defendants a draft motion for a preliminary injunction. See Dkt. No.
16 at 5. On August 23, 2012, Plaintiffs filed motions for class certification and for a
preliminary injunction. Dkt. Nos. 12, 13. Despite having long anticipated and
prepared for the filing of those motions, Plaintiffs did not at that time seek discovery tosupport their motions or an order from this Court permitting expedited or early
discovery. On August 27, 2012, this Court granted Defendants ex parte application,
continuing the hearing on Plaintiffs motions to October 9, 2012, and ordering
Defendants responses due September 14, 2012. Dkt. No. 17.
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On September 10, 2012, four days before Defendants responses to Plaintiffs
motions were due, Plaintiffs e-mailed a Notice of Rule 30(b)(6) Depositions to counsel
for Defendants. See Exhibit 1. The next day, Defendants informed Plaintiffs by e-mail
that they opposed engaging in discovery prior to the October 9, 2012 hearing date.
See E-mail from T. Belsan to P. Schey (Sept. 11, 2012, 17:31 EST) (attached hereto as
Exhibit 2). Defendants further stated that the case should be resolved based upon the
record of the agency under the APA and that discovery was improper at this stage of
the litigation. Id.
On September 14, 2012, Defendants filed their oppositions to Plaintiffs motions
for class certification and for a preliminary injunction. Dkt. Nos. 35, 39. On
September 24, 2012, Defendants sent a letter to Plaintiffs counsel explaining their
position regarding Plaintiffs deposition notice in further detail. See Letter from J.
Carlson to P. Schey (Sept. 24, 2012) (attached hereto as Exhibit 3). Defendants noted
that the parties had not yet conferred as required by Federal Rule of Civil Procedure
26(f), and that, under Rule 26(d)(1), Plaintiffs could not seek discovery without a
stipulation or court order. Id. Defendants made clear that they did not stipulate to
early discovery. Id. In addition, Defendants informed Plaintiffs that because this is
an APA case, discovery is unwarranted at any phase of the litigation. Id. The next
day, Plaintiffs e-mailed to counsel for Defendants written discovery including requests
for admission, production of documents, and interrogatories. See Exhibit 4. Plaintiffs
did not, however, seek a court order allowing expedited discovery.
On September 27, 2012, counsel for Defendants reiterated to counsel for
Plaintiffs by telephone Defendants position that because the parties had not yet
conferred pursuant to Rule 26(f) and Plaintiffs had not obtained a court order, anydiscovery they had served was premature. Despite Defendants position that discovery
was premature, Counsel also informed Plaintiffs that Defendants were amenable to
scheduling a Rule 26(f) conference to comply with the Federal Rules of Civil
Procedure and to further discuss the issues. Notwithstanding that conversation, on
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September 28, 2012, Plaintiffs counsel sent to Defendants counsel a Proposed
Stipulation Regarding Discovery Dispute, pursuant to Local Rule 37-1. In an
accompanying letter, Plaintiffs request[ed] to confer with defendants in a good faith
effort to eliminate or narrow the parties dispute regarding discovery and to finalize a
joint stipulation pursuant to Local Rule 37-2. Letter from P. Schey to J. Carlson
(Sept. 28, 2012) (attached hereto as Exhibit 5). Plaintiffs also noted that under Rule
30(a)(2), plaintiffs may seek leave to conduct early discovery. Id. Plaintiffs did not,
however, seek a court order allowing expedited discovery at that time.
On October 2, 2012, Defendants informed Plaintiffs via letter that because the
parties had still not conferred under Rule 26(f) and Plaintiffs had not obtained a court
order, both discovery and a motion to compel remained inappropriate. Letter from J.
Carlson to P. Schey (Oct. 2, 2012) (attached hereto as Exhibit 6). Defendants,
however, suggested a prompt Rule 26(f) conference to thoroughly discuss discovery-
related issues, and proposed dates and times for such a conference that week. Id.
Defendants also suggested that BLAG be included. On October 3, 2012, Plaintiffs sent
a revised Proposed Stipulation Regarding Discovery Dispute to Defendants.
On October 5, 2012, Plaintiffs, Defendants, and BLAG engaged in an initial
Rule 26(f) conference via telephone and discussed all issues required pursuant to the
Local Rules and Federal Rules of Civil Procedure. During that conference, Defendants
indicated their position that discovery proceedings should be stayed pending the
Courts resolution of the motions to dismiss pending before it.1
Following the Rule
26(f) conference, Plaintiffs re-served Defendants with the prior written discovery,
including requests for admission, production of documents, and interrogatories.
However, Plaintiffs re-served Defendants with the prior deposition notice for October4, 2012 depositions, a date which had already passed. To date, Plaintiffs have not
1Defendants indicated that because they believe discovery to be improper at this time, a subsequent
Rule 26(f) Conference may be necessary at a later date to revisit some of the items of discussion.
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served a deposition notice dated any time after the Rule 26(f) conference.2
In addition,
Plaintiffs, Defendants, and BLAG put together a Rule 26(f) report to be filed with the
Court. Defendants consented to Plaintiffs filing of the final report on October 18,
2012, having outlined their position that discovery proceedings should be stayed at that
time. Plaintiffs filed the report on October 27, 2012. See Dkt. No. 67.
On October 17, 2012, Plaintiffs filed a motion to compel Defendants to appear
in response to Plaintiffs deposition notice and to respond to Plaintiffs written
discovery. See Dkt. No. 59. That same day, Plaintiffs filed an ex parte application to
expedite resolution on the motion to compel due to the upcoming November 20, 2012
hearing. See Dkt. No. 60. On October 18, 2012, Defendants opposed the ex parte
application. See Dkt. No. 61.
On October 25, 2012, Magistrate Judge Wistrich denied Plaintiffs ex parte
application. See Dkt. No. 66. Judge Wistrich concluded that to the extent that there
is any urgency, it appears that it is attributable to plaintiffs failure to seek expedited
discovery several months ago. Id. Judge Wistrich further held that Plaintiffs motion
to compel was not yet ripe as Defendants had not even been afforded the opportunity
to respond to the written discovery requests. Id. Finally, Judge Wistrich noted that
while Defendants had not yet moved for a stay of discovery, [D]efendants have made
a persuasive showing that they may be entitled to one in light of the characteristics and
potentially dispositive nature of the pending motions. Id.
2 Because there is no deposition notice pending at this time, Defendants ensuing argument primarily
addresses Plaintiffs written discovery. The arguments, however, apply equally to both types ofdiscovery.
