8:12-cv-01137 #135

Case 8:12-cv-01137-CBM-AJW Document 135 Filed 07/08/13 Page 1 of 104 Page ID #:3008
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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
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION SACV12-01137 CBM (AJWx) PLAINTIFFS EXHIBITS 34-61. [Part 1 of 4: No.s 34-50]
) ) ) ) ) ) ) ) ) J ANET N APOLITANO , Secretary of the 19 Department of Homeland Security; et al., ) ) 20 ) ) Defendants. 21 ) __________________________________ ) 22 15 MARTIN R. ARANAS, et al., 16 Plaintiffs, 17 -vs18 23 24 25 26 27 28 ///
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Additional counsel for plaintiff Aranas: PUBLIC LAW CENTER A. Christian Abasto (Cal. Bar No. 190603) 601 Civic Center Drive West Santa Ana, CA 92701 Telephone: (714) 541-1010, Ext. 277 Facsimile: (714) 541-5157 cabasto@publiclawcenter.org 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 plaintiffs Rodriguez and DeLeon: 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 ///
Exhibits 34-61.
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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693
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Exhibits 34-61.
INDEX TO EXHIBITS No. Description Page
34
Citizenship and Immigration Services Ombudsman, Deferred Action: Recommendations to Improve Transparency and Consistency in the USCIS Process, July 11, 2011 .................................................................................................. 1 Meissner, D., Memorandum, Exercising Prosecutorial Discretion (Nov. 17, 2000)........................................... 10 Declaration of Peter A. Schey, July 7, 2013 ........................................ 24 USCIS, Decision re: James Grupe, December 17, 2012 ................................................................................................ 30 USCIS, Decision re: Ravi Gurne Mannina, March 22, 2013 .................................................................................... 33 USICS, Decision re: Michael Ross McKnight, February 13, 2013 ................................................................................ 36 USICS, Decision re: Minerva Perez, February 28, 2013 ................................................................................................ 39 USICS, Decision re: Jared Frank Roberts, February 25, 2013 ................................................................................ 41 USICS, Notice of Decision re: Samuel Conlon (I-485), December 5, 2012 ................................................................... 44 USICS, Notice of Decision re: Samuel Conlon (I-130), December 5, 2012 ................................................................... 46 USICS, Notice of Decision re: Samuel Conlon (I-485), January 23, 2013 ..................................................................... 48 USICS, Notice of Decision re: Samuel Conlon (I-130), January 23, 2013 ..................................................................... 50 Class member Samuel Conlons Request for Deferred Action, January 7, 2013 ........................................................ 53
35 36 37 38 39 40 41 42 43 44 45 46
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47 48 49 50 51 52 53 54 55
USCIS, Denial of Class Member Conlons Request for Deferred Action, March 27, 2013..................................... 68 Letter from K. Dehghani to USCIS, January 9, 2013 ...................................................................................................... 70 reserved .................................................................................................... Declaration of Samuel Conlon, June 6, 2013....................................... 91 reserved .................................................................................................... Recommendation from the CIS Ombudsman to the Director, USCIS, April 6, 2007 .................................................... 100 USCIS Interoffice Memorandum, August 7, 2007 .................................................................................................... 105 www.documentcloud.org/documents/367098ice-review-stats.html .......................................................................... 108 M. Hatzenbuehler, et al., The Impact of Institutional Discrimination on Psychiatric Disorders in Lesbian, Gay, and Bisexual Populations: A Prospective Study, AMERICAN JOURNAL OF PUBLIC HEALTH (March 2010) ................................... 111 Declaration of Alexander Bustos Garcia, June 11, 2013 .............................................................................................. 120 Declaration of Richard Fitch, June 11, 2013 ..................................... 234 A. Dinno, C. Whitney, Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage, PLOS ONE (June 2013) ................................................... 269 S. Crouch, et al., The Australian Study of Child Health in Same Sex Families, Interim Report, Melbourne School of Population & Global Health (June 2013) ............................................................................. 278 American Academy of Child and Adolescent Psychiatry, Facts for Families: Children with Lesbian, Gay, Bisexual and Transgender Parents (August 2011) ....................................................................... 280
-4Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693
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Exhibits 34-61.
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USCIS case status reports re: denial of I-130, I485 and I-765 filed on behalf of class member Alexander Bustos Garcia, July 1, 2013 .............................................. 283 CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun PUBLIC LAW CENTER A. Christian Abasto ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Carlos R. Holgun _____________
Dated: July 8, 2013.
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Attorneys for plaintiffs
Exhibits 34-61.
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Exhibit 34
Citizenship and Immigration Services Ombudsman
DEFERRED ACTION: RECOMMENDATIONS TO IMPROVE TRANSPARENCY AND CONSISTENCY IN THE USCIS PROCESS
July 11, 2011 Transparency and consistency are the primary objectives of these recommendations. The Federal Government, including the Department of Homeland Security, has, in recent years, steadily made efforts to provide more information to the public, and to enhance the efficient administration of government services. Here, U.S. Citizenship and Immigration Services (USCIS) is encouraged to carry these objectives into the administration of deferred action requests. These recommendations focus on how USCIS processes deferred action requests and the steps that can be taken to ensure that an individual in compelling circumstances, whether or not represented, knows how to submit a deferred action request, receives a decision in a timely manner, and can be assured that the request will be processed in a consistent manner. The recommendations do not delve into who should receive deferred action. Every day, USCIS officers and leadership apply their expertise and experience to make decisions that impact both individual lives and the public as a whole. As past administrations have acknowledged, along with this authority comes the responsibility to appropriately exercise discretion when compelling needs arise. Above all, these recommendations are about good government. Building accessible, uniform, and transparent processes is critical to effective government services. In fact, these recommendations echo recommendations that this office made in 2007. While deferred action requests are a minute fraction of the millions of decisions USCIS makes every year, they warrant the same transparency and consistency that the Federal Government strives for across the board. Most Sincerely,
RECOMMENDATIONS
The Ombudsman recommends that USCIS: 1. Issue public information describing deferred action and the procedures for making a request for this temporary form of relief with USCIS; 2. Establish internal procedures for accepting and processing deferred action requests in order to promote consistency and assist local offices in responding to urgent, periodic increases in the demand for deferred action; Inventory all pending deferred action requests to verify that each request received a confirmation of receipt with estimated processing timeframes and USCIS contact information; and Consistently track data related to deferred action requests and make available statistics identifying the number of requests received and the numbers of requests approved and denied.
3.
4.
REASONS FOR THE RECOMMENDATIONS

Stakeholders lack clear, consistent information regarding requirements for submitting a deferred action request and what to expect following submission of the request. There is no formal national procedure for handling deferred action requests. When experiencing a change in the type or number of submissions, local USCIS offices often lack the necessary standardized process to handle such requests in a timely and consistent manner. As a result, many offices permit deferred action requests to remain pending for extended periods. Stakeholders lack information regarding the number and nature of deferred action requests submitted each year; and they are not provided with any information on the number of cases approved and denied, or the reasons underlying USCIS decisions.
January Contreras Citizenship and Immigration Services Ombudsman
Office of the Citizenship and Immigration Services Ombudsman U.S. Department of Homeland Security Mail Stop 1225 Washington, DC 20528 www.dhs.gov/cisombudsman
DEFERRED ACTION: RECOMMENDATIONS TO IMPROVE TRANSPARENCY AND CONSISTENCY IN THE USCIS PROCESS
July 11, 2011
The Citizenship and Immigration Services Ombudsman, established by the Homeland Security Act of 2002, provides independent analysis of problems encountered by individuals and employers interacting with U.S. Citizenship and Immigration Services, and proposes changes to mitigate those problems.
Executive Summary
For decades the U.S. Immigration and Naturalization Service (INS), followed by the Department of Homeland Security (DHS), has used deferred action to provide limited relief to foreign nationals who do not qualify for other immigration benefits that are typically available to individuals in exigent circumstances. 1 Upon creation of the DHS in 2003, the power to grant deferred action was formally delegated to U.S. Citizenship and Immigration Services (USCIS), as well as U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).2 When accorded deferred action, an individual is able to remain, temporarily, in the United States: USCIS declines to exercise its authority to issue a Notice to Appear and does not place the individual in removal proceedings. USCIS has granted deferred action to individuals suffering serious medical conditions and to persons temporarily prevented from returning to their home country due to a natural disaster, among others. The employment authorization regulations briefly describe this form of administrative relief, classifying deferred action as, an act of administrative convenience to the government which gives some cases lower priority.3 Over the past year, stakeholders have expressed concerns to the Office of the Citizenship and Immigration Services Ombudsman (Ombudsmans Office) regarding long pending deferred action requests submitted by Haitian nationals following the earthquake in January 2010.4 These Haiti-related concerns led to broader conversations among stakeholders about the way USCIS processes deferred action requests at local offices. Based on an analysis of USCIS handling of deferred action requests, the Ombudsmans Office has made the following findings: Stakeholders lack clear, consistent information regarding requirements for submitting a deferred action request and what to expect following submission of the request. There is no formal national procedure for handling deferred action requests. Accordingly, it is difficult to track deferred action processing, in order to determine who receives deferred action, and under what circumstances.
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INS Commissioner Doris Meissner, Exercising Prosecutorial Discretion, HQOPP 50/4 (Nov. 17, 2000). Homeland Security Act of 2002, Pub. L. No. 107-296, 442(c), 116 Stat. 2135, 2194 (2002); Department of Homeland Security (DHS) Secretary Tom Ridge, Delegation to the Bureau of Citizenship and Immigration Services (Mar. 1, 2003) (delegating authority to grant voluntary departure under section 240B of the INA. 8 U.S.C. 1229c, and deferred action); See U.S. Department of Justice, Immigration Naturalization Service Fact Sheet, Prosecutorial Discretion Guidelines (Nov. 28, 2000). 3 8 C.F.R. 274a.12(c)(14) (2011). 4 Information provided by stakeholders (Mar. 28 and 29, 2011).
Recommendation to the Director of USCIS
When experiencing a change in the type or number of submissions, local USCIS offices often lack the necessary standardized process to handle such requests in a timely and consistent manner. As a result, many offices permit deferred action requests to remain pending for extended periods. Stakeholders lack information regarding the number and nature of deferred action requests submitted each year; and they are not provided with any information on the number of cases approved and denied, or the reasons underlying USCIS decisions. In response to its findings, the Ombudsmans Office recommends that USCIS take the following actions to improve the processing of requests for deferred action: 1) Issue public information describing deferred action and the procedures for making a request for this temporary form of relief with USCIS; 2) Establish internal procedures for accepting and processing deferred action requests in order to promote consistency and assist local offices in responding to urgent, periodic increases in the demand for deferred action; 3) Inventory all pending deferred action requests to verify that each request received a confirmation of receipt with estimated processing timeframes and USCIS contact information; and 4) Consistently track data related to deferred action requests and make available statistics identifying the number of requests received and the numbers of requests approved and denied.
BACKGROUND
A grant of deferred action indicates that the government has, temporarily, declined to exercise its authority to remove a particular individual from the United States. As such, the named individual may remain, provisionally, in the United States. Deferred action is a form of relief that is typically granted to individuals whose cases raise compelling humanitarian concerns and to individuals whose removal is not in the best interests of the U.S. government. It does not provide a pathway to permanent residency. Factors considered for this form of relief include: humanitarian issues, the likelihood of eligibility to gain legal status, family ties to the United States, criminal history, and immigration concerns.5 USCIS has granted deferred action to individuals suffering from serious medical conditions and to those temporarily prevented from returning to their home country due to a natural disaster, among others. While ICE and CBP also are provided with authority to grant deferred action, this review focuses solely on USCIS communication about and processing of deferred action. Legal Framework. For decades INS, followed by DHS, has used deferred action to provide limited relief to foreign nationals who do not qualify for other immigration benefits that are typically available to individuals in
5
Meissner Memo, HQOPP 50/4 (Nov. 17, 2000) (the memorandum provides a more comprehensive list). USCIS reported that the Meissner memo is used as informal guidance for local offices reviewing a deferred action request. (Apr. 15, 2011). See also Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing, and Removal (Standard Operating Procedures) , Part X.; Deferred action is an act of administrative choice to give some cases lower priority and in no way an entitlement... former O.I. 242.1(a)(22) (withdrawn June 24, 1997).
exigent circumstances.6 However, prior to 2000, neither the legacy INS, nor its predecessor agency had published any significant guidance regarding the use of this power. 7 On November 17, 2000, INS Commissioner Doris Meissner issued a memorandum entitled, Exercising Prosecutorial Discretion.8 That memo set forth guidance on the exercise of prosecutorial discretion by immigration officials and described the process to be followed in making and monitoring discretionary decisions. The memo states: The favorable exercise of prosecutorial discretion means a discretionary decision not to assert the full scope of the INS enforcement authority as permitted under the law. Such decisions will take different forms, depending on the status of a particular matter, but include decisions such as not issuing an [Notice to Appear]detaining an alien placed in proceedings and approving deferred action.9 In 2003, Secretary of DHS Tom Ridge formally delegated to USCIS the authority to grant deferred action.10 USCIS continues to rely on the Meissner memo as guidance on exercising this and other forms of discretionary authority.11 Methodology. In preparing this review, the Ombudsmans Office met with stakeholders. To determine the USCIS deferred action process, the Ombudsmans Office also conducted meetings and conference calls with local and regional USCIS offices12 and requested statistical data from USCIS Headquarters regarding deferred action requests.13 Individual Deferred Action Requests and USCIS Processing. USCIS processes two types of deferred action requests: 1) those submitted by individuals who qualify based on a USCIS decision to use deferred action as a pre-adjudication form of temporary relief for those who have filed certain petitions or applications (e.g., widows of U.S. citizens, qualified victims of a crime or abuse); and 2) those submitted by individuals in exigent circumstances (e.g., extreme medical cases, victims of the September 11th terrorist attacks), who may, or may not, have an application for immigration benefits pending.14 This study examines only USCIS processing of the latter type of request. Currently, there are no official, national standard operating procedures for how to process a deferred action request. Nevertheless, most USCIS offices follow some sort of informal, standard process, rather than proceeding in an ad hoc fashion.15 Typically, an individual can submit a deferred action request in-person, or
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Supra n. 2. Meissner Memo, HQOPP 50/4 (Nov. 17, 2000). 8 Id. 9 Id. 10 Secretary DHS Tom Ridge, Delegation to the Bureau of Citizenship and Immigration Services (Mar. 1, 2003). 11 Information provided by USCIS (Mar. 30, 2011; Apr. 15, 2011). 12 Information provided by USCIS (Mar. 29, 30, Apr. 19 and 20, 2011). 13 The Ombudsmans Office received basic submission statistics, but the information was incomplete, providing information on grants of requests but not the actual submission and denial numbers. Information provided by USCIS (Apr. 15, 2011). 14 USCIS memorandum from William Yates, Assessment of Deferred Action in Requests for Interim Relief from U Nonimmigrant Status Eligible Aliens in Removal Proceedings, HQOPRD 70/6.2 (May 6, 2004); USCIS memorandum from Stuart Anderson, Deferred Action for Aliens with Bona Fide Applications for T Nonimmigrant Status, HQADN 70/6.2 (May 8, 2002). 15 Information provided by site visits and teleconference calls with USCIS district offices. (Mar. 29, 2011; Apr. 19 and 20, 2011). The North Eastern Regional Office has an SOP that went into effect on February 17, 2011. Other local offices have guidelines on how to review a deferred action request.
by mail, to a local USCIS office.16 USCIS does not have a nationwide process for acknowledging the receipt of deferred action requests, but many USCIS offices have implemented a local method for logging submissions and acknowledging their receipt. Other offices do not issue a written acknowledgement of receipt for deferred action requests. Normally, a deferred action request is reviewed at the local office. A summary sheet explaining the positive and negative equities associated with the deferred action request is completed.17 The district director reviews the summary and makes a recommendation. That recommendation is forwarded to the regional director. The regional director issues a decision on the recommendation and returns the final decision to the district director so that he/she may deliver it to the requestor.18 Deferred action requests are not filed on a standardized application form and no fee is collected to defray the costs associated with processing deferred action requests. Once granted deferred action, the requestor is eligible to apply for employment authorization.19 When USCIS does grant deferred action, it is usually valid for one to two years.20 Local Offices Responding to Increases in Deferred Action Submissions. The number of deferred action requests received by local offices can vary greatly.21 Certain local offices have evolved new processes when experiencing a rise in submissions.22 Nevertheless, there is no mechanism to hold local offices accountable for issuing decisions within a certain timeframe, and USCIS did not report any coordinated efforts across districts to share locally developed solutions for managing a significant deferred action workload. Recently, USCIS Headquarters began tracking deferred action requests. USCIS Headquarters has instructed district directors to send data on deferred action decisions to the National Benefits Center for tracking.23 In addition, USCIS devised a template acknowledgement letter for local offices to issue in response to requests for deferred action. However, not all local offices use the template letter. 24 Stakeholders have reported that some local offices do not issue any type of written acknowledgement that a deferred action request has been received. Furthermore, the template letter includes a statement that the applicant will receive a response to the request within 60 days. Stakeholders and USCIS officials report that many cases remain pending without a decision well beyond 60 days.25 Prior Ombudsmans Office Recommendations. On April 9, 2007, the Ombudsmans Office published recommendations on deferred action.26 The recommendations were: 1) post general information on the USCIS website; 2) maintain deferred action statistics; and 3) designate a USCIS Headquarters official to review decisions to help ensure consistency in decision making.
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Information provided by USCIS site visit (Mar. 29, 2011). Form G-312, Deferred Action Case Summary, outlines the individuals biographical information, familial history, grounds of inadmissibility and deportability and physical and mental conditions requiring treatment in the United States. 18 Information provided by USCIS (Mar. 29, 2011 and Apr. 15, 2011). 19 8 C.F.R. 274a.12(c)(14) (2011). 20 Information provided by USCIS (Mar. 30, 2011). 21 Information provided by USCIS (Mar. 29, 2011; Apr. 15, 19 and 20, 2011). 22 Id. 23 Information provided by USCIS site visit (Mar. 29 and 30, 2011). 24 Field offices report issuing decisions from a time range of two weeks to indefinitely pending. Information provided by USCIS (Mar. 29, 2011) and stakeholders (Mar. 28, 2011). 25 Information provided by USCIS teleconference calls and site visits (Mar. 29-30 and Apr. 19-20, 2011). 26 CIS Ombudsman Recommendation #32, Deferred Action (Apr. 9, 2007).
USCIS responded that deferred action requests are reviewed on a case-by-case basis and that published guidance would not be a meaningful addition to USCIS website.27 USCIS committed to collecting deferred action statistics on a quarterly basis. USCIS did not find it necessary to review deferred action decisions at USCIS Headquarters. Stakeholder Concerns. Over the past year, stakeholders expressed concerns to the Ombudsmans Office regarding the delayed processing of numerous deferred action requests submitted by Haitian nationals following the earthquake in January 2010. In public meetings, stakeholders from across the country repeatedly requested USCIS guidance and information regarding the handling of these deferred action requests. 28 Stakeholders reported to the Ombudsmans Office that some individuals have waited for more than seven months for decisions on their requests.29 Recently, an extension and re-designation of Haiti Temporary Protected Status (TPS) provided certain individuals affected by the earthquake with relief; many of whom had requested deferred action. In the process of waiting for USCIS to act on their deferred action requests, many individuals accrued unlawful presence, which may impact their eligibility for future immigration benefits. These Haitirelated concerns led to broader conversations among stakeholders about the way that USCIS is processing deferred action requests. Stakeholder meetings and inquiries have highlighted that USCIS is not communicating essential information on how to make or renew a deferred action request.30 While stakeholders acknowledge that a grant of deferred action by USCIS is a discretionary decision, they have expressed that general guidance from USCIS would be helpful to determine whether clients should be advised to step forward and seek this relief. Stakeholders explain that preparing a deferred action request requires a significant investment of time and effort. Due to the level of staff resources needed to submit requests, representatives and attorneys who assist people in seeking deferred action note that directions and guidance are especially critical. CASE PROBLEM: The United States Army medically evacuated an individual to the United States for a life-saving operation that was not available in her home country. The individual had been in the care and custody of U.S. military personnel for many years due to her situation and had received deferred action from USCIS. The U.S. Army identified that she needed continued medical treatment. Military personnel could not find information on how the patient could renew her request for deferred action. After contacting various resources, the Ombudsmans Office was contacted. The Ombudsmans Office, in turn, worked with USCIS and the individual to submit a new request for deferred action and to file an employment authorization application. USCIS granted the request, and the individual was permitted to remain temporarily in the United States to continue to receive life-saving treatment. Stakeholders report difficulties in obtaining status updates on pending requests. After filing the initial request, many individuals are not provided a USCIS point of contact or a written acknowledgement that the request has
USCIS Response to Recommendation #32, Deferred Action (Aug. 7, 2007). Information provided by stakeholders (Mar. 28, 2011). 29 Information provided by stakeholders (Mar. 29, 2011). 30 Recent publications have highlighted the need for public guidance on how to submit a deferred action request to USCIS and to expect subsequent to the submission. See Penn State Law School, Duane Morris & Maggio+Kattar, Private Bills & Deferred Action, Toolkit (May 17, 2011), http://law.psu.edu/_file/PBDA_Toolkit.pdf (accessed on July 5, 2011); Mary Kenney, Prosecutorial Discretion: How to Advocate for Your Client (June 24, 2011), http://www.legalactioncenter.org/practice-advisories/prosecutorialdiscretion-how-advocate-your-client (accessed on July 5, 2011); Donald M. Kerwin, Doris Meissner & Margie McHugh, Executive Action on Immigration: Six Ways to Make the System Work Better (Mar. 2011), http://www.migrationpolicy.org/pubs/administrativefixes.pdf (accessed on July 5, 2011).
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been filed. This makes it difficult to submit additional supporting documentation or to obtain information regarding the processing of the request.
ANALYSIS & RECOMMENDATIONS

