Case: 1:11-cv-01991 Document #: 1 Filed: 03/23/11 Page 1 of 9 PageID #:1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

DEMOS REVELIS, and

)

MARCEL MAAS (A077 644 072),

)

)

Plaintiffs,

)

)

v.

)

)

JANET NAPOLITANO, Secretary,

)

Department of Homeland Security, and )

ERIC H. HOLDER, Jr., Attorney

)

General of the United States,

)

)

Defendants.

)

Case No. 11-cv-1991

PETITION FOR DECLARATORY JUDGMENT & OTHER RELIEF

The Plaintiffs, DEMOS REVELIS and MARCEL MAAS, by and through their own and proper persons, and through their attorneys, JUSTIN R. BURTON and ERIN C. COBB, of the LAW OFFICES OF KRIEZELMAN BURTON & ASSOCIATES, LLC, move this Honorable Court for a Declaratory Judgment and for other relief, and in support thereof state as follows:

Introduction 1. This is an action seeking to allow a U.S. citizen spouse to petition for his foreign national
spouse to become a permanent resident of the United States. The couple is denied this opportunity solely because their marriage is a same sex marriage. 2. The Plaintiffs have been in a committed relationship for 8 years. They married in the State of Iowa on December 24, 2010. Plaintiff Demos Revelis is a U.S. citizen. Plaintiff Marcel Maas is a foreign national.

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3. Pursuant to the Immigration and Nationality Act, marriage to a United States citizen is a qualifying relationship that provides the foreign national a basis by which to adjust his or her status to that of a lawful permanent resident of the United States. 8 U.S.C. § 1151(b)(2)(A). Permanent residency in the United States allows a foreign national to reside and work in the United States, and to travel into and out of the country. It can also lead to U.S. citizenship.
4. Though Plaintiff Revelis is a U.S. citizen, and though he is married to Plaintiff Maas, the Defense of Marriage Act prohibits U.S. Citizenship & Immigration Services from determining that their relationship provides Plaintiff Maas a basis by which to become a permanent resident of the United States. By operation of the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996), their legally valid same-sex marriage is not recognized by federal law, and thus the Immigration and Nationality Act. See 8 U.S.C. § 1151(b)(2)(A).
5. Plaintiff Revelis is therefore prevented from petitioning for his spouse to be able to live and work in the United States, and has been treated differently than other similarly situated individuals without justification, in violation of the right of equal protection secured by the due process clause of the Fifth Amendment of the Constitution of the United States.
Jurisdiction and Venue 6. This action arises under the Constitution of the United States and the laws of the United
States. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331; 28 U.S.C. §§ 2201-2202 and 5 U.S.C. § 701 et seq.
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7. The Northern District of Illinois is a proper venue for this action under 28 U.S.C. § 1391(e), because the defendants maintain offices in this District, the events giving rise to this claim occurred in this district, and the plaintiffs reside in this district.
The Parties 8. Plaintiff Demos Revelis is a United States citizen. He was born in Oakbrook, Illinois.
He currently resides in Chicago, Illinois. 9. Plaintiff Marcel Maas is a native and citizen of Netherlands. He resides in Chicago,
Illinois. 10. Defendant Janet Napolitano is sued in her official capacity as Secretary of the
Department of Homeland Security. The Secretary of the Department of Homeland Security is responsible for the administration and enforcement of the Immigration and Nationality Act. 8 U.S.C. § 1103(a). 11. Defendant Eric H. Holder, Jr., is sued in his official capacity of the Attorney General of the United States. The Attorney General is the chief federal officer responsible for the enforcement of the federal laws of the United States.
Immigration Law Framework 12. Should a U.S. citizen and his foreign national spouse decide to make the United States
their home, the U.S. citizen may file a visa petition (Form I-130) which, if approved, provides his spouse the basis by which he can apply for lawful permanent residency in the United States. 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i). 13. Ordinarily, whether a marriage-based visa petition will be approved depends upon (1) whether the marriage is legally valid in the place where it was celebrated, and (2) whether
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the marriage was entered into in good faith, i.e. not solely for immigration purposes. Matter of Dela Cruz, 14 I&N Dec. 686 (BIA 1974); 8 U.S.C. § 1154(c). 14. Lawful permanent residency is essential if a person wishes to remain indefinitely in the United States. It allows a foreign national to reside here, to work here, and to travel in and out of the country. 8 U.S.C. § 1101(a)(20); 8 C.F.R. § 274a.12(a)(1). As the name implies, that status is permanent – a lawful permanent resident may remain in the United States indefinitely, so long as the person abides by the nation’s laws. 8 U.S.C. § 1101(a)(20). The status is also a prerequisite for eventually obtaining U.S. citizenship. 8 U.S.C. § 1429.
Facts 15. Plaintiffs Demos Revelis was born in Illinois and has lived his entire life here. In 2002,
he and Plaintiff Marcel Maas began a relationship. 16. Plaintiff Marcel Maas was born in the Netherlands. He visited the United States briefly
on two previous occasions, to see the country and visit with friends. He last entered the country in 1999, through the Visa Waiver Program. 17. The two began dating, and moved in together in 2002. They married on December 24, 2010, in Davenport, Iowa. Plaintiff Maas’s mother and father traveled from the Netherlands to participate in the celebration. 18. Because Plaintiffs Demos Revelis and Marcel Maas desire to make the United States their permanent home, Marcel must obtain lawful permanent residency in the United States in order to lawfully remain in this country with his spouse.
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19. In compliance with the procedure set out by the Immigration and Nationality Act and its accompanying regulations, Plaintiff Demos Revelis filed a visa petition (Form I-130) on behalf of his spouse, Marcel Maas.
20. On March 10, 2011, Plaintiffs Revelis and Maas attended an interview on the visa petition and application for adjustment of status to permanent residency at the Chicago Field Office of U.S. Citizenship and Immigration Services, an agency of the Department of Homeland Security. One purpose of the interview was to allow U.S. Citizenship and Immigration Services the opportunity to determine whether the marriage was entered into in good faith.
21. There has been no allegation that the marriage was not entered into in good faith. Further, the marriage of Plaintiffs Revelis and Maas is legally valid in the place where it was celebrated, namely, Iowa. However, approval of the visa petition is prohibited solely because the Defense of Marriage Act does not recognize homosexual marriage. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (Sept. 21, 1996) (“DOMA”).
22. As a result of the prohibition on approval of the I-130 visa petition, Plaintiff Maas is left without a basis to apply for permanent residency in the United States. He must therefore depart the United States on order of U.S. Immigration and Customs Enforcement.
23. Plaintiff Revelis, a U.S. citizen, is therefore not permitted to live in the United States with his foreign national spouse.
The Defense of Marriage Act 24. Although the petitioning procedure for spouses of U.S. citizens applies on its face to all
lawfully married couples who married in good faith, same-sex couples are denied its benefits by operation of the Defense of Marriage Act.
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25. The Immigration and Nationality Act defines “spouse”, “wife”, and “husband” only by disqualifying those who were not physically present together at the time of marriage, unless the marriage was consummated. 8 U.S.C. § 1101(a)(35). There is no other definition of “spouse” or “marriage” in the Immigration and Nationality Act.
26. However, DOMA defines marriage as “only a legal union between one man and one woman as husband and wife.” 1 U.S.C. § 7. It defines spouse as “only … a person of the opposite sex who is a husband or a wife.’’ Id.
27. By the terms of DOMA, these two definitions must be applied in determining the meaning of any Act of Congress, or of any regulation or interpretation of the administrative agencies of the United States. Id. Therefore, USCIS must follow the definitions of “marriage” and “spouse” as set out in DOMA.
28. Solely because of DOMA, the U.S. Citizenship & Immigration Service determined that a U.S. citizen cannot petition for his foreign national spouse if that relationship is a samesex marriage.
29. As a direct result of DOMA, the visa petition that Plaintiff Revelis filed for his spouse cannot be approved. Solely by operation of DOMA, Plaintiff Revelis is denied a benefit which is available to all other U.S. citizens who are legally married and have entered their marriage in good faith. Solely by operation of DOMA, Plaintiff Revelis, a U.S. citizen, has been denied the opportunity to reside in the United States together with his lawful spouse.
30. Despite the severity of the impact of DOMA, the federal government does not have a rational basis for, much less a compelling interest in, enforcing the law.
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31. Homosexuals have suffered a history of discrimination, are a minority with little political power in this country, share sexual orientation as an immutable characteristic, and share a characteristic that bears no relation to their ability to perform and contribute to society.
32. According to the House Report, there were four rationales for enacting DOMA. The first was to “defend[] and nurtur[e] the institution of traditional, heterosexual marriage.” H.R. Rep. No. 104-644, pp. 12-14. This is not a rationale, but rather simply a re-stating of the government’s intent to discriminate against a class of people.
33. The second rationale was to defend “traditional notions of morality.” H.R. Rep. No. 104644, pp. 15-16. Similar to the first reason, this is simply a re-stating of the intent to discriminate again one group.
34. The third rationale was to “protect state sovereignty and democratic self-governance.” H.R. Rep. No. 104-644, pp. 16-18. Rather than protect state sovereignty, DOMA diminishes it. By operation of DOMA, the federal government refuses to recognize marriages which were determined to be legally valid by a state. DOMA defeats the principles of federalism.
35. The fourth and final rationale was to “preserv[e] scarce government resources.” H.R. Rep. No. 104-644, p. 18. However, in 2004, the Congressional Budget Office analyzed the effect that the recognition of same-sex couples would have on federal revenue and spending, and determined that it would result in an annual net increase in revenue. Cong. Budget Office, U.S. Congress, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (June 21, 2004).
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Procedural History 36. Plaintiff Revelis filed a visa petition (Form I-130) on January 9, 2011. 37. On March 10, 2011, U.S. Citizenship and Immigration Services, Department of
Homeland Security, interviewed Plaintiffs on the visa petition to determine, inter alia, whether the marriage was entered into in good faith. 38. The Department of Homeland Security is prohibited from approving the visa petition. 39. The denial of an I-130 visa petition may be appealed to the Board of Immigration Appeals. 8 C.F.R. § 1003.1(b)(5). However, when the claim is a constitutional challenge, which an administrative agency has no power to decide, exhaustion of remedies before the administrative agency is not required. Bosede v. Mukasey, 512 F.3d 946, 950-51 (7th Cir. 2008); Johnson v. Robison, 415 U.S. 361, 368 (1974).
Cause of Action 40. Plaintiffs reallege and incorporate by reference every allegation contained in the
preceding paragraphs as if set forth fully herein. 41. As a direct result of DOMA, the federal government treats married same-sex couples
differently than heterosexual married couples. 42. As a direct result of DOMA, as applied to the Immigration and Nationality Act, a U.S.
citizen spouse is denied the opportunity to petition for his foreign national spouse, only because that spouse is of the same sex. 43. DOMA creates a classification that treats similarly situated individuals differently without justification in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.
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WHEREFORE, Plaintiffs Demos Revelis and Marcel Maas respectfully request that this Honorable Court:
A. Declare the Defense of Marriage Act unconstitutional as applied to the plaintiffs, B. Enjoin the defendants from continuing to discriminate against the plaintiffs by treating
them differently from similarly situated individuals, C. Grant such other relief as is equitable and just.
Respectfully Submitted, Demos Revelis, Marcel Maas
By:_s/ Justin R. Burton ___ One of their attorneys
Justin R. Burton, Esq. KRIEZELMAN BURTON & ASSOCIATES, LLC 20 North Clark Street, Suite 725 Chicago, Illinois 60602 (312) 332-2550 jburton@krilaw.com Atty No. 6271142 Erin C. Cobb, Esq. KRIEZELMAN BURTON & ASSOCIATES, LLC 20 North Clark Street, Suite 725 Chicago, Illinois 60602 (312) 332-2550 ecobb@krilaw.com Atty No. 6289242
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DEMOS REVELIS and MARCEL MAAS,
Plaintiff,
v.
JANET NAPOLITANO, Secretary, Department of Homeland Security, and ERIC H. HOLDER, JR., Attorney General of the United States,
Defendants.