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ARGUMENT
I. Discovery Proceedings Should Be Stayed Until This Court Rules on the PendingMotions to Dismiss.
Discovery proceedings in this case should be stayed until this Court has ruled on
the two pending motions to dismiss. As the Ninth Circuit has noted, a stay of
discovery is warranted pending resolution of a potentially dispositive motion such as
a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or (b)(6)
when the motion to dismiss does not rely on contested factual issues. See Jarvis v.
Regan, 833 F.2d 149, 155 (9th Cir. 1987) (Discovery is only appropriate where there
are factual issues raised by a Rule 12(b) motion.); see also Rae v. Union Bank, 725
F.2d 478, 481 (9th Cir. 1984) ([D]iscovery is appropriate where there are factual
issues raised by the motion.);Doherty v. Wireless Broad. Sys., 151 F.3d 1129, 1131
(9th Cir. 1998) (affirming lower court decision reducing EAJA fee award on the basis
that party did not need to undertake discovery because the issue in the case was a
purely legal question). When dispositive motions are pending, a stay furthers the
goal of efficiency for the court and litigants. Little v. City of Seattle, 863 F.2d 681,
685 (9th Cir. 1988) (holding that on the facts presented, discovery could not have
affected the district courts preliminary decision regarding issues of immunity).
In considering whether a stay of all discovery pending the outcome of a
dispositive motion is warranted, a case-by-case analysis is required. Skellerup Indus.
Ltd. v. City of Los Angeles, 163 F.R.D. 598, 601 (C.D. Cal. 1995) (quotations and
alterations omitted). Factors the Court should consider include: [T]he type of motion
and whether it is a challenge as a matter of law or the sufficiency of the allegations;
the nature and complexity of the action; whether counterclaims and/or cross-claimshave been interposed; whether some or all of the defendants join in the request for a
stay; the posture or stage of the litigation; the expected extent of discovery in light of
the number of parties and complexity of the issues in the case; and any other relevant
circumstances. Id.
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A stay is warranted in this case. First, there are two pending motions to dismiss:
BLAGs motion to dismiss, Dkt. Nos. 36, 62, and Defendants Partial Motion to
Dismiss, Dkt. No. 46. BLAGs motion contends that all three named Plaintiffs lack
standing and therefore the Court lacks subject matter jurisdiction over all of Plaintiffs
claims. Dkt. No. 62 at 8. BLAGs motion also contends that Plaintiffs equal
protection and substantive due process claims fail to state a claim upon which relief
can be granted. Id. at 8-29. Defendants motion asserts that Plaintiffs Aranas and
Rodriguez lack standing and that Plaintiffs substantive due process and statutory
discrimination claims must be dismissed. See Dkt. No. 46 at 1. Thus, the pending
motions are potentially dispositive of the entire case.
Moreover, neither motion relies on contested factual issues: Both of the pending
motions raise purely legal challenges to Plaintiffs standing and claims. Thus, the
Court can rule on the pending, potentially dispositive motions absent discovery. See,
e.g.,McCarthy v. Hawkins, 381 F.3d 407, 420-21 (5th Cir. 2004) (The
constitutionality of these statutes is a purely legal question that can be resolved without
the aid of either discovery or trial.). Accordingly, in the interest of judicial economy
and preservation of government resources, Defendants ask this Court to stay all
discovery in this case until it has ruled on the pending motions to dismiss.3
II. Plaintiffs Will Not Be Prejudiced by a Stay of Discovery Because Discovery IsNeither Necessary Nor Appropriate.
Plaintiffs will not be prejudiced by a stay of discovery because no discovery is
appropriate with regard to the merits of Plaintiffs claims, which present pure questions
3 Although this case involves a motion for class certification and a motion for a preliminary
injunction, it is technically an action challenging agency action under the Administrative Procedure
Act (APA). See Complaint, Dkt. No. 1 at 4. In such cases, discovery is typically precluded, evenwhen constitutional issues are raised, as long as the Court is only faced with resolving issues of law.Occidental Engg Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985) (stating that when reviewing a final
agency action there are no disputed facts that the district court must resolve because the court isnot required to resolve any facts in a review of an administrative proceeding).
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of law.4
It is likely that the constitutionality of Section 3 of DOMA will be resolved
by the Supreme Court by June 2013, making it possible that no discovery will ever be
needed for this case. Likewise, discovery is not necessary for this Court to rule on
Plaintiffs motions for a preliminary injunction and for class certification.
1.No Discovery Is Necessary Concerning the Merits of Plaintiffs Claims.Plaintiffs have not at this time sought, nor are they entitled to, discovery
concerning the merits of this action. Plaintiffs claim that Section 3 of DOMA is
unconstitutional is a pure question of law for which there are no issues of fact to be
elicited through discovery. See United States v. Lujan, 504 F.3d 1003, 1006 (9th Cir.
2007) ([T]he constitutionality of a federal statute [is] a question of law that we review
de novo.); Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir.
2006) ([A] facial challenge to the constitutionality of a statute presents a pure
question of law.); Sindicato Puertorriqueno de Trabajadores v. Fortuno, No. 12-
2171, --- F.3d ----, 2012 WL 5077158, *6 (1st Cir. Oct. 19, 2012) (holding that further
factual development was unnecessary prior to reaching the merits because a facial
challenge to a statute presents a question of law that the district court could and should
have resolved on the present record). Accordingly, no discovery is appropriate with
regard to the merits of Plaintiffs claims.
2.No Discovery Is Needed Regarding the Issuance of a Preliminary Injunction.Likewise, whether Plaintiffs have suffered irreparable harm is at this point a
legal question. Although Plaintiffs allege the existence of contested factual issues
concerning irreparable harm to class members, see Stipulation Re Discovery Dispute,
Dkt. No. 59-1 at 2, 5-6, Defendants did not challenge any of Plaintiffs factual
allegations but rather accepted them as true for purposes of their opposition. See Dkt.
4 Plaintiffs have made clear that they seek discovery only with regard to the issues presented in the
motions for class certification and for a preliminary injunction. See Stipulation Re Discovery
Dispute, Dkt. No. 59-1 at 2 ([P]laintiffs contend that discovery is immediately appropriate with
respect to the factual claims defendants make in opposing plaintiffs motions for preliminaryinjunction and class certification . . .); see also Exhibit 5 (same).
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No. 39 at 2 n.1 (Defendants rely on the facts as alleged in the Complaint for purposes
of this opposition.). Indeed, all of Defendants arguments concerning the lack of
irreparable harm are based on legal rather than factual assertions. For example, when
discussing Plaintiffs alleged harm of arrest and removal due to their being out of
status, Defendants simply point to the statutes and regulations that govern the removal
process, including the regulations allowing aliens ordered removed to seek relief from
removal. Id. at 20-21. Defendants likewise point to the Morton Policy memos which
describe ICEs prioritization of immigrants for removal in order to demonstrate that
Plaintiffs are not within the list of such priorities. Id. at 23. These arguments as well
as all of Defendants other arguments against irreparable harm raise only legal, not
factual, issues.