The Ombudsmans Office makes the following recommendations to USCIS: (1) Issue public information describing deferred action and the procedures for making a request for this temporary form of relief with USCIS. Although most local offices appear to follow a basic process, there is little public information explaining how to request deferred action and what type of supporting documentation should be submitted with a request. USCIS posts humanitarian notices for victims of natural disasters, but does not always include information on deferred action. 31 Some USCIS offices have provided local guidance, but this is often only visible to community-based organizations or legal representatives, and not to individuals who lack access to such aid networks, leaving the most vulnerable individuals those who are not represented without knowledge of how to be considered for this temporary form of relief. LOCAL PRACTICE: The Miami Field Office published a checklist outlining the basic documentation that should be included in a deferred action request, which reduces the number of requests for additional evidence. Public guidance would ensure that individuals in need of relief are aware of deferred action and know how to make a request. Informative guidance would include: 1) information explaining what deferred action is and what it is not; 2) instructions for submitting a request for deferred action to a local office; 3) an explanation of what information and documentation should be included in the request; and 4) an indication of what to expect following the submission of a request for deferred action, including a point of contact able to provide processing updates and other relevant information. Issuing public guidance would not impact USCIS discretionary authority to decide a deferred action request. (2) Establish internal procedures for accepting and processing deferred action requests in order to promote consistency and assist local offices in responding to urgent, periodic increases in the demand for deferred action. LOCAL PRACTICE: When an individual submits a deferred action request, officers in the Boston Field Office immediately determine the individuals previously assigned A-number, or generate a new A-number, as necessary. This ensures that the individual leaves the office with a unique identifier that can be used to track the request and can be referenced when inquiring as to case status, required follow-up, etc.
31
USCIS New Release, Haiti Relief Measures: Questions and Answers; http://www.uscis.gov/portal/site/uscis/template.PRINT/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=855260f64f3362 10VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD) (accessed on May 6, 2011); USCIS Reminds Japanese Nationals Impacted by Recent Disaster, Questions and Answers; http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9c6ac337ab5ce210VgnVCM1000 00082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD) (accessed on May 6, 2011).
Establishing nationwide USCIS procedures to guide local offices in responding to submission increases would optimize resources and ensure that individuals requesting deferred action are not subjected to unnecessary delays due to manpower shortages and other administrative impediments. (3) Inventory all pending deferred action requests to verify that each request received a confirmation of receipt with estimated processing timeframes and USCIS contact information. Many USCIS offices have a backlog of deferred action requests which have been pending for extensive periods of time.32 Establishing a comprehensive national inventory of deferred action requests would identify cases that have been long pending and assist in the implementation of a national process for timely, consistent processing of deferred action requests. Additionally, USCIS Headquarters should verify that pending deferred action requests were issued receipt confirmation with an estimated processing time from the responsible local office. In recent months, USCIS Headquarters has started to track deferred action requests received at local field offices. However, USCIS must be more proactive in providing the public with information obtained through its tracking activities. (4) Consistently track data related to deferred action requests and make available statistics identifying: the number of requests received and the numbers of requests approved and denied. Tracking and releasing to the public data on the number of deferred action request submissions (i.e., approvals, denials, pending requests, etc.) would help provide transparency demonstrating how often and in what types of circumstances deferred action is granted. LOCAL PRACTICE: When regional directors started receiving an increase in deferred action requests from district offices due to the earthquake in Haiti, they met to discuss recent trends and attempted to facilitate consistent deferred action decisions coming from the four USCIS regions. While the coordination so far does not appear to have resulted in the development of a centralized national process, the discussion was a positive step towards coordinating deferred action processing at the regional level.
CONCLUSION
Issuing public guidance on the procedures for making a request for deferred action would ensure that those who may merit humanitarian relief know how to seek it, whether they are represented or not. Establishing a standardized and responsive national procedure, as well as conducting an inventory of pending deferred action requests to verify that each individual who has made a request has received confirmation of receipt, would improve customer service, agency accountability, and help ensure consistency in deferred action decisions. Finally, tracking submissions and releasing the data to the public would improve management of the deferred action process and provide transparency to the public.
32
Stakeholders report that most deferred action requests remain pending without explanation. Information provided at stakeholder meeting (Mar. 28, 2011). Information provided at USCIS site visit (Mar. 29, 2011).
Exhibit 35
10
U.S. Department of Justice Immigration and Naturalization Service
HQOPP 50/4
Office of the Commissioner 425 I Street NW Washington, DC 20536
NOV 17 2000
MEMORANDUM TO REGIONAL DIRECTORS DISTRICT DIRECTORS CHIEF PATROL AGENTS REGIONAL AND DISTRICT COUNSEL
SUBJECT:
Exercising Prosecutorial Discretion
Since the 1996 amendments to the Immigration and Nationality Act (INA) which limited the authority of immigration judges to provide relief from removal in many cases, there has been increased attention to the scope and exercise of the Immigration and Naturalization Services (INS or the Service) prosecutorial discretion. This memorandum describes the principles with which INS exercises prosecutorial discretion and the process to be followed in making and monitoring discretionary decisions. Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement processfrom planning investigations to enforcing final orderssubject to their chains of command and to the particular responsibilities and authority applicable to their specific position. In exercising this discretion, officers must take into account the principles described below in order to promote the efficient and effective enforcement of the immigration laws and the interests of justice. More specific guidance geared to exercising discretion in particular program areas already exists in some instances,1 and other program-specific guidance will follow separately.
For example, standards and procedures for placing an alien in deferred action status are provided in the Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing, and Removal (Standard Operating Procedures), Part X. This memorandum is intended to provide general principles, and does not replace any previous specific guidance provided about particular INS actions, such as Supplemental Guidelines on the Use of Cooperating Individuals and Confidential Informants Following the Enactment of IIRIRA, dated December 29, 1997. This memorandum is not intended to address every situation in which the exercise of prosecutorial discretion may be appropriate. If INS personnel in the exercise of their duties recognize apparent conflict between any of their specific policy requirements and these general guidelines, they are encouraged to bring the matter to their supervisors attention, and any conflict between policies should be raised through the appropriate chain of command for resolution.
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Case 8:12-cv-01137-CBM-AJW Document 135 Filed 07/08/13 Page 17 of 104 Page ID #:3024 Memorandum for Regional Directors, et al. Subject: Exercising Prosecutorial Discretion Page 2
However, INS officers should continue to exercise their prosecutorial discretion in appropriate cases during the period before more specific program guidance is issued. A statement of principles concerning discretion serves a number of important purposes. As described in the Principles of Federal Prosecution, 2 part of the U.S. Attorneys manual, such principles provide convenient reference points for the process of making prosecutorial decisions; facilitate the task of training new officers in the discharge of their duties; contribute to more effective management of the Governments limited prosecutorial resources by promoting greater consistency among the prosecutorial activities of different offices and between their activities and the INS law enforcement priorities; make possible better coordination of investigative and prosecutorial activity by enhancing the understanding between the investigative and prosecutorial components; and inform the public of the careful process by which prosecutorial decisions are made. Legal and Policy Background Prosecutorial discretion is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The INS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to issue, serve, or file a Notice to Appear (NTA), but also to a broad range of other discretionary enforcement decisions, including among others: Focusing investigative resources on particular offenses or conduct; deciding whom to stop, question, and arrest; maintaining an alien in custody; seeking expedited removal or other forms of removal by means other than a removal proceeding; settling or dismissing a proceeding; granting deferred action or staying a final order; agreeing to voluntary departure, withdrawal of an application for admission, or other action in lieu of removing the alien; pursuing an appeal; and executing a removal order. The favorable exercise of prosecutorial discretion means a discretionary decision not to assert the full scope of the INS enforcement authority as permitted under the law. Such decisions will take different forms, depending on the status of a particular matter, but include decisions such as not issuing an NTA (discussed in more detail below under Initiating Proceedings), not detaining an alien placed in proceedings (where discretion remains despite mandatory detention requirements), and approving deferred action.
For this discussion, and much else in this memorandum, we have relied heavily upon the Principles of Federal Prosecution, chapter 9-27.000 in the U.S. Department of Justices United States Attorneys Manual (Oct. 1997). There are significant differences, of course, between the role of the U.S. Attorneys offices in the criminal justice system, and INS responsibilities to enforce the immigration laws, but the general approach to prosecutorial discretion stated in this memorandum reflects that taken by the Principles of Federal Prosecution.
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Courts recognize that prosecutorial discretion applies in the civil, administrative arena just as it does in criminal law. Moreover, the Supreme Court has recognized on several occasions over many years that an agencys decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agencys absolute discretion. Heckler v. Chaney, 470 U.S. 821, 831 (1985). Both Congress and the Supreme Court have recently reaffirmed that the concept of prosecutorial discretion applies to INS enforcement activities, such as whether to place an individual in deportation proceedings. INA section 242(g); Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999). The discretion in prosecutorial discretion means that prosecutorial decisions are not subject to judicial review or reversal, except in extremely narrow circumstances. Consequently, it is a powerful tool that must be used responsibly. As a law enforcement agency, the INS generally has prosecutorial discretion within its area of law enforcement responsibility unless that discretion has been clearly limited by statute in a way that goes beyond standard terminology. For example, a statute directing that the INS shall remove removable aliens would not be construed by itself to limit prosecutorial discretion, but the specific limitation on releasing certain criminal aliens in section 236(c)(2) of the INA evidences a specific congressional intention to limit discretion not to detain certain criminal aliens in removal proceedings that would otherwise exist. Personnel who are unsure whether the INS has discretion to take a particular action should consult their supervisor and legal counsel to the extent necessary. It is important to recognize not only what prosecutorial discretion is, but also what it is not. The doctrine of prosecutorial discretion applies to law enforcement decisions whether, and to what extent, to exercise the coercive power of the Government over liberty or property, as authorized by law in cases when individuals have violated the law. Prosecutorial discretion does not apply to affirmative acts of approval, or grants of benefits, under a statute or other applicable law that provides requirements for determining when the approval should be given. For example, the INS has prosecutorial discretion not to place a removable alien in proceedings, but it does not have prosecutorial discretion to approve a naturalization application by an alien who is ineligible for that benefit under the INA. This distinction is not always an easy, bright-line rule to apply. In many cases, INS decisionmaking involves both a prosecutorial decision to take or not to take enforcement action, such as placing an alien in removal proceedings, and a decision whether or not the alien is substantively eligible for a benefit under the INA. In many cases, benefit decisions involve the exercise of significant discretion which in some cases is not judicially reviewable, but which is not prosecutorial discretion. Prosecutorial discretion can extend only up to the substantive and jurisdictional limits of the law. It can never justify an action that is illegal under the substantive law pertaining to the
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conduct, or one that while legal in other contexts, is not within the authority of the agency or officer taking it. Prosecutorial discretion to take an enforcement action does not modify or waive any legal requirements that apply to the action itself. For example, an enforcement decision to focus on certain types of immigration violators for arrest and removal does not mean that the INS may arrest any person without probable cause to do so for an offense within its jurisdiction. Service officers who are in doubt whether a particular action complies with applicable constitutional, statutory, or case law requirements should consult with their supervisor and obtain advice from the district or sector counsel or representative of the Office of General Counsel to the extent necessary. Finally, exercising prosecutorial discretion does not lessen the INS commitment to enforce the immigration laws to the best of our ability. It is not an invitation to violate or ignore the law. Rather, it is a means to use the resources we have in a way that best accomplishes our mission of administering and enforcing the immigration laws of the United States. Principles of Prosecutorial Discretion Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations. The INS historically has responded to this limitation by setting priorities in order to achieve a variety of goals. These goals include protecting public safety, promoting the integrity of the legal immigration system, and deterring violations of the immigration law. It is an appropriate exercise of prosecutorial discretion to give priority to investigating, charging, and prosecuting those immigration violations that will have the greatest impact on achieving these goals. The INS has used this principle in the design and execution of its border enforcement strategy, its refocus on criminal smuggling networks, and its concentration on fixing benefit-granting processes to prevent fraud. An agencys focus on maximizing its impact under appropriate principles, rather than devoting resources to cases that will do less to advance these overall interests, is a crucial element in effective law enforcement management. The Principles of Federal Prosecution governing the conduct of U.S. Attorneys use the concept of a substantial Federal interest. A U.S. Attorney may properly decline a prosecution if no substantial Federal interest would be served by prosecution. This principle provides a useful frame of reference for the INS, although applying it presents challenges that differ from those facing a U.S. Attorney. In particular, as immigration is an exclusively Federal responsibility, the option of an adequate alternative remedy under state law is not available. In an immigration case, the interest at stake will always be Federal. Therefore, we must place particular emphasis on the element of substantiality. How important is the Federal interest in the case, as compared to other cases and priorities? That is the overriding question, and answering it requires examining a number of factors that may differ according to the stage of the case.
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As a general matter, INS officers may decline to prosecute a legally sufficient immigration case if the Federal immigration enforcement interest that would be served by prosecution is not substantial.3 Except as may be provided specifically in other policy statements or directives, the responsibility for exercising prosecutorial discretion in this manner rests with the District Director (DD) or Chief Patrol Agent (CPA) based on his or her common sense and sound judgment.4 The DD or CPA should obtain legal advice from the District or Sector Counsel to the extent that such advice may be necessary and appropriate to ensure the sound and lawful exercise of discretion, particularly with respect to cases pending before the Executive Office for Immigration Review (EOIR).5 The DDs or CPAs authority may be delegated to the extent necessary and proper, except that decisions not to place a removable alien in removal proceedings, or decisions to move to terminate a proceeding which in the opinion of the District or Sector Counsel is legally sufficient, may not be delegated to an officer who is not authorized under 8 C.F.R. 239.1 to issue an NTA. A DDs or CPAs exercise of prosecutorial discretion will not normally be reviewed by Regional or Headquarters authority. However, DDs and CPAs remain subject to their chains of command and may be supervised as necessary in their exercise of prosecutorial discretion. Investigations Priorities for deploying investigative resources are discussed in other documents, such as the interior enforcement strategy, and will not be discussed in detail in this memorandum. These previously identified priorities include identifying and removing criminal and terrorist aliens, deterring and dismantling alien smuggling, minimizing benefit fraud and document abuse, responding to community complaints about illegal immigration and building partnerships to solve local problems, and blocking and removing employers access to undocumented workers. Even within these broad priority areas, however, the Service must make decisions about how best to expend its resources. Managers should plan and design operations to maximize the likelihood that serious offenders will be identified. Supervisors should ensure that front-line investigators understand that it is not mandatory to issue an NTA in every case where they have reason to believe that an alien is removable, and agents should be encouraged to bring questionable cases to a supervisors attention. Operational planning for investigations should include consideration of appropriate procedures for supervisory and legal review of individual NTA issuing decisions.
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In some cases even a substantial immigration enforcement interest in prosecuting a case could be outweighed by other interests, such as the foreign policy of the United States. Decisions that require weighing such other interests should be made at the level of responsibility within the INS or the Department of Justice that is appropriate in light of the circumstances and interests involved. 4 This general reference to DDs and CPAs is not intended to exclude from coverage by this memorandum other INS personnel, such as Service Center directors, who may be called upon to exercise prosecutorial discretion and do not report to DDs or CPAs, or to change any INS chains of command. 5 Exercising prosecutorial discretion with respect to cases pending before EOIR involves procedures set forth at 8 CFR 239.2 and 8 CFR Part 3, such as obtaining the courts approval of a motion to terminate proceedings.
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Careful design of enforcement operations is a key element in the INS exercise of prosecutorial discretion. Managers should consider not simply whether a particular effort is legally supportable, but whether it best advances the INS goals, compared with other possible uses of those resources. As a general matter, investigations that are specifically focused to identify aliens who represent a high priority for removal should be favored over investigations which, by their nature, will identify a broader variety of removable aliens. Even an operation that is designed based on high-priority criteria, however, may still identify individual aliens who warrant a favorable exercise of prosecutorial discretion.6 Initiating and Pursuing Proceedings Aliens who are subject to removal may come to the Services attention in a variety of ways. For example, some aliens are identified as a result of INS investigations, while others are identified when they apply for immigration benefits or seek admission at a port-of-entry. While the context in which the INS encounters an alien may, as a practical matter, affect the Services options, it does not change the underlying principle that the INS has discretion and should exercise that discretion appropriately given the circumstances of the case. Even when an immigration officer has reason to believe that an alien is removable and that there is sufficient evidence to obtain a final order of removal, it may be appropriate to decline to proceed with that case. This is true even when an alien is removable based on his or her criminal history and when the alienif served with an NTAwould be subject to mandatory detention. The INS may exercise its discretion throughout the enforcement process. Thus, the INS can choose whether to issue an NTA, whether to cancel an NTA prior to filing with the immigration court or move for dismissal in immigration court (under 8 CFR 239.2), whether to detain (for those aliens not subject to mandatory detention), whether to offer an alternative to removal such as voluntary departure or withdrawal of an application for admission, and whether to stay an order of deportation. The decision to exercise any of these options or other alternatives in a particular case requires an individualized determination, based on the facts and the law. As a general matter, it is better to exercise favorable discretion as early in the process as possible, once the relevant facts have been determined, in order to conserve the Services resources and in recognition of the aliens interest in avoiding unnecessary legal proceedings. However, there is often a conflict
For example, operations in county jails are designed to identify and remove criminal aliens, a high priority for the Service. Nonetheless, an investigator working at a county jail and his or her supervisor should still consider whether the exercise of prosecutorial discretion would be appropriate in individual cases.
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between making decisions as soon as possible, and making them based on evaluating as many relevant, credible facts as possible. Developing an extensive factual record prior to making a charging decision may itself consume INS resources in a way that negates any saving from forgoing a removal proceeding. Generally, adjudicators may have a better opportunity to develop a credible factual record at an earlier stage than investigative or other enforcement personnel. It is simply not practicable to require officers at the arrest stage to develop a full investigative record on the equities of each case (particularly since the alien file may not yet be available to the charging office), and this memorandum does not require such an analysis. Rather, what is needed is knowledge that the INS is not legally required to institute proceedings in every case, openness to that possibility in appropriate cases, development of facts relevant to the factors discussed below to the extent that it is reasonably possible to do so under the circumstances and in the timeframe that decisions must be made, and implementation of any decision to exercise prosecutorial discretion. There is no precise formula for identifying which cases warrant a favorable exercise of discretion. Factors that should be taken into account in deciding whether to exercise prosecutorial discretion include, but are not limited to, the following: Immigration status: Lawful permanent residents generally warrant greater consideration. However, other removable aliens may also warrant the favorable exercise of discretion, depending on all the relevant circumstances. Length of residence in the United States: The longer an alien has lived in the United States, particularly in legal status, the more this factor may be considered a positive equity. Criminal history: Officers should take into account the nature and severity of any criminal conduct, as well as the time elapsed since the offense occurred and evidence of rehabilitation. It is appropriate to take into account the actual sentence or fine that was imposed, as an indicator of the seriousness attributed to the conduct by the court. Other factors relevant to assessing criminal history include the aliens age at the time the crime was committed and whether or not he or she is a repeat offender. Humanitarian concerns: Relevant humanitarian concerns include, but are not limited to, family ties in the United States; medical conditions affecting the alien or the aliens family; the fact that an alien entered the United States at a very young age; ties to ones home country (e.g., whether the alien speaks the language or has relatives in the home country); extreme youth or advanced age; and home country conditions. Immigration history: Aliens without a past history of violating the immigration laws (particularly violations such as reentering after removal, failing to appear at hearing, or resisting arrest that show heightened disregard for the legal process) warrant favorable consideration to a greater extent than those with such a history. The seriousness of any such violations should also be taken into account.
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Likelihood of ultimately removing the alien: Whether a removal proceeding would have a reasonable likelihood of ultimately achieving its intended effect, in light of the case circumstances such as the aliens nationality, is a factor that should be considered. Likelihood of achieving enforcement goal by other means: In many cases, the aliens departure from the United States may be achieved more expeditiously and economically by means other than removal, such as voluntary return, withdrawal of an application for admission, or voluntary departure. Whether the alien is eligible or is likely to become eligible for other relief: Although not determinative on its own, it is relevant to consider whether there is a legal avenue for the alien to regularize his or her status if not removed from the United States. The fact that the Service cannot confer complete or permanent relief, however, does not mean that discretion should not be exercised favorably if warranted by other factors. Effect of action on future admissibility: The effect an action such as removal may have on an alien can varyfor example, a time-limited as opposed to an indefinite bar to future admissibilityand these effects may be considered. Current or past cooperation with law enforcement authorities: Current or past cooperation with the INS or other law enforcement authorities, such as the U.S. Attorneys, the Department of Labor, or National Labor Relations Board, among others, weighs in favor of discretion. Honorable U.S. military service: Military service with an honorable discharge should be considered as a favorable factor. See Standard Operating Procedures Part V.D.8 (issuing an NTA against current or former member of armed forces requires advance approval of Regional Director). Community attention: Expressions of opinion, in favor of or in opposition to removal, may be considered, particularly for relevant facts or perspectives on the case that may not have been known to or considered by the INS. Public opinion or publicity (including media or congressional attention) should not, however, be used to justify a decision that cannot be supported on other grounds. Public and professional responsibility will sometimes require the choice of an unpopular course. Resources available to the INS: As in planning operations, the resources available to the INS to take enforcement action in the case, compared with other uses of the resources to fulfill national or regional priorities, are an appropriate factor to consider, but it should not be determinative. For example, when prosecutorial discretion should be favorably exercised under these factors in a particular case, that decision should prevail even if there is detention space available.
Obviously, not all of the factors will be applicable to every case, and in any particular case one factor may deserve more weight than it might in another case. There may be other factors, not on the list above, that are appropriate to consider. The decision should be based on the totality of the circumstances, not on any one factor considered in isolation. General guidance such as this cannot provide a bright line test that may easily be applied to determine the right answer in every case. In many cases, minds reasonably can differ, different factors may point in different directions, and there is no clearly right answer. Choosing a course of action in difficult
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cases must be an exercise of judgment by the responsible officer based on his or her experience, good sense, and consideration of the relevant factors to the best of his or her ability. There are factors that may not be considered. Impermissible factors include: An individuals race, religion, sex, national origin, or political association, activities or beliefs;7 The officers own personal feelings regarding the individual; or The possible effect of the decision on the officers own professional or personal circumstances.
In many cases, the procedural posture of the case, and the state of the factual record, will affect the ability of the INS to use prosecutorial discretion. For example, since the INS cannot admit an inadmissible alien to the United States unless a waiver is available, in many cases the INS options are more limited in the admission context at a port-of-entry than in the deportation context. Similarly, the INS may consider the range of options and information likely to be available at a later time. For example, an officer called upon to make a charging decision may reasonably determine that he or she does not have a sufficient, credible factual record upon which to base a favorable exercise of prosecutorial discretion not to put the alien in proceedings, that the record cannot be developed in the timeframe in which the decision must be made, that a more informed prosecutorial decision likely could be made at a later time during the course of proceedings, and that if the alien is not served with an NTA now, it will be difficult or impossible to do so later. Such decisions must be made, however, with due regard for the principles of these guidelines, and in light of the other factors discussed here. For example, if there is no relief available to the alien in a removal proceeding and the alien is subject to mandatory detention if
This general guidance on factors that should not be relied upon in making a decision whether to enforce the law against an individual is not intended to prohibit their consideration to the extent they are directly relevant to an aliens status under the immigration laws or eligibility for a benefit. For example, religion and political beliefs are often directly relevant in asylum cases and need to be assessed as part of a prosecutorial determination regarding the strength of the case, but it would be improper for an INS officer to treat aliens differently based on his personal opinion about a religion or belief. Political activities may be relevant to a ground of removal on national security or terrorism grounds. An aliens nationality often directly affects his or her eligibility for adjustment or other relief, the likelihood that he or she can be removed, or the availability of prosecutorial options such as voluntary return, and may be considered to the extent these concerns are pertinent.
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placed in proceedings, that situation suggests that the exercise of prosecutorial discretion, if appropriate, would be more useful to the INS if done sooner rather than later. It would be improper for an officer to assume that someone else at some later time will always be able to make a more informed decision, and therefore never to consider exercising discretion. Factors relevant to exercising prosecutorial discretion may come to the Services attention in various ways. For example, aliens may make requests to the INS to exercise prosecutorial discretion by declining to pursue removal proceedings. Alternatively, there may be cases in which an alien asks to be put in proceedings (for example, to pursue a remedy such as cancellation of removal that may only be available in that forum). In either case, the INS may consider the request, but the fact that it is made should not determine the outcome, and the prosecutorial decision should be based upon the facts and circumstances of the case. Similarly, the fact that an alien has not requested prosecutorial discretion should not influence the analysis of the case. Whether, and to what extent, any request should be considered is also a matter of discretion. Although INS officers should be open to new facts and arguments, attempts to exploit prosecutorial discretion as a delay tactic, as a means merely to revisit matters that have been thoroughly considered and decided, or for other improper tactical reasons should be rejected. There is no legal right to the exercise of prosecutorial discretion, and (as stated at the close of this memorandum) this memorandum creates no right or obligation enforceable at law by any alien or any other party. Process for Decisions Identification of Suitable Cases No single process of exercising discretion will fit the multiple contexts in which the need to exercise discretion may arise. Although this guidance is designed to promote consistency in the application of the immigration laws, it is not intended to produce rigid uniformity among INS officers in all areas of the country at the expense of the fair administration of the law. Different offices face different conditions and have different requirements. Service managers and supervisors, including DDs and CPAs, and Regional, District, and Sector Counsel must develop mechanisms appropriate to the various contexts and priorities, keeping in mind that it is better to exercise discretion as early in process as possible once the factual record has been identified.8 In particular, in cases where it is clear that no statutory relief will be available at the immigration hearing and where detention will be mandatory, it best conserves the Services resources to make a decision early. Enforcement and benefits personnel at all levels should understand that prosecutorial discretion exists and that it is appropriate and expected that the INS will exercise this authority in appropriate cases. DDs, CPAs, and other supervisory officials (such as District and
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DDs, CPAs, and other INS personnel should also be open, however, to possible reconsideration of decisions (either for or against the exercise of discretion) based upon further development of the facts.
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Sector Counsels) should encourage their personnel to bring potentially suitable cases for the favorable exercise of discretion to their attention for appropriate resolution. To assist in exercising their authority, DDs and CPAs may wish to convene a group to provide advice on difficult cases that have been identified as potential candidates for prosecutorial discretion. It is also appropriate for DDs and CPAs to develop a list of triggers to help their personnel identify cases at an early stage that may be suitable for the exercise of prosecutorial discretion. These cases should then be reviewed at a supervisory level where a decision can be made as to whether to proceed in the ordinary course of business, to develop additional facts, or to recommend a favorable exercise of discretion. Such triggers could include the following facts (whether proven or alleged): Lawful permanent residents; Aliens with a serious health condition; Juveniles; Elderly aliens; Adopted children of U.S. citizens; U.S. military veterans; Aliens with lengthy presence in United States (i.e., 10 years or more); or Aliens present in the United States since childhood. Since workloads and the type of removable aliens encountered may vary significantly both within and between INS offices, this list of possible trigger factors for supervisory review is intended neither to be comprehensive nor mandatory in all situations. Nor is it intended to suggest that the presence or absence of trigger facts should itself determine whether prosecutorial discretion should be exercised, as compared to review of all the relevant factors as discussed elsewhere in these guidelines. Rather, development of trigger criteria is intended solely as a suggested means of facilitating identification of potential cases that may be suitable for prosecutorial review as early as possible in the process. Documenting Decisions When a DD or CPA decides to exercise prosecutorial discretion favorably, that decision should be clearly documented in the alien file, including the specific decision taken and its factual and legal basis. DDs and CPAs may also document decisions based on a specific set of facts not to exercise prosecutorial discretion favorably, but this is not required by this guidance. The alien should also be informed in writing of a decision to exercise prosecutorial discretion favorably, such as not placing him or her in removal proceedings or not pursuing a case. This normally should be done by letter to the alien and/or his or her attorney of record, briefly stating the decision made and its consequences. It is not necessary to recite the facts of the case or the INS evaluation of the facts in such letters. Although the specifics of the letter
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will vary depending on the circumstances of the case and the action taken, it must make it clear to the alien that exercising prosecutorial discretion does not confer any immigration status, ability to travel to the United States (unless the alien applies for and receives advance parole), immunity from future removal proceedings, or any enforceable right or benefit upon the alien. If, however, there is a potential benefit that is linked to the action (for example, the availability of employment authorization for beneficiaries of deferred action), it is appropriate to identify it. The obligation to notify an individual is limited to situations in which a specific, identifiable decision to refrain from action is taken in a situation in which the alien normally would expect enforcement action to proceed. For example, it is not necessary to notify aliens that the INS has refrained from focusing investigative resources on them, but a specific decision not to proceed with removal proceedings against an alien who has come into INS custody should be communicated to the alien in writing. This guideline is not intended to replace existing standard procedures or forms for deferred action, voluntary return, voluntary departure, or other currently existing and standardized processes involving prosecutorial discretion. Future Impact An issue of particular complexity is the future effect of prosecutorial discretion decisions in later encounters with the alien. Unlike the criminal context, in which statutes of limitation and venue requirements often preclude one U.S. Attorneys office from prosecuting an offense that another office has declined, immigration violations are continuing offenses that, as a general principle of immigration law, continue to make an alien legally removable regardless of a decision not to pursue removal on a previous occasion. An alien may come to the attention of the INS in the future through seeking admission or in other ways. An INS office should abide by a favorable prosecutorial decision taken by another office as a matter of INS policy, absent new facts or changed circumstances. However, if a removal proceeding is transferred from one INS district to another, the district assuming responsibility for the case is not bound by the charging districts decision to proceed with an NTA, if the facts and circumstances at a later stage suggest that a favorable exercise of prosecutorial discretion is appropriate. Service offices should review alien files for information on previous exercises of prosecutorial discretion at the earliest opportunity that is practicable and reasonable and take any such information into account. In particular, the office encountering the alien must carefully assess to what extent the relevant facts and circumstances are the same or have changed either procedurally or substantively (either with respect to later developments, or more detailed knowledge of past circumstances) from the basis for the original exercise of discretion. A decision by an INS office to take enforcement action against the subject of a previous documented exercise of favorable prosecutorial discretion should be memorialized with a memorandum to the file explaining the basis for the decision, unless the charging documents on their face show a material difference in facts and circumstances (such as a different ground of deportability).
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Legal Liability and Enforceability The question of liability may arise in the implementation of this memorandum. Some INS personnel have expressed concerns that, if they exercise prosecutorial discretion favorably, they may become subject to suit and personal liability for the possible consequences of that decision. We cannot promise INS officers that they will never be sued. However, we can assure our employees that Federal law shields INS employees who act in reasonable reliance upon properly promulgated agency guidance within the agencys legal authority such as this memorandumfrom personal legal liability for those actions. The principles set forth in this memorandum, and internal office procedures adopted hereto, are intended solely for the guidance of INS personnel in performing their duties. They are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Training and Implementation Training on the implementation of this memorandum for DDs, CPAs, and Regional, District, and Sector Counsel will be conducted at the regional level. This training will include discussion of accountability and periodic feedback on implementation issues. In addition, following these regional sessions, separate training on prosecutorial discretion will be conducted at the district level for other staff, to be designated. The regions will report to the Office of Field Operations when this training has been completed.
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Exhibit 36
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DECLARATION OF PETER A. SCHEY I, Peter A. Schey, declare and say as follows: 1. I am one of the attorneys for the plaintiff class in Aranas v. Napolitano, No. SACV12-01137 CBM (AJWx). I am the Executive Director of the Center for Human Rights and Constitutional Law Foundation, a not-for-profit legal organization that works to defend the legal rights of low-income immigrants and refugees. I have served as lead counsel in numerous impact class action cases on behalf of vulnerable immigrant communities, including cases decided by the U.S. Supreme Court and numerous Circuit Courts of Appeals involving in total several million immigrant class members. See Curriculum Vitae at http://centerforhumanrights.org/Administration.html. 2. I execute this declaration in support of plaintiffs motion to reconsider issuance of a class-wide preliminary injunction and in support of individual class members motions to intervene and for preliminary injunctive relief. 3. In the course of my practice I have on several occasions sought deferred action on behalf of immigrants lacking other means to achieve lawful status in the United States. Over the past few years I have represented multiple individuals seeking deferred action. In my experience, and as reported to me by numerous other lawyers throughout the country with whom I maintain frequent communication, deferred action is a status that is extremely difficult to obtain. To have any chance of winning deferred action for a client I am typically required to devote at least 40
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hours marshaling evidence, preparing written argument, and arranging face-to-face meetings with DHS managers. Were I charging for these services, a client would have pay at least $10,000 to obtain this extraordinary form of relief. In my communications with lawyers handling deferred action cases, I am informed and believe that the usual fee for a competently prepared application and required communications with the Government ranges from $5,000 to $15,000. Few immigrants, especially when here without employment authorization (which is why most immigrants apply for deferred action), can afford these fees. 4. The substantive standards DHS uses when adjudicating applications for deferred action are far from transparent. They are not set out in federal regulation or even in internal Operations Instructions. Rather, they are contained in various internal memoranda, which are not readily accessible to the public, and which leave individual DHS officials with immense discretion to grant or withhold deferred action as they see fit. I have yet to be approached by any client who was even aware of deferred action, let alone of the internal Government memoranda that set forth the criteria to be used when adjudicating applications for deferred action. 5. In my experience, the primary factor determining the success or failure of a deferred action application is finding qualified counsel and the presence of an extremely compelling and unusual humanitarian element warranting the immigrant being granted temporary authorized presence and employment authorization: e.g., the immigrant is seriously ill or disabled and would not have access to adequate care
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in his or her country of origin, or the immigrant is the primary caregiver for a U.S. citizen or lawful resident who is suffering from a catastrophic illness or disability. Merely having a spouse who is a United States citizen or permanent resident does not suffice to win deferred action. An applicant whose case does not involve some highly unusual or exceptional humanitarian circumstance, or who lacks counsel familiar with deferred action, has little to no realistic chance of obtaining deferred action. 6. As counsel for the certified class in the Aranas litigation, I am familiar with the circumstances of a large number of class members who have contacted me (in my capacity as class counsel) seeking information about the status of the case. I have also been contacted by numerous lawyers who represent class members in their individual applications and petitions for immigration benefits denied under DOMA. Based on probably hundreds of communications, I am informed and believe that the vast majority (probably something close to 95-99%) of class members do NOT qualify for deferred action because their cases do not involve the types of exceptional circumstances described in defendants memoranda regarding eligibility for deferred action. 7. On July 1, 2013, DHS announced that Secretary of Homeland Security Janet Napolitano has directed USCIS to review immigration visa petitions filed on behalf of a same--sex spouse in the same manner as those filed on behalf of an opposite--sex spouse. Based on my experience, I am aware that defendants often
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take many months or many years to implement benefits extended by Congress or the courts to immigrant populations. Despite all parties knowing that the Supreme Court could rule by June 2013 that DOMA 3 is unconstitutional, as best we are aware after discussions with defendants counsel, to date (1) no instruction has issued to stop class members continuing accumulation of unauthorized presence which impacts their ability to immigrate in the future, (2) no steps have been taken to address the already accumulated unauthorized presence caused by defendants refusal to hold DOMA cases in abeyance, (3) no steps have been taken to promptly extend employment authorization to all class members, (4) no steps have been taken to identify class members or communicate with them, (5) no steps have been taken to determine how denied cases will be reopened, and (6) no plans have been made regarding expediting final decisions on previously illegally denied cases. The only way the certified class will stop suffering ongoing irreparable harm is if the Court issues a temporary injunction requiring that all class members be granted temporary authorized presence and employment authorization pending the entry of final judgment. 8. In summary, the vast majority of class members are not even aware of the deferred action program. The vast majority of class members could not afford the fees required to apply for deferred action. And, most importantly, the vast majority of class members (probably close to 99%) do not even qualify for deferred action
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and would therefore not apply even if they knew about the program and could afford to retain counsel to prepare an q22usxr4s4xfud submit an application. 9. Based on my over 35 years of experience specialization in cases filed for benefits under the Immigration and Nationality Act, it always has been and continues to be the uniform administrative policy and practice of the USCIS (and formerly the Immigration and Naturalization Service) to routinely grant adjustment of status applicants employment authorization as long as their applications show prima facie eligibility, and to toll unauthorized presence while their adjustment of status applications are pending. I declare under penalty of perjury that the foregoing is true and correct. Executed this 6th day of July, 2013, in the County of Kauai, State of Hawaii.
Peter A. Schey ///
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Case 8:12-cv-01137-CBM-AJW Document 135 Filed 07/08/13 Page 42 of 104 Page ID [ ] , S . [ ) t p n l t r n c n t o f l l o n t c l r t n dS c c u r i f l #:3049
8 8 0 I ' r o n l S l l c c t "R o o m l l - 1 . 1 S a nD i c ; ] o L . A,211)l
ti.S.Citizcnship
antl Immiglittion Sen'ices
Date:pfB 1 $ 2013
McKnight MichaelRoss Apt., #A 2428Broadway SanDiego,CA92102 NOTICE OF DECISION
1390028049 Receipt No.:MSCDear Mr.McKnight:

On October04,2012,you filed a Petitionfor Alien Relative(Form I-130).on behalfof .loseArrgel you are seeking to classifythe Througlryour petition, the beneficiary). MarroquinNiebla (hereinafter, pursuant 201(b) of the to section citizen United States of a immediate relative spouse beneficiary as the (the INA), as amended. lrnrnigration Act and Nationaliry" as the (t-130),filed on October04,2012.seeks to classifythe berreficiary l'his Petitiorr for Alien Relative, | )(AXi) artd IXAXi) and(B)(i),8 U.S,C.$ I | 5a(aX .See INA $ 20a(aX spouse of a UnitedStates citizerr. (B)(i). The petition will be denied.
Both you and the beneficiary are males. You marriedon July 28,201l, in Hartford,Connecticut. The INA to gender,but Section3 of the Defenseof doesnot specificallydefine the tenn "spouse"with respect of eligibility for federalbenefits, "marriage"mealls"only a legal for purposes MarriageAct (DOMA) states refers"only to a and wife" arrdthe word'ospouse" union between one man and one womanas husband or a wife." 1 U.S.C.$ 7. The DOMA appliesas a matterof person of the opposite sexwho is a husband of tlre is not a persorr understatelaw. Your spouse is recognized federallaw whetheror rrotyour marriage denied. your petition be must the DOMA urrder opposite sex. Therefore, you appealit by filing a completedForrnEOIR-29,l{ttlice o/ Appeal This decisionwill becomefinal unless to the Board oJ'Immigration Appealsfrom a Decision oJ'a US(,:$ (fficer. Although the appeal will be decidedby the Board of ImmigrationAppeals(BlA), you must sendthe Forrn EOIR-29 artdall required P' adclress: filing fee, to the Chula Vista Field Office at the fcrllowing includingthe appropriate docurnents, within 30 days from the dateof O. Box 1497 ChulaVista,CA9l9ll. The Form EOIR-29 must be received within the tirneallowed. this decisionnotice.The decisionis final if your appealis not received mLlst representative on appeal.your attonteyor accredited Il'you, the petitioner,intend to be represented submit Form EOIR-27with Form EOIR-29. lf you or your attorneywishesto file a brief in supportof your appeal.the brief rttustbe receivedby the USCIS office where you file your appealeitherwith your appealor no laterthan 30 day'sliorn the dateof
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Receipt No.: MSC-l 390028049
it; 30 daysafterthe dateUSCISreceives will be sentfor furtherprocessing Your appeal filing your appeal. by the USCISoffice. your appeal canbe accepted afterthat time, no brief regarding and the see8 CFR 1003.3 to the BIA, please for appeals aboutfiling requirements For more information at www.usdo.i.gov/eoir Manualavailable Practice Appeals Boardof Immigration
Elizabeth Villa*nor Field Office Director CC: DavidLandry,Esq., 12l Bnradway, Suite548 CA 92101 SanDiego,
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Exhibit 40
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8:12-cv-01137-CBM-AJW Document 135 Filed 07/08/13 Page 45 of 104 Pa #:3052
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DEHGHANI & ASSOCIATES, LLC