Case No. 11 C 1991 Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER The Plaintiffs, Demos Revelis (“Revelis”) and Marcel Maas (“Maas”) (collectively, the “Plaintiffs”), are a same-sex couple who married in Iowa. They seek to challenge the constitutionality of Section 3 of the Defense of Marriage Act (the “DOMA”), 1 U.S.C. § 7. Defendants, Secretary of the Department of Homeland Security Janet Napolitano and Attorney General Eric Holder (collectively, the “Defendants”) move to dismiss pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction. Additionally, in the event the motion is denied, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (the “BLAG”) seeks leave to intervene to defend the constitutionality of the DOMA. For the reasons stated herein, Defendants’ Motion to Dismiss is denied. BLAG’s Motion to Intervene for a Limited Purpose is granted.

I. BACKGROUND A. Facts
The following facts are taken from the Plaintiffs’ Complaint. Revelis is a United States citizen, while Maas is a native and citizen of the Netherlands. The couple lives in Chicago, Illinois.
Maas last entered the country through the Visa Waiver Program in 1999. He and Revelis began dating, moved in together in 2002, and were married in Davenport, Iowa on Christmas Eve in 2010. The couple wants to remain in the United States, so Revelis has filed a visa petition, called an I-130 Petition for Alien Relative, on behalf of Maas. Such a visa petition, if approved, would allow Maas to apply for lawful permanent residency in the United States. 8 U.S.C. § 1151(b)(2)(A)(I); 8 U.S.C. § 1154(a)(1)(A)(I).
On March 10, 2011, the couple was interviewed on the visa petition at the Chicago field office of the U.S. Citizenship and Immigration Services (the “USCIS”), an agency of the Department of Homeland Security. Plaintiffs assert that there has been no allegation that their marriage was entered into in bad faith, but that regardless of the validity of their marriage, DOMA prohibits the USCIS from approving the visa petition. The agency has not yet ruled on the petition.
B. Regulatory and Legal Framework Under the Immigration and Nationality Act (the “INA”), United States citizens may petition the Attorney General to classify their
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spouses as immediate relatives. 8 U.S.C. § 1101, et seq. If approved, this allows non-citizen spouses to be granted permanent resident status ahead of other immigrants who want to make their home in the United States. 8 U.S.C. § 1151(b); Smith v. I.N.S., 684 F.Supp. 1113, 1115 (D. Mass. 1988).
In order to determine whether a marriage is valid for immigration purposes, the USCIS must determine whether the marriage is valid under state law and whether it qualifies under the INA. In re Lovo-Lara, 23 I. & N. Dec. 746, 748 (citing Adams v. Howerton, 673 F.2d 1036, 1038 (9th Cir. 1982)). The validity of a marriage under state law is generally determined by the law of the place where the marriage was celebrated. Lovo-Lara, 23 I. & N. Dec. at 748.
The INA does not define the word spouse or refer to the sex of the parties. Id. However, the USCIS follows the federal definition of marriage and spouse as provided by Section 3 of the DOMA. Id. at 748–49. DOMA provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. As such, for immigration purposes “there is no question that a valid marriage can only be between a man and a woman. Marriages between same-sex couples are excluded.” Lovo-Lara, 23 I. & N. Dec. at 749.
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The burden of proof is on the petitioners to prove eligibility for an immediate relative visa, including that the marriage is not a sham. See Gipson v. I.N.S., 284 F.3d 913 (8th Cir. 2002). If a visa petition is denied, the petitioner may appeal to the Board of Immigration Appeals (the “BIA”), which has final administrative authority. Bangura v. Hansen, 434 F.3d 487, 498 (6th Cir. 2006). However, the BIA does not have jurisdiction to review constitutional challenges. Calderon v. Reno, 39 F.Supp.2d 943, 954 (N.D. Ill. 1998). If an administrative appeal is unsuccessful, the couple may seek review in the federal district court. See Ghaly v. I.N.S., 48 F.3d 1426 (7th Cir. 1995).
In February 2011, the Obama Administration determined that it would no longer defend the constitutionality of Section 3 of DOMA, reasoning that heightened scrutiny should apply to DOMA and that under that standard, it was unconstitutional. See D.E. 15, Ex. A (letter from Attorney General Holder to Kerry Kircher, General Counsel for the U.S. House of Representatives). However, President Obama has instructed executive agencies to continue to comply with the law until it is repealed or the judiciary makes a definitive ruling as to its constitutionality. Id.
Although Defendants will not defend the constitutionality of DOMA (hence the motion to intervene by BLAG), they have moved to dismiss this action pursuant to FED. R. CIV. P. 12(b)(1). Defendants argue that because the USCIS has not yet acted on the petition,
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Plaintiffs lack standing and any dispute over the constitutionality of DOMA is unripe. The Court will consider each Motion and its applicable law in turn.
II. MOTION TO DISMISS A. Legal Standard
Federal courts are courts of limited jurisdiction and have only the power authorized by Article III of the Constitution to hear actual cases or controversies. Allen v. Wright, 468 U.S. 737, 750 (1984). Both standing and ripeness are case-or-controversy doctrines that limit federal judicial power. Id. Plaintiffs have the burden of establishing that jurisdiction is proper in light of these limitations. Transit Exp., Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). The Court accepts Plaintiffs’ well-pleaded factual allegations as true and draws reasonable inferences in their favor. Id. However, the Court may look beyond the pleadings if necessary to determine whether subject-matter jurisdiction exists. Hay v. Ind. State Bd. of Tax Comm’rs, 312 F.3d 876, 879 (7th Cir. 2002).
Plaintiffs’ Complaint sets forth three bases for this Court’s jurisdiction: federal question jurisdiction under 28 U.S.C. § 1331; jurisdiction under the Administrative Procedures Act (the “APA”), 5 U.S.C. § 701 et seq.; and jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. Neither the APA nor the Declaratory Judgment Act provides an independent basis for jurisdiction, however. See
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Califano v. Sanders, 430 U.S. 99, 106–07 (1977); GNB Battery Techs., Inc. v. Gould, Inc., 65 F.3d 615, 619 (7th Cir. 1995).