The issues that Plaintiffs point to as examples of why discovery is needed with
regard to the preliminary injunction either: (1) pertain more to issues of class
certification than irreparable harm, see Stipulation Re Discovery Dispute, Dkt. No. 59-
1 at 6 (Again, by responding to plaintiffs discovery requests the parties, their
counsel, and the [C]ourt would far better understand how many putative class members
in fact face irreparable harm or have lost work authorization based upon DOMA.
(emphasis added)); or (2) seek hypothetical, prospective information regarding what
Defendants might do if DOMA is ruled unconstitutional, information that is both
speculative and protected from disclosure under the deliberative process privilege (and
other applicable privileges), see id. at 5 (Plaintiffs discovery seeks information on
how defendants could, if at all, retroactively erase illegal employment and
unauthorized presence . . . even ifthe Supreme Court eventually agrees with
defendants that DOMA is unconstitutional.) (emphasis in original). Accordingly,Plaintiffs have not shown any need for discovery to respond to Defendants opposition
to their motion for preliminary injunction.
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3.No Discovery Is Necessary Regarding Class Certification Before Resolutionof the Motions to Dismiss.
Finally, Plaintiffs do not need discovery regarding class certification before the
Court Resolves the pending motions to dismiss. Defendants note that Plaintiffs
themselves did not initially believe discovery was necessary for the resolution of their
motion for class certification, as evident from their decision not to seek a court order
commencing expedited discovery a procedure contemplated by the federal rules
prior to filing their motion for class certification. See Fed. R. Civ. P. 26(d)(1) and
30(a)(2). Rather, Plaintiffs decided to file their class motion and notice it for the
earliest possible hearing, September 24, 2012 approximately one month after filing.
Indeed, Plaintiffs opposed Defendants request to move the hearing date to allow moretime for briefing, providing further support that the Court could rule on their motions
quickly, without the aid of discovery. Defendants agree, as Plaintiffs appear to have
acknowledged through their position on the hearing schedule, that discovery is not
necessary for the Court to resolve Plaintiffs motion for class certification.
Moreover, Plaintiffs purported urgent need for such discovery is belied by their
decision to wait until now to properly seek discovery. As previously noted, Plaintiffs
could have sought an order from this Court permitting expedited discovery with regard
to class certification. They did not choose to do so. Plaintiffs have known they would
be seeking class certification for more than three months and have been repeatedly
reminded by Defendants of the proper procedural steps for seeking such discovery.
Moreover, Plaintiffs fail to point to anything in Defendants opposition to the motion
for class certification so unexpected as to warrant early discovery. Indeed, Plaintiffs
sent their Rule 30(b)(6) deposition notice, albeit improperly, before Defendants
responded to their motions. Thus, even if there were any prejudice resulting from the
issuance of a stay of discovery pending resolution of the motions to dismiss which
there is not it would be a product of Plaintiffs decision to wait until this late date to
seek discovery in compliance with the Federal Rules of Civil Procedure. Accordingly,
this Court should stay all discovery proceedings until it has ruled on Defendants and
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BLAGs pending motions to dismiss, which may obviate the need for any discovery at
all.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court stay
discovery proceedings in this case until it has ruled on the two pending motions to
dismiss.
DATED: October 29, 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. CarlsonJESI 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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Exhibit 1
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CENTER FORHUMAN RIGHTS AND CONSTITUTIONAL LAWPeter A. Schey (Cal. Bar No. 58232)Carlos R. Holgun (Cal. Bar No. 90754)256 S. Occidental Blvd.Los Angeles, CA 90057Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309)
Facsimile: (213) 386-9484pschey@centerforhumanrights.orgcrholguin@centerforhumanrights.org
Additional counsel listed next page
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
MARTIN R.ARANAS,IRMA RODRIGUEZ, ANDJANE DELEON,
Plaintiffs,
-vs-
JANETNAPOLITANO,Secretary of theDepartment of Homeland Security;DEPARTMENT OF HOMELANDSECURITY;ALEJANDRO MAYORKAS,Director, United States Citizenship and
Immigration Services;andUNITED STATES CITIZENSHIP &IMMIGRATION SERVICES,
Defendants.__________________________________
))))))
)))))))))))))
))))))))
SACV12-01137 CBM AJWx)
NOTICE OF FED. R. CIV. P.30(B)(6) DEPOSITION OF
DEFENDANTSDEPARTMENT OFHOMELAND SECURITY ANDUNITED STATESCITIZENSHIP ANDIMMIGRATION SERVICES
Hearing: None
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2Center for Human Rights & Constitutional Law
256 S. Occidental Blvd.Los Angeles, CA 90057
213/388-8693
Additional counsel for plaintiff Aranas:
PUBLIC LAW CENTERJulie Greenwald (Cal. Bar No. 233714)Monica Ashiku (Cal. Bar No. 263112)601 Civic Center Drive WestSanta Ana, CA 92701Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249)Facsimile: (714) 541-5157
jgreenwald@publiclawcenter.orgmashiku@publiclawcenter.org
ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan (Cal. Bar No. 271064)184 Jackson Street, San Jose, CA 95112Telephone: (408) 287-9710Facsimile: (408) 287-0864
Email: bpangilinan@asianlawalliance.org
Additional counsel for plaintiffs Rodriguez and DeLeon:
LAW OFFICES OF MANULKIN &BENNETTGary H. Manulkin (Cal. Bar No.41469)Reyna M. Tanner (Cal. Bar No.197931)10175 Slater Avenue, Suite 111Fountain Valley, CA 92708Telephone: 714-963-8951
Facsimile: 714-968-4948gmanulkin@mgblaw.comreynatanner@yahoo.com
/ / /
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3Center for Human Rights & Constitutional Law
256 S. Occidental Blvd.Los Angeles, CA 90057
213/388-8693
TO: ALL PARTIES OF RECORD AND THEIR ATTORNEYS
YOU ARE HEREBY NOTIFIED that, pursuant to Rules 26 and 30(b)(6), Federal
Rules of Civil Procedure, the deposition of the Rule 30(b)(6) witnesses identified below
will be taken upon oral examination at the time and place stated before an officer
authorized by law to administer oaths. Pursuant to Rule 30(b)(6), you are requested to
designate officers, directors, or managing agents, or other persons who consent to testify on
your behalf, who are most knowledgeable with respect to each of the topics identified in
Exhibit A to testify about such matters.
