Revelis v. Napolitano

• Decision Date: 05 January 2012
• Docket Number: Case No. 11 C 1991.
• Citation: 844 F.Supp.2d 915
• Parties: 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.
• Court: U.S. District Court — Northern District of Illinois

844 F.Supp.2d 915

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.

United States District Court,

N.D. Illinois,

Eastern Division.

Jan. 5, 2012.

Erin Christine Cobb, Heather M. Benno, Justin Russell Burton, Kriezelman Burton & Associates, Chicago, IL, for Plaintiff.

Jesi J. Carlson, Craig Arthur Oswald, United States Attorney's Office, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

HARRY D. LEINENWEBER, District Judge.

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 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.

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, 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, 104 S.Ct. 3315, 82 L.Ed.2d 556 (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 Commis., 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 Califano v. Sanders, 430 U.S. 99, 106–07, 97 S.Ct. 980, 51 L.Ed.2d 192 (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, 117 S.Ct. 1154, 137 L.Ed.2d 281 (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, 112 S.Ct. 2767, 120 L.Ed.2d 636 (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, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated in part on other grounds by Califano, 430 U.S. at 105, 97 S.Ct. 980, 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 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, 112 S.Ct. 2130,...