Coupled with an appropriate jurisdictional basis, the APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. As a preliminary matter, the Court agrees with Defendants that there has been no final action here under the APA. Agency action is final and reviewable when: (1) the action marks the “consummation of the agency’s decision-making process, and is not merely tentative or interlocutory; and (2) the action is one by which rights or legal obligations have been determined, or from which legal obligations flow. W. Ill. Home Health Care, Inc., v. Herman, 150 F.3d 659, 662 (1998) (citing Bennett v. Spear, 520 U.S. 154, 178 (1997)). “The core question is whether the agency has completed its decision-making process, and whether the result of the process is one that will directly affect the parties.” Herman, 150 F.3d at 662 (quoting Franklin v. Mass., 505 U.S. 788, 797 (1992)).
Plaintiffs argue that an agency’s decision to enforce a law amounts to a final agency action. They cite Abbott Labs. v. Gardner, 387 U.S. 136, 149-51 (1967), abrogated in part on other grounds by Califano, 430 U.S. at 105, for the proposition that an agency action includes rules, and posit that the agency’s decision to enforce DOMA is a rule that amounts to a final action. Under the APA, a rule “means the whole or a part of an agency statement of
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general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. . . .” 5 U.S.C. § 551(4). However, a fair reading of Plaintiffs’ Complaint makes it clear that Plaintiffs are not challenging an agency rule or action, but rather are challenging DOMA itself.
This does not implicate the APA, but a federal question is presented on the face of the Complaint in that it presents a substantial, disputed question of federal law; namely, whether the imminent application of DOMA to the petition violates Plaintiffs’ constitutional rights. Federal question jurisdiction exists, then, provided that the claim is ripe and that Plaintiffs have standing to pursue it. See Wikberg v. Reich, 21 F.3d 188, 189 (7th Cir. 1994).
B. Standing In order to have standing, Plaintiffs must meet three prerequisites. Plaintiffs must have suffered an “injury in fact,” or an invasion of a legally protected interest that is concrete and particularized, not merely hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Second, there must be a causal connection between the injury and the complained-of conduct, so that the injury is fairly traceable to the defendant’s actions. Id. Third, it must be likely, and not merely speculative, that a ruling in favor of the Plaintiffs will redress the injury. Id. at 561. Plaintiffs argue they have a legally protected interest in the processing of the visa petition because the INA gives Maas a
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statutory right to apply for permanent residence if the I-130 is approved, but DOMA prevents the USCIS from considering their petition on the merits. There can be no question that both Revelis and Maas have “a valuable right at stake in the marriage petition process.” Ali v. INS, 661 F.Supp. 1234, 1242 n.5 (D. Mass. 1986). Further, a citizen, like Revelis, has a statutory right to petition the government to have his alien spouse declared an immediate relative. Id. at 1246 n.6; see 8 U.S.C. § 1154 (providing that, after an investigation, the Attorney General shall approve an immediate relative petition if he determines that the facts in the petition are true and the alien on behalf of whom the petition is made qualifies as an immediate relative under the INA) (emphasis added). Plaintiffs argue that because of DOMA, Maas can never meet the definition of an immediate relative under INA, even if the USCIS decides that his marriage would otherwise qualify him. See Lovo-Lara, 23 I. & N. Dec. at 749.
In arguing that Plaintiffs lack standing, Defendants contend that Plaintiffs cannot have been injured by DOMA because no decision has yet been reached on Revelis’ I-130 petition. It could be granted, Defendants contend, or denied for a reason having nothing to do with DOMA. See Ali, 661 F.Supp. at 1238–39 (noting that immigration officials use a variety of investigatory techniques to determine whether marriages between citizens and aliens are shams).
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The Court notes that the Administration’s approach to immigration issues involving same-sex couples appears to be in flux, at least in regard to its use of discretion in removal cases. In April, Attorney General Holder ordered the Board of Immigration Appeals to vacate its decision applying Section 3 of DOMA to deny an alien’s request for cancellation of removal. In re Dorman, 25 I. & N. Dec. 485 (2011). However, the Administration followed that up with public statements indicating that the Dorman case did not signal a sea change, and that the Administration would continue to enforce DOMA until and unless it is ruled unconstitutional. Julia Preston, Justice Dept. to Continue Policy Against Same-Sex Marriage, N.Y. Times, May 9, 2011, at A15.
Subsequently, in June, the Administration issued a memorandum providing guidance to Immigration and Customs Enforcement (“ICE”) personnel about the exercise of discretion in removal cases. The memorandum, from U.S. Department of Homeland Security Director John Morton, notes that ICE has limited personnel and must prioritize its efforts to focus on the removal of those aliens with criminal records or who pose a threat to national security. In exercising discretion, Morton advised that ICE officers and attorneys should take into account a person’s family relationships, including whether the person has a U.S. citizen spouse. Memorandum from John Morton, Director of the U.S. Department of Homeland Security, to ICE Field Directors, Special Agents in Charge, and Chief Counsel (June 17, 2011),
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available

at

http://www.ice.gov/doclib/secure-

communities/pdf/prosecutorial-discretion-memo.pdf (the “Morton

Memo”).

The Morton Memo does not address same-sex married couples,

although the policies behind it have been used to extend relief from

removal to same-sex couples in certain instances. See Julia Preston,

U.S. Issues New Deportation Policy’s First Reprieves, N.Y. Times,

Aug. 23, 2011, at A15 (noting that an immigration judge in Denver

postponed the deportation of a Mexican woman in a legal same-sex

marriage on the basis of their family relationship).

It is clear that the Administration has exercised discretion to

stop the removal of at some immigrants who are parties to legal same-

sex marriages. But despite this, DOMA remains a barrier to same-sex

spouses like Maas who are seeking lawful status in this country.

DOMA remains the law, and it remains the official policy of the

Administration to enforce it. Defendants acknowledge this in their

brief in response to BLAG’s motion to intervene, noting that “the

Executive departments and agencies will continue to comply with

Section 3, pursuant to the President’s direction, unless and until

Section 3 is repealed by Congress or there is a definitive ruling by

the Judicial Branch that Section 3 is unconstitutional.” Defs.’

Resp. to Motion of BLAG to Intervene for a Limited Purpose, at 2.