TO BE EXAMINED: 30(b)(6) Representative(s) of theDepartment of Homeland Security
BEFORE WHOM APPEARANCE TOBE MADE: Notary Public/Court Reporter
DATE AND TIME OF DHS DEPOSITION: Thursday, October 4, 2012 at 9:00 a.m.
DATE AND TIME OF CIS DEPOSITION: Thursday, October 4, 2012 at 1:00 p.m.
PLACE OF DEPOSITION: Law Office of Jim Tom Haynes
1555 Connecticut Ave., NW, Suite 200
Washington, DC 20036
These depositions shall be recorded by stenographic means. The oral examinations
will continue from day-to-day thereafter on successive business days until completed.
/ / /
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4Center for Human Rights & Constitutional Law
256 S. Occidental Blvd.Los Angeles, CA 90057
213/388-8693
EXHIBIT A TOPICS FOR EXAMINATION
1. The Rule 30(b)(6) designees relationship with defendants, including his or her
employment history, current position, and responsibilities.
2. The allegations in paragraphs 14-68 of Plaintiffs Complaint for Declaratory and
Injunctive Relief filed July 12, 2012.
3. The manner in which defendants have tracked the cases regarding petitions or
applications for benefits under the INA involving same sex married couples.
4. The standards, procedures, guidelines and/or instructions issued or followed by
defendants regarding the processing of applications or petitions under the INA involving
same sex married couples or their children.
5. The standards, procedures, guidelines and/or instructions issued or followed by
defendants regarding granting immigrants temporary work permits and/or deferred action
status in cases involving petitions or applications under the INA filed by persons in same
sex marriages pending a definitive court verdict on the constitutionality of DOMA.
6. The standards, procedures, guidelines and/or instructions issued or followed by
defendants regarding notifying immigrants seeking benefits under the INA in same sex
/ / /
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5Center for Human Rights & Constitutional Law
256 S. Occidental Blvd.Los Angeles, CA 90057
213/388-8693
marriages about seeking or obtaining temporary work permits and/or deferred action status
pending a definitive court verdict on the constitutionality of DOMA.
Dated: September 10, 2012. CENTER FORHUMAN RIGHTS ANDCONSTITUTIONAL LAW
Peter A. ScheyCarlos R. Holgun
PUBLIC LAW CENTERJulie Greenwald MarzoukMonica Ashiku
ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan
LAW OFFICES OF MANULKIN &BENNETTGary H. ManulkinReyna M. Tanner
Peter A. ScheyAttorneys for Plaintiffs
CERTIFICATE OF SERVICE
SACV12-01137 CBM (AJWx)
I hereby certify that on this 10th day of September, 2012, I served the
foregoing on defendants counsel via email and overnight delivery as follows:
Carlson, Jesi J. (CIV)
David (CIV) Kline Belsan, Timothy M. (CIV) Bill Orrick
Jesi J. CarlsonDavid KlineTimothy Belsan,
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6Center for Human Rights & Constitutional Law
256 S. Occidental Blvd.Los Angeles, CA 90057
213/388-8693
Bill OrrickOffice of Immigration Litigation
Civil Division, U.S. Department of JusticeLiberty Square Building450 5th Street, N.W., Room LL111B (mail intake room)Washington, DC 20001
Dated: September 10, 2012Peter Schey
/ / /
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Exhibit 2
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From: Belsan, Timothy M. (CIV)
To: "Peter Schey"; Carlson, Jesi J. (CIV); Kline, David (CIV)
Cc: Carlos Holguin; Reyna Tanner; Julie Greenwald; Bea Pangilinan; Monica Ashiku
Subject: RE: Aranas v. Napolitano
Date: Tuesday, September 11, 2012 5:31:00 PM
Peter,
Defendants oppose engaging in discovery prior to the October 9, 2012 hearing date. We believe
that the case should be resolved based upon the record of the agency under the APA. In any
event, it is improper at this stage of the litigation.
Sincerely,
Tim
From: Peter Schey [mailto:pschey@centerforhumanrights.org]
Sent: Monday, September 10, 2012 8:54 PMTo: Carlson, Jesi J. (CIV); Kline, David (CIV); Belsan, Timothy M. (CIV); Bill OrrickCc: Carlos Holguin; Reyna Tanner; Julie Greenwald; Bea Pangilinan; Monica AshikuSubject: Re: Aranas v. Napolitano
Dear Jesi, Tim, David and Bill,I would like to chat with one or more of you tomorrow (Tuesday) if possible to discussplaintiffs' interest in conducting a Rule 30(b)(6) deposition before the hearing on plaintiffs'motions for a preliminary injunction and class certification. If you like, I am also prepared todiscuss other issues under Rule 26(d). I have attached a Rule 30(b)(6) deposition notice. Weare flexible on dates but do believe it would be helpful to all parties and the Court to get this
deposition done before the October 9, 2012 hearing date.You may reach me at 323-251-3223.Thank you.best wishes,Peter ScheyCenter for Human Rights and Constitutional Lawwww.centerforhumanrights.org
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Exhibit
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Exhibit
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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAWPeter A. Schey (Cal. Bar No. 58232)Carlos R. Holgun (Cal. Bar No. 90754)256 S. Occidental Blvd.Los Angeles, CA 90057Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309)
Facsimile: (213) 386-9484pschey@centerforhumanrights.orgcrholguin@centerforhumanrights.org
Additional counsel listed next page
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION
MARTIN R.ARANAS,et al.,
Plaintiffs,
-vs-
JANET NAPOLITANO,Secretary of theDepartment of Homeland Security; etal.,
Defendants.__________________________________
)))))
)))))))))))
SACV12-01137 CBM (AJWx)
PLAINTIFFSFIRST SET OF
INTERROGATORIES,REQUESTS
FOR ADMISSIONS, AND
REQUESTS FOR PRODUCTION OF
DOCUMENTS.
Requests for Admissions 1-21;
Requests for Documents 1-15;Interrogatories 1-21.