ATTORNEYS & COUNSELLORS AT LAW
129 CHURCH STREET, SUITE 225 NEW HAVEN, CONNECTICUT 06510 TEL: (203)773-9513 FAX: (203) 773-1868 3111W MARTIN LUTHER KING BLVD., STE. 100 TAMPA, FLORIDA 33607 TEL: (813) 746-9507 FAX: (813) 350-7801 *By Appointment Only
www.dehghanilaw.com
January 9, 2013 Via Federal Express Overnight U.S. Citizenship and Immigration Services Attn: FBAS 131 South Dearborn 3rd Floor Chicago, IL 60603-5517 Attn: Petition for Alien Relative and Adjustment of Status Application Re: Samuel Conlon Petition for Alien Relative (I-130); Application for Adjustment of Status (I-485); Application for an Employment Authorization Document (I-765); and Request that the Petition for Alien Relative and Application for Adjustment of Status be Held in Abeyance
Dear Sir/Madam: Gary Wanderlingh is a United States Citizen and herein submits a Petition for Alien Relative on behalf of his spouse, Samuel Conlon, a foreign national of the United Kingdom. Mr. Wanderlingh and Mr. Conlon were married on November 11, 2011X. Mr. Wanderlinghs Petition for Alien Relative (Petition) will make a visa number immediately available to Mr. Conlon. Mr. Conlon herein submits an Application for Adjustment of Status (Application) to that of lawful permanent resident based upon that immediately available visa number. If a determination is made that the Petition and Application cannot be granted because U.S. Citizenship and Immigration Services (USCIS) must continue to enforce Section 3 of the Defense of Marriage Act (DOMA), Mr. Conlon and Mr. Wanderlingh request that the Petition and Application be held in abeyance. Mr. Conlon also submits herein an Application for an Employment Authorization Document. Pursuant to the requirements of the enclosed Petition and applications, the following documents are submitted on Mr. Wanderlingh and Mr. Conlons behalves: 1. Notices of Appearance as Attorney/Representative on Form G-28;
Attorney Dehghani admitted to the CT Bar only. Practice in FL is limited to Immigration and Naturalization law.
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2. Two (2) passport-sized photographs of Mr. Conlon, and two (2) passport-sized photographs of Mr. Wanderlingh as required by the subsequent Petition and applications; and 3. A check in the amount of $1490.00 for filing and biometric fees associated with the enclosed Petition and applications. Mr. Wanderling and Mr. Conlon were lawfully married on November 11, 2011 in Newtown, CT. Mr. Wanderlingh is a U.S. citizen. Accordingly, Mr.Wanderlingh is entitled to petition for a visa for his foreign national relative. Pursuant to the requirements of the Petition for Alien Relative, the following documents are submitted on Mr. Conlons behalf: 4. A completed and signed Petition for Alien Relative on Form I-130; 5. A copy of Mr. Wanderlinghs birth certificate 6. A copy of Mr.Wanderlingh and Mr. Conlons civil marriage certificate, dated November 11, 2011; 7. A completed and signed Biographic Information on Form G-325A for Mr. Wanderlingh; 8. A completed and signed Biographic Information on Form G-325A for Mr. Conlon; Documentation evidencing the bona fides of the marriage between Mr. Wanderlingh and Mr. Conlon, and of their established family ties including: 9. Copies of photographs from Mr. Wanderlingh and Mr. Conlons November 11, 2011, wedding; 10. Copies of various family pictures with Mr. Wanderlinghs sisters, nephews, and mom; 11. Copies of photographs evidencing Mr. Wanderlingh and Mr. Conlons life together. If approved, Mr. Wanderlinghs Petition for Alien Relative will make a visa number immediately available to Mr. Conlon. Therefore, Mr. Conlon is submitting an Application for Adjustment of Status concurrently with his spouses petition. In support of Mr. Conlons Application for Adjustment of Status, I enclose the following: 12. A completed and signed Application to Adjust Status on Form I-485; 13. A copy of Mr. Conlons Birth Certificate;
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14. A sealed envelope containing the applicants completed Report of Medical Examination and Vaccination on Form I-693; 15. An Affidavit of Support Exemption from Mr. Wanderlingh on Form I-864; Mr. Conlon also herein submits an Application for Employment Authorization. Pursuant to the requirements of the enclosed application, the following documents are submitted on Mr. Conlons behalf: 16. A completed and signed Application for Employment Authorization on Form I-765; and 17. A copy of the identity page of Mr. Conlons current, unexpired passport showing his photograph, name, date of birth, and country of citizenship. Mr. Wanderlingh and Mr. Conlon are spouses, legally married and residing in the State of Connecticut, which fully recognizes them as lawfully wedded spouses. Mr. Conlon and Mr. Wanderlingh are eligible for the relief requested herein, but for the discriminatory impact of DOMA. Where the President of the United States, the U.S. Attorney General and multiple federal courts have determined Section 3 of DOMA to be unconstitutional as applied to legally married same-sex couples, the Petition and Application should be granted. If, however, a determination is made that the Petition and Application cannot be granted because USCIS continues to enforce Section 3 of DOMA, Mr. Conlon and Mr. Wanderlingh request that the Petition and Application be held in abeyance. Mr. Conlon and Mr. Wanderlingh assert that it is appropriate to hold the Petition and Application in abeyance where denial based solely upon enforcement of DOMA would contravene the protections of the U. S. Constitution. Mr. Conlon and Mr. Wanderlingh further assert that it is appropriate to hold the Petition and Application in abeyance based upon the present uncertainty in the status of the law. Over a dozen cases currently pending in federal courts throughout the country challenge the constitutionality of DOMA. In these cases, multiple courts have held Section 3 of DOMA to be unconstitutional. In Gill v. Office of Personnel Management, and its companion case, Massachusetts v. United States Department of Health and Human Services, the U.S. Court of Appeals for the First Circuit held: Congress denial [through DOMA] of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal
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interest, and affirmed the District Courts ruling striking down Section 3 of DOMA. 682 F.3d 1 (1st Cir. 2012). In Windsor v. United States, the U.S. Court of Appeals for the Second Circuit held that Section 3 of DOMA violates equal protection and is therefore unconstitutional. No. 12-2335cv(L) (2nd Cir. 2012). That court also found that gays and lesbians are a quasi-suspect class and that DOMA must be subjected to intermediate scrutiny, ultimately holding that DOMAs classification of same-sex spouses was not substantially related to an important government interest. Id. In Pedersen v. Office of Personnel Management, the U.S. Federal District Court for the District of Connecticut court also concluded that laws discriminating on the basis of sexual orientation should be subjected to a heightened form of judicial scrutiny, though it ultimately held that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny, and that it therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution. No.3:10-cv-1750 (VLB), (D. Conn. July 31, 2012). In Golinski v. Office of Personnel Management, the U.S. Federal District Court for the Northern District of California held: DOMA . . . violates . . . equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize [a] lawful marriage . . . (10-00257, U.S. District Court, Northern District of Cal.). In Matter of Balas, the U.S. Bankruptcy Court for the Central District of California held: . . . DOMA violates . . . equal protection rights . . . under the due process clause of the Fifth Amendment. No. 11-BK-17831, 2011 Bankr. LEXIS 2157 (Bankr. C.D. Cal. June 13, 2011). Among other federal court challenges to the constitutionality of section 3 of DOMA is the case of Blesch v. Holder pending in the Eastern District of New York. In Blesch, five legally married, same-sex, bi-national couples have challenged the constitutionality of DOMA specifically in the immigration context. On December 7, 2012, the United States Supreme Court announced that it has granted certiorari and will review Windsor v. United States. As discussed supra, in Windsor a federal District Court and the Second Circuit Court of Appeals struck down Section 3 of DOMA as unconstitutional. Having granted certiorari the Supreme Court is now expected to issue a final judicial determination as to the provisions constitutionality by the close of its current term on
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June 28, 2013. Given the substantial legal uncertainty regarding DOMAs constitutionality and the potential for final judicial resolution of this matter within the coming months, Mr. Conlon and Mr. Wanderlingh request that the Petition and Application be held in abeyance until the state of the law has settled. In addition to multiple federal court actions challenging DOMA, legislation which would repeal DOMA is pending in both houses of Congress. On July 19, 2011, President Obama announced that he would endorse the legislative repeal of DOMA. On July 20, 2011, U.S. Senator Patrick Leahy of Vermont chaired a Senate Judiciary Committee hearing on S.598, The Respect for Marriage Act: Assessing the Impact of DOMA on American Families. On November 10, 2011, the Senate Judiciary Committee voted S. 598 - The Respect for Marriage Act out of committee. Where legislation pending in both houses of Congress would resolve the present uncertainty, until the fate of DOMA has been resolved, the only way to avoid unlawful discrimination and undue harm to Mr. Conlon and Mr. Wanderlingh is to hold the Petition and Application in abeyance. U.S. Senators Richard Blumenthal, John Kerry and at least fifteen other U.S. Senators, have called upon USCIS to hold petitions and applications, such as these, in abeyance pending a legislative repeal or a final determination on DOMA litigation. These elected officials have stated that the exercise of discretion in cases such as this would prevent the potentially irreparable harm that would be caused by application of the law that is currently under review by the courts and the U.S. Congress. As evidence of the present uncertainty of DOMA, the injustice that will result in its unmitigated enforcement and in support of enacting interim measures on behalf of gay and lesbian binational couples, I submit the following documents: Documentation evidencing the uncertain status of DOMA in light of multiple federal court cases challenging the laws constitutionality, including: 18. A copy of the February 23, 2011 letter of U.S. Attorney General Eric H. Holder, Jr. to Speaker of the House John Boehner announcing the President of the United States and Attorney General Holder have determined that Section 3 of DOMA is unconstitutional as applied to legally married same-sex couples; 19. A copy of the decision of the United States Court of Appeals for the First Circuit in Massachusetts v. U.S. Department of Health and Human Services
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and Gill v. Office of Personnel Management, 682 F.3d 1 (1st Cir. 2012), in which the court struck down Section 3 of DOMA, holding that, Congress denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.; 20. A copy pages 1-3 and page 43 of the majority opinion of the United States Court of Appeals for the Second Circuit in Windsor v. United States, No. 122335-cv(L) (2nd Cir. 2012), holding that Section 3 of DOMA violates equal protection and is therefore unconstitutional.; 21. A copy of the first 20 pages of the Petition for Writ of Certiorari to the U.S. Supreme Court submitted on behalf of the United States by U.S. Solicitor General, Donald Verrilli, in the case of United States v. Windsor; 22. A copy of the first 14 pages of the Supplemental Brief for the United States submitted to the U.S. Supreme Court by U.S. Solicitor General, Donald Verrilli, in the case of United States v. Windsor; 23. A copy of the December 7, 2012 Order List of the U.S. Supreme Court granting the Petition for Writ of Certiorari in United States v. Windsor; 24. A copy of the U.S. Supreme Court docket for the Petition for Writ of Certiorari Before Judgment of the Solicitor General of the United States Department of Justice in the case of United States v. Windsor, showing the Court granted the United States Petition for Writ of Certiorari in United States v. Windsor on December 7, 2012; 25. A copy of the complaint in Blesch v. Holder, CV12-1578 (E.D.N.Y. April 2, 2012);
Documentation evidencing the uncertain status of DOMA in light of pending legislation, including: 26. A copy of Senate Bill S. 598 titled Respect for Marriage Act of 2011, currently pending before the U.S. Senate, which would repeal the Defense of Marriage Act;
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27. A copy of House Bill H.R. 1116 titled Respect for Marriage Act, currently pending before the U.S. House of Representatives, which would repeal the Defense of Marriage Act; 28. A copy of an article from The Washington Post, dated July 19, 2011, titled Obama Backs Bill to Repeal Defense of Marriage Act, highlighting President Obamas commitment to the repeal of DOMA through the Respect of Marriage Act; 29. A copy of an article from The Washington Blade, dated November 28, 2012, titled Hispanic Caucus Seeks UAFA-Inclusive Immigration Reform, including a statement from an administration official that The President has long believed that Americans with same-sex partners from other countries should not be faced with the painful choice between staying with the person they love or staying in the country they love, and he welcomes changes that would help keep families together.; 30. A copy of U.S. Senator Patrick Leahys opening statement to the Senate Judiciary Committee, dated July 20, 2011, for the hearing on, S.598, The Respect For Marriage Act: Assessing The Impact Of DOMA On American Families; 31. A copy of the written testimony of Victoria F. Neilson, Esq., Legal Director, Immigration Equality, to the Senate Judiciary Committee, dated July 20, 2011, titled Addressing Inequality in the Law for Permanent Partners; Documentation of Congressional Leaders efforts to secure interim relief for gay and lesbian binational couples in light of the uncertain status of DOMA including: 32. A copy of the April 6, 2011 letter to Attorney General Eric H. Holder and Department of Homeland Security (DHS) Secretary Janet Napolitano sent by U.S. Senator Kirsten Gillibrand and eleven other U.S. Senators, asking DHS to hold marriage-based immigration petitions in abeyance pending a legislative repeal or a final determination on DOMA litigation; 33. A copy of the April 14, 2011 letter to Attorney General Eric Holder and DHS Secretary Janet Napolitano sent by U.S. Representative Joseph Crowley and forty-seven other members of the U.S. House of Representatives asking DHS
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to hold immigration petitions based on lawful marriages by same-sex couples in abeyance pending a legislative repeal or a final determination of the ongoing DOMA litigation; 34. A copy of an article from The Washington Blade, dated November 11, 2011, titled Blumenthal seeks aid to lesbian bi-national couple, including the full text of Senator Blumenthals letter to DHS Secretary Janet Napolitano, dated November 10, 2011, in which he states that the Department of Justice has indicated that it believes the law to be unconstitutional, and has declined to defend it in court. USCIS has the authority to exercise discretion to hold this case in abeyance. [A]n agencys decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agencys absolute discretion. Heckler v. Chaney, 470 U.S. 821, 831 (1985). The Director of USCIS is specifically empowered to establish policies for performing such functions as are transferred to the Director . . . [and] national immigration services policies and priorities, 6 U.S.C. 272(a), (d)(4) (2002). The Director of USCIS has the power to establish appropriate enforcement policies. 6 U.S.C. 271(a)(3) (2008). A November 17, 2000, memorandum written by INS Commissioner Doris Meissner provides guidance on the proper exercise of discretion stating: The favorable exercise of prosecutorial discretion means a discretionary decision not to assert the full scope of the INS enforcement authority as permitted under the law. An October 24, 2005 memorandum written by Department of Homeland Security Principal Legal Advisor, William J. Howard, encourages the proper exercise of discretion noting: Prosecutorial discretion is a very significant tool that sometimes enables you to deal with the difficult, complex and contradictory provisions of the immigration laws and cases involving human suffering and hardship. It is clearly DHS policy that national security violators, human rights abusers, spies, traffickers both in narcotics and people, sexual predators and other criminals are removal priorities. It is wise to remember that cases that do not fall within these categories sometimes require that we balance the cost of action versus the value of the result. Our reasoned determination in making prosecutorial discretion decisions can be a significant benefit to the efficiency and fairness of the removal process. USCIS has used its discretion to hold petitions or applications in abeyance including under circumstances where the applicable legal standard remained unsettled. In June 2009, as a result of litigation and pending legislation on behalf of the surviving spouses of U.S. citizens,
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USCIS held I-130 Petitions for Alien Relative filed by deceased U.S. citizen spouses and the I485 Applications to Register Permanent Residence or Adjust Status filed by foreign national surviving spouses of U.S. citizens in abeyance pending resolution of unsettled legal issues. USCISs memorandum regarding the exercise of discretionary relief on behalf of surviving spouses notes that the policy was enacted to address humanitarian concerns and that it was intended that this discretion should be liberally applied to provide a humanitarian benefit to eligible beneficiaries. In the case of the surviving spouses it used to be the case that, under Section 205.1(a)(3)(i)(C) of title 8 of the Code of Federal Regulations, approval of Form I-130 was automatically revoked upon the death of the petitioner if the beneficiary had not adjusted status in the United States or been inspected and admitted as an immigrant. In such circumstances, the beneficiary had to request a reinstatement of the approval, which USCIS could grant in its discretion for humanitarian reasons. However, no avenue of immigration relief existed, where the surviving spouse and the deceased U.S. citizen were married for less than two years, and where either the immigrant petition filed by the citizen on behalf of the surviving spouse had not been adjudicated by USCIS at the time of the citizens death or where no petition was filed by the citizen before the citizens death. After surviving spouses challenged the rules in federal court, the lack of relief under the regulations caused a circuit split, in which several federal courts held that the death of the U.S. citizen petitioner did not end the surviving-spouses classification as an immediate relative. See, e.g., Neang Chea Taing v. Napolitano, 567 F.3d 19, 21 (1st Cir. 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006). As a result, USCIS created a policy to hold the I-130 Petition for Alien Relative filed by a deceased U.S. citizen spouse and the I-485 Application to Register Permanent Residence or Adjust Status filed by a surviving foreign national spouse in abeyance pending a final decision by a court or Congress. This action by USCIS allowed surviving family members to maintain the status quo and remain in the U.S. until their rights were finally determined through litigation or legislation. The circumstances of surviving spouses closely parallel the circumstances in which Mr. Conlon and Mr. Wanderlingh have asked that their Petition and Application be held in abeyance. Like the surviving spouses, Mr. Conlon and Mr. Wanderlingh face imminent harm flowing from the denial of an immigration benefit. As in the case of the surviving spouses,
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federal courts have yet to make a final decision regarding the applicable law. Also, in both instances, pending legislation would resolve the issue. USCIS can and should exercise discretion in this case to hold the Petition and Application in abeyance to allow this family to maintain the status quo and remain in the U.S. until their rights are finally determined through litigation or legislation. Commissioner Meissners November 17, 2000 memorandum provides a list of factors that should be considered when making a decision whether to exercise discretion. They include: Length of residence in the United States: The longer an alien has lived in the United States, particularly in legal status, the more this factor may be considered a positive equity. Humanitarian concerns: Relevant humanitarian concerns include, but are not limited to, family ties in the United States. . . . Immigration history: Aliens without a history of violating the immigration laws . . . warrant favorable consideration to a greater extent than those with such a history . . . Community attention: Expressions of opinion, in favor of or in opposition to removal . . .
Each of these factors weighs in favor of an exercise of discretion in Mr. Conlon and Mr. Wanderlinghs case. More recent memoranda issued by U.S. Immigration and Customs Enforcement (ICE) Director John Morton, provide further guidance regarding when discretion should be exercised. ICE Director Mortons March 2, 2011 memorandum regarding Civil Immigration Enforcement Priorities for the Apprehension, Detention and Removal of Aliens states, the removal of aliens who pose a danger to national security or a risk to public safety shall be ICEs highest immigration enforcement priority. Mr. Conlon does not fall within the Administrations enforcement priorities. Mr. Conlon is not a terrorist, has never been arrested, has never belonged to a criminal gang and poses absolutely no risk to public safety. ICE Director Mortons Memorandum, dated June 17, 2011, regarding Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens further articulates factors that should be considered when determining whether a favorable exercise of discretion is warranted. 80
Subsequent guidance has specifically articulated that it is the policy of DHS to recognize committed, long-term, same-sex relationships as family-ties in the context of exercising discretion. Therefore, even if USCIS believes DOMA does not allow them to recognize Mr. Conlon and Mr. Wanderlingh as spouses, they clearly should be recognized as a family when determining whether discretion should be exercised in this case. On August 18, 2011, Cecilia Muoz of the White House and DHS General Counsel John Sandweg confirmed during calls with Hill staff, advocates and the press that the Administration understands the term family as used in ICE Director Mortons June 17, 2011 memorandum to include lesbian and gay families. On September 28, 2012, DHS Secretary Janet Napolitano announced that she had directed ICE to issue written guidance to field officers to further clarify that the phrase family relationships as used in ICE Director Mortons June 17, 2011 memorandum includes long-term, same-sex partners. On October 5, 2012, ICE issued written guidance, stating that the factor of family relationships encompasses two adults who are in a committed, long-term, same-sex relationship. This memorandum went on to state that same-sex relationships rise to the level of family relationships when the individuals: are each others sole domestic partner and intend to remain so indefinitely; are not in a marital or other domestic relationship with anyone else; and typically maintain a common residence and share financial obligations and assets. Mr. Conlon and Mr. Wanderlinghs marital relationship clearly rises to the level of a family relationship according to the guidance provided by the aforementioned memoranda. Mr. Conlon and Mr. Wanderlingh are a loving family and their familial relationship warrants a favorable exercise of discretion in this case so that they might lawfully remain together in the United States. As evidence of USCISs authority to exercise discretion to hold Mr. Conlon and Mr. Wanderlinghs Petition and Application in abeyance, I submit the following documents: 35. A copy of a memorandum of Doris Meissner, Commissioner of the Immigration and Naturalization Service, regarding prosecutorial discretion, dated November 17, 2000; 36. A copy of a memorandum of William Howard, DHS Principal Legal Advisor, regarding prosecutorial discretion, dated October 24, 2005; 37. A copy of a memorandum of Donald Neufeld, USCIS Acting Associate Director of the Office of Domestic Operations regarding Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children,
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dated June 15, 2009; 38. A copy of a memorandum of ICE Director John Morton regarding Civil Immigration Enforcement Priorities for the Apprehension, Detention and Removal of Aliens, dated March 2, 2011; 39. A copy of a memorandum of ICE Director John Morton regarding Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, dated June 17, 2011; 40. A copy of DHS Secretary Janet Napolitanos letter to U.S. Representative Jerrold Nadler, dated September 27, 2012, informing the Representative that DHS had directed ICE to issue written guidance to field offices that the interpretation of the phrase family relationships includes long-term, samesex partners; 41. A copy of a memorandum of ICE Executive Associate Director Gary Mead and others regarding Applicability of Prosecutorial Discretion Memoranda to Certain Family Relationships, dated October 5, 2012, stating that the factor of family relationships as used in ICE Director John Mortons June 17, 2011 memorandum encompasses two adults who are in a committed, longterm, same-sex relationship; and 42. A copy of a letter and an enclosure sent to Senate Majority Leader Harry Reid from DHS Secretary Janet Napolitano, dated August 18, 2011, informing the Senator that DHS and the Department of Justice were initiating an interagency working group to exercise appropriate discretion in the furtherance of the Administrations enforcement efforts noting that the working group reflects a decision by the Administration to coordinate efforts across agencies. As articulated in ICE Director Mortons June 17, 2011 Memorandum among the factors to consider when determining whether to exercise discretion are: the circumstances of the persons arrival in the United States and the manner of his or her entry; the persons immigration history; whether the person has a U.S. citizen or permanent resident spouse; and the persons ties and contributions to the community, including family relationships.
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Among the factors to consider when weighing whether an exercise of discretion is warranted is the persons length of presence in the United States, with particular consideration given to presence while in lawful status; the circumstances of the persons arrival in the United States and the manner of his or her entry and the persons immigration history. In particular, immigrants without a history of violating the immigration laws . . . warrant favorable consideration to a greater extent than those with such a history. Mr. Conlon has been lawfully admitted each time he has entered the United States. Mr. Conlon has spent more than a year in the United States in lawful non-immigrant statuses in full compliance with U.S. immigration law. Mr. Conlon has taken care to strictly comply with the terms of all visas held and periods of lawful stay granted. In light of Mr. Conlons lawful entry to the United States, Mr. Conlons length of presence in the United States while in lawful status, and Mr. Conlons history of strict compliance with U.S. immigration law, Mr. Wanderlingh and Mr. Conlon ask that USCIS exercise discretion and hold the Application and Petition in abeyance. Another factor to consider when weighing whether an exercise of discretion is warranted is whether the person has a U.S. citizen or permanent resident spouse, child, or parent. As discussed above, Mr. Conlon is legally married to Mr. Wanderlingh, a U.S. citizen. The couple was married in Newton, CT on November 11, 2011, where they are recognized as lawfully married spouses. Mr. Conlon and Mr.Wanderlingh live in New Fairfield, CT which also recognizes Mr. Conlon and Mr. Wanderlingh as spouses. In light of Mr. Conlons U.S. citizen spouse, Mr. Wanderlingh and Mr. Conlon ask that USCIS exercise discretion and hold the Application and Petition in abeyance. Another factor to consider when weighing whether an exercise of discretion is warranted is the persons family ties. Chief among Mr. Conlons family ties are those with his U.S. citizen spouse. Even if USCIS believes DOMA does not allow recognition of Mr. Conlon and Mr. Wanderlinghs marriage or their spousal relationship, Mr. Conlon and Mr. Wanderlinghs committed relationship clearly should be recognized as family. Mr. Conlons relationships with U.S. citizen family members also extend beyond his relationship with his husband, Mr. Wanderlingh. Mr. Conlon is a beloved member of the Wanderlingh family. Since 2009, Mr. Conlon has attended Wanderlingh family gatherings and holidays and events, including Christmas, the birth of Mr. Wanderlinghs nephew, and he was present at the hospital when Mr. Wanderlinghs father, Joseph Wanderlingh, passed away in the fall of 2011. In addition, Mr. Conlons family members were present at the couples wedding
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ceremony and reception on November 11, 2011. In a letter annexed herein, Mr. Wanderlinghs mother, Antoinette, states that after their initial introduction, she knew that he would be a perfect partner for Gary and that Since then, Sam has become a very important part of our family.. I have come to love Sam very much and regard him as my second son. Mr. Wanderlingh also has two sisters. Mr. Conlon was able to be present for the birth of Denises, Mr. Wanderlinghs youngest sister, second son. Mr. Wanderlinghs other sister, Suzanne, also states that Sam has quickly become a close member of our family. Mr. Conlon has strong, extensive, established and enduring ties with his spouse and with the family he shares with his U.S. citizen husband. If Mr. Conlon were forced to leave the United States, Mr. Wanderlingh would be devastated and the family Mr. Conlon and Mr. Wanderlingh share would be heart-broken by the loss. Mr. Colons relationships with U.S. citizen family members clearly warrant a favorable exercise of discretion in this case. Forcing Mr. Conlon and Mr. Wanderlingh to sever their ties to each other and the family they share is unconscionable. Mr. Conlons family ties with U.S. citizen family members clearly warrant a favorable exercise of discretion in this case. In light of these family ties, Mr. Conlon and Mr. Wanderlingh ask that USCIS exercise discretion and hold the Application and Petition in abeyance. Community attention is another factor to consider when weighing whether an exercise of discretion is warranted. Public expressions of opinion may be considered by DHS when determining whether to exercise discretion. DHS may also consider the likelihood that because of sympathetic factors a large amount of adverse publicity will be generated. On December 10, 2012, a coalition of 54 organizations representing lesbian, gay, bisexual and transgender (LGBT) and immigrant communities urged the White House to hold green card applications filed by gay and lesbian spouses in abeyance pending a U.S. Supreme Court decision on DOMAs constitutionality. The coalition of community groups wrote: We write today to urge the Administration to hold in abeyance applications for lawful permanent residence which would be approvable but for DOMA . . . .We understand the Administrations commitment to continue enforcing DOMA, but this commitment does not require that such applications be denied; instead, we urge the Administration to take a middle path and hold marriage-based applications until the Supreme Court makes a final determination about the constitutionality of DOMA. The letter notes the legal precedent for such a policy of abeyance. In the past, USCIS has held in abeyance applications for lawful permanent residence filed by surviving spouses of
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U.S. citizens while litigation was being pursued on their behalf. In light of community attention and expressions of opinion in favor of a policy to hold applications for lawful permanent residence which would be approvable but for DOMA in abeyance, Mr. Conlon and Mr. Wanderlingh ask that USCIS exercise discretion and hold the Application and Petition in abeyance.
As evidence that Mr. Wanderlingh and Mr. Conlons case warrants a favorable exercise of discretion, I submit the following documents: 43. A Statement from Mr. Samuel Conlon regarding his relationship with Mr. Wanderlingh; 44. Two Statements from Mr. Gary Wanderlingh regarding his relationship with Sam Conlon and his hardship if he were to move to the UK. As further evidence of Mr. Conlon and Mr. Wanderlinghs family ties: 45. A copy of a letter from Mr. Wanderlinghs mother, Antoinette Wanderling, documenting Mr. Wanderlingh and Mr. Conlons relationship and Mr. Conlons close relationship to a large family of U.S. citizens; 46. A copy of a letter from Denise Basini, Mr. Wanderlinghs sister, detailing her interactions with Mr. Conlon and describing the importance of both Mr. Wanderlingh and Mr. Conlon to her family. 47. A copy of a letter from Suzanne Wanderlingh, Mr. Wanderlinghs second sister, detailing all of her interactions with Mr. Conlon and his relationship with Mr. Wanderlingh and his family. 48. A copy of a letter from Steven Joseph Basini, brother-in-law to Mr. Wanderlingh, describing his interactions with Mr. Conlon and the fact that Mr. Conlon was present for the birth of his second child. 49. A copy of a letter from Sarah Cross, a friend and former roommate of Mr. Conlon, detailing her friendship with Mr. Conlon and her interactions with the couple. 50. A copy of a letter from Elia Paduano, a first cousin to Mr. Wanderlingh,
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describing her interactions with Mr. Conlon and how happy Mr. Wanderlingh has been since he met Mr. Conlon. 51. A copy of a letter from Dr. Steven Mitchel, a friend of Mr. Conlons, detailing their friendship and the happiness that Mr. Conlon and Mr. Wanderlingh bring to each other. 52. A copy of a letter from Claire Redrup, Mr. Conlons sister, describing her meetings with Mr. Wanderlingh and how important he has become as a member of their family. 53. A copy of a letter from Mike Redrup, Mr. Conlons brother-in-law, describing his interactions with Mr. Wanderlingh, the positive affects he has had on Mr. Conlon, and how Mr. Wanderlingh has become a part of their family. 54. A copy of a letter from Sarah Conlon, Mr. Conlons second sister, detailing how Mr. Wanderlingh has had a positive influence on Mr. Conlon, how he has become a member of the family, and how her children have become very close to their Uncle Gary. 55. A copy of a letter from Kenneth Seivwright, partner to Ms. Sarah Conlon, stating how happily they have welcome Mr. Wanderlingh into their family. 56. A copy of a letter from Connie and Mario Basini, friends of Mr. Wanderlinghs, detailing the happiness that Mr. Conlon brings to Mr. Wanderlingh and how important Mr. Conlon has been in Mr. Wanderlinghs life. 57. A copy of a letter from Dr. David Weiss, Mr. Wanderlinghs doctor, attesting to the fact that he met Mr. Conlon in July of 2011. 58. A copy of a letter from Carolyn Casillo Faxon, a friend of Mr. Wanderlinghs from high school, attesting to the positive influence Mr. Conlon has had not only on Mr. Wanderlinghs life, but to the fact that she and her family have become incredibly close with Mr. Conlon as well. 59. A copy of a letter from Phyllis Levesque, a coworker with Mr. Wanderlingh, stating what a pleasure it is to be around Mr. Conlon and how great the two of them are as a couple. 60. A copy of a letter from Sonja Henke, another coworker to Mr. Wanderlingh,
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describing how she met Mr. Conlon at the wake of Mr. Wanderlinghs father, and how Mr. Conlon has clearly become a part of the Wanderlingh family. 61. A copy of a letter from Nicole Waldo, a friend of Mr. Wanderlinghs and veterinarian for their dogs, attesting to the close relationship she and her husband have developed with Mr. Wanderlingh and Mr. Conlon, and the fact that Mr. Conlon often visits the animal hospital in order to provide excellent care to their dogs. 62. A copy of a letter from Deborah Jordan, a lifelong friend of Mr. Wanderlinghs, describing how happy Mr. Conlon has made him and what a great couple they have become. 63. A copy of a letter from Joan Siegel, Mr. Wanderlinghs accountant, attesting to the fact that she has met Mr. Conlon and has had numerous discussions with the couple about their future. 64. A copy of a letter from Jeffrey Getman, the Principal at the school where Mr. Wanderlingh works, attesting to the fact that he has met Mr. Conlon on several occasions. 65. A copy of a letter from Laura Snetzko, a coworker of Mr. Wanderlinghs, describing her interactions with Mr. Conlon and how well the two seem to work as a couple. 66. A copy of a letter from Meghan Gioffe, a coworker of Mr. Wanderlinghs, describing her interactions with the couple and how clear their love and respect for each other is. 67. A copy of a letter from Kathleen Cucchiarella, a friend of Mr. Wanderlinghs, attesting to his character and detailing how well Mr. Conlon fits in with the Wanderlinghs. 68. A copy of a letter from Bryan Muller, a coworker of Mr. Wanderlinghs, attesting to the fact that he has met Mr. Conlon on several occasions and that Mr. Wanderlingh and Mr. Conlon seem to be a very good couple. 69. A copy of a letter from Alison Pepe, a friend of Mr. Wanderlinghs, describing how happy Mr. Conlon makes Mr. Wanderlingh. 70. A copy of a letter from Dina Miller, a coworker of Mr. Wanderlinghs,
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describer her interactions with the couple and how clear it is that they are happy and that they have found their soul mates. 71. A copy of a letter from Maureen Mullaney, a friend of Mr. Wanderlinghs, describing how she and her husband have not only met Mr. Conlon several times, but they enjoy seeing him as often as possible. Mrs. Mullaney also describes how important Mr. Conlon has become to Mr. Wanderlingh. 72. A copy of a letter from Mike Cleary, a coworker of Mr. Wanderlinghs, attesting to the fact that he has met Mr. Conlon on several occasions, and describing how well he seems to fit in with Mr. Wanderlinghs friends and family. 73. A copy of a letter from Catherine and Steven Parodo, friends of Mr. Wanderlinghs, describing their interactions with the couple.
74. A copy of a letter from Jenna Schettino, a coworker of Mr. Wanderlinghs, describing what a positive influence Mr. Conlon has had on Mr. Wanderlingh and everybody in their life. As further evidence of the circumstances of Mr. Conlons compliance with U.S. immigration law, including: 75. A copy of an I-797A Approval Notice for Mr. Conlon and Mr. Wanderlinghs Applications to Extend/Change Nonimmigrant Status, dated November 13, 2012; As further evidence of community attention and expressions of opinion in favor of a policy to hold applications for lawful permanent residence of same-sex married couples in abeyance: 76. A copy of a letter to President Obama, dated December 10, 2012, signed by 54 organizations representing lesbian, gay, bisexual and transgender and immigrant communities asking the White House to hold green card applications filed by gay and lesbian married couples in abeyance pending a decision of the U.S. Supreme Court on DOMAs constitutionality;
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Mr. Conlon and Mr. Wanderlingh ask that USCIS grant the enclosed Petition and applications. However, if USCIS deems that it cannot grant the Petition and Application at this time, Mr. Conlon and Mr. Wanderlingh ask USCIS to exercise discretion on their behalf in light of the factors laid about above to hold the Petition and Application in abeyance. DHS has stated that USCIS will exercise discretion on a case by case basis in light of the unique circumstances presented by a particular case. Mr. Conlon and Mr. Wanderlinghs circumstance is a case where such discretion is clearly warranted. As such, Mr. Conlon and Mr. Wanderlingh ask that USCIS exercise discretion and hold the Petition and Application in abeyance pending a final determination of DOMAs constitutionality or its legislative repeal. We will be prepared with original documents on the date of the couples interview. Should you have any questions about this matter please feel free to contact me. Sincerely, Kevin E. Dehghani, Esq. Counsel for Samuel Conlon and Gary Wanderlingh Enclosures
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Exhibit 49
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Exhibit 50
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DECLARATION OF SAMUEL CONLON I, Samuel Conlon, declare and say as follows: 1. I execute this declaration in support of plaintiffs-intervenors motion for a preliminary injunction in Aranas v. Napolitano, No. SACV12-01137 CBM (AJWx). 2. I am a citizen of the United Kingdom. I was born in Wellyn Gardens, England on September 10, 1976. 3. I am lawfully married to Gary Wanderlingh, a citizen of the United States. After a relationship lasting several years, we were married in Newtown, Connecticut on November 11, 2011. We reside together in Fairfield, Connecticut. 4. In October 2012, Gary and I retained attorney Kevin E. Dehghani in order to file a Petition for Alien Relative and application for Adjustment of Status with the United States Citizenship and Immigration Service (USCIS). 5. On November 15, 2012, Mr. Dehghani filed an I-130 Petition for Alien Relative, an I-485 Application for Adjustment of Status and an I-765 Application for Employment Authorization (First Application Package) with the USCIS. I am informed that Mr. Dehghani is filing a declaration in this matter with exhibits consisting of the relevant documents filed with USCIS and responses received from USCIS. 6. In early December the USCIS summarily denied all applications filed with the First Application Package based solely on the Defense of Marriage Act (DOMA). Gary and I were never interviewed by the USCIS to evaluate the bona
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fides of our marriage. Nor was I offered any interim status or temporary employment authorization pending a resolution of DOMAs constitutionality. Instead, I was denied any interim status or employment authorization. 7. In January 10, 2013, our attorney filed a second set of applications with the USCIS, including an I-130 Petition for Alien Relative, I-485 Application for Adjustment of Status and I-765 Application for Employment Authorization (Second Application Package). Through our counsel, we also submitted a 19-page request that a decision on the I-130 Petition and I-485 Application be held in abeyance pending the federal courts resolution of the constitutionality of DOMA. 8. On January 23, 2013, without providing an opportunity for an interview, the USCIS issued summary denials of the January 10, 2013, petition and applications, citing DOMA as the sole reason for not recognizing our marriage as valid under immigration laws. Once again we were not provided an interview to examine the bona fides of our marriage or my need to have temporary employment authorization. The denial of my I-485 application clearly states that my application for temporary employment authorization was also denied. The denial informs me that there is no appeal to this decision. 9. While our January petition and applications were pending, our attorney also submitted on my behalf a 14-page application for Deferred Action status so that my presence is temporarily authorized and I may be issued temporary employment authorization.
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10. On March 27, 2013, USCIS wrote to me and denied the Deferred Action application. No real reasons were provided other than that in the exercise of its discretion, USCIS had decided we are not able to extend deferred action to you I was told that this determination may not be appealed. 11. I am informed and believe that other immigrants in same-sex lawful marriages are identically situated to me. Namely, applications and/or petitions have been and are being denied rather than being held in abeyance, and the DHS and USCIS do not treat the facts that we are in same sex marriages and the Administration believes we are eligible for immigration benefits because DOMA is unconstitutional as an exceptional circumstance warranting the grant of deferred action status. We are treated like any other undocumented immigrant and unless burdened by some exceptional circumstance, such as catastrophic illness in the family, we are not eligible for Deferred Action status. 12. Gary has suffered and continues to suffer psychological trauma, including anxiety disorder, sleeplessness, and profound depression, as a result of the denials we have been issued and my presence in unauthorized status and without the ability to be lawfully employed. We face routine obstacles and discrimination as a result of the stigmatization of our sexual orientation and gay marriage. Denied authorized presence and at least the temporary ability to work, makes our lives and family relationship untenably stressful and precarious. The Government in its merits brief to the U.S. Supreme Court has described DOMA as imposing a harsh form of
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discrimination against gay people. I and those similarly situated denied the right to work while the constitutionality of DOMA is sorted out are likely experiencing among the harsh[est] forms of discrimination wrought by the Administrations refusal to grant us temporary employment authorization. The adverse psychological effects I have experienced through forced unemployment are not atypical and include depression, extreme anxiety, sleeplessness, and poor self-esteem. The stress of unemployment has led and continues to lead to declines in my and my familys stability and well-being. 13. My mother passed away several years ago. My father lives in England and suffered a severe stroke on August 13, 2012. He was hospitalized and then released to recover at home. He is of advanced age and I urgently would like to visit him but am unable to do so because of my unauthorized presence. I am informed and believe that if I was in a heterosexual marriage I would be permitted to work, my presence would be temporarily authorized, and I could apply for advance parole to briefly travel abroad. I and the class members in this case are only unable to briefly travel abroad to see ill family members because we are gay or lesbian and in same-sex lawful marriages. 14. I am also informed that because USCIS refused to hold my immigration petitions in abeyance and instead denied them I am now accruing unauthorized presence which may preclude me from being admitted to the United States for three, or perhaps even ten, years if I have to apply for my permanent resident status
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abroad. I am informed and believe that the USCIS refuses to hold any applications or petitions filed by class members in this case in abeyance while the federal courts sort out the constitutionality of DOMA. The prospect that I could be separated from my family for long is causing me extreme emotional hardship. 15. USCIS's denying my and class members applications makes it much more difficult for us to pursue recourse before the courts. If I remain here in temporary unauthorized status, but do not prevail on my claims that DOMA 3 is unconstitutional, I will be barred from the United States for up to ten years. This is likely true of most if not all class members. On the other hand, if class members and I forgo wholly viable legal claims and leave the United States now, we may be able to return if DOMA is declared unconstitutional but will face a three-year bar to reentry if we accumulated six months of unauthorized presence prior to departing, and a 10-year bar if we remained here for 12 months or more in unauthorized presence after USCIS denied our adjustment of status applications. 16. While class members and I are placed in a complex legal quagmire as a result of this Courts failure to issue interim relief to the class, this Courts refusal to even allow us to be temporarily employed makes it difficult and in many cases impossible to retain counsel to protect our interests, pursue our administrative cases, or seek individual relief from other federal Courts that may be more understanding of the severity of the harms we are suffering.
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17. This Courts refusal to grant modest interim relief serves as a major incentive for class members like myself to depart the United States, separate from our loved ones, and abandon our rights. In my case, Gary cannot abandon the United States to live abroad. He has a committed promise to his recently deceased father that he would take care of his aged mother. 18. I am not asking this Court to order the DHS to approve our pending applications and grant me lawful permanent resident status before this Court issues a final judgment regarding the constitutionality of DOMA. I am respectfully asking this Court to at least have the humanity to extend to class members and to me the same temporary protections available to heterosexual married couples while their family-based immigration petitions are pending.
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Exhibits 34-61.
CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this day I electronically filed the foregoing PLAINTIFFS EXHIBITS 34-61 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 /// /s/ ___Carlos Holgun________
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Case 8:12-cv-01137-CBM-AJW Document 135-1 Filed 07/08/13 Page 1 of 26 Page ID #:3112
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION SACV12-01137 CBM (AJWx) PLAINTIFFS EXHIBITS 34-61. [Part 2 of 4: No.s 52-55]
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Exhibits 34-61.
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Exhibits 34-61.
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35 36 37 38 39 40 41 42 43 44 45 46
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47 48 49 50 51 52 53 54 55
56 57 58
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Exhibits 34-61.
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Exhibits 34-61.
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Exhibit 52
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Office of the Citizenship and Immigration Services Ombudsman
U.S. Department of Homeland Security Washington, DC 20528
Recommendation from the CIS Ombudsman to the Director, USCIS