This acknowledgment is in some tension with Defendants’ indication in

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their reply brief that Plaintiffs can only speculate as to the outcome of the petition.
Given the current state of the law, it seems clear that DOMA precludes the granting of Revelis’ spousal visa petition for Maas. While it is true that the petition could be denied for a variety of reasons having nothing to do with DOMA, that could happen to any couple. While perhaps inartfully pleaded, the injury that Plaintiffs allege is broader than the expected denial of the petition. They contend that because of DOMA, they will not be treated like any other couple. See Pls.’ Compl. ¶ 24–28. There is a thumb on the scale against them, and even if they are otherwise qualified, it is a practical certainty that Revelis’ petition will be denied. This is a government-imposed barrier to obtaining a benefit available to other legally married couples, and it confers standing upon Plaintiffs. See Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir. 1994) (noting that the denial of equal protection itself is an injury that confers standing).
It is this imminent injury — their inability to be treated on equal footing with other married couples — that Plaintiffs ask this Court to redress. Pre-enforcement challenges are within Article III despite the fact that events may unfold in uncertain ways. See Brandt v. Vill. of Winnetka, 612 F.3d 647, 649 (7th Cir 2010). In the equal protection context, the Supreme Court has held that “[w]hen the government erects a barrier that makes it more difficult for
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members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The ‘injury in fact’ in an equal protection case . . . is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” See Ne. Fla. Chap. of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). While Revelis has no right to have his visa petition on Maas’ behalf granted, he does have a right to have the petition considered “without the burden of invidiously discriminatory disqualifications.” Turner v. Fouche, 396 U.S. 346, 362 (1970).
Defendants argue that until a decision is reached on the visa petition, it is not clear that DOMA is the cause of Plaintiffs’ injury or that any ruling invalidating DOMA will redress that injury. However, this argument misapprehends the nature of the injury, which is the denial of equal access to the visa program, not the expected denial of the petition. Although in equal protection cases the constitutional challenge often comes after a plaintiff has applied for a benefit and been rejected, there is nothing that mandates that a plaintiff wait until rejection to file suit. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n. 14 (1978) (noting that plaintiff was injured not only by his rejection from medical school, but by his inability to compete for all the places in the class).
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In a similar context, in Dragovich v. U.S. Department of the Treasury, 764 F.Supp.2d 1178, 1187 (N.D. Cal. 2011), the court held that the plaintiffs, a same-sex married couple, did not have to apply to a benefit program in order to have standing to challenge it because it would have been futile to apply and because the couple adequately alleged that they were eligible for the program. See id. (“A plaintiff sufficiently alleges injury when a discriminatory policy has interfered with the plaintiff's otherwise equal ability to compete for the program benefit.”).
Here, Plaintiffs have asked to be considered for the benefit of a spousal visa, and there is nothing in their Complaint that indicates they are otherwise disqualified from consideration. Cf. Filozof v. Monroe Community College, 583 F.Supp.2d 393, 403 (W.D.N.Y. 2008) (finding no standing where plaintiff was not “able and ready” to attempt to participate in the challenged programs). It is true that if an applicant could not have obtained the desired benefit even in the absence of discrimination, “such an applicant lacks the requisite personal stake in the outcome” of the proceeding to have standing. See Day v. Bond, 500 F.3d 1127, 1134 (10th Cir. 2007). But Plaintiffs do not have to show that they will obtain the benefit, but merely that they could. Id. at 1135. In this case, Plaintiffs assert that they are otherwise eligible for approval of the spousal visa petition, but DOMA bars its approval.
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This burden is fairly traceable to Section 3 of DOMA, and a ruling by this Court invalidating that statute would redress the injury. See Ne. Fla. Gen. Contractors, 508 U.S. at 666 n. 5 (holding that when injury is the erection of a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, the barrier is the cause of the injury, and a ruling removing it redresses the injury). So the Plaintiffs do have standing, provided that their claim is ripe.
The Court notes that it has not prejudged the merits of Plaintiffs’ equal protection challenge; standing and entitlement to relief are two separate inquiries. See Arreola v. Godinez, 546 F.3d 788, 795 (7th Cir. 2008).
C. Ripeness In order for this Court to exercise jurisdiction, a case or controversy must be ripe, meaning that it is neither premature nor speculative. Shields v. Norton, 289 F.3d 832, 835 (5th Cir. 2002). Defendants contend that because Revelis’ petition is still pending, it cannot be ripe for review before this Court. Like standing, ripeness is a justiciability doctrine. As noted above, to assert standing, the plaintiff must present either an actual or threatened harm resulting from the allegedly illegal action. Warth v. Seldin, 422 U.S. 490, 498-99 (1975). Ripeness is a related question in that it concerns whether the harm has matured sufficiently to warrant judicial relief. Id. at 499 n. 10. The
- 14 -

ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat. Park Hospitality Ass'n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57, n. 18 (1993)). Here, the inquiries as to ripeness and standing overlap in that Defendants’ main argument as to both is that Plaintiffs cannot know if they will be injured until the USCIS acts on the petition.
Ripeness involves two inquiries: (1) the fitness of the issues for judicial decision; and (2) the hardship to the parties of withholding court consideration. Nat. Park Hospitality Ass’n, 538 U.S. at 808 (internal citations omitted). In terms of the fitness of the issues for judicial decision, the constitutionality of Section 3 of DOMA presents a purely legal question. This weighs in favor of finding the dispute ripe, because the question of whether applying DOMA to Plaintiffs violates their right to equal protection does not require further factual development. See Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995). Defendants argue, correctly, that courts should exercise caution in deciding even purely legal issues when constitutional issues are involved, particularly when there are inadequacies or ambiguities in the record. See Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002).
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However, the record is adequate to decide the issues presented here. As noted in regard to the standing inquiry, Plaintiffs are not requesting that this Court order the government to grant the visa petition. Instead, they are requesting that their petition be reviewed and decided on the same basis as other married couples. This is a legal question that is fit for judicial review because Revelis has filed a pending visa petition. Additionally, because Plaintiffs cannot raise the constitutionality of DOMA during the marriage petition process, no further administrative record will be developed on that issue.
As for the question of hardship, “the hallmark of cognizable hardship is usually direct and immediate harm.” Ernst & Young, 45 F.3d at 536. This is not the type of case in which the harm at issue depends on “a lengthy chain of speculation as to what the future has in store.” Id. at 538. As noted above, it is nearly certain that USCIS will apply DOMA as at least one basis to deny Plaintiffs’ petition, given that the official policy of the Administration is that DOMA will be enforced. This alleged imminent denial of equal protection is a direct and immediate harm. As such, this dispute is ripe, and Defendants’ Rule 12(b)(1) Motion to Dismiss is denied.
III. MOTION TO INTERVENE Plaintiff opposes BLAG’s motion to intervene, arguing that it should be limited to amicus curiae status. Defendants ask that BLAG’s involvement be limited to making substantive arguments in
- 16 -

support of DOMA, while they continue to file all procedural notices. BLAG argues that intervention as a matter of right under FED. R. CIV. P. 24(a)(2) is appropriate for the limited purpose of defending the constitutionality of the law. That rule states, in relevant part:
(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.
The Court agrees with BLAG that intervention as of right is appropriate under Rule 24(a)(2). The Seventh Circuit has held that intervention is appropriate under this rule when the petitioner: (1) makes a timely application; (2) has an interest relating to the subject matter of the action; (3) that would potentially be impaired by the disposition of the action; and (4) is not adequately represented by the existing parties to the action. Reich v.
ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995). Here, there is no dispute that BLAG’s application was timely.
But Plaintiffs argue that BLAG merely has a general interest in the outcome of this litigation that is no greater than that of an ordinary taxpayer. The Court disagrees. The House has an interest in defending the constitutionality of legislation which it passed
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when the executive branch declines to do so. See I.N.S. v. Chadha, 462 U.S., 919, 940 (1983) (“We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.”). Plaintiffs’ argument that BLAG does not represent Congress as a whole is similarly unpersuasive. BLAG, a five-member bipartisan group, is the mechanism through which the House presents its position in litigation, and courts have allowed it to intervene in cases where appropriate. See, e.g., In re Matter of Koerner, 800 F.2d 1358, 1360 (5th Cir. 1986) (allowing intervention by BLAG predecessor when administration declined to defend law retroactively extending the term of bankruptcy judges); Barnes v. Kline, 759 F.2d 21, 23, n.3 (D.C. Cir. 1985) (similarly allowing intervention under Rule 24(a)(2) in dispute over “pocket vetoes.”), vacated on other grounds sub. nom. by Burke v. Barnes, 479 U.S. 361 (1987).
Impairment under the meaning of Rule 24(a)(2) depends on whether a ruling on a legal question would as a practical matter foreclose the intervenor’s rights in a subsequent proceeding. See Zurich Capital Mkts. Inc. v. Coglianese, 236 F.R.D. 379, 386 (N.D. Ill. 2006). Such foreclosure is measured by the general standards of stare decisis. Id. (internal citations omitted). BLAG’s interest in upholding the constitutionality of DOMA in this and subsequent
- 18 -