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Additional counsel for plaintiff Aranas:
PUBLIC LAW CENTERJulie Greenwald (Cal. Bar No. 233714)Monica Ashiku (Cal. Bar No. 263112)601 Civic Center Drive West
Santa Ana, CA 92701Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249)Facsimile: (714) 541-5157
jgreenwald@publiclawcenter.orgmashiku@publiclawcenter.org
ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan (Cal. Bar No. 271064)184 Jackson Street, San Jose, CA 95112Telephone: (408) 287-9710
Facsimile: (408) 287-0864Email: bpangilinan@asianlawalliance.org
Additional counsel for plaintiffs Rodriguez and DeLeon:
LAW OFFICES OF MANULKIN &BENNETTGary H. Manulkin (Cal. Bar No. 41469)Reyna M. Tanner (Cal. Bar No. 197931)10175 Slater Avenue, Suite 111Fountain Valley, CA 92708
Telephone: 714-963-8951Facsimile: 714-968-4948gmanulkin@mgblaw.comreynatanner@yahoo.com
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Plaintiffs request that defendants USCIS and DHS, by authorized
officers or agents thereof, within 30 days or such other time as may be fixed
by the Court, respond to the following requests for admissions, requests for
production of documents, and interrogatories in accordance with Rules 33,34, and 36 of the Federal Rules of Civil Procedure.
I DEFINITIONS AND INSTRUCTIONS
1. When asked to produce a document, provide an admission or
answer an interrogatory, the request pertains to information in the
possession of the Department of Homeland Security (DHS), its subordinateagencies, including U.S. Citizenship and Immigration Services (CIS), past or
present officers, employees, agents, consultants and contractors of the same.
2. If you object to the production of a portion of a document, but not
the entire document, produce that portion of the document to which no
objection is made and indicate your objection on the document or an
accompanying document (referring to the portion produced by page
number[s]).
3. If you object to providing a response to any portion of an
interrogatory, but not the entire interrogatory, please respond to that portion
of the interrogatory to which no objection is made and indicate in your
response that you object to the remaining portion of the interrogatory.
4. Please set forth fully the factual and legal basis for each objection
you make. If your objection relates to a document, please state (unless you
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believe this information is also privileged or objectionable) the date of the
document, name of the author, if known, the agency or entity which
generated the document, the recipient(s) of the document, the number of
pages, the general subject matter of the document, any reference numbers onthe document, and the identity of the present custodian of the document. If
you believe the limited information sought in this paragraph is also
privileged or objectionable, please explain fully the basis for your position.
5. If you object to any discovery request herein on the ground that it is
too broad or burdensome, please respond to the request the extent you deemit not overly broad or burdensome. Please note your objection and provide a
description of the quantity of the balance of the information not produced or
responded to and explain why you believe that production of these
documents or a response would be unduly burdensome.
6. These requests are continuing in nature and any documents or other
information which you discover subsequent to the service of your responses
should be brought to the attention of plaintiffs through supplemental
responses.
7. In responding to requests, please ensure that each response may be
linked to the request to which it responds. Please number the pages of all
documents that you produce sequentially. In response to each request please
separately state which documents respond to the request with reference to
the document and its page number(s). Please do not answer a request for
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production of documents by simply stating the documents sought are
provided in response to another request. Instead, specifically state the title(s)
of the particular document(s) and page numbers as they appear in your
responses. Plaintiffs will seek an order compelling appropriate managementof your responses unless you make a good faith effort to comply with this
instruction.
As used herein
1. The words you or your include the DHS, its subordinate
agencies, including CIS, and the past and present officers, employees andagents of the DHS and/or CIS.
2. The term document means any written, recorded, taped or
graphic matter, as well as information in electronic form, including all non-
identical copies and drafts thereof. Document specifically includes
electronically stored information as that term is used in the Federal Rules
of Civil Procedure, and any and all computer disks or other computer
readable media, and any information from any e-mail system.
3. When used with respect to a place or office, the term identify
means to provide the name of the place or office, its street and mailing
addresses, its telephone number, and the identity of its officer-in-charge.
When used with respect to a person, the term identify means to provide
the persons full name, job description or title (other than for immigrants),
and last known U.S. mailing and street addresses and telephone number(s).
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Plaintiffs counsel will not make public any personnel information about
third persons, including their names or addresses, and will enter into an
appropriate stipulation protecting such information from unauthorized
disclosure. If you nevertheless refuse to provide third parties names, pleaseassign them each a number and provide that number in your response in
place of their names. When used with respect to a document, the term
identify means to (1) identify the custodian of the document, and (2) state
the page number(s) of the document if produced by you for inspection and
copying, or, if not produced, identify the author(s) of the document, andstate the date of the document, number of pages, and its subject. When used
with respect to a filing system, the term identify means (1) provide the
name of the filing system, (2) identify the custodian of the filing system, (3)
identify the location of the filing system, and (4) state whether, and if so
where, an index to the filing system exists.
11. The term present (e.g., from January 2006 to the present) means
the date on which you respond to these discovery requests.
12. The term bi-national same-sex couple (BNSSC) refers to two
persons of the same sex, one of whom is a U.S. citizen or lawful permanent
resident alien, and the other of whom is a foreign national, who are lawfully
married pursuant to the laws of the jurisdiction in which their marriage was
celebrated.
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13. The term immigration benefit[s] refers to any authorization,
status, permission, waiver, or exercise of discretion pursuant to the
Immigration and Nationality Act, 8 U.S.C. 1101, et seq. (INA).
II REQUESTS FOR ADMISSIONS
1. Admit that CIS has advised BNSSCs whose applications or petitions
for immigration benefits it has denied pursuant to 3 of the Defense of
Marriage Act, 1 U.S.C. 7 (DOMA), that the authorization of the alien spouse
to accept employment is terminated pursuant to 8CFR274a.14(a)(1).
2. Admit that has advised BNSSCs whose applications or petitions forimmigration benefits it has denied pursuant to DOMA 3 that the foreign
national spouses parole into the United States is terminated.
3. Admit that CIS has advised BNSSCs whose applications or petitions
for immigration benefits it has denied pursuant to DOMA 3 that the
foreign national spouse is thereafter accruing unlawful presence and that
any alien over 18 years old who is illegally in the United States after April 1,
1997, and who accrues six months or more unlawful presence will be
prohibited from being admitted to the United States should that person
depart this country and seek readmission within three years, and that any
such foreign national spouse who is illegally in the United States for over one
year after April 1, 1997, departs the United States, and seeks readmission
within ten years, that person will be prohibited entry.
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4. Admit that you are aware of no records showing that when advising
a member of a BNSSC whose application or petition for immigration benefits
you have denied in writing pursuant to DOMA 3, you have advised the
member of the BNSSC that you or the Administration believe DOMA isunconstitutional or that the foreign born spouse may be granted any
temporary authorized status and employment authorization pending a
definitive ruling by the courts on the constitutionality of DOMA.
5. Admit that you are aware of no records showing that when advising
a member of a BNSSC whose application or petition for immigration benefitsyou have denied in writing pursuant to DOMA 3 you have advised the
member of the BNSSC of any procedures that person may follow to retain or
obtain temporary employment authorization and temporary authorized
presence pending a definitive ruling by the courts on the constitutionality of
DOMA.
