Tuesday, May 30, 2017

Ninth Circuit En Banc on "Habitual Drunkard"

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Judge Susan Graber

The Ninth Circuit today decided en banc Ledezcma-Cocino v. Sessions.  Here is the court's summary of the decision:

The en banc court. in an opinion by Judge Susan Graber, denied Ledezma-Cosino’s petition for review of the Board of Immigration Appeals’ decision concluding that he was ineligible for cancellation of removal on the ground that he failed to establish good moral character because, during the requisite period, he had been a “habitual drunkard.”

In Part A, the en banc court held that substantial evidence supported the agency’s finding that Ledezma-Cosino was a “habitual drunkard.”  In so concluding, the en banc court noted that the ordinary meaning of the term refers to a person who regularly drinks alcoholic beverages to excess, and noted evidence of Ledezma-Cosino’s more-than-ten-year history of alcohol abuse, conviction for driving under the influence, and his daughter’s testimony that his liver failed from drinking.


In Part B, the en banc court held that the term “habitual drunkard” was not unconstitutionally vague because it readily lends itself to an objective factual inquiry.  The en banc court also concluded that whatever uncertainty the term may raise in borderline cases, a person of ordinary intelligence would have notice that the term encompasses Ledezma-Cosino’s conduct.

In Part C, a plurality of the en banc court concluded that the statutory “habitual drunkard” provision does not violate equal protection.  Applying ordinary rational basis review, the plurality concluded that Congress reasonably could have concluded that, because persons who regularly drink alcoholic beverages to excess pose increased risks to themselves and to others, cancellation of removal was unwarranted.


Concurring, Judge Kozinski, joined by Judges Bea and Ikuta, disagreed that ordinary rational basis review applies to decisions to exclude aliens.  Under the plenary power doctrine, Judge Kozinski would overrule circuit precedent applying the domestic equal protection test to foreign relations.  Judge Kozinski would hold that the government’s burden is even lighter than rational basis in that the court should approve immigration laws that are facially legitimate without probing or testing possible justifications.  Judge Kozinski would deny the petition for review summarily under this facially legitimate standard.


Concurring, Judge Watford, joined by Judges McKeown and Clifton, agreed that the statutory classification is subject to rational basis review and noted that the question whether the volitional component of excessive drinking is weighty enough to warrant treating habitual drunkards as morally blameworthy for their conditions is a policy question for Congress.  Observing that the provision at issue is a conclusive presumption, Judge Watford noted that the Supreme Court has long held that conclusive presumptions survive rational basis review even when the presumption established is both over- and underinclusive.  In response to the suggestion that it is irrational to treat habitual drunkards as lacking good moral character while not treating those suffering other medical conditions as morally blameworthy, Judge Watford wrote that Congress could rationally conclude that habitual drunkards are not similarly situated to those suffering from other medical conditions. 


Dissenting, Chief Judge Thomas, joined by Judge Christen, observed that Ledezma-Cosino was a recovering alcoholic, diagnosed with the disease during the qualifying period for good moral character.  Analyzing the plain language of the statute, its structure, and its legislative history, Chief Judge Thomas concluded that the phrase “habitual drunkard” is not synonymous with “alcoholic,” and thus, a diagnosis of alcoholism is insufficient to trigger the “habitual drunkard” provision and render a petitioner categorically ineligible for cancellation of removal.  Chief Judge Thomas would construe the “habitual drunkard” provision to apply to one who habitually abuses alcohol and whose alcohol abuse causes harm to other persons or the community.  Accordingly, Chief Judge Thomas would grant the petition for review and remand to the BIA to reconsider the case under a proper construction of the law, and would not reach the constitutional questions raised in the case.


KJ

http://lawprofessors.typepad.com/immigration/2017/05/ninth-circuit-en-banc-on-habitual-drunkard-.html

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