proceedings plainly would be impaired by a ruling in favor of Plaintiffs.
Finally, it is clear that BLAG’s interests are not protected by anyone else in this litigation. Plaintiffs and Defendants agree that DOMA violates equal protection. The Court finds the recent ruling in United States v. Windsor, 797 F.Supp.2d 320 (S.D.N.Y. 2011) to be persuasive. There, BLAG moved to intervene in a dispute over the constitutionality of DOMA in a tax refund case. Id. at 322. The Court noted that while the Department of Justice had made it clear that it would not defend the statute, that was exactly what BLAG wanted to do. Id. at 324. In Windsor, as in this case, the DOJ sought to continue to file all procedural motions, while BLAG appeared only to argue the constitutionality of DOMA. Id. at 324–25. The Court rejected that argument, finding that there was no precedent supporting the executive branch’s request that BLAG’s participation in the case be circumscribed in that manner. Id. This Court agrees.
One potential difference between this case and Windsor, however, is that the Second Circuit, in which that dispute is pending, does not require intervenors to establish independent Article III standing as long as there is a case or controversy pending between the existing parties. Id. at 325. The Seventh Circuit has not yet ruled on this issue. See Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir. 2000). However, the Seventh Circuit has observed that any interest of such magnitude as to allow intervention of right is
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sufficient to satisfy the Article III standing requirement. Transamerica Ins. Co. v. South, 125 F.3d 392, 396 (7th Cir. 1997). Because of the magnitude of the interest at stake here, and because no other party in this litigation will represent the interests of BLAG, the Court finds that intervention as of right is appropriate, and grants BLAG’s motion. BLAG may intervene for the purpose of defending the constitutionality of DOMA, and is to answer or otherwise plead within thirty (30) days of the date of this Order.
IV. CONCLUSION For the reasons stated herein, Defendants’ Motion to Dismiss is denied. BLAG’s Motion to Intervene for a Limited Purpose is granted. BLAG is to answer or otherwise plead within thirty (30) days of the date of this Order.
IT IS SO ORDERED.

DATE: 1/5/2012

Harry D. Leinenweber, Judge United States District Court

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 Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER
CASE TITLE

Harry D. Leinenweber

Sitting Judge if Other than Assigned Judge

11 C 1991

DATE

Revelis et al. vs. Napolitano et al.

7/12/2012

DOCKET ENTRY TEXT
The Government Defendants’ motion to stay proceedings for 90 days is granted. A status hearing set for 10/16/2012 at 9:00 a.m.. Should USCIS’ decision on the Plaintiff’s visa petition be finalized before that time, the parties are hereby ordered to file a motion for an earlier status date.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Before the Court is the Government Defendants’ motion to stay proceedings due to agency action. For the following reasons, the motion to stay is granted for the finite period of 90 days from entry of this order.
Plaintiffs Demos Revelis and Marcel Maas have filed suit against Janet Napolitano as Secretary of the United States Department of Homeland Security and Eric H. Holder as Attorney General of the United States. They allege the unconstitutionality of the Defense of Marriage Act, which defines “marriage” as used in numerous federal statutes, as being solely between one man and one woman. 1 U.S.C. § 7. One of those statutes affected by DOMA is the Immigration and Nationality Act’s definition of marriage. 8 U.S.C. § 1101(a)(35). Revelis, a U.S. Citizen, filed a visa petition for his non-citizen, same-sex spouse, Maas. (The two were legally married in Iowa in 2010.) The petition is known as Form I-130 and “if approved, provides [the foreign] spouse the basis by which he can apply for lawful permanent residency in the United States.” Compl. 2. Plaintiffs argue that “[a]s a direct result of DOMA, the visa petition that Plaintiff Revelis filed for his spouse cannot be approved.” Compl. 6.
Plaintiffs argue DOMA is unconstitutional as a violation of equal protection guarantees under the Fifth Amendment.
This Court on January 5, 2012 found Plaintiffs had standing despite the U.S. Citizenship and Immigration Services agency (“USCIS”) not having yet rendered a final decision on the visa application. The Court did so, in part, because the complaint noted, but for DOMA, they would otherwise be qualified for consideration and a visa. Revelis v. Napolitano, No. 11-1991, 2012 U.S. Dist. LEXIS 1330, at *16 (N.D. Ill. Jan. 5, 2012).
At that time, the Court also granted the Bipartisan Legal Advisory Group, U.S. House of Representatives (“BLAG”) Intervenor-Defendant status because both Government Defendants agree with Plaintiff that DOMA violates the constitution, and thus the Defendants cannot adequately protect Congress’ interest in defending the statute.

11C1991 Revelis vs. Napolitano

Page 1 of 2

STATEMENT
Pursuant to that grant, BLAG sought to dismiss the complaint, arguing that under current case law, it fails to state a ground upon which relief can be granted.
Since that time, the Government Defendants noted that USCIS issued on April 16, 2012 a Notice of Intent to Deny (“NOID”) the I-130 petition. The NOID is based on two grounds. The first ground, as predicted by Plaintiffs, was on the ground that DOMA mandates Maas does not meet the federal definition of “spouse.” The second ground sets “forth an additional statutory basis for denial under the Immigration and Nationality Act that is unrelated to DOMA.” Gov. Defs.’ Mot. to Stay, 1.
Government Defendants’ propose that if alternate, statutory grounds for refusing the petition are put forth by the USCIS, Plaintiffs will either have to amend their complaint or lose standing, because invalidating DOMA will no longer be capable of granting Plaintiffs the relief they seek. The Court does not rule on this argument at this point, but considers it in combination with the precept that, if a case can be decided on grounds other than Constitutional infirmity, the Court should endeavor to do so. Brandt v. Village of Winnetka, Illinois, 512 F.3d 647. 650 (7th Cir. 2010). Both these arguments strike the Court as meriting a stay until USCIS’ decision is finalized.
At the time the Court ruled on standing, the possibility of denial of Plaintiff’s petition on a ground other than DOMA was pure speculation. It now appears to be a distinct possibility. A stay could also preserve the Court’s resources in that it could potentially prevent a ruling on a motion to dismiss that may very well become moot if the complaint is amended.
The Court, therefore, is willing to delay adjudication of BLAG’s motion to dismiss for 90 days so that USCIS’ determination can be finalized. Government Defendants have promised that this is the maximum time that will be needed for such a decision to become final, and the Court will hold them to that. Should the decision not be finalized by then, the Court will proceed on the assumption that there continues to be no nonDOMA rationalization for denial of the petition.
In addition, the Court notes that Government Defendants, citing the Privacy Act, have not illuminated the Court on the potential non-DOMA reason for denial of the visa petition. Should adjudication of this case become dependant on that non-DOMA denial, the Court will likely have to learn the details of that basis for denial. The parties should be prepared to file such documents with this Court (potentially under seal, if necessary) or cite specific statute sections and case law as to why the Court cannot be privy to them.

11C1991 Revelis vs. Napolitano

Page 2 of 2

 
 Case: 1:11-cv-01991 Document #: 62 Filed: 08/13/12 Page 1 of 4 PageID #:575

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

_________________________________________

)

DEMOS REVELIS, et al.,

)

)

Plaintiffs,

)

Case No. 1:11-cv-1991

)

v.

)

Honorable Harry D. Leinenweber

)

JANET NAPOLITANO, Secretary,

)

Department of Homeland Security, et al.,

)

)

Defendants.