To: From:: Date: Re: Dr. Emilio T. Gonzalez, Director, USCIS Cc: Michael P. Jackson, Deputy Secretary, DHS Prakash Khatri, CIS Ombudsman April 6, 2007 Recommendation to USCIS that it 1) post general information on deferred action on its website; 2) maintain statistics on the issuance and denial of deferred action requests; and 3) designate a headquarters official to review grants and denials of deferred action requests on a quarterly basis to ensure that like cases are decided in like manner.
I.
RECOMMENDATION
Recommendation to USCIS that it 1) post general information on deferred action on its website; 2) maintain statistics on the issuance and denial of deferred action requests; and 3) designate a headquarters official to review grants and denials of deferred action requests on a quarterly basis to ensure that like cases are decided in like manner. II. BACKGROUND
Deferred action is a discretionary form of relief provided for by the District Directors recommendation to the Regional Director. 1 There is no statutory basis for deferred action, but the regulations reference this form of relief and provide a brief description: [D]eferred action, an act of administrative convenience to the government which gives some cases lower priority. 2 Where USCIS grants a request for deferred action, the foreign national is provided employment authorization. 3 According to informal USCIS estimates, the vast majority of cases in which deferred action is granted involve medical grounds. 4 Deferred action cannot be granted by the Immigration Judge. Johnson v. INS, 962 F.2d 574, 579 (7th Cir. 1992). There is no judicial review of decisions concerning deferred action. Reno v. American Arab Anti-Discrimination Comm., 119 S.Ct. 936 (1999). USCIS also grants deferred action relief in the U visa context, where the individual has suffered substantial physical or mental abuse as a result of having been a victim of a crime or similar
1 2
USCIS response to Ombudsman (Dec. 18, 2006). 8 C.F.R. 274a.12(c)(14). 3 Id. 4 See supra note 1.
Email: cisombudsman@dhs.gov | Web: http://www.dhs.gov/cisombudsman | Phone: (202) 357-8100 | Fax: (202) 357-0042
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Recommendation from the CIS Ombudsman to the Director, USCIS April 6, 2007 Page 2 of 4
activity involving rape, torture, trafficking, incest, and/or domestic violence. 5 All approved selfpetitioners not in proceedings are eligible for deferred action and work authorization, including abused spouses and children of lawful permanent residents. 6 Deferred action for battered spouses and children, established in statute, is not within the scope of this recommendation. This recommendation addresses deferred action not provided for by statute or in regulations. Deferred action arises in other immigration contexts. USCIS provided deferred action to Hurricane Katrina-impacted foreign academic students. The USCIS press release stated the following: A grant of deferred action in this context means that, during the period that the grant of deferred action remains in effect, DHS will not seek the removal of the foreign academic student or his or her qualified dependentsDeferred action requests are decided on a case-by-case basisA grant of deferred action does not provide an individual any legal immigration status in the United States. 7 For these foreign students, USCIS made clear the general purpose, criteria, and limitations for deferred action relief, as well as where individuals were to file. Although operations instructions for deferred action were withdrawn June 24, 1997, the relief continues to be available. 8 Individual deferred action requests are recommended by District Directors to Regional Directors for approval. Under the withdrawn instructions, the following were factors for the District Director to consider: 1) The likelihood of ultimately removing the alien; 2) The presence of sympathetic factors; 3) The likelihood that because of sympathetic factors a large amount of adverse publicity will be generated; and 4) Whether the individual is a member of a class of deportable aliens whose removal has been given high enforcement priority (e.g. terrorists, drug traffickers).
8 U.S.C. 1101(a)(15)(U); Memo, Cronin, Acting Assoc. Comm.., Office of Programs (HQ 204-P) (Dec. 22, 1998). 6 8 U.S.C. 1184(o)(3)(A). 7 USCIS Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina (Nov. 25, 2005); see also 70 Fed. Reg. 70992-70996 (Nov. 25, 2005). 8 Deferred action is an act of administrative choice to give some cases lower priority and in no way an entitlement former O.I. 242.1(a)(22). See also Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing, and Removal (Standard Operating Procedures), Part X.; Meissner, Comm, Memo, HQOPP 50/4 (Nov. 17, 2000) [Regarding prosecutorial discretion].
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The USCIS website provides information on humanitarian parole but not on deferred action.9 Customers and stakeholders have inquired with the CIS Ombudsman as to where to submit a request for deferred action. Customers report instances in which they were told erroneously by USCIS that it does not have jurisdiction to provide this relief and were also told by officials from Immigration and Customs Enforcement that it only considers requests for deferred action that involve a compelling law enforcement nexus and/or where the individual is in removal proceedings. III. JUSTIFICATION
USCIS should provide basic information on deferred action, including 1) general criteria for relief; 2) what information to include with the submission, and 3) where to submit a request. A minimum level of transparency is appropriate even for extraordinary, discretionary relief such as deferred action. Currently, USCIS does not maintain statistics or otherwise track the number of requests received and approved or denied for deferred action. USCIS also does not review deferred action grants or denials between regions. Thus USCIS can only estimate the number of requests and provide anecdotal information on the types of requests received and granted or denied. Such an ad hoc approach may in part be necessary and appropriate because deferred action is extraordinary relief not based in statute or regulations. However, minimal measures, including tracking requests for deferred action and regular review by USCIS headquarters of the requests and the determinations made, would help to ensure that there is no geographic disparity in approvals or denials of deferred action requests and that like cases are decided in like manner. IV. BENEFITS
A. Customer Service This recommendation seeks to improve customer service by making basic information on deferred action requests clear to the public: where to submit a request, what to include with a submission, and the general criteria for requests to be approvable. Implementation of this recommendation would prevent customers from having to guess where and what information to submit. It also would prevent officers in the field from providing misinformation about where a request for deferred action should be submitted. This recommendation also seeks to ensure that over time and in different regions, cases are similarly decided. B. USCIS Efficiency
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b04596981298 d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=828807b03d92b010VgnVCM10000045f3d6a1RCRD (Last visited February 12, 2007).
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If implemented, this recommendation would make USCIS more efficient by tracking requests for deferred action and helping to ensure consistency in adjudications. C. National Security This recommendation has no national security impact. This recommendation does not seek to change the criteria under which deferred action is granted or otherwise to effect the grant of status. This recommendation would not expand an immigration program and would make no changes to current USCIS security screening procedures.
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Exhibit 53
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Case 8:12-cv-01137-CBM-AJW Document 135-1 Filed 07/08/13 Page 12 of 26 Page ID U . S . Department of Homeland Security #:3123
20 Massachusetts Avenue, NW Washington, D.C. 20529
U. S. Citizenship and Immigration Services
Interoffice Memorandum
To: Prakash Khatri USCIS Ombudsman Dr. Ernilio T. Gonzale Director, USCIS
From:
Date: Subject: Response to Recommendation #32, Deferred Action
Ombudsman Recommendation Your office has recommended several changes in the way USCIS currently handles deferred action cases. The specific recommendations are that USCIS should: 1. Post general information on deferred action on its website; 2. Maintain statistics on the issuance and denial of deferred action requests; and 3. Designate a headquarters official to review grants and denials of deferred action requests on a quarterly basis to ensure that like cases are decided in like manner. USCIS Response USCIS appreciates your interest in the issue of deferred action. As you know, deferred action is a discretionary administrative act that is exercised in appropriate cases. Each proposed recommendation listed above is addressed separately below: 1. Post general information on the website. Deferred action is a discretionary action initiated at the discretion of the agency or at the request of the alien, rather than an application process. Since deferred action requests are reviewed on a case-by-case basis and granted only in ex.traordinary circumstances, USCIS does not believe that general information about the deferred action process would be a meaningfid addition to the website.
2. Maintain statistics on the issuance and denial of deferred action requests.
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Future deferred action grants will be monitored by the ~ & i o n aDirectors l and reported quarterly to Headquarters.
3. Designate a headquarters official to review grants and denials of deferred action requests on a quarterly basis to ensure that like cases are decided in like manner.
USCIS does not believe that a review by Headquarters of these decisions is necessary or beneficial. Decisions on deferred action requests are made by the Regional Director upon recommendation by the appropriate District Director. USCIS is satisfied that the deferred action review and approval process witbin USCIS contains the appropriate levels of review.
Additionally, USCIS recognizes that field guidance c l a e i n g when a request for deferred action is properly before USCIS or the Immigration and Customs Enforcement (ICE) would be beneficial. USCIS intends to work with our colleagues at ICE on this matter in issuing such guidance.
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Exhibit 54
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Case-by-Case Review Statistics Case by Case Reviews In August of 2011, Secretary Napolitano directed that the approximately 300,000 backlogged cases pending in the immigration courts be reviewed for the exercise of prosecutorial discretion. Secretary Napolitano also directed that all newly filed immigration cases be reviewed for prosecutorial discretion. In late November 2011, ICE began this review. As of May 29, 2012, ICE has reviewed 232,181 non-detained cases with approximately 20,608, or 9%, identified as amenable for prosecutorial discretion. Provided they clear a background check, all 20,608 will be offered prosecutorial discretion. To date, 4,363 of these cases have been administratively closed or dismissed. As of May 29, 2012, 56,180 detained cases have been reviewed with approximately 40, or less than 1%, identified as amenable for prosecutorial discretion. To date, 3,998 individuals have declined an offer of prosecutorial discretion.
Review of New Cases Since the beginning of the case by case review to May 29, 2012, approximately 111,000 new cases have been filed with the immigration court. All 111,000 of these new cases have been reviewed as part of the case by case review 1. DHS is currently calculating the precise number of these new cases that have been determined to be eligible for PD. As of May 15, 2012, approximately 95% of all the cases eligible for prosecutorial discretion were backlogged cases that had been pending in the immigration court for more than six months. Less than 5% of the cases eligible for prosecutorial discretion had been placed into immigration court within the last six months.
NTAs Issued In the first four months of calendar 2011 (January through April) there were 85,337 new NTAs filed in the immigration courts. By comparison, in the first four months of calendar 2012 there were 75,044 new NTAs filed.
Because these new cases were initiated following the implementation of DHS prosecutorial discretion policies, DHS anticipates that fewer of these cases actually filed in immigration court will constitute a very low enforcement priority.
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Deferred Actions Enforcement and Removal Operations (ERO) officers and agents have granted deferred actions or issued a stay of a final order of removal in 1,973 cases thus far in fiscal year 2012 as of May 26, 2012. Of those 1,973 deferred actions or stays, 1,687 involved individuals subject to a final order of removal. In fiscal year 2010, ERO officers granted deferred actions or issued a stay of a final order in 486 cases; in fiscal year 2009 ERO officers granted 740 deferred actions; in fiscal year 2008 ERO officers granted 1006 deferred actions; in fiscal year 2007 ERO officers granted 598 deferred actions. 2.
Work Authorization On April 23, 2012, DHS reviewed 2,974 cases that had been administratively closed. Of those 2,974 cases, 1,881 have received employment authorization in the past and 1,257, or over 40%, currently have employment authorization. On April 23, 2012, DHS also reviewed 2,710 cases where an individual declined an offer of prosecutorial discretion. Of these individuals, 2,052 have received employment authorization in the past and 1,483, or over 54%, currently have employment authorization.
Due to upgrades to ICE's electronic system for tracking enforcement actions which affected how this data is recorded, the data from FY2012 are not directly comparable to the data from FY2008-FY2010. Because of these upgrades, ICE is not currently able to calculate FY2011 deferred action numbers.
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Exhibit 55
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Case 8:12-cv-01137-CBM-AJW Document 135-1 Filed 07/08/13 Page 18 of 26 Page ID #:3129 RESEARCH AND PRACTICE
The Impact of Institutional Discrimination on Psychiatric Disorders in Lesbian, Gay, and Bisexual Populations: A Prospective Study
Mark L. Hatzenbuehler, MS, MPhil, Katie A. McLaughlin, PhD, Katherine M. Keyes, MPH, and Deborah S. Hasin, PhD
Few legal policies in recent memory have been as contentiously debated as gay marriage.1 In 1996, the US Congress passed the Defense of Marriage Act, which dened marriage as a legal union solely between a man and a woman.2 Subsequently, policy debates over gay marriage have been waged at the state level. In October 2008, gay marriage became legal in Connecticut, the third state to grant such rights. One month later, California voters reversed a state Supreme Court decision allowing gays and lesbians to marry. This was followed by constitutional amendments in Florida and Arizona that banned marriage rights for same-sex couples. These legal changes continued a trend begun during the 2004 election, when citizens in 14 states approved constitutional amendments limiting the denition of marriage to the union of a man and a woman. The Defense of Marriage Act deprives same-sex couples of many benets and privileges that a heterosexual married couple has under federal law.1 Thus, bans on gay marriagetogether with the social environments that give rise to themare examples of institutional discrimination, that is, societal-level conditions that constrain the opportunities, resources, and well-being of socially disadvantaged groups.3 Because institutional discrimination can disadvantage individuals in the absence of discrimination at the individual level, most investigators consider individual and institutional forms of discrimination to be independent phenomena.35 Much research has examined associations between individual discrimination and population health.6,7 However, interest in the impact of institutional discrimination on health outcomes has increased.811 Importantly, because institutional discrimination includes fateful experiences (conditions that occur outside the control of the individual), such forms of discrimination are not confounded with mental health status5 and therefore provide
Objectives. We examined the relation between living in states that instituted bans on same-sex marriage during the 2004 and 2005 elections and the prevalence of psychiatric morbidity among lesbian, gay, and bisexual (LGB) populations. Methods. We used data from wave 1 (20012002) and wave 2 (20042005) of the National Epidemiologic Survey on Alcohol and Related Conditions (N = 34 653), a longitudinal, nationally representative study of noninstitutionalized US adults. Results. Psychiatric disorders dened by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, increased signicantly between waves 1 and 2 among LGB respondents living in states that banned gay marriage for the following outcomes: any mood disorder (36.6% increase), generalized anxiety disorder (248.2% increase), any alcohol use disorder (41.9% increase), and psychiatric comorbidity (36.3% increase). These psychiatric disorders did not increase signicantly among LGB respondents living in states without constitutional amendments. Additionally, we found no evidence for increases of the same magnitude among heterosexuals living in states with constitutional amendments. Conclusions. Living in states with discriminatory policies may have pernicious consequences for the mental health of LGB populations. These ndings lend scientic support to recent efforts to overturn these policies. (Am J Public Health. 2010;100:452459. doi:10.2105/AJPH.2009.168815)
a stronger test of the effect of discrimination on mental health than do measures of individual discrimination. Despite the existence of multiple forms of institutional discrimination toward lesbian, gay, and bisexual (LGB) populations, few studies have examined the consequences of this form of discrimination for the mental health of LGB populations. In 1 recent population-based study, the prevalence of psychiatric disorders was higher among LGB persons living in states with policies that did not extend protections to LGB individuals (e.g., failures to ban employment discrimination based on sexual orientation).12 However, such policies differ from laws that deprive LGB individuals of certain rights (e.g., marriage). Deprivation of rights, as well as extended and heated public discourse focusing on the
legitimacy of such deprivation, may also create stress that harms mental health. One study showed that LGB respondents living in states that passed antigay marriage amendments in 2006 had higher psychological distress than did LGB individuals in states without such an amendment on the ballot.13 That study provided important insights but relied on cross-sectional data, self-reported distress symptoms, and a convenience sample. To establish clearer inferences, prospective studies with representative samples of LGB respondents that examine changes in the prevalence of psychiatric disorders as dened by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV ), are needed. Such prospective studies are rare, but we identied an opportunity to examine this research question by using wave 2 of the
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National Epidemiologic Survey on Alcohol and Related Conditions (NESARC), a longitudinal, population-based epidemiologic survey of civilian, noninstitutionalized US adults aged 18 years and older. NESARC respondents were initially interviewed (wave 1) in 2001 through 2002 and were re-interviewed in 2004 through 2005. Wave 2 of the NESARC assessed sexual orientation, thus providing the largest nationally representative sample of LGB participants to date. Wave 2 coincided with the 2004 campaign and election, when state laws regarding the constitutionality of gay marriage were on the ballots and passed in 14 states (2 more states, Kansas and Texas, passed constitutional amendments in special referenda in 2005, which also overlapped with the period of data collection). Public campaigns in states debating similar policies toward gays and lesbians have fostered a negative social climate for those with a minority sexual orientation.14 LGB individuals living in these states confronted increased exposure to stressors, including misleading portrayals and negative stereotypes in the media and hostile interactions with neighbors, colleagues, and family members.1315 This exposure to antigay attitudes can lead to greater shame about LGB identity and more negative feelings about LGB group membership,15 a construct known as internalized homophobia.16 To address the impact of institutional discrimination on mental health, we examined whether LGB individuals living in states with constitutional amendments banning gay marriage on the ballot in the 2004 through 2005 elections evidenced increased rates of psychiatric disorders from wave 1 to wave 2. Our examination of this research question consisted of 2 parts. First, we compared the change in prevalence of psychiatric disorders from wave 1 to wave 2 between LGB individuals living in states with institutional forms of discrimination (i.e., states with constitutional amendments banning gay marriage) and LGB individuals living in states without such discrimination. We were interested in examining whether LGB individuals living in a state with constitutional amendments had higher rates of psychiatric disorders than did LGB individuals living in states without such amendments, which would suggest that institutional discrimination may have
deleterious effects on mental health. Second, we compared the change in psychiatric disorder prevalence between LGB individuals living in states without constitutional amendments and heterosexual individuals living in the same states. We were interested in examining the specicity of the effect of institutional discrimination by examining whether LGB individuals living in a state with constitutional amendments had higher rates of psychiatric disorders than heterosexual individuals in the same states. The prospective design, large sample size, population-based sampling scheme, and detailed measurement of DSM-IV diagnoses presented a timely and unique opportunity in which to examine this research question.
METHODS
Data were drawn from waves 1 and 2 of the NESARC. In the wave 1 sample, young adults, Hispanics, and African Americans were oversampled, and the overall response rate was 81%. Of the 43 093 wave 1 participants, 34 653 participated in face-to-face re-interviews at wave 2. The wave 2 response rate of eligible participants was 86.7%. The cumulative response rate at wave 2 was 70.2%. Sample weights for wave 2 respondents were calculated to ensure that the sample represented survivors of the original sample who remained in the United States and were not institutionalized. More information on the study methods is found elsewhere.1719
Measures
Participants were classied as LGB on the basis of self-identication. Participants were asked, Which of the categories best describes you? and were given 4 categories: heterosexual (straight), gay or lesbian, bisexual, and not sure. Of the total NESARC sample, 577 (1.67%) respondents self-identied themselves as LGB (men, 1.86%; women, 1.52%), which is consistent with other representative studies of US youths20 and adults.21 The sociodemographic differences between the LGB respondents and the heterosexual respondents are summarized in Table 1. A dichotomous variable was then created that compared those states that voted on and passed constitutional amendments in 2004 to 2005 dening marriage as occurring only
between a man and a woman (16 states) versus those states that did not have an amendment on their ballots (34 states).1 Past 12-month DSM-IV22 mood and anxiety disorders assessed by the Alcohol Use Disorder and Associated Disabilities Interview Schedule DSM-IV (AUDADIS-IV)23 included major depression, dysthymia, mania, hypomania, generalized anxiety disorder, panic disorder with or without agoraphobia, social phobia, and posttraumatic stress disorder. Substance-induced disorders and those due to somatic illnesses or (in the case of major depression) bereavement were ruled out per DSM-IV denitions. These diagnoses all met the DSM-IV24 criterion requiring distress or social or occupational dysfunction. The reliability and validity (including psychiatrist reappraisal) of mood and anxiety disorder diagnosis has been well documented.25,26 Diagnoses were further validated by using the Medical Outcomes Study Short Form Health Survey version 2, a mental disability score, in controlled linear regressions.27,28 The AUDADIS-IV23 used over 40 items to assess the criteria for past 12-month DSM-IV22 substance abuse and dependence for alcohol as well as 10 different classes of drugs, including sedatives, tranquilizers, opiates (other than heroin or methadone), stimulants, hallucinogens, cannabis, cocaine (including crack cocaine), inhalants or solvents, heroin, and other drugs. The substance use disorders showed excellent reliability in clinical and general population studies, with alcohol diagnoses having a minimum j of 0.74 and drug diagnoses having a minimum j of 0.79.2426,29 The validity of these diagnoses has been documented in numerous studies,30,31 including psychiatrist reappraisal.26 To increase power, substance abuse and dependence diagnoses were combined into 1 category.
Statistical analysis
We present the change in the prevalence of past 12-month DSM-IV mood, anxiety, and substance use disorders between 2001 to 2002 and 2004 to 2005 within 4 groups: (1) LGB respondents in states with constitutional amendments banning gay marriage in 2004 to 2005 (hereafter referred to as states with amendments), (2) LGB respondents in states without constitutional amendments banning gay marriage in 2004 to 2005 (hereafter
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TABLE 1Demographic Characteristics of Respondents, by Self-Reported Sexual Orientation: National Epidemiologic Survey on Alcohol and Related Conditions, Wave 2, 20042005
Characteristic Sex Male Female (Ref) Age, y 25 2645 4664 65 (Ref) Race/ethnicity White Black American Indian Asian Hispanic (Ref) Education < High school High school > High school (Ref) Income, $ 019 999 20 00034 999 35 00069 999 70000 (Ref) 5.8 (1.2) 15.4 (1.8) 78.9 (2.1) 37.1 (2.9) 24.3 (2.3) 27.2 (2.0) 11.5 (1.8) 14.1 (0.5) 23.9 (0.5) 61.9 (0.6) 42.3 (0.6) 23.1 (0.4) 24.3 (0.4) 10.4 (0.4) 0.37 (0.23, 0.60) 0.54 (0.42, 0.71) 1.00 1.07 (0.70, 1.63) 1.13 (0.76, 1.68) 1.06 (0.76, 1.48) 1.00 72.3 (2.5) 10.7 (1.6) 3.6 (1.0) 3.1 (1.1) 10.2 (1.5) 70.9 (1.6) 11.1 (0.7) 2.2 (0.2) 4.3 (0.5) 11.6 (1.2) 1.13 (0.81, 1.57) 1.05 (0.69, 1.59) 1.90 (0.95, 3.80) 0.70 (0.35, 1.43) 1.00 13.5 (1.9) 49.3 (2.5) 31.1 (2.0) 6.1 (1.1) 9.2 (0.3) 38.8 (0.4) 33.5 (0.3) 18.5 (0.3) 3.92 (2.43, 6.32) 3.37 (2.26, 5.03) 2.48 (1.67, 3.70) 1.00 48.7 (2.5) 51.3 (2.5) 47.9 (0.4) 52.1 (0.4) 1.02 (0.82, 1.29) 1.00 Self-Identied Gay, Lesbian, or Bisexual, % (SE) Self-Identied Heterosexual, % (SE) AORa (95% CI)
married), and US region. These covariates were chosen because they are associated with psychiatric disorders in both LGB3335 and heterosexual3640 samples. Analyses were completed with SUDAAN software version 9.141 to obtain weighted estimates and standard errors. Statistical signicance was evaluated at a =.05.
RESULTS
The prevalence of mood disorders increased more than 30% (from 22.7% to 31.0%) from wave 1 to wave 2 among LGB respondents in states with amendments, and this increase in prevalence was statistically signicant (Table 2). In contrast, the prevalence of mood disorders decreased more than 20% among LGB respondents in states that did not have amendments. The odds of mood disorders at wave 2 was 1.67 times the odds at wave 1 among LGB respondents in states with amendments (95% condence interval [CI] =1.01, 2.77), whereas the odds at wave 2 was not signicantly different than the odds at wave 1 among LGB respondents in states without amendments (OR = 0.69; 95% CI = 0.47, 1.01). The prevalence of anxiety disorders increased across the 2 waves of the study in LGB respondents in both groups, but this change was not statistically signicant in either group. However, a signicant increase in generalized anxiety disorder occurred among LGB respondents in states with amendments. The prevalence of generalized anxiety disorder among LGB respondents in these states increased over 200% (from 2.7% to 9.4%) from wave 1 to wave 2 (OR = 4.2; 95% CI =1.19, 14.76). The increase (48%) in generalized anxiety disorder prevalence among LGB respondents from states that did not have amendments was not statistically signicant. Increases in the prevalence of substance use disorders were evident in both groups of LGB respondents. The prevalence of alcohol use disorders increased signicantly from wave 1 to wave 2 among LGB respondents living in states with amendments (OR =1.8; 95% CI =1.08, 3.01) but not among those living in states without amendments (OR =1.41; 95% CI = 0.96, 2.07). In contrast with the study
Note. AOR = adjusted odds ratio; CI = condence interval. The unweighted sample size for self-identied gay, lesbian, or bisexual respondents was n = 577; for self-identied heterosexual respondents, n = 34 076. a Simultaneously adjusted for all covariates.
referred to as states without amendments), (3) heterosexual respondents in states with amendments, and (4) heterosexual respondents in states without amendments. The prevalence of comorbidity, which was dened as meeting the criteria for 2 or more psychiatric disorders, is also presented. To estimate differences in the prevalence of DSM-IV disorders from wave 1 to wave 2 within groups of respondents, we used 2 measures. First, the percent change was the difference between the wave 2 prevalence and the wave 1 prevalence, divided by the wave 1 prevalence. For example, an increase from 2% to 4% in prevalence would be a 100% increase. Negative values indicated a decrease in the prevalence from wave 1 to wave 2.
Next, we conducted within-group logistic regression to estimate the odds of psychiatric disorders from wave 1 to wave 2, applying generalized estimating equations (GEEs).32 Because the outcome was dichotomous, we used a logit link function. Parameter estimates from the GEE model can be interpreted as odds ratios (ORs). We created 2 records for each respondent (wave 1 and wave 2) and then modeled predictors of psychiatric disorders, clustering each individual by unique identication number as well as sampling cluster and primary sampling unit. The exposure of interest for these models was wave (1 versus 2). Control variables included gender, age, race/ethnicity, income, education, marital status (legally married or living with someone as if
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TABLE 2Weighted Prevalence Rates for DSM-IV Disorders in the Past 12 Months Among Lesbian, Gay, or Bisexual Respondents, by State Constitutional Amendment Status: National Epidemiologic Survey on Alcohol and Related Conditions, Wave 1, 20012002, and Wave 2, 20042005
Constitutional Amendment (n = 135) Wave 1, % (SE) Any mood disorder Major depression Dysthymia Mania/hypomania Any anxiety disorder Panic disorder Generalized anxiety disorder Social phobia Any substance use disorder Alcohol disorder Drug disorder Any disorder Comorbid disorder 22.7 (4.7) 22.1 (4.7) 2.9 (0.9) 11.8 (3.9) 14.4 (4.1) 5.1 (2.8) 2.7 (2.6) 9.3 (3.1) 40.2 (5.1) 21.7 (5.5) 11.0 (3.8) 53.9 (5.0) 17.6 (4.3) Wave 2, % (SE) 31.0 (5.2) 27.6 (5.5) 1.7 (0.4) 12.8 (3.9) 18.0 (4.3) 8.2 (3.4) 9.4 (3.0) 9.1 (2.8) 50.7 (4.7) 30.8 (5.3) 12.9 (4.6) 60.9 (3.7) 27.6 (4.9) Change, % 36.6 24.9 41.9 8.5 25.1 60.8 248.2 2.2 26.0 41.9 17.3 13.0 36.3 AOR (95% CI) 1.67* (1.01, 2.77) 1.43 (0.77, 2.68) ... 1.21 (0.47, 3.14) 1.34 (0.55, 3.27) 1.84 (0.33, 10.2) 4.20* (1.19, 14.76) 0.97 (0.42, 2.22) 1.67* (1.14, 2.43) 1.80* (1.08, 3.01) 1.25 (0.64, 2.45) 1.44 (0.96, 2.16) 2.00* (1.22, 3.28)
a
No Constitutional Amendment (n = 442) Wave 1, % (SE) 22.5 (2.5) 17.5 (2.2) 6.0 (1.4) 6.5 (1.5) 13.2 (1.9) 7.5 (1.5) 5.6 (1.2) 3.6 (1.0) 30.3 (2.6) 16.4 (2.2) 6.0 (1.4) 44.9 (2.7) 13.7 (1.9) Wave 2, % (SE) 17.2 (2.0) 15.1 (1.9) 2.2 (0.9) 4.7 (1.2) 15.9 (2.2) 8.2 (1.7) 8.2 (1.7) 5.8 (1.2) 37.8 (2.7) 21.2 (2.6) 11.4 (2.1) 50.0 (2.7) 14.9 (2.1) Change, % 23.6 13.5 -63.1 28.0 21.0 9.5 48.0 60.1 24.3 28.9 88.6 11.3 8.5 AORa (95% CI) 0.69 (0.47, 1.01) 0.83 (0.55, 1.25) ... 0.69 (0.33, 1.45) 1.27 (0.84, 1.91) 1.11 (0.6, 2.06) 1.54 (0.75, 3.19) 1.69 (0.88, 3.25) 1.44* (1.07, 1.93) 1.41 (0.96, 2.07) 2.11* (1.20, 3.72) 1.25 (0.93, 1.68) 1.11 (0.71, 1.74)
Note. AOR = adjusted odd ratio; CI = condence interval; DSM-IV = Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. The total sample size was N = 577. Ellipses indicate that AORs were too unstable to report given the small sample size. a Adjusted odds ratio reects the odds of having a disorder at wave 2 relative to wave 1, with adjustment for age, gender, race/ethnicity, income, educational attainment, marital status, and region. *P < .05.
hypotheses, increases in drug use disorders were statistically signicant among LGB respondents living in states without amendments (OR = 2.11; 95% CI =1.20, 3.72). The prevalence of any psychiatric disorder in both wave 1 and wave 2 was lower among LGB respondents in states without constitutional amendments. The prevalence of comorbidity increased signicantly among LGB respondents in states with amendments (OR = 2.0; 95% CI =1.22, 3.28) but was unchanged in states without amendments (OR =1.28; 95% CI = 0.71, 1.74). The signicant increase in mood disorders among LGB respondents in states with amendments was not evident among heterosexual respondents living in the same states (Table 3). Increases in the prevalence of panic disorder and generalized anxiety disorder were statistically signicant among heterosexual respondents, but the magnitude of these changes (27.0% and 61.0%, respectively) was notably smaller than was the magnitude of the increase in the prevalence of these disorders among LGB respondents (60.8% and
248.0%, respectively). Similarly, the prevalence of alcohol use disorders increased significantly among heterosexual respondents (OR =1.22; 95% CI =1.09, 1.35), but this increase in prevalence was smaller in magnitude than it was among LGB respondents (18% versus 41.9%). The prevalence of any psychiatric disorder increased to a lesser degree among heterosexuals (8.6%) than it did among LGB respondents (13.0%) in states with amendments, but the increase was statistically signicant among heterosexuals because of the considerably larger sample size of this group (OR =1.14; 95% CI =1.05, 1.22). The rate of any psychiatric disorder was considerably higher among LGB respondents relative to heterosexual populations, which is consistent with previous reports.42 The same pattern of results was present for comorbidity. The prevalence of comorbidity increased signicantly among heterosexual respondents from wave 1 to wave 2 (OR =1.16; 95% CI=1.01, 1.34), but the prevalence of comorbidity increased to a greater degree among LGB respondents (14.9% versus 36.3%).
The change in psychiatric disorder prevalence among heterosexuals living in states without amendments are shown in Table 4. These results were consistent with the trends evidenced in Tables 2 and 3.
DISCUSSION
Prejudice and discriminatory actions toward gays and lesbians remain common. A recent example of institutional discrimination was the passage of constitutional amendments banning gay marriage during 2004 to 2005 in 16 states in the United States. Despite the widespread adoption of these policies, however, little is known about their impact on the mental health of LGB populations. The present study addressed this gap in the literature by examining the temporal trends in psychiatric disorder prevalence among LGB and heterosexual respondents living in states with and without constitutional amendments banning gay marriage on the ballot during the 2004 to 2005 elections. We found consistent increases in rates of psychiatric disorders and comorbidity (for 11 of 13 outcomes) among LGB individuals living in
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TABLE 3Weighted Prevalence Rates for DSM-IV Disorders in the Past 12 Months in States with Constitutional Amendments Banning Gay Marriage in 20042005, by Self-Reported Sexual Orientation: National Epidemiologic Survey on Alcohol and Related Conditions, Wave 1, 20012002, and Wave 2, 20042005
Lesbian, Gay, or Bisexual (n = 135) Wave 1, % (SE) Any mood disorder Major depression Dysthymia Mania/hypomania Any anxiety disorder Panic disorder Generalized anxiety disorder Social phobia Any substance use disorder Alcohol disorder Drug disorder Any disorder Comorbid disorder 22.7 (4.7) 22.1 (4.7) 2.9 (0.9) 11.8 (3.9) 14.4 (4.1) 5.1 (2.8) 2.7 (2.6) 9.3 (3.1) 40.2 (5.1) 21.7 (5.5) 11.0 (3.8) 53.9 (5.0) 17.6 (4.3) Wave 2, % (SE) 31.0 (5.2) 27.6 (5.5) 1.7 (0.4) 12.8 (3.9) 18.0 (4.3) 8.2 (3.4) 9.4 (3.0) 9.1 (2.8) 50.7 (4.7) 30.8 (5.3) 12.9 (4.6) 60.9 (3.7) 27.6 (4.9) Change, % 36.6 24.9 41.9 8.5 25.1 60.8 248.2 2.2 26.0 41.9 17.3 13.0 36.3 AOR (95% CI) 1.67* (1.01, 2.77) 1.43 (0.77, 2.68) ... 1.21 (0.47, 3.14) 1.34 (0.55, 3.27) 1.84 (0.33, 10.2) 4.20* (1.19, 14.76) 0.97 (0.42, 2.22) 1.67* (1.14, 2.43) 1.80* (1.08, 3.01) 1.25 (0.64, 2.45) 1.44 (0.96, 2.16) 2.00* (1.22, 3.28)
a
Heterosexual (n = 9963) Wave 1, % (SE) 10.9 (0.8) 8.5 (0.4) 2.4 (0.2) 3.5 (0.2) 6.4 (0.4) 2.3 (0.2) 2.6 (0.2) 3.0 (0.2) 20.5 (0.7) 8.6 (0.4) 2.1 (0.2) 29.4 (0.8) 6.2 (0.4) Wave 2, % (SE) 11.2 (0.5) 8.9 (0.4) 1.3 (0.1) 3.8 (0.3) 7.4 (0.3) 2.9 (0.2) 4.2 (0.2) 2.3 (0.2) 22.9 (0.8) 10.2 (0.5) 2.1 (0.2) 31.9 (0.8) 7.1 (0.4) Change, % 2.8 4.5 46.4 9.0 15.0 27.0 61.0 22.1 12.2 18.0 0 8.6 14.9 AORa (95% CI) 1.03 (0.93, 1.15) 1.05 (0.94, 1.18) 0.53 (0.42, 0.67) 1.10 (0.92, 1.3) 1.17* (1.03, 1.32) 1.28* (1.06, 1.55) 1.65* (1.37, 1.97) 0.77* (0.64, 0.93) 1.17* (1.09, 1.26) 1.22* (1.09, 1.35) 1.0 (0.76, 1.30) 1.14* (1.05, 1.22) 1.16* (1.01, 1.34)
Note. AOR = adjusted odd ratio; CI = condence interval; DSM-IV = Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Ellipses indicate that AORs were too unstable to report given the small sample size. a Adjusted odds ratio reects odds of having a disorder at wave 2 relative to wave 1, with adjustment for age, gender, race/ethnicity, income, educational attainment, marital status, and region. *P < .05.
states with amendments. These increases were not observed among LGB respondents living in states without amendments, with the exception of substance-use disorders, which did increase signicantly among LGB respondents living in states without amendments. We also found that the magnitude of the increases in psychiatric disorders and comorbidity were consistently greater (for all outcomes) in LGB respondents living in states with constitutional amendments than they were among heterosexuals living in these same states. These ndings were particularly pronounced for mood disorders and generalized anxiety disorder. These disorders are characterized by hopelessness, chronic worry, and hypervigilance, which are common psychological responses to perceived discrimination.43 These results raise important questions that require further investigation. Research is needed to identify the mechanisms that account for the relationship between institutional forms of discrimination and increased psychiatric morbidity in LGB populations. Social stress theories have suggested that discrimination leads to higher levels of stress exposure among LGB individuals,
which in turn is associated with greater psychiatric disorders.16 More recent research has indicated that experiences of discrimination may also create a cascade of psychological responses, including hopelessness, emotion dysregulation, and social isolation.44 Some of these psychological processes have been shown to mediate the relationship between stressors resulting from sexual minority status and psychopathological outcomes.45 Further research is needed to identify additional mechanisms linking institutional discrimination and psychiatric disorders to assist in the development of theory-driven interventions. Another area for future study concerns whether pro-gay state policies exert protective effects on the mental health of LGB populations. Because only 6 states had some form of protection for same-sex couples when data collection for wave 2 was completed, we did not have adequate statistical power to test whether LGB respondents living in these states had lower rates of psychiatric disorders. If more states enact pro-gay marriage policies, this hypothesis can be empirically evaluated.
Although these ndings provide the strongest empirical evidence to date that living in states with discriminatory laws may serve as a risk factor for psychiatric morbidity in LGB populations, the results should be considered in light of the studys limitations. Given that many of the states banning same-sex marriage had passed prior policies that did not extend protection to LGB individuals (e.g., hate crime and employment nondiscrimination), it is possible that the healthier LGB respondents moved to states with more progressive policies. Although there were few sociodemographic differences between the LGB respondents in states with constitutional amendments and those living in states without these amendments (those living in states with amendments had lower personal income [c23 = 4.1; P = .01], but there were no signicant differences in gender, age, education, or race/ethnicity), we cannot rule out the potential impact of differential mobility on our results. Two additional limitations concern identication and classication of our LGB sample. First, sexual orientation was assessed only at wave 2. Research has shown the uidity of
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TABLE 4Weighted Prevalence Rates for DSM-IV Disorders in the Past 12 Months Among Heterosexuals in States Without Constitutional Amendments Banning Gay Marriage in 20042005: National Epidemiologic Survey on Alcohol and Related Conditions, Wave 1, 20012002, and Wave 2, 20042005
Wave 1, % (SE) Any mood disorder Major depression Dysthymia Mania/hypomania Any anxiety disorder Panic disorder Generalized anxiety disorder Social phobia Any substance use disorder Alcohol disorder Drug disorder Any disorder Comorbid disorder 7.9 (0.3) 7.3 (0.3) 2.0 (0.1) 2.8 (0.2) 5.8 (0.2) 2.2 (0.1) 2.1 (0.1) 2.8 (0.2) 17.3 (0.5) 7.9 (0.3) 1.8 (0.1) 25.4 (0.6) 5.2 (0.2) Wave 2, % (SE) 8.2 (0.3) 7.8 (0.3) 1.1 (0.1) 3.2 (0.2) 6.7 (0.2) 2.3 (0.1) 3.5 (0.2) 2.5 (0.2) 20.1 (0.5) 9.2 (0.3) 2.3 (0.1) 28.3 (0.6) 6.0 (0.2) Change, % 3.7 7.2 45.0 14.7 15.4 5.9 71.4 8.6 16.2 15.7 31.8 11.4 13.9 AORa (95% CI) 1.06 (0.98, 1.14) 1.08 (1.0, 1.17) 0.57* (0.47, 0.68) 1.15 (0.99, 1.33) 1.17* (1.07, 1.28) 1.06 (0.94, 1.21) 1.74* (1.15, 2.02) 0.91 (0.79, 1.05) 1.22* (1.16, 1.28) 1.19* (1.10, 1.28) 1.34* (1.15, 1.55) 1.17* (1.11, 1.23) 1.18* (1.08, 1.28)
Note. AOR = adjusted odd ratio; CI = condence interval; DSM-IV = Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. The sample size was n = 24 113. a Adjusted odds ratio reects odds of having a disorder at wave 2 relative to wave 1, with adjustment for age, gender, race/ ethnicity, income, educational attainment, marital status, and region. *P < .05.
sexual identity labels within some individuals over time,20,46 which may have led to misclassication of a subset of LGB participants. Additional misclassication may have occurred if some participants who lived in states with constitutional amendments banning gay marriage chose not to disclose their sexual orientation at wave 2 because of the hostile environment in those states. However, given that nondisclosure is associated with greater psychological distress,16 this misclassication would have biased our results toward the null. Second, the prevalence of self-identied LGB respondents in the NESARC (1.67%) was somewhat lower than that found in other nationally representative studies of US adults (e.g., the National Survey of Midlife Development in the United States [MIDUS]; 2.5%).42 The questions on LGB status were self-administered in the MIDUS but interviewer-administered in the NESARC, possibly affording MIDUS respondents a feeling of greater anonymity in disclosing sexual orientation. The prevalence of self-identied LGB individuals in the NESARC could also reect a limitation in the measurement of single-item questions of sexual orientation.47
Although the risk of psychiatric disorders among individuals who do not disclose LGB status is unknown,42 distress associated with hiding ones status could lead to a higher risk of psychiatric disorder. If so, misclassication of LGB status in these data would bias the results toward the null. Thus, our ndings should be considered conservative estimates. Despite the large number of LGB respondents in the NESARC compared with other nationally representative datasets,42 the number of respondents meeting diagnostic criteria for psychiatric disorders in states with amendments was relatively small, which limits the precision of the estimates. Thus, the results must be interpreted with caution, and they require replication with larger samples of LGB respondents. Additionally, we did not have a large enough sample size to examine how changes in laws inuenced onset or persistence of disorder or to document potentially important subgroup differences (e.g., gender, individuals with multiple stigmas) regarding vulnerability to the effects of institutional discrimination. To increase power, we also combined individuals with same-sex and both-sex orientations.
However, we reran the analyses removing bisexuals who reported being married (even though the NESARC did not assess the gender of the spouse or partner) because it is possible that they were less likely to be disadvantaged by the passage of the constitutional amendments banning gay marriage than were gay men and lesbians. Importantly, the direction and magnitude of the effects remained the same. Finally, although the constitutional amendments largely codied policies that existed de facto, the sociocultural environment surrounding the approval of these amendments made them no less psychologically harmful. Creating constitutional amendments banning gay marriage reinforced the marginalized and socially devalued status of LGB individuals.1315 Moreover, the negative political campaigns against gays and lesbians by proponents of these amendments, which were well-circulated in the media,48 further promulgated the stigma associated with homosexuality. There are several strengths to the current study that make it an important contribution to the literature on social determinants of mental health outcomes among LGB populations. The use of a longitudinal design permitted an examination of the impact of institutional discrimination on the prevalence rates of psychiatric disorders among LGB individuals. The large number of LGB respondents (N = 577) and the use of a nationally representative sample increased the generalizability of the results. This study lends support for current policies that have sought to eliminate discriminatory acts toward LGB individuals. For example, in the United States, the US Congress recently passed the 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and the Iowa Supreme Court legalized gay marriage in 2009. Results also indicate that current efforts to restrict the rights of LGB individuals (e.g., Proposition 8 in California) may have pernicious consequences for the health and well-being of the LGB community. Findings from the current study are consistent with an argument that implementing social policy changes to abolish institutional forms of discrimination may ultimately reduce mental health disparities in LGB populations, an important public health priority.49 j
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About the Authors

