Saturday, June 17, 2017

Case Summary: Ledezma-Cosino v. Sessions (9th Cir. 2017): A "Habitual Drunkard" Lacks Good Moral Character for Cancellation of Removal by Law Student Niki Moshiri

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In Ledezma-Cosino v. Sessions (9th Cir. 2017), the Ninth Circuit en banc 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” under the Immigration and Nationality Act, originally passed in 1952.  ImmigrationProf previously reported on the case (here and here).  Here is a summary of the decision: 

The petitioner, Salomon Ledezma-Cosino, has lived in the United States since 1987, when he entered the United States from Mexico without inspection.  A construction worker, he and his wife have raised eight children; five are U.S. citizens.

Ledezma-Cosino was arrested in 2008 for driving under the influence and driving with a suspended license. He wasn issued a notice to appear in immigration court and was charged with being subject to removal for entering the United States without having been admitted or paroled.

Ledezma-Cosino admitted removability, but applied for cancellation of removal and voluntary departure. He argued that removal would lead to "exceptional and extremely unusual hardship" for his children, for reasons including economic disadvantage, the difficulty of transitioning to a new life in Mexico, and his youngest daughter’s asthma. The immigration judge denied Ledezma-Cosino's cancellation of removal but granted him voluntary departure.

The Board of Immigration Appeals (BIA)  dismissed the appeal and upheld the immigration judge’s decision, as well as declaring Ledezma-Cosino ineligible for cancellation of removal as a “habitual drunkard,” a bar to good moral character.

Ledezma-Cosino petitioned the Ninth Circuit to review the BIA decision. A three-judge panel (in an opinion by Judge Reinhardt, with a dissent by Judge Clifton) vacated the BIA’s decision and remanded the case for further proceedings on the ground that the “habitual drunkard” provision violates principles of equal protection.

The Ninth Circuit took the case for en banc review.  Judge Susan Graber wrote the opinion for the court, which denied the petition for review and held that the BIA properly interpreted the “habitual drunkard” provision, that the provision is not unconstitutionally vague, and does not violate principles of equal protection.

The court examined how Congress determines who qualifies as a “habitual drunkard,” and whether it constitutes a bar to good moral character for purposes of removal.

First, although the term “habitual drunkard” is not defined in immigration statutes, the court interpreted it according to contemporary and common meanings of the words in the statute. “Habitual drunkard” is ordinarily understood to refer to the conduct of a person drinking excessively as opposed to one’s status as an alcoholic.

Though Ledezma-Cosino argued that substantial evidence did not support findings that he was a “habitual drunkard” by definition, the en banc court found that substantial evidence did support the finding that Ledezma-Cosino was a "habitual drunkard."  In 2010, doctors treating Ledezma-Cosino recorded more than a decade of alcohol abuse, including “1 liter of tequila per day on the average,” as well as a 2008 conviction for driving under the influence. This evidence was bolstered by his daughter’s testimony that his drinking problem led to liver failure.

Second, the court rejected Ledezma-Cosino’s argument that the term “habitual drunkard” is unconstitutionally vague.  Courts rely on an objective factual inquiry to determine a habitual drunkard. The court states that a person of ordinary intelligence could recognize if one’s behavior satisfies the definition. In this case, the court argues that a person of ordinary intelligence could conclude that Ledezma-Cosino’s conduct was that of a “habitual drunkard.”

The court further held that the “habitual drunkard” provision does not violate Equal Protection. Under rational basis of review, Congress points to the goal of furthering legitimate government interest in public safety. Furthermore, Congress did not invade a constitutional right nor did it enact legislation that intentionally discriminates against a suspect class, and Congress’s action was rationally relevant to the government interest of public safety. Congress could reasonably conclude that those who excessively consume alcohol pose increased risks to both themselves and others.

The court emphasized that the Equal Protection challenge is limited to assessing Congressional action and not deciding for itself whether habitual drunkards lack good moral character. 

Joined by Judges Bea and Ikuta, Judge Kozinski concurs in denying the petition for review. However, he argues for a different standard to reach that decision. He writes that under the plenary power doctrine, the President and Congress have plenary authority over noncitizens. By virtue of this doctrine, Congress has power to enact rules regarding "aliens" that would not be acceptable if applied to citizens. The court owes more deference to Congress in immigration matters that that afforded by the rational basis test. In Judge Kozinski's view, to introduce domestic equal protection reviews to this matter only serves to unnecessarily lead the court into uncertain territory. 

Joined by Judges McKeown and Clifton, Judge Watford concurs with the majority on the equal protection holding, but reaches that conclusion through a different approach. He believes that the question is whether Congress had a rational basis for the conclusive presumption that habitual drunks lack good moral character. He notes that conclusive presumptions can be inherently blind to individual case-by-case details. Under long-established Supreme Court practice, the habitual drunkard provision as a conclusive presumption here would survive rationality review, even if the presumption is over- or underinclusive.

The dissent by Judge Thomas, joined by Judge Christen, points out that Ledezma-Cosino was a recovering alcoholic. Ledezma-Cosino was diagnosed with alcoholism during the qualifying period for good moral character. Thomas argues that the text and history of the Immigration and Nationalization Act (INA), which defined “good moral character,” demonstrated that Congress intended to make a distinction between an alcoholic and a “habitual drunkard.” A diagnosis of alcoholism means that Ledezma-Cosino’s issue is a medical affliction, not a matter of good moral character. Therefore, he cannot be defined as a habitual drunkard. Ledezma-Cosino’s disease thus cannot bar him from cancellation of removal for moral blameworthiness. Instead, the provision should only apply to one who habitually abuses alcohol and through that, causes public harm. He argues that an alcoholic does not necessarily present a risk of harm to the public.

Furthermore, to suspend deportation of an individual, one must demonstrate “exceptional and extremely unusual hardship.” One well-established indication of such hardship is medical condition. To remove Ledezma-Cosino would be inconsistent with the statute, as the disease of alcoholism falls squarely under this qualifying factor.

Judge Thomas writes that Congress demonstrates nuanced understanding of alcoholism within the text of the Immigration and Nationality Act, in which alcoholics are defined as having a “physical or mental disorder,” rendering them inadmissible under this statute only under the condition that their alcohol-related behavior poses a risk of harm to property, safety, and welfare.

Judge Thomas stresses a need for a case-by-case determination to classify an individual as a “habitual drunkard” for purposes of good moral character, as favorable and unfavorable facts must be balanced together to make a proper determination. For example, Judge Thomas notes that the record showed Ledezma-Cosino to be an “excellent worker”, a favorable characteristic that should, Judge Thomas would argue, help counteract