)

_________________________________________ )

NOTICE OF AGENCY ACTION AND MOTION FOR AN EARLIER STATUS HEARING

Defendants hereby submit this Notice of Agency Action by United States Citizenship and

Immigration Services (“USCIS”), Motion for an Earlier Status Hearing, and memorandum in

support, pursuant to this Court’s July 12, 2012 Order. Dkt. 60. The Court ordered the parties to

file a motion for an earlier status date if USCIS issued a decision before the 90-day stay of

proceedings expired on October 10, 2012. Id. Because USCIS issued a decision on August 6,

2012, Defendants move for an earlier status hearing.

On August 6, 2012, USCIS issued a decision denying Plaintiff Demos Revelis’ I-130

Petition for Alien Relative (“I-130 Petition”), which he filed on behalf of Plaintiff Marcel Maas

(“Maas”), seeking to classify Maas as the spouse of a U.S. citizen. See Exhibit A, filed under

seal. On the same date, USCIS issued a decision denying Maas’ I-485 Application to Adjust

Status to Permanent Resident (“I-485 Application”). See Exhibit B, attached hereto.

USCIS denied Revelis’ I-130 Petition on two separate and independent grounds. See Ex.

A. First, the agency indicated that because Revelis’ spouse is not a person of the opposite sex,

the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, applies as a matter of federal law whether

Case: 1:11-cv-01991 Document #: 62 Filed: 08/13/12 Page 2 of 4 PageID #:576
or not the couple’s marriage is recognized under state law. Id. Next, the agency determined that the administrative record contained substantial evidence to support a conclusion that Maas is ineligible to receive the benefits of Revelis’ I-130 Petition, or any other visa petition. Id. Because the denial contains private information concerning Plaintiffs and third parties, it will not be publicly released and therefore has not been addressed in detail, but has been filed under seal as Exhibit A to this motion for the Court’s reference.
USCIS’s decision will become final unless Revelis appeals it by filing a completed Form EOIR-29, Notice of Appeal to the Board of Immigration Appeals from a Decision of a USCIS Officer. Ex. A. The appeal must be filed within 30 days from the date of the decision notice.1 Id. If an appeal is not received by that time, the agency decision will become final. Id.
Revelis also has the option of filing a motion to reopen or reconsider under the jurisdiction of USCIS in lieu of an appeal. Id. If he intends do so, such a motion must also be filed within 30 days from the date of the decision notice. Id. If no motion to reopen or reconsider is filed, the agency decision will become final. Id.
On August 6, 2012, the agency also denied Maas’ I-485 Application, concluding that Maas is not eligible to adjust his status to that of a lawful permanent resident because the I-130 Petition, filed by Revelis on his behalf, was denied. Ex. B.
Because the agency has issued its decisions on both the I-130 Petition and I-485 Application, Defendants, Plaintiffs and Counsel for Intervenor, the Bipartisan Legal Advisory Group, have conferred and, in accordance with this Court’s July 12, 2012 Order, request that this Court schedule a status hearing for September 20, 2012, which will allow Plaintiffs time to determine how they intend to proceed with the case. In addition, Defendants respectfully request
1 The appeal is due by Wednesday, September 5, 2012. 2

Case: 1:11-cv-01991 Document #: 62 Filed: 08/13/12 Page 3 of 4 PageID #:577

that this Court continue to hold the briefing regarding the constitutionality of Section 3 of DOMA in abeyance at this time.

DATED: August 13, 2012
STUART F. DELERY Acting Assistant Attorney General
WILLIAM H. ORRICK, III Deputy Assistant Attorney General
DAVID J. KLINE Director Office of Immigration Litigation District Court Section
JEFFREY S. ROBINS Assistant Director
s/ Jesi J. Carlson JESI J. CARLSON Senior Litigation Counsel District Court Section United States Department of Justice Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7037 Facsimile: (202) 305-7000 Email: jesi.j.carlson@usdoj.gov
Attorneys for Defendants

Respectfully Submitted,
PATRICK J. FITZGERALD United States Attorney
s/ Craig A. Oswald CRAIG A. OSWALD Assistant United States Attorney 219 South Dearborn Street Chicago, Illinois 60604 Telephone: (312) 886-9080 Email: craig.oswald@usdoj.gov

3

Case: 1:11-cv-01991 Document #: 62 Filed: 08/13/12 Page 4 of 4 PageID #:578
CERTIFICATE OF SERVICE The undersigned hereby certifies that on August 13, 2012, a copy of the attached Notice of Agency Action and Motion for an Earlier Status Hearing was filed with this Court’s electronic filing system which served a copy on all parties. Exhibit A was filed under seal pursuant to Court Order and served on Counsel for Plaintiffs by U.S. Mail: Justin R. Burton, Esq. Erin C. Cobb, Esq. Kriezelman Burton & Associates, LLC 20 North Clark Street, Suite 725 Chicago, IL 60602
s/ Jesi J. Carlson JESI J. CARLSON Senior Litigation Counsel District Court Section United States Department of Justice Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7037 Facsimile: (202) 305-7000 Email: jesi.j.carlson@usdoj.gov
4

 
 Case: 1:11-cv-1991 As of: 11/29/2012 12:33 PM CST 1 of 7
KIM,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 5.0.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:11−cv−01991

Revelis et al v. Napolitano et al Assigned to: Honorable Harry D. Leinenweber Cause: 28:2201 Declaratory Judgement Plaintiff Demos Revelis
Plaintiff Marcel Maas

Date Filed: 03/23/2011 Date Terminated: 09/20/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Erin Christine Cobb Kriezelman Burton &Associates 20 N. Clark St. Suite 725 Chicago, IL 60602 312 332 2550 Email: ecobb@krilaw.com ATTORNEY TO BE NOTICED
Heather M. Benno Partnership for Civil Justice Fund 617 Florida Ave. NW Washington, DC 20002 202−232−1180 Fax: 202−747−7747 Email: hbenno@krilaw.com ATTORNEY TO BE NOTICED
Justin Russell Burton Kriezelman Burton &Associates 20 North Clark 725 Chicago, IL 60602 (312) 332−2550 Email: jburton@krilaw.com ATTORNEY TO BE NOTICED
represented by Erin Christine Cobb (See above for address) ATTORNEY TO BE NOTICED
Heather M. Benno (See above for address) ATTORNEY TO BE NOTICED
Justin Russell Burton (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Janet Napolitano Secretary, Department of Homeland Security

represented by Jesi J. Carlson United States Department of Justice P.O. Box 868 Ben Franklin Station Washington, DC 20044 202 305 7037

Case: 1:11-cv-1991 As of: 11/29/2012 12:33 PM CST 2 of 7

Email: jesi.j.carlson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

AUSA United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 Email: USAILN.ECFAUSA@usdoj.gov ATTORNEY TO BE NOTICED

Craig Arthur Oswald United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353−5300 Fax: (312) 886−3501 Email: craig.oswald@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Eric H. Holder, Jr. Attorney General of the United States

represented by Jesi J. Carlson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

AUSA (See above for address) ATTORNEY TO BE NOTICED

Craig Arthur Oswald (See above for address) ATTORNEY TO BE NOTICED

Intervenor
Bipartisan Legal Advisory Group of the U.S. House of Representatives

represented by Conor B. Dugan Bancroft PLLC 1919 M Street, N.W. Suite 470 Washington, DC 20036 202 234 0090 Email: cdugan@bancroftpllc.com ATTORNEY TO BE NOTICED

H Christopher Bartolomucci Bancroft PLLC 1919 M Street, N.W. Suite 470 Washington, DC 20036 202 234 0090 Email: cbartolomucci@bancroftpllc.com ATTORNEY TO BE NOTICED

John D Filamor Office of General Counsel 219 Cannon House Office Building Washington, DC 20515 TERMINATED: 02/23/2012

Kerry W Kircher Office of General Counsel U.S. House of Representatives

Case: 1:11-cv-1991 As of: 11/29/2012 12:33 PM CST 3 of 7
219 Cannon House Office Building Washington, DC 20515 (202)225−9700 Email: kerry.kircher@mail.house.gov ATTORNEY TO BE NOTICED
Todd Barry Tatelman Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, DC 20515 202 225 9700 Email: todd.tatelman@mail.house.gov ATTORNEY TO BE NOTICED