Mark L. Hatzenbuehler is in the Department of Psychology, Yale University, New Haven, CT. Katie A. McLaughlin is in the Department of Society, Human Development, and Health, Harvard School of Public Health, Harvard University, Boston, MA. Katherine M. Keyes is in the Department of Epidemiology, Mailman School of Public Health, Columbia University, and the New York State Psychiatric Institute, New York City. Deborah S. Hasin is in Department of Epidemiology, Mailman School of Public Health, Columbia University; the New York State Psychiatric Institute; and the Department of Psychiatry, College of Physicians and Surgeons, Columbia University, New York, NY. Address correspondence to Mark L. Hatzenbuehler, Department of Psychology, Yale University, PO Box 208205, New Haven, CT 06520 (e-mail: mark.hatzenbuehler@yale. edu). Reprints can be ordered at http://www.ajph.org by clicking on the Reprints/Eprints link. This article was accepted August 24, 2009.
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Contributors
M. L. Hatzenbuehler originated the study, assisted in analyses, and wrote the initial draft of the article. K. A. McLaughlin and K. M. Keyes completed the analyses. D. S. Hasin supervised the analyses. All authors interpreted the ndings and edited drafts of the article. M. L. Hatzenbuehler had full access to all the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis.
Acknowledgments
This work was supported by the National Institute of Mental Health (grant F31MH083401), the National Institute on Alcoholism and Alcohol Abuse (grant K05 AA014223), and the New York State Psychiatric Institute. Note. The content is the sole responsibility of the authors and does not necessarily represent the ofcial views of the National Institutes of Health.
Human Participant Protection