6. Admit that you have not issued any written instructions or directives
to USCIS or USICE officers directing them to advise members of BNSSCs
whose applications or petitions for immigration benefits may not be
approved or have been denied pursuant to DOMA 3 about any procedures
such persons may follow to retain or obtain temporary employment
authorization and temporary authorized presence pending a definitive
ruling by the courts on the constitutionality of DOMA.
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7. Admit that you have not issued any written instructions or directives
to USCIS or USICE officers instructing them to advise members of BNSSCs
whose applications or petitions for immigration benefits may not be
approved or have been denied pursuant to DOMA 3 about any proceduressuch persons may follow to retain or obtain temporary employment
authorization and temporary authorized presence pending a definitive
ruling by the courts on the constitutionality of DOMA.
8. Admit that you have not issued any written instructions or directives
to USCIS or USICE officers instructing them to grant members of BNSSCs,whose applications or petitions for immigration benefits may not be
approved or have been denied pursuant to DOMA 3, temporary
employment authorization and temporary authorized presence pending a
definitive ruling by the courts on the constitutionality of DOMA.
9. Aside from the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, admit that you have not
made available to the public on your web site, in the Code of Federal
Regulations, or in any other way readily available to members of BNSSCs or
their counsel, the procedures and standards to be applied when you decide
whether to grant or deny a member of a BNSSC temporary authorized status
and employment authorization.
10. Admit that you are not aware of any BNSSCs or their counsel being
notified about procedures available under the Memoranda from John
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Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17,
2011, when members of BNSSCs or their counsel have been advised by you
in writing that an application or petition for an immigration benefit cannot
be approved or must be denied because of DOMA 3.11. Admit that plaintiff Jane DeLeon may be eligible for a waiver of
inadmissibility were it not for DOMA 3.
12. Admit that plaintiff Jane DeLeon is prima facie eligible for lawful
permanent residence were she granted a waiver of inadmissibility.
13. Admit that plaintiff Martin Aranas is prima facie eligible for lawfulpermanent residence as a derivative beneficiary of plaintiff Jane DeLeon
were plaintiff DeLeons application for adjustment of status granted.
14. Admit that CIS does not know how many applications and
petitions for immigration benefits filed by members of BNSSCs it has denied
pursuant to DOMA 3.
15. Admit that you have not kept track of the number of foreign
national members of BNSSCs denied immigration benefits pursuant to
DOMA 3 who have departed the United States after receiving denial letters
from you telling them their employment authorization and lawful status is
terminated and they are acquiring unlawful presence towards the three and
ten-year bars.
16. Admit that you have not kept track of the number of cases in which
you have terminated employment authorizations of foreign nationals when
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you denied their applications or petitions for immigration benefits pursuant
to DOMA 3.
17. Admit that you do not know in how many cases you have
terminated employment authorizations of foreign nationals when youdenied their applications or petitions for immigration benefits pursuant to
DOMA 3.
18. Admit that you have issued no instructions or directives requiring
your officers to inform members of BNSSCs denied temporary authorized
presence or work authorization because their application or petition for animmigration benefit was denied pursuant to DOMA 3 how to seek
administrative review of the termination of any previously approved parole
status or temporary authorized status and employment authorization.
19. Admit that you are not aware of the number of foreign national
members of BNSSCs denied immigration benefits pursuant to DOMA 3
who qualify or do not qualify for an immigration benefit independently of
their marriages.
20. Admit that foreign nationals working without authorization are
more likely to be exploited on the job and to suffer violations of labor and
health and safety laws.
21. Admit that the number of members of BNSSCs denied immigration
benefits pursuant to DOMA 3 is in the hundreds.
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III REQUESTS FOR PRODUCTION OF DOCUMENTS
1. Please produce for inspection and copying all documents discussing
or referencing CISs policy, practice, or procedures for adjudicating
applications or petitions for immigration benefits filed by members ofBNSSCs.
2. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce for
inspection and copying all documents discussing or referencing CISs policy,
practice, or procedures for exercising prosecutorial discretion towardsforeign national members of BNSSCs denied immigration benefits pursuant
to DOMA 3.
3. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce for
inspection and copying all documents discussing or referencing how your
officers should advise members of BNSSCs denied immigration benefits
pursuant to DOMA 3 or their counsel about CISs policy, practice, or
procedures for exercising prosecutorial discretion towards foreign national
members of BNSSCs denied immigration benefits pursuant to DOMA 3.
4. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce for
inspection and copying all documents discussing or referencing CISs policy,
practice, or procedures for granting or denying employment authorization to
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foreign national members of BNSSCs denied immigration benefits pursuant
to DOMA 3.
5. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce forinspection and copying all documents discussing or referencing how your
officers should advise members of BNSSCs denied immigration benefits
pursuant to DOMA 3 or their counsel about CISs policy, practice, or
procedures for granting or denying employment authorization to foreign
national members of BNSSCs denied immigration benefits pursuant toDOMA 3.
6. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce for
inspection and copying all documents discussing or referencing CISs policy,
practice, or procedures for granting or denying temporary authorized status
of any sort for national members of BNSSCs denied immigration benefits
pursuant to DOMA 3.
7. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce for
inspection and copying all documents discussing or referencing how your
officers should advise members of BNSSCs denied immigration benefits
pursuant to DOMA 3 or their counsel about CISs policy, practice, or
procedures for granting or denying temporary authorized status of any sort
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for national members of BNSSCs denied immigration benefits pursuant to
DOMA 3.5. Please produce for inspection and copying all statistical reports
reflecting adjudications of applications or petitions for immigration benefits
filed by members of BNSSCs.8. Please produce for inspection and copying all reports, including
statistical reports, reflecting the exercise of prosecutorial discretion pursuant
to the Memoranda from John Morton, Director, ICE, to ICE employees dated
Mar. 2, 2011 and June 17, 2011 in cases of foreign national members of
BNSSCs denied immigration benefits pursuant to DOMA 3.9. Please produce for inspection and copying all reports, including
statistical reports, reflecting the granting or denial of employment
authorization to foreign national members of BNSSCs denied immigration
benefits pursuant to DOMA 3.
10. Please produce for inspection and copying all reports, including
statistical reports, reflecting the granting or denial of temporary authorized
status of any sort in cases of foreign national members of BNSSCs denied
immigration benefits pursuant to DOMA 3.
11. Please produce for inspection and copying all press releases, public
statements, and other documents advising members of BNSSCs denied
immigration benefits pursuant to DOMA 3 of their options to remain
lawfully in the United States.
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12. Please produce for inspection and copying the most recent
documents you possess describing the categories of aliens granted deferred
action status (e.g. U visa applicants, VAWA applicants, etc.) and the numbers
granted deferred action status.13. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce for
inspection and copying all documents discussing or referencing CISs policy,
practice, or procedures for granting or denying employment authorization to
foreign national beneficiaries of visa petitions filed by their U.S. citizenspouses and who have pending applications for adjustment of status.
14. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce for
inspection and copying all documents discussing or referencing CISs policy,
practice, or procedures for granting or denying deferred action status to
foreign national beneficiaries of visa petitions filed by their U.S. citizen
spouses and who have pending applications for adjustment of status.
15. Other than the Memoranda from John Morton, Director, ICE, to ICE
employees dated Mar. 2, 2011 and June 17, 2011, please produce for
inspection and copying all documents discussing or referencing CISs policy,
practice, or procedures for granting or denying temporary authorized status
(other than deferred action status) for foreign national beneficiaries of visa
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petitions filed by their U.S. citizen spouses and who have pending
applications for adjustment of status.
IV INTERROGATORIES
1. To the extent that you deny any of the foregoing requests foradmissions, please explain the factual basis for your denial.
2. Please state why when informing members of BNSSCs that their
applications or benefits under the INA have been denied because of DOMA
3 you do not also advise such persons that the Administration believes
DOMA is unconstitutional and that the foreign national member of theBNSSC may be granted temporary authorized status and employment
authorization pending a definitive court ruling on the constitutionality of
DOMA.
3. If DOMA is declared unconstitutional by the U.S. Supreme Court,
explain on what basis you may retroactively grant employment
authorization to foreign nationals in BNSSCs who worked for longer than six
months without authorization after you terminated their employment
authorization or refused to grant them work authorization when you denied
a petition or application based upon DOMA 3, and who are therefore now
ineligible for adjustment of status.
4. If DOMA is declared unconstitutional by the U.S. Supreme Court,
explain on what basis you or a court may retroactively grant authorized
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presence so as to avoid application of the three and ten-year bars for foreign
nationals not eligible for adjustment of status.
5. If DOMA is declared unconstitutional by the U.S. Supreme Court,
explain on what basis the Department of State may approve visas despite theapplicant having had more than six or twelve months of unauthorized
presence because they were not granted temporary authorized status by you
after their application or petition for immigration benefits was denied under
DOMA 3.
6. Identify any non-profit legal services organizations you havecommunicated with to determine the availability of free or low-cost
immigration services to low-income members of BNSSCs seeking
immigration benefits under the INA.
7. Identify the non-profit legal services organizations you have
communicated with to inform them about the procedures available to
BNSSC foreign nationals denied benefits based on DOMA 3 to apply for
temporary authorized status and temporary employment, and explain what
such groups were informed by you.
8. Identify any lawyers or legal professional associations you have
communicated with to inform them about the procedures available to
BNSSC foreign nationals denied benefits based on DOMA 3 to apply for
temporary authorized status and temporary employment, and explain what
such lawyers or professional associations were informed by you.
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19
9. Explain whether you have estimated or determined the staff hours
required to implement your current policy and practice with respect to
granting or denying some form of temporary authorized presence to BNSSC
foreign nationals denied benefits based on DOMA 3.10. Explain whether you have estimated or determined the agency
costs associated with your current policy and practice with respect to
granting or denying some form of temporary authorized presence to BNSSC
foreign nationals denied benefits based on DOMA 3.
11. Explain whether you have made any effort, and if so describe thoseefforts, to determine the number of BNSSC foreign nationals denied benefits
based on DOMA 3 who are able to afford to retain private counsel or who
are in fact represented by private counsel versus those who are not
represented by private counsel.
12. Explain whether you have estimated or determined the staff hours
required and agency costs associated with your current policy and practice
with respect to granting or denying some form of temporary authorized
presence to BNSSC foreign nationals denied benefits based on DOMA 3.
13. Explain in detail (or produce) any instructions or directives issued
to USCIS or USICE officers directing them to advise members of BNSSCs
whose applications or petitions for immigration benefits may not be
approved or have been denied pursuant to DOMA 3 about any procedures
such persons may follow to retain or obtain temporary employment
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authorization and temporary authorized presence pending a definitive
ruling by the courts on the constitutionality of DOMA.
14. Explain in detail (or produce) any instructions or directives issued
to USCIS or USICE officers directing them on how to adjudicate requests forany sort of temporary authorized status and employment authorization
made by members of BNSSCs whose applications or petitions for
immigration benefits may not be approved or have been denied pursuant to
DOMA 3.
15. Please identify each foreign national member of a BNSSC deniedimmigration benefits pursuant to DOMA 3 upon whom CIS has conferred
any form of lawful immigration status and employment authorization.
16. Describe in detail how and why your implementation of a
preliminary injunction in the form proposed by plaintiffs in this case would
require any greater or less dedication of agency resources than required
following your present policy and practice with regards granting temporary
authorized presence and employment authorization to persons denied
immigration benefits under DOMA 3.
17. Describe in detail how and why your implementation of a
preliminary injunction in the form proposed by plaintiffs in this case would
require any greater costs to the CIS or ICE than required following your
present policy and practice with regards granting temporary authorized
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presence and employment authorization to persons denied immigration
benefits under DOMA 3.
18. State how many applications and petitions for immigration benefits
filed by members of BNSSCs you have denied pursuant to DOMA 3.19. Of the number identified in response to Interrogatory No. 19, state
how many such persons have been granted or extended on temporary
authorized presence and/or employment authorization since the time of the
denial you issued under DOMA 3.
20. Explain any information that you have made available to the publicon your web site, in the Code of Federal Regulations, or in any other way
readily available to members of BNSSCs or their counsel regarding the
procedures and standards to be applied when you decide whether to grant
or deny a member of a BNSSC temporary authorized status and employment
authorization.
21. Describe any training sessions or programs you have made
available to your officers regarding the procedures and standards to be
applied when they decide whether to grant or deny a member of a BNSSC
denied a benefit under DOMA 3 temporary authorized status and
employment authorization.
Dated: September 25, 2012. CENTER FOR HUMAN RIGHTS ANDCONSTITUTIONAL LAWPeter A. ScheyCarlos R. Holgun
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PUBLIC LAW CENTERJulie Greenwald MarzoukMonica Ashiku
ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan
LAW OFFICES OF MANULKIN &BENNETTGary H. ManulkinReyna M. Tanner
Peter A. Schey
Attorneys for Plaintiffs/ / /
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CERTIFICATE OF SERVICE
SACV12-01137 CBM (AJWx)
I hereby certify that on this 25th day of September, 2012, I caused the
foregoing to be served via email to the following counsel:
David Kline (CIV) David.Kline@usdoj.govJesi J. Carlson, (CIV) Jesi.J.Carlson@usdoj.govTimothy Belsan, timothy.m.belsan@usdoj.gov
Paul D. Clement pclement@bancroftpllc.comH. Christopher Bartolomucci cbartolomucci@bancroftpllc.comNicholas J. Nelson nnelson@bancroftpllc.comMichael H. McGinley mmcginley@bancroftpllc.com
Kerry W. Kircher, Kerry.Kircher@mail.house.govWilliam Pittard, William.Pittard@mail.house.govChristine Davenport, Christine.Davenport@mail.house.govTodd B. Tatelman, Todd.Tatelman@mail.house.govMary Beth Walker, MaryBeth.Walker@mail.house.gov
And via overnight delivery on the following counsel:
JESI J. CARLSONSenior Litigation Counsel
TIMOTHY M. BELSAN (KS 24112)Trial AttorneyCivil Division Office of Immigration LitigationU.S. Department of Justice450 Fifth Street, N.W.Washington, DC 20530
Paul D. ClementH. Christopher BartolomucciBANCROFT PLLC
1919 M Street, N.W.Suite 470Washington, D.C. 20036
Kerry W. Kircher, General CounselWilliam Pittard, Deputy General CounselMary Beth Walker, AssistantCounsel
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OFFICE OF GENERAL COUNSEL,U.S. HOUSE OF REPRESENTATIVES219 Cannon House Office BuildingWashington, D.C. 20515
Dated: September 24,, 2012Peter Schey
/ / /
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Exhibit
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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAWFoundation
256 S. OCCIDENTAL BOULEVARD
LOS ANGELES, CA 90057
Telephone: (213) 388-8693 Facsimile: (213) 386-9484
September 28, 2012
Jesi J. Carlson, Esq.Timothy M. Belsan, Esq.United States Department of Justice, Civil DivisionOffice of Immigration Litigation, District Court SectionP.O. Box 868 Ben Franklin StationWashington, DC 20044
Via e-mail, telecopier, and first class mail.
Re: Martin Aranas, et al., v. Napolitano, et al., No. CV 06-02816-PHX-RCBl.
Dear Counsel:
We are in receipt of defendants correspondence dated September 24, 2012, declining toappear for deposition pursuant to plaintiffs notice of deposition upon oral examinationof September 10, 2012.
Although we assume defendants position as set out in your letter will pertain as well toplaintiffs interrogatories, requests for production of documents, and requests foradmissions served September 25, 2012, in accordance with Local Rule 37-1, wenevertheless request to confer with defendants in a good faith effort to eliminate or
narrow the parties' dispute regarding discovery and to finalize a joint stipulationpursuant to Local Rule 37-2, a proposed Stipulation is attached.
As we discussed at length on the telephone yesterday, plaintiffs believe that theresponses to the discovery sought are relevant and admissible, and would be importantfor the court to have when deciding the pending motions for class certification and apreliminary injunction. Only defendants possess the requested information.
In summary, plaintiffs contend that discovery is immediately appropriate with respectto the factual claims defendants make in opposing plaintiffs' motions for preliminaryinjunction and class certification, including those regarding whether proposed classmembers will suffer irreparable injury in the absence of preliminary injunctive relief
and whether common questions of law pertain to a sufficient number of similarlysituated individuals as to make joinder impracticable.
Defendants acknowledge that under Rule 30(a)(2), plaintiffs may seek leave to conductearly discovery. Plaintiffs contend that factual issues defendants oppositions raiseconstitute good cause for the courts granting such leave. Plaintiffs encouragedefendants to cooperate with early discovery so as to eliminate the necessity for thepresentation and adjudication of a formal discovery motion.
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es . ar sonTimothy M. BelsanSeptember 28, 2012
Page 2 of 2
Plaintiffs also disagree with defendants contention that class-wide judicial review ofthe constitutionality of DOMA 3 is limited to the administrative record compiled in
plaintiff DeLeon's individual case. Plaintiffs have a clear right to sue directly under theConstitution and independently of the APA to enjoin defendants from violating her andputative class members constitutional rights. Porter v. Califano, 592 F.2d 770, 781 (5thCir. 1979); see also, e.g., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct.888, 112 L. Ed. 2d 1005 (1991) (constitutional challenge to decisions under INA 210Special Agricultural Worker program not limited to administrative record); Smith v.Schlesinger, 513 F.2d 462, 473 (D.C. Cir. 1975) (where action in the District Courtencompasses an attack on constitutionality of the procedures judicial reviewmust of necessity consider more than the formal administrative record.); ITT Fed. Servs.Corp. v. United States, 45 Fed. Cl. 174, 185 (1999) (discovery appropriate even werereview generally limited to administrative record in cases where relief is at issue,especially at the preliminary injunction stage.).
Discovery in the instant action should accordingly proceed in accordance with theFederal Rules of Civil Procedure. Unless the parties can resolve their dispute, plaintiffswill seek an Order compelling responses to all outstanding discovery requests.
Again, we encourage defendants to recede from the contrary position set out in theirletter of September 24, 2012.
As we discussed on the telephone yesterday, plaintiffs counsel remain available toconfer at defendants counsels earliest convenience, and hope you will agree to meetand confer on Monday October 1, 2012 or Tuesday October 2, 2012. Please advise assoon as possible.
Thank you,
Peter A. Schey, Esq. Carlos Holgun, Esq.Executive Director General Counsel
Attachment
cc: Kerry W. Kircher, General Counsel (w/ attach)William Pittard, Deputy General Counsel (w/ attach)Office of General Counsel,U.S. House of Representatives
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Exhibit
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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 20044Telephone: (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
MARTIN ARANAS, et al., ) No. 8:12-cv-1137-CBM (AJWx)
)
Plaintiffs, )
) [PROPOSED] ORDER
v. )
)
JANET NAPOLITANO, Secretary, )
Department of Homeland Security, )
et al., ) Hearing Date: November 26, 2012Defendants. ) Time: 11:00 a.m.
______________________________ ) Judge: Hon. Consuelo B. Marshall
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This Court, having considered the pleadings, exhibits, memoranda of points and
authorities, and any oral argument:
HEREBY ORDERS that all discovery is stayed in this action until further order
of the Court.
SO ORDERED this ______ day of __________________, 2012.
Hon. Consuelo B. Marshall
United States District Court Judge
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