Date Filed 03/23/2011 03/23/2011 03/23/2011 03/23/2011 03/23/2011 03/23/2011 04/05/2011 04/06/2011 05/31/2011 05/31/2011
05/31/2011
05/31/2011
05/31/2011
05/31/2011
05/31/2011
05/31/2011

# Docket Text
1 COMPLAINT filed by Demos Revelis, Marcel Maas; Filing fee $ 350, receipt number 0752−5824584.(Burton, Justin) (Entered: 03/23/2011)
2 CIVIL Cover Sheet (Burton, Justin) (Entered: 03/23/2011)
3 ATTORNEY Appearance for Plaintiffs Marcel Maas, Demos Revelis by Justin Russell Burton (Burton, Justin) (Entered: 03/23/2011)
CASE ASSIGNED to the Honorable Harry D. Leinenweber. Designated as Magistrate Judge the Honorable Young B. Kim. (daj, ) (Entered: 03/23/2011)
4 SUMMONS Issued as to Eric H. Holder, Jr, Janet Napolitano, and U.S. Attorney General. (mb, ) (Entered: 03/24/2011)
5 DOCUMENT ENTERED IN ERROR (mb, ) (Entered: 03/24/2011)
6 DESIGNATION of Craig Arthur Oswald as U.S. Attorney for Defendants Eric H. Holder, Jr, Janet Napolitano (Oswald, Craig) (Entered: 04/05/2011)
7 ATTORNEY Appearance for Defendants Eric H. Holder, Jr, Janet Napolitano by Jesi J. Carlson (Carlson, Jesi) (Entered: 04/06/2011)
8 MOTION by Defendants Eric H. Holder, Jr, Janet Napolitano to dismiss Plaintiffs' Complaint (Carlson, Jesi) (Entered: 05/31/2011)
9 NOTICE of Motion by Jesi J. Carlson for presentment of motion to dismiss 8 before Honorable Harry D. Leinenweber on 6/7/2011 at 09:30 AM. (Carlson, Jesi) (Entered: 05/31/2011)
10 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by Kerry W Kircher on behalf of Paul D. Clement (Kircher, Kerry) (Entered: 05/31/2011)
11 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by Kerry W Kircher on behalf of H. Christopher Bartolomucci (Kircher, Kerry) (Entered: 05/31/2011)
12 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by Kerry W Kircher on behalf of Conor B. Dugan (Kircher, Kerry) (Entered: 05/31/2011)
13 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by Kerry W Kircher (Kircher, Kerry) (Entered: 05/31/2011)
14 MOTION by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to intervene for a limited purpose (Attachments: # 1 Text of Proposed Order, # 2 Exhibit, # 3 Exhibit)(Kircher, Kerry) (Entered: 05/31/2011)
15 MOTION by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to intervene Memorandum in Support of Motion (Attachments: # 1

Case: 1:11-cv-1991 As of: 11/29/2012 12:33 PM CST 4 of 7

05/31/2011 05/31/2011 06/06/2011 06/09/2011 06/10/2011 06/10/2011 06/10/2011
07/11/2011 07/11/2011
07/11/2011
07/25/2011 07/25/2011 07/25/2011 07/25/2011
08/11/2011 08/17/2011 12/05/2011

Exhibit, # 2 Exhibit)(Kircher, Kerry) (Entered: 05/31/2011)
16 NOTICE of Motion by Kerry W Kircher for presentment of motion to intervene 15 , motion to intervene 14 before Honorable Harry D. Leinenweber on 6/14/2011 at 09:30 AM. (Kircher, Kerry) (Entered: 05/31/2011)
17 MINUTE entry before Honorable Harry D. Leinenweber: Defendants Motion to Dismiss and BiPartisan motion to intervene are reset for 6/10/2011 at 09:30 AM.Mailed notice (wp, ) (Entered: 05/31/2011)
18 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by Kerry W Kircher on behalf of John D. Filamor (Kircher, Kerry) (Entered: 06/06/2011)
19 ATTORNEY Appearance for Plaintiffs Marcel Maas, Demos Revelis by Erin Christine Cobb (Cobb, Erin) (Entered: 06/09/2011)
20 ATTORNEY Appearance for Plaintiffs Marcel Maas, Demos Revelis by Heather M. Benno (Benno, Heather) (Entered: 06/10/2011)
21 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by John D Filamor (mb, ) (Entered: 06/14/2011)
22 MINUTE entry before Honorable Harry D. Leinenweber:Briefing schedule set on defendants' motion to dismiss and BiPartisan's motion to intervene. Responses to be filed by 7/11/2011. Reply briefs due by 7/25/2011. The Court will rule orally on 8/25/2011 at 9:00 a.m.Mailed notice (wp, ) (Entered: 06/16/2011)
23 RESPONSE by Defendants Eric H. Holder, Jr, Janet Napolitano to motion to intervene 15 (Carlson, Jesi) (Entered: 07/11/2011)
24 RESPONSE by Marcel Maas, Demos Revelisin Opposition to MOTION by Defendants Eric H. Holder, Jr, Janet Napolitano to dismiss Plaintiffs' Complaint 8 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Burton, Justin) (Entered: 07/11/2011)
25 RESPONSE by Marcel Maas, Demos Revelisin Opposition to MOTION by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to intervene for a limited purpose 14 , MOTION by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to intervene Memorandum in Support of Motion 15 (Burton, Justin) (Entered: 07/11/2011)
26 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by H Christopher Bartolomucci (Bartolomucci, H) (Entered: 07/25/2011)
27 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by Conor B. Dugan (Dugan, Conor) (Entered: 07/25/2011)
28 REPLY by Defendants Eric H. Holder, Jr, Janet Napolitano to response in opposition to motion, 25 (Carlson, Jesi) (Entered: 07/25/2011)
29 REPLY by Bipartisan Legal Advisory Group of the U.S. House of Representatives to MOTION by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to intervene for a limited purpose 14 (Attachments: # 1 Exhibit)(Bartolomucci, H) (Entered: 07/25/2011)
30 MINUTE entry before Honorable Harry D. Leinenweber:It is hereby ordered that the oral ruling date of 8/25/2011 is stricken. The Court will rule by mail.Mailed notice (wp, ) (Entered: 08/11/2011)
31 Notice of Recent Decision by Bipartisan Legal Advisory Group of the U.S. House of Representatives (Attachments: # 1 Exhibit)(Bartolomucci, H) (Entered: 08/17/2011)
32 Notice of Recent Decision by Bipartisan Legal Advisory Group of the U.S. House of Representatives (Attachments: # 1 Exhibit A)(Kircher, Kerry) (Entered: 12/05/2011)

Case: 1:11-cv-1991 As of: 11/29/2012 12:33 PM CST 5 of 7

01/05/2012
01/05/2012 01/19/2012 02/03/2012
02/03/2012 02/03/2012 02/06/2012 02/06/2012
02/06/2012 02/08/2012 02/08/2012 02/08/2012 02/13/2012 02/23/2012
03/27/2012