The research protocol, including written informed consent procedures, received full ethical review and approval from the US Census Bureau and the US Ofce of Management and Budget.
References
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION SACV12-01137 CBM (AJWx) PLAINTIFFS EXHIBITS 34-61. [Part 3a of 4: No.56(1)]
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION SACV12-01137 CBM (AJWx) PLAINTIFFS EXHIBITS 34-61. [Part 3b of 4: No.56(2)]
) ) ) ) ) ) ) ) ) J ANET N APOLITANO , Secretary of the 19 Department of Homeland Security; et al., ) ) 20 ) ) Defendants. 21 __________________________________ ) ) 22 15 MARTIN R. ARANAS, et al., 16 Plaintiffs, 17 -vs18 23 24 25 26 27 28 ///
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Exhibits 34-61.
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION SACV12-01137 CBM (AJWx) PLAINTIFFS EXHIBITS 34-61. [Part 3c of 4: No.56(3)]
) ) ) ) ) ) ) ) ) J ANET N APOLITANO , Secretary of the 19 Department of Homeland Security; et al., ) ) 20 ) ) Defendants. 21 __________________________________ ) ) 22 15 MARTIN R. ARANAS, et al., 16 Plaintiffs, 17 -vs18 23 24 25 26 27 28 ///
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UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION SACV12-01137 CBM (AJWx) PLAINTIFFS EXHIBITS 34-61. [Part 4 of 4: No. 57-61]
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Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage
Alexis Dinno*, Chelsea Whitney
School of Community Health, Portland State University, Portland, Oregon, United States of America
Abstract
Background: Marriage benefits both individuals and societies, and is a fundamental determinant of health. Until recently same sex couples have been excluded from legally recognized marriage in the United States. Recent debate around legalization of same sex marriage has highlighted for anti-same sex marriage advocates and policy makers a concern that allowing same sex couples to marry will lead to a decrease in opposite sex marriages. Our objective is to model state trends in opposite sex marriage rates by implementation of same sex marriages and other same sex unions. Methods and Findings: Marriage data were obtained for all fifty states plus the District of Columbia from 1989 through 2009. As these marriage rates are non-stationary, a generalized error correction model was used to estimate long run and short run effects of same sex marriages and strong and weak same sex unions on rates of opposite sex marriage. We found that there were no significant long-run or short run effects of same sex marriages or of strong or weak same sex unions on rates of opposite sex marriage. Conclusion: A deleterious effect on rates of opposite sex marriage has been argued to be a motivating factor for both the withholding and the elimination of existing rights of same sex couples to marry by policy makersincluding presiding justices of current litigation over the rights of same sex couples to legally marry. Such claims do not appear credible in the face of the existing evidence, and we conclude that rates of opposite sex marriages are not affected by legalization of same sex civil unions or same sex marriages.
Citation: Dinno A, Whitney C (2013) Same Sex Marriage and the Perceived Assault on Opposite Sex Marriage. PLoS ONE 8(6): e65730. doi:10.1371/ journal.pone.0065730 Editor: Yamir Moreno, University of Zaragoza, Spain Received May 23, 2012; Accepted May 3, 2013; Published June 11, 2013 Copyright: 2013 Dinno, Whitney. This is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited. Funding: The authors have no support or funding to report. Competing Interests: The authors have declared that no competing interests exist. * E-mail: alexis.dinno@pdx.edu
Introduction
Marriage has many values to individuals and societies. The codification of marriage into U.S. Federal law alone provides over a thousand conditions in which married couples are treated differently than non-married couples. While some disadvantages may result to married couples relative to unmarried couples in these lawsas when there are married couple penalty provisions in the tax codemost of these laws provide substantive benefits to married couples relative to unmarried couples [1]. Marriage is well understood as a basic determinant of the health of adults [2] and their children [3,4]. Married individuals are less likely than nonmarried individuals to report their health as fair or poor, less likely to suffer from physical ailments or report poor psychological health, and across the lifespan report fewer health ailments [5]. Marriage is associated with greater life satisfaction and improved mental health [6,7]. Until recently same sex couples in the United States have been excluded from legally recognized marriage. The current national policy debate over same sex marriage intensified in 1993, when in the Hawaiis Supreme Court ruled in Baehr v. Miike that under that states constitution, a marriage statute which restricts the status and benefits of marriage to male-female couples discriminates on the basis of sex. [8] In 1996 the federal Defense of Marriage Act
(DOMA) restricted marriage to a legal union between one man and one woman, and, responding to concerns that some states would at some point be required to recognize same sex marriages from other states, gave states the power to restrict marriage to opposite sex couples and to not recognize same sex marriages from other states. Thirty states have passed state DOMAs and statute restrictions on marriage [9]. In most states, same sex couples are still excluded from marriage and all same sex couples are excluded from the federal benefits of marriage. Massachusetts became the first state to allow same sex marriages on May 17, 2004 following the ruling in Goodridge v. Department of Public Health (440 Mass. 309 Mass: Supreme Judicial Court, 2003). Subsequently, Connecticut (November 12, 2008), Iowa (April 27, 2009), New Hampshire (January 1, 2010), New York (July 24, 2011), Vermont (September 1, 2009), Washington (December 6, 2012), Maine (December 29, 2012), Maryland (January 1, 2013) and the District of Columbia (December 18, 2009) have joined Massachusetts in legalizing same sex marriages (see Table S1 in File S1). Californias Supreme Court ruled in 2008 that prohibiting same sex couples from marrying was unconstitutional (In re MARRIAGE CASES, 2008, 43 Cal.4th 757). Same sex marriages were allowed in California between June 17th, 2008 and November 4th, 2008 during which time approximately 18,000 couples were married [2]. In November
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Case 8:12-cv-01137-CBM-AJW Document 135-5 Filed 07/08/13 Page 43 of 59 Page ID Same Sex Marriage and Opposite Sex Marriage #:3312
of 2008, CA voters passed Proposition 8 [10] defining marriage as one man and one woman. While the federal lawsuit challenging Californias Proposition 8 is working its way through the appeals process (See: Perry v. Brown, No. 1016696, 9th Cir. Feb 7, 2012), the 18,000 CA same sex marriage licenses issued in 2008 remain valid (Strauss v. Horton, 2009, 46 Cal.4th 364). In 2000, Vermont became the first state to allow civil unions for same sex couples following a supreme court ruling that marriage benefits could not be restricted to opposite sex couples (Baker v. Vermont, 744 A. 2d 864 Vermont: Supreme Court, 1999). Following Vermont, eleven states, including California, Connecticut, Delaware, Hawaii, Illinois, Nevada, New Hampshire, New Jersey, Oregon, Rhode Island, and Washington as well as the District of Columbia enacted legislation recognizing same sex domestic partnerships or civil unions which do or did extend most or all of the state-level benefits of marriage, explicitly reserving the legal designation of marriage to opposite sex couples (see Table S1 in File S1). Several states, including Colorado, Maine, Maryland, Wisconsin, and previous to stronger same sex union laws, in California, the District of Columbia, New Jersey and Washington enacted legislation recognizing same sex domestic partnerships or designated beneficiaries, which have provided a limited subset of state-level benefits of marriage to registered couples (see Table S1 in File S1). couples in the U.S. are currently boycotting marriage until it is available to all [22,23]. Heterosexual and bisexual individuals and opposite sex couples across the country have pledged to boycott marriage until it is available to all by joining the National Marriage Boycott, started after the passage of Proposition 8 [24]. The movement has been joined by churches as well who have stopped signing marriage licenses in support of marriage equality [25,26]. That some opposite sex couples will not marry unless same sex marriages are lawful suggests, contrary to the prognostications of some opponents of same sex marriage, that a probable increase in marriage rates over time will follow the legalization of same sex marriage. The fact that some opposite sex couples are postponing marriage until it is legal also for same sex couples implies that there may also be a limited period of increase in opposite sex marriages following enactment of same sex marriage laws. A helpful anonymous reviewer of this article conjectures that same sex marriage laws could be expected to have two kinds of effects on rates of opposite sex marriage. Because by legitimizing same sex relationships, same sex marriage laws could help reduce the number of homosexuals living closeted lives and entering into unhappy opposite sex marriages, such laws might both contribute to decreased numbers of new opposite sex marriages, but also reduce the number of opposite sex marriages likely to end in divorce because the marriage was undertaken to keep up heterosexual appearance by a homosexual participant. Therefore caution must be taken about conflating causes of state-level rates of opposite sex marriage with causes of individual-level or couplelevel participation in opposite sex marriage. We aim to test the claims that rates of opposite sex marriage will change as a result of same sex marriage or strong or weak same sex union laws. Our primary formal hypothesis is twofold: (1) that there is in the short or long-term a decreasing trend in rates of opposite sex marriage following implementation of same sex marriage laws, and (2) that states enacting same sex marriage laws experience an increase in opposite sex marriages in the short-term following implementation. These primary hypotheses are accompanied by four parallel secondary hypotheses for comparable short-term and long-term effects following implementation of strong same sex union laws providing most or all of the benefits of marriage excepting the term marriage, and for weak same sex union laws providing a small subset of the benefits of marriage.
Is Same Sex Marriage a Detriment to Opposite Sex Marriage?

Opponents to legalization of same sex marriage have positioned it as an assault [11] seeking to weaken, [12] destroy [13 16] and undermine [17,18] opposite sex marriage. Anti-same sex marriage lawmakers, advocates, and journalists have raised concerns over the social effects of legalizing same sex marriage. One such use of language has positioned same sex marriage as literally harmful to opposite sex marriage: in a recent ruling of the United States Court of Appeals for the Ninth Circuit in Perry the proponents argue if the definition of marriage between a man and a woman is changed, it would fundamentally redefine the term from its original and historical procreative purpose. This shift in purpose would weaken societys perception of the importance of entering into marriage to have children, which would increase the likelihood that couples would choose to cohabitate rather than get married (Perry v. Brown, No. 1016696, 111-1129th Cir. Feb 7, 2012). David Blankenhorn, an expert witness for the defendants in Perry testified under oath that allowing same-sex marriage would undermine respect for the unique status of traditional marriage, and this could lead to further deinstitutionalization, including an increase in out-of- wedlock births, divorce, etc [19]. The argument that same sex marriage literally destroys opposite sex marriages translates directly to the question of what has happened to rates of opposite sex marriage in states that allow same sex marriage as compared to other states which do not? A similar question has been posed in the academic arena with respect to opposite sex marriage rates in Denmark, Norway, Sweden, Iceland, and the Netherlands, and no significant change in opposite sex marriage and divorce rates following enactment of same sex marriage laws was found [20]. The academic literature quantitatively assessing the effect of same sex marriage laws on rates of opposite sex marriage in the U.S. is tiny, with, we believe, just one study that analyzed a static model of marriage rates from three years (1990, 2000, and 2004) and found a significant positive association between gay marriage, or full legal recognition like civil unions and state marriage rates [21]. Despite the argument that legalizing same sex marriage will decrease the rates of opposite sex marriage, some opposite sex
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Materials and Methods

We model marriage rates in the thirteen states plus the District of Columbia where same sex marriage or strong or weak same sex union laws were implemented before 2009 relative to rates in the remaining states..
Variables and Data

Marriages by state and year from 1988 to 2009 were obtained from National Center for Health Statistics (NCHS) marriage publications [2741], excepting Louisiana in 2006 when NCHS data were unavailable. We used the Louisiana Department of Health and Hospitals marriage rate figure for 2006 because NCHS marriage figures from 2005 and 2007 are identical to the Louisiana Department of Health and Hospitals figures for those same years [42]. Mid-year (July, 1) estimates of the U.S. population 18 years and older by state were obtained from the U.S. Census Bureau Population Estimates historical data by state (http://www.census.gov/popest/data/historical/). The adult population in each state was used as this represented those at risk of marriage for purposes of analytic precision (and not intended as a substantive redefinition marriage rate). The total number of
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Figure 1. Projected differences in annual opposite sex marriages in states enacting same sex marriage laws. Solid black lines represent our modeled marriages in each year and state, and dashed black lines project opposite sex marriages if same sex marriage laws had not been enacted in each state and year. Observed numbers of marriages are plotted as dotsnote that the model follows very closely on the previous years observed number of marriages. The 95% confidence intervals of the difference in predicted opposite sex marriages with and without same sex marriage laws in effect are centered on the average of those two predictions. California licensed 18000 same sex marriages in 2008. Connecticut enacted a same sex marriage law in 2008. Iowa enacted a same sex marriage law in 2009. Massachusetts enacted a same sex marriage law in 2004. Vermont enacted a same sex marriage law in 2009. doi:10.1371/journal.pone.0065730.g001
marriages in each study state were adjusted downward by the corresponding number of same sex marriages [4346] appropriate to each year from enactment to 2009. Because California did not track same sex marriages in 2008, we used the widely-reported figure of 18,000 same sex marriages in California during 2008 [2]. Marriage rates were calculated as all control states marriages minus the total number of reported same sex marriages (i.e. zero in most states and years), divided by the in-state adult population at mid-year. The sample size was 1071. Data for state same sex marriage, and strong and weak same sex union laws were taken from public legislative and court records (see Data S1). In each year, same sex marriage and union laws were separately encoded in each state with a proportion representing how much of that year the law was in effect. For example, Massachusetts implemented same sex marriage on May 17, 2004, so during the first year following enactment the same sex marriage variable for this state had the value 0.623 in 2004, the value 1.0 in all subsequent years, and the value 0.0 in all previous years. A multiplicative interaction term for same sex marriages and strong same sex unions to capture those occasions when both laws were in force simultaneously.
fit measures all disturbances to r in each time t (assumed distributed normal), and mri measures state-level variation in r (assumed distributed normal).
Data Analysis
We modeled state-level differences in opposite sex marriage rates by differences in their enactment of same sex marriage laws and strong and weak same sex union laws. Because marriage rates are near-integrated, stationary models of change in marriage rates cannot provide reliable estimates [53]. Instead, change in marriage rates in year t and state i was fit using a single-equation generalized error correction model (GECM) [49,50] (equation 2), permitting inference about the short term and long term effects on opposite sex marriage rates of same sex marriage and union laws. The GECM is an appropriate model both because GECMs are appropriate for modeling near-integrated outcome variables irrespective of a co-integration between outcome and predictor variables [50,54], and because we infer that same sex marriage, and strong and weak same sex unions all have level unit root (same sex marriage and strong same sex unions have trend unit root, although in some states weak same sex unions may be stationary) from both Hadris test allowing for cross-sectional dependence and subtracting cross-sectional means and the Im-Pesaran-Shin test with a single lag and subtracting cross-sectional means. The interaction term, msti , is stationary (see discussion of the homogeneity of the error correction process in the discussion). The random intercept term, b0i , was permitted to vary by state, both to reflect the fact that states have different average changes in marriage rates at equilibrium (i.e. it would be unreasonable to fit the model by assuming, for example, that Hawaii and Mississippi experience similar changes in marriage rates), and in order to produce more accurate standard error estimates of the fixed effect parameters. Drti ~b0i zbc rt{1i {mt{1i zst{1i zwt{1i zmst{1i zbDm Dmti zbm mt{1i zbDs Dsti zbs st{1i zbDw Dwti zbw wt{1i zbDms Dmsti zbms mst{1i z ti zm0i , where: t{1 in the subscript indicates the first lag for a variable in year t; D is the one-year change function for a variable (e.g. Drti ~rti {rt{1i ); rti is the marriage rate in year t in the ith state; mti is the proportion of year t that same sex marriage laws were in force in the ith state; sti is the proportion of year t that strong same sex union laws were in force in the ith state; wti is the proportion of year t that weak same sex union laws were in force in the ith state; msti is the multiplicative interaction of m and s in year t in the ith state;
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Missing Data
Marriage data were missing for California in 1991 and for Oklahoma for 20002004. The portion of missing marriage data was 0.0045. We accounted for increased uncertainty in our estimates due to data missingness using bootstrap estimation maximization multiple imputation methods developed for missing time series data with the amelie package version 1.55 for R. version 2.14. [47] Reported are the results of identical analyses on ten imputed data sets combined [48] to reflect increased uncertainty due to data missingness. See File S1 for further details.
Non-stationarity of Marriage Rates

A first-lag random intercept model (1) provided an estimate of r~0:961 (95% CI:0.953, 0.970), suggesting that marriage rates during the study period were strongly autoregressive and nearintegrated (i.e. non-stationary) processes [49,50]. Application of Hadris test for unit root in panel data allowing for cross-sectional dependence and subtracting cross-sectional means [51] confirmed that marriage rates in some states were neither trend stationary (pv0:0001) nor level stationary (pv0:0001). The Im-PesaranShin test for unit root with a single lag and subtracting crosssectional means [52] failed to reject the null hypothesis that all states contain unit roots both with time trend (p~0:2106) and without (pw0:9810). rti ~ri rt{1i zfti zmri , 1
where: rti is the marriage rate at time t in state i, ri measures autocorrelation and is permitted to vary for each state, rt{1i is the first lag of the marriage rate in each state,
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Table 1. Effects of same sex marriage and union laws on opposite sex marriage rates (N = 1071).
estimatea Instantaneous short run effects of same sex marriage w/o strong unions same sex marriage & strong unions strong same sex unions w/o marriage weak same sex unions Lagged short run effects of same sex marriage w/o strong unions same sex marriage & strong unions strong same sex unions w/o marriage weak same sex unions Long run run effects of same sex marriage w/o strong unions same sex marriage & strong unions strong same sex unions w/o marriage weak same sex unions
a
s:e:b
95%CIc
q{valued
0.0001 -0.0007 -0.0003 -0.0004
0.0013 0.0014 0.0007 0.0006
20.0025, 0.0027 20.0035, 0.0021 20.0016, 0.0010 20.0016, 0.0008
w0:9999 w0:9999 w0:9999 w0:9999
-0.0003 -0.0004 0.0000 0.0002
0.0015 0.0031 0.0007 0.0007
20.0031, 0.0026 20.0064, 0.0056 20.0014, 0.0014 20.0011, 0.0015
w0:9999 w0:9999 w0:9999 w0:9999
-0.0037 -0.0279 -0.0067 -0.0036
0.0152 0.0754 0.0075 0.0083
20.0335, 0.0261 20.1756, 0.1199 20.0215, 0.0081 20.0199, 0.0127
w0:9999 w0:9999 w0:9999 w0:9999
The arithmetic mean of the estimates from all ten imputed data sets. Combined standard errors account for both within- and between-imputation estimate variance. c 95% confidence intervals are given by the estimate +1:96 s:e:. d q-values are p-values adjusted upward to account for twelve multiple comparisons; compare to a=2. doi:10.1371/journal.pone.0065730.t001
b
b0i is the model constant for the ith state; bc is the correction rate at which marriage rates return to equilibrium after a perturbation; bDm is the short run instantaneous effect of same sex marriage law implementation in the absence of concurrent strong same unions (bDs , bDw , and bDms are the short run instantaneous effects of the respective covariates); bm is the lagged effect of same sex marriage law implementation in the absence of concurrent strong same unions (bs , bw , and bms are the lagged effects of the respective covariates); th ti is the residual at time t in the i study state; th m0i is the model constant term for the i study state, and where 2 2 ti *N 0,s , and m0i *N 0,sm . The parameters in (2) provide different possible interpretations of our hypotheses in the form of short and long term effects of same sex marriage and strong and weak same sex union laws on opposite sex marriage rates. Short run instantaneous effects are given by bDm , bDs , and bDw and, for same sex marriages concurrent with strong same sex unions, by (bDm zbDs zbDms ). Short run lagged effects (for example, for marriage in the absence of concurrent strong same sex union laws) are given by bm {bc {bDm , and (for same sex marriages concurrent with strong same sex unions) by bm zbs zbms {3bc {bDm {bDs {bDms . Finally, long run effects (for example, for marriage in the absence of concurrent strong same sex union laws) are given by bc {bm =bc , and (for same sex marriages concurrent with strong same sex unions) by 3bc {bm {bs {bms =bc . We estimated the model in equation (2) for all fifty states plus the District of Columbia in order to evaluate the short and long term effects of same sex marriage and union laws against opposite sex marriage rates in control states using the xtmixed command in Stata version 11.2. Estimates and standard errors for long run effects, lagged short run effects and the instantaneous short run combined effect of
same sex marriages contemporaneous with strong same sex unions were calculated using the delta method using the nlcom command in Stata.
Results
All short term and long term effects of same sex marriages and strong and weak same sex unions were close to zero and statistically undifferentiable from the null hypothesis of no effect on rates of opposite sex marriage with %95 confidence intervals uniformly spanning zero (Table 1). This finding holds even for very large values of a. Of course absence of evidence, is not the same thing as evidence of absence [55]. Therefore we also performed equivalence hypothesis tests on each of the dynamic effects reported in Table 1 by posing as null hypotheses differences between the reported effects and zero within a given tolerance, e, deciding whether to reject them in favor of alternative hypotheses of effects within the range {e,e by using uniformly most powerful tests of equivalence [56]. We employed and report results for liberal (e~0:5), strict (e~0:5) and very strict (e~0:125) tolerance values (e is measured in units of t, see, for example, page 16 of [56]). The results of the equivalence tests (Table 2) were unambiguous: we rejected all null hypotheses of difference in of the dynamic effects of favor of equivalence to no effect for liberal, strict and very strict tolerances. In Table 2 we report p-values adjusted for the False Discovery Rate (FDR) [57] only for e~0:125, as the FDR adjustments make no difference within the precision of of the reported figures for e~0:5 or e~0:25. Thus, we found that adult rates of opposite sex marriage in states implementing same sex marriage laws, both with and without contemporaneous strong same sex union laws, were equivalent to rates in states with no such laws, and we find that any differences appear to due to chance alone, as reflected in very wide confidence intervals around the predicted differences in states implementing same sex marriage laws (Figure 1). Figure S1 in File S1 shows
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Table 2. Equivalence tests for dynamic effects on opposite sex marriage rates (N = 1071).
ta Instantaneous short run effects of same sex marriage w/o strong unions same sex marriage & strong unions strong same sex unions w/o marriage weak same sex unions Lagged short run effects of same sex marriage w/o strong unions same sex marriage & strong unions strong same sex unions w/o marriage weak same sex unions Long run run effects of same sex marriage w/o strong unions same sex marriage & strong unions strong same sex unions w/o marriage weak same sex unions
a
~ 0:5 )b,c P(DtDvC
~ 0:25 )b,c P(DtDvC
~ 0:125 )b (q)d P(DtDvC
0.0741 20.5095 20.4456 20.5782
0.0000 0.0000 0.0000 0.0000
0.0000 0.0000 0.0000 0.0000
0.0078 (0.047) 0.0191 (0.023) 0.0176 (0.023) 0.0208 (0.023)
20.1730 20.1435 0.0181 0.3044
0.0000 0.0000 0.0000 0.0000
0.0000 0.0000 0.0000 0.0000
0.0108 (0.032) 0.0099 (0.040) 0.0051 (0.061) 0.0141 (0.028)
20.2426 20.3700 20.8857 20.4364
0.0000 0.0000 0.0000 0.0000
0.0000 0.0000 0.0000 0.0000
0.0126 (0.030) 0.0270 (0.027) 0.0286 (0.029) 0.0260 (0.026)
The quotient of the Table 1 estimates and their standard errors. ~ e ~Fa~0:05,1,df ~n{k,e where F is a quantile function of the noncentral F -distribution, the degrees of freedom are n{k~1060 from equation 2, and e The critical value C is the noncentrality parameter of F , and the P(DtDv~ he ) is the cumulative density of F1,df ~n{k,e at t [56]. Because under the null hypothesis of difference, one of the two single-tails of the tests must be rejected, these p-values should be compared to a rather than to a=2 for the common interpretation of false rejection under null hypotheses of difference [56,60]. c The q-values for e~0:5 and e~0:25 are not explicitly reported because the figures remain just as the p-values within the precision of this table. d q~12p=i, where i is the position of ordered p-values from smallest to largest. When stepping down from largest to smallest i, all hypotheses are rejected including and subsequent to the first with q0:05 to control the FDR for twelve multiple comparisons. doi:10.1371/journal.pone.0065730.t002
b
graphs for all states with any same sex marriage or same sex union laws. The raw model parameter estimates and standard errors from (2) are presented in Table S2 in File S1. Across analyses of all ten imputed data sets, Hadris test for unit root for panel data allowing for cross-sectional dependence and subtracting cross-sectional means [51] failed to reject both the null hypothesis that the error terms from all states were trend stationary (mean p~0:9995) and the null hypothesis that the error terms from all states were level stationary (mean p~0:9353): we conclude that our model was appropriate to test our hypotheses. Models models with additional lags including up through the fourth lags of marriage rates gave substantively similar results with no difference in inferences from Tables 1 and 2.
Discussion
We found that state rates of opposite sex marriage in the U.S. from 19892009 do not significantly differ when same sex marriage and union laws are in force compared to when they are not in force, contrary both to concerns raised by opponents of same sex marriage and same sex civil unions, and to the positive association reported by Langbein and Yost [21]. We found no evidence of an increase in state-level opposite sex marriage rates corresponding to a first year effect of same sex marriage, contradicting the marriage equality hypothesis. Indeed, per our equivalence tests, we found evidence of an absence of any effects. Our analysis allows inference into changes in opposite sex marriage rates by year and state, but we cannot readily translate this inference into relationships between opposite sex couple-level marriage decisions and state-level policies without committing the ecological fallacy [58,59]. Given the nuances we raised in the
background section regarding individuals and couples motivations for choosing to marry a partner of the opposite sex or not, it is clear that only further research including both individual-level and state-level data will illuminate the effects of state marriage laws on individuals and couples marriage choices. Such a study could also examine the psychological effects of anticipated changes to marriage law on marriage behavior. The question of whether states ought to legally provide same sex couples with the legal status of marriage, or a related, though less regarded and less beneficial status of same sex union cannot be answered solely in terms of the effect on opposite sex marriages. However, a deleterious effect on rates of state rates of opposite sex marriage has been argued to be a motivating factor for both the withholding and the elimination of existing rights of same sex couples to marry by policy makersincluding presiding justices of current litigation over same sex couples rights to legally marry. Such claims do not appear credible in the face of the existing evidence. We began by framing marriage as a social determinant of health. Marriage is an important social resource for the health of both opposite sex and same sex couples, and their children. If rates of opposite sex marriage are threatened by same sex marriage, then part of the societal measure of that threat is the limiting of a basic resource for the health of opposite sex couple-based families (through, for example, pension benefits, hospital visitation rights, immigration rights, child support, medical benefits due married partners, affordable housing benefits, etc.) who remain unmarried. This view is not supported by our findings. Conversely, if rates of opposite sex marriage are not threatened by same sex marriage, then the denial of marriage rights to same sex couples is a denial of a basic resource for the health of same sex couple-based families. This view is supported by our findings.
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Limitations
More states currently have same sex marriage and union laws in force than during our study period. Including such states would provide greater precision in our estimates, and potentially permitting an positive assessment of both the marriage equality hypothesis and the threat to opposite sex marriage hypothesis. Unfortunately there is a trend away from reporting the number of marriages by state at the national level, and in many states, making later data more difficult to obtain. Our analysis assumes no state-level confounding factors are biasing the estimates of the effects of same sex marriage and union laws. This is appropriate in that our hypotheses were directly informed by conjectures and assertions within a recent and ongoing nation-wide discussion on the legitimacy of providing or denying same sex couples the right to legally recognized marriage, and this discourse has not generally been characterized by conjecture about confounding effects. For example, presiding justices making the argument that same sex marriage could discourage opposite sex marriage have not suggested that this effect varies depending on economic conditions, or on demographic makeup within a state. However, further research in the subject may produce insights in examining such possibilities both at the state and individual level. Our model assumes that the effects of same sex marriage and union laws on change in rates of opposite sex marriage do not differ by state. If this assumption poorly reflects the reality (e.g. same sex marriages increase rates of opposite sex marriage in some states, but decrease rates of opposite sex marriage in other states), we may be blind to nuances of the cultural force of same sex marriages and unions. Unfortunately, the size of the current data set, in particular, the limited number of states and years implementing same sex marriage or union laws, provides poor power to discriminate random effects at the state level. Relatedly, differences in same sex marriage or same sex union laws in neighboring states might produce cross-border marriage effects which our data and study design cannot readily address. This is a complex issue, for many reasons: some states require residency for a marriage; there is likely limited legal benefit to being married in another state when it is illegal in ones own; the role of geographic isolation (e.g. California versus Rhode Island) in limiting travel. While such marriage migration may mismatch the numerator (marriages) from the denominator (marriageable-age population), the random intercept term m0i captures state-specific differences in marriage rates which are relatively constant across the studys duration. We also made an assumption of homogeneity of error correction rates by state, and by same sex marriage or union laws. This assumption appears reasonable for two reasons. First, the error correction process is dominated by the first lag of marriage rates, and the lagged same sex marriage and union terms cancel with it to produce near-zero estimates. Second, models accounting for only one kind of the same sex marriage, strong, or weak same sex union laws (see Tables S3S8 in File S1) produced very similar values for bc as that which we report here. Ideally, we would have wanted to extend this analysis to divorce: inherent in the critiques against same sex marriage described above are concerns about opposite sex divorce. For example, former Arkansas Governor Mike Huckabee articulated this perspective against same sex marriage clearly There is a quantified impact of broken families [13]. However, many more divorce data are missing: twelve states are missing divorce data from 19902009California, Indiana, and Louisiana in particular are missing most years dataand the overall rate of missingness is 7.93%. In addition, we encounter an analytic conundrum with divorce rates by state, which present neither uniformly stationary nor uniformly near-integrated processes, making the appropriate choice of model unclear.
Conclusion
We conclude that there is no relationship between implementation of same sex marriage or strong or weak same sex union laws and rates of opposite sex marriage. Because the history of same sex marital rights is young in the U.S., ongoing examination of these relationships is warranted.
Supporting Information
File S1 Supporting Information File S1 is a word processing document (in.docx format) containing Table S1: State same sex marriage and strong and weak same sex union laws; details of the imputations, including equations S1S3; Table S2: Fixed and random effect model estimates of change in opposite sex marriage rates by state and year; Figure S1 Projected differences in annual opposite sex marriages in states enacting same sex marriage or strong or weak same sex union laws; separate generalized error correction models for same sex marriage and strong and weak same sex union laws, including equations S4S6; Table S3: Effects of only same sex marriage laws on opposite sex marriage rates; Table S4: Fixed and random effect model estimates of change in opposite sex marriage rates by state and year for same sex marriage only; Table S5: Effects of only strong same sex union laws on opposite sex marriage rates; Table S6: Fixed and random effect model estimates of change in opposite sex marriage rates by state and year for strong same sex unions only; Table S7: Effects of only weak same sex union laws on opposite sex marriage rates; Table S8: Fixed and random effect model estimates of change in opposite sex marriage rates by state and year for weak same sex unions only; and References S1. (DOCX) Data S1 Supporting Information Data S1 is a spreadsheet
(in.xlsx format) containing Sheet S1: Reported US marriages by state and year (annotated); Sheet S2: Reported number of US same sex marriages by state and year; and Sheet S3: Estimated US population age 18+ by state and year: US Bureau of the Census. (XLSX)
Acknowledgments
We thank James Honaker for insights about multiple imputation, and James Lightwood for insights about error correction models.
Author Contributions
Analyzed the data: AD. Wrote the paper: AD CW. Conceived and designed time series analysis: AD. Obtained and prepared secondary data: AD CW.
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Monthly Vital Statistics Report 41: 134. 29. National Center for Health Statistics (1994) Annual Summary of Births, Marriages, Divorces, and Deaths: United States, 1993. Monthly Vital Statistics Report 42: 136. 30. National Center for Health Statistics (1995) Births, marriages, divorces, and deaths for 1994. Monthly Vital Statistics Report 43: 124. 31. National Center for Health Statistics (1995) Advance report of final divorce statistics, 1989 and 1990. Monthly Vital Statistics Report 43: 132. 32. National Center for Health Statistics (1997) Births, marriages, divorces, and deaths for 1996. Monthly Vital Statistics Report 45: 119. 33. National Center for Health Statistics (1998) Births, marriages, divorces, and deaths for 1997. Monthly Vital Statistics Report 46: 119. 34. National Center for Health Statistics (2001) Provisional Tables On Births, Marriages, Divorces, and Deaths: 19971999. National Vital Statistics Reports 48. 35. National Center for Health Statistics (2002) Births, Marriages, Divorces, and Deaths: Provisional Data for 2001. National Vital Statistics Reports 50. 36. National Center for Health Statistics (2003) Provisional Tables On Births, Marriages, Divorces, and Deaths: 20002002. National Vital Statistics Reports 51. 37. National Center for Health Statistics (2005) Births, Marriages, Divorces, and Deaths: Provisional Data for 2004. National Vital Statistics Reports 53: 16. 38. National Center for Health Statistics (2006) Births, marriages, divorces, and deaths: Provisional data for 2005. National Vital Statistics Reports 54: 17. 39. National Center for Health Statistics (2007) Births, marriages, divorces, and deaths: Provisional data for 2006. National Vital Statistics Reports 55: 16. 40. National Center for Health Statistics (2008) Births, marriages, divorces, and deaths: Provisional data for 2007. National Vital Statistics Reports 56: 16. 41. National Center for Health Statistics (2010) Births, marriages, divorces, and deaths: Provisional data for 2009. National Vital Statistics Reports 58: 16. 42. George D (2011) Number of marriages, parish of license issuance and year, Louisiana, 20062010. Report, LA Department of Health and Hospitals, Louisiana Center for Records and Statistics. Available: http://new.dhh. louisiana.gov/index.cfm/page/707. Accessed 2013 May 7. 43. Cummings P (2011) Personal communication. Email correspondence, Vital Records Health Surveillance, Department of Health, Vermont Agency of Human Services, Burlington, VT. 44. Foster K (2011) Number of marriage records received and recorded by the Massachusetts Registry of Vital Records and Statistics from May 17, 2004 through 2010 by year. Personal communication, Registry of Vital Records and Statistics, Department of Public Health, Executive Office of Health and Human Services. 45. Capozzi R (2012) Personal communication. 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Exhibit 59
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Case 8:12-cv-01137-CBM-AJW Document 135-5 Filed 07/08/13 Page 51 of 59 Page ID #:3320 The Australian Study of Child Health In
Same-Sex Families (ACHESS) Interim report

Introduction
The Australian Study of Child Health in Same-Sex Families (ACHESS) was designed to explore for the first time the complete health and wellbeing of Australian children with same-sex attracted parents, and in particular the impact that discrimination has on them. There are an increasing number of children with same-sex attracted parents in Australia. International research to date has suggested that these children are doing well in many aspects of their lives, however they are often affected by the discrimination that their families may experience due to parental sexual orientation. Previous work has been limited by a focus on lesbian parents and small sample sizes, and the relevance to the Australia context is uncertain. This brief interim report identifies some of the key early highlights from the ACHESS. A detailed description of the study protocol and background research can be found in the references at the end of this report.
Highlights
The ACHESS collected data on 500 children aged 0-17 years from 315 index parents. For 80% of the children a female parent completed the survey, 18% were completed by a male parent, with 2% having an other gendered parent. These parents describe a range of sexual orientations including homosexual, gay, lesbian, bisexual and queer. Ninety-three per cent of parents are currently in a relationship. The children come from all states and territories in Australia, with the exception of the Northern Territory. Fifteen per cent of children were born overseas and 11% speak a language other than English at home. On measures of general health and family cohesion children aged 5 to 17 years with samesex attracted parents showed a significantly better score when compared to Australian children from all backgrounds and family contexts. For all other health measures there were no statistically significant differences. Australian children with samesex attracted parents and their families continue to face discrimination in a variety of contexts.
Summary
These early findings suggest that Australian children with same-sex attracted parents are developing well. They are growing up in a range of contexts and score well on measures of health and wellbeing in the face of discrimination. Further analysis of the ACHESS data will identify in what ways this discrimination affects children and their families, as well as characterising overall health and wellbeing in more detail. It is anticipated that full results will be available by September 2013.
Further reading
Crouch SR, McNair RP, Waters EB and Power JJ (2013). What makes a same-sex parented family? Med J Aust 198(9): 1 Crouch SR, Waters E, McNair R, Power J and Davis E (2012). ACHESS The Australian study of child health in same-sex families: background research, design and methodology. BMC Public Health 12:646
Contact
Dr Simon Crouch T: 0435 069 229 E: admin@achess.org.au W: achess.org.au
The Australian Study of Child Health in Same-Sex Families

The Jack Brockhoff Child Health & Wellbeing Program The McCaughey VicHealth Centre for Community Wellbeing Melbourne School of Population & Global Health Level 5, 207 Bouverie St, The University of Melbourne, VIC 3010, Australia
279
Exhibit 60
280
No. 92
August 2011
Children with Lesbian, Gay, Bisexual and Transgender Parents

Millions of children in the United States have lesbian, gay, bisexual and/or transgender (LGBT) parents. Some children of LGBT parents were conceived in heterosexual marriages or relationships. An increasing number of LGBT parents have conceived children and/or raised them from birth, either as single parents or in ongoing committed relationships. This can occur through adoption, alternative insemination, surrogate or foster parenting. A small number of states currently have laws supportive of LGBT couple adoption. What effect does having LGBT parents have on children? Sometimes people are concerned that children being raised by a gay parent will need extra emotional support or face unique social stressors.Current research shows that children with gay and lesbian parents do not differ from children with heterosexual parents in their emotional development or in their relationships with peers and adults. It is important for parents to understand that it is the the quality of the parent/child relationship and not the parents sexual orientation that has an effect on a childs development. Research has shown that in contrast to common beliefs, children of lesbian, gay, or transgender parents:

Are not more likely to be gay than children with heterosexual parents. Are not more likely to be sexually abused. Do not show differences in whether they think of themselves as male or female (gender identity). Do not show differences in their male and female behaviors (gender role behavior).
Raising children in a LGBT household Although research shows that children with gay and lesbian parents are as well adjusted as children with heterosexual parents, they can face some additional challenges. Some LGBT families face discrimination in their communities and children may be teased or bullied by peers. Parents can help their children cope with these pressures in the following ways:
Prepare your child to handle questions and comments about their background or family.
281
Allow for open communication and discussions that are appropriate to your childs age and level of maturity. Help your child come up with and practice appropriate responses to teasing or mean remarks. Use books, Web sites and movies that show children in LGBT families. Consider having a support network for your child (For example, having your child meet other children with gay parents.) Consider living in a community where diversity is more accepted.
Like all children, most children with LGBT parents will have both good and bad times. They are not more likely than children of heterosexual parents to develop emotional or behavioral problems. If LGBT parents have questions or concerns about their child, they should consider a consultation with a qualified mental health professional. For additional information see Facts for Families: #1 Children and Divorce #15 The Adopted Child #24 When to Seek Help #27 Stepfamily Problems #62 Talking to Your Kids About Sex #63 Gay and Lesbian Teens #64 Foster Care
If you find Facts for Families helpful and would like to make good mental health a reality, consider donating to the Campaign for Americas Kids. Your support will help us continue to produce and distribute Facts for Families, as well as other vital mental health information, free of charge. You may also mail in your contribution. Please make checks payable to the AACAP and send to Campaign for Americas Kids, P.O. Box 96106, Washington, DC 20090. The American Academy of Child and Adolescent Psychiatry (AACAP) represents over 8,500 child and adolescent psychiatrists who are physicians with at least five years of additional training beyond medical school in general (adult) and child and adolescent psychiatry. Facts for Families information sheets are developed, owned and distributed by AACAP. Hard copies of Facts sheets may be reproduced for personal or educational use without written permission, but cannot be included in material presented for sale or profit. All Facts can be viewed and printed from the AACAP website (www.aacap.org). Facts sheets may not be reproduced, duplicated or posted on any other website without written consent from AACAP. Organizations are permitted to create links to AACAPs website and specific Facts sheets. For all questions please contact the AACAP Communications & Marketing Coordinator, ext. 154. If you need immediate assistance, please dial 911. Copyright 2012 by the American Academy of Child and Adolescent Psychiatry.
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Exhibit 61
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284
285
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Exhibits 34-61.
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Case 8:12-cv-01137-CBM-AJW Document 135 Filed 07/08/13 Page 1 of 104 Page ID #:3008

INDEX TO EXHIBITS No. Description Page

Dated: July 8, 2013.

Attorneys for plaintiffs

Citizenship and Immigration Services Ombudsman

REASONS FOR THE RECOMMENDATIONS

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Recommendation to the Director of USCIS

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Recommendation to the Director of USCIS

ANALYSIS & RECOMMENDATIONS

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Recommendation to the Director of USCIS

Exercising Prosecutorial Discretion

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452 | Research and Practice | Peer Reviewed | Hatzenbuehler et al.

American Journal of Public Health | March 2010, Vol 100, No. 3

March 2010, Vol 100, No. 3 | American Journal of Public Health

Hatzenbuehler et al. | Peer Reviewed | Research and Practice | 453

454 | Research and Practice | Peer Reviewed | Hatzenbuehler et al.

American Journal of Public Health | March 2010, Vol 100, No. 3

March 2010, Vol 100, No. 3 | American Journal of Public Health

Hatzenbuehler et al. | Peer Reviewed | Research and Practice | 455

456 | Research and Practice | Peer Reviewed | Hatzenbuehler et al.

American Journal of Public Health | March 2010, Vol 100, No. 3

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Hatzenbuehler et al. | Peer Reviewed | Research and Practice | 457

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