33 MINUTE entry before Honorable Harry D. Leinenweber:ENTER MEMORANDUM OPINION AND ORDER: Defendants' Motion to Dismiss is denied. BLAG's Motion to Intervene for a Limited Purpose is granted. BLAG is to answer or otherwise plead within thirty (30) days of the date of this Order. Status hearing set for 2/16/2012 at 09:00 AM.Mailed notice (wp, ) (Entered: 01/05/2012)
34 MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 1/5/2012:Mailed notice(wp, ) (Entered: 01/05/2012)
35 Defendants' ANSWER to Complaint by Eric H. Holder, Jr, Janet Napolitano (Attachments: # 1 Exhibit A)(Carlson, Jesi) (Entered: 01/19/2012)
36 MINUTE entry before Honorable Harry D. Leinenweber:Pursuant to the stipulation, the intervenor, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, MAY FILE a memorandum of points and authorities in support of its motion to dismiss of no more than thirty−five (35) pages in length.Mailed notice (wp, ) (Entered: 02/03/2012)
37 MOTION by Defendants Eric H. Holder, Jr, Janet Napolitano to dismiss (Second) (Carlson, Jesi) (Entered: 02/03/2012)
38 NOTICE of Motion by Jesi J. Carlson for presentment of motion to dismiss 37 before Honorable Harry D. Leinenweber on 2/16/2012 at 09:30 AM. (Carlson, Jesi) (Entered: 02/03/2012)
39 MOTION by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to dismiss (Attachments: # 1 Text of Proposed Order)(Bartolomucci, H) (Entered: 02/06/2012)
40 MEMORANDUM by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives of points and authorities in support of Motion to dismiss by Intervenor defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bartolomucci, H) (Docket Text Modified by Clerks Office.) Modified on 2/7/2012 (ea, ). (Entered: 02/06/2012)
41 NOTICE of Motion by H Christopher Bartolomucci for presentment of motion to dismiss 39 before Honorable Harry D. Leinenweber on 2/16/2012 at 09:30 AM. (Bartolomucci, H) (Docket Text Modified by Clerks Office.) Modified on 2/7/2012 (ea, ). (Entered: 02/06/2012)
42 ATTORNEY Appearance for Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives by Todd Barry Tatelman (Tatelman, Todd) (Entered: 02/08/2012)
43 MOTION by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to substitute attorney (Attachments: # 1 Text of Proposed Order)(Tatelman, Todd) (Entered: 02/08/2012)
44 NOTICE of Motion by Todd Barry Tatelman for presentment of motion to substitute attorney 43 before Honorable Harry D. Leinenweber on 2/16/2012 at 09:30 AM. (Tatelman, Todd) (Entered: 02/08/2012)
45 MINUTE entry before Honorable Harry D. Leinenweber: Status hearing reset for 2/23/2012 at 09:00 AM. Defendants' Motions to Dismiss and the Motion to Withdraw and Substitute are reset to 2/23/2012 at 9:00 a.m.Mailed notice (wp, ) (Entered: 02/13/2012)
47 MINUTE entry before Honorable Harry D. Leinenweber: Status hearing held. The Motion of The Bipartisan Legal Advisory Group of the U.S. House of Representative for leave to withdraw the appearance of John D. Filamor and substitute as co−counsel Todd B. Tatelman, Assistance Counsel in the Office of General Counsel is granted. Plaintiffs response to defendants motions to dismiss to be filed by 4/9/2012. Reply briefs due by 4/23/2012. The Court will rule orally on 5/30/2012 at 9:00 a.m. Mailed notice (mb, ) (Entered: 03/28/2012)
46 STIPULATION Joint, for Leave to File Response in Excess of 15 Pages (Cobb, Erin) (Entered: 03/27/2012)

Case: 1:11-cv-1991 As of: 11/29/2012 12:33 PM CST 6 of 7

04/05/2012
04/09/2012 04/09/2012 04/20/2012 04/23/2012 04/23/2012 04/23/2012 05/02/2012 05/03/2012
05/03/2012 05/07/2012 05/10/2012 07/12/2012
08/13/2012 08/13/2012

48 MINUTE entry before Honorable Harry D. Leinenweber:Pursuant to the Stipulation, plaintiffs and Defendants granted leave to file Memoranda of Points and Authorities in support of their individual responses to the Intervenor's Motion to Dismiss that are no more than 35 pages in length.Mailed notice (wp, ) (Entered: 04/05/2012)
49 RESPONSE by Marcel Maas, Demos Revelisin Opposition to MOTION by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to dismiss 39 (Attachments: # 1 Exhibit A)(Cobb, Erin) (Entered: 04/09/2012)
50 MEMORANDUM by Eric H. Holder, Jr, Janet Napolitano in Opposition to motion to dismiss 39 filed by the Bipartisan Legal Advisory Group of the House of Representatives (Carlson, Jesi) (Entered: 04/09/2012)
51 STIPULATION for Intervenor Defendant To File Consolidated Reply, in Excess of Fifteen (15) Pages, to Plaintiffs' and Federal Defendant's Responses to Intervenor Defendant's Motion to Dismiss (Bartolomucci, H) (Entered: 04/20/2012)
52 MOTION by Defendants Eric H. Holder, Jr, Janet Napolitano to stay Proceedings Due to Agency Action (Carlson, Jesi) (Entered: 04/23/2012)
53 NOTICE of Motion by Jesi J. Carlson for presentment of motion to stay 52 before Honorable Harry D. Leinenweber on 5/10/2012 at 09:30 AM. (Carlson, Jesi) (Entered: 04/23/2012)
54 REPLY by Intervenor Bipartisan Legal Advisory Group of the U.S. House of Representatives to motion to dismiss 39 (Attachments: # 1 Exhibit 1)(Bartolomucci, H) (Entered: 04/23/2012)
55 RESPONSE by Bipartisan Legal Advisory Group of the U.S. House of Representativesin Opposition to MOTION by Defendants Eric H. Holder, Jr, Janet Napolitano to stay Proceedings Due to Agency Action 52 (Bartolomucci, H) (Entered: 05/02/2012)
56 MINUTE entry before Honorable Harry D. Leinenweber: Enter Order granting the stipulation for intervenor defendant to file consolidated reply, in excess of fifteen pages, to plaintiffs and federal defendants' responses to intervenor defendant's motion to dismiss. [For further detail see separate order.] Mailed notice (mb, ) (Entered: 05/07/2012)
57 STIPULATION for Intervenor defendant to file consolidated reply, in excess of fifteen (15) pages, to plaintiffs' and federal defendants' responses to intervenor defendant's motion to dismiss. Signed by the Honorable Harry D. Leinenweber on 5/3/2012:(mb, ) (Entered: 05/07/2012)
58 REPLY by Defendants Eric H. Holder, Jr, Janet Napolitano to response in opposition to motion 55 to stay (response in opposition filed by Bipartisan Legal Advisory Group for the House of Representatives) (Carlson, Jesi) (Entered: 05/07/2012)
59 MINUTE entry before Honorable Harry D. Leinenweber:The Court will rule by mail on Defendants Motion to Stay Proceedings.Motion hearing held on 5/10/2012 regarding motion to stay 52 Mailed notice (wp, ) (Entered: 05/10/2012)
60 WRITTEN Opinion entered by the Honorable Harry D. Leinenweber on 7/12/2012:The Government Defendants' motion to stay proceedings for 90 days is granted. A status hearing set for 10/16/2012 at 9:00 a.m. Should USCIS' decision on the Plaintiff's visa petition be finalized before that time, the parties are hereby ordered to file a motion for an earlier status date. Mailed notice(wp, ) (Entered: 07/12/2012)
61 MINUTE entry before Honorable Harry D. Leinenweber:Defendants' granted leave to file the agency's decision on plaintiffs' I−130 petition for alien relatives, under seal.Mailed notice (wp, ) (Entered: 08/13/2012)
62 MOTION by Defendants Eric H. Holder, Jr, Janet Napolitano for hearing re order on motion to stay,, written opinion,, set hearings, 60 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Carlson, Jesi) (Entered: 08/13/2012)

Case: 1:11-cv-1991 As of: 11/29/2012 12:33 PM CST 7 of 7

08/13/2012
08/13/2012
08/27/2012 08/27/2012 08/27/2012
09/20/2012

63 NOTICE of Motion by Jesi J. Carlson for presentment of motion for hearing, motion for relief,, 62 before Honorable Harry D. Leinenweber on 9/5/2012 at 09:30 AM. (Carlson, Jesi) (Entered: 08/13/2012)
64 SEALED DOCUMENT by Defendants Eric H. Holder, Jr, Janet Napolitano Exhibit A to Motion to Notice of Agency Action and Motion for an Earlier Status Hearing (Carlson, Jesi) (Entered: 08/13/2012)
65 DOCUMENT ENTERED IN ERROR (Entered: 08/27/2012)
66 NOTICE of Correction regarding document 65 (tg, ) (Entered: 08/27/2012)
67 MINUTE entry before Honorable Harry D. Leinenweber:The Motion to set earlier status hearing 62 is granted. Status hearing reset for 9/20/2012 at 09:00 AM.Mailed notice (wp, ) (Entered: 08/27/2012)
68 MINUTE entry before Honorable Harry D. Leinenweber:Status hearing held on 9/20/2012. Defendant's oral motion to dismiss without prejudice is granted. Civil case terminated. Mailed notice (wp, ) (Entered: 09/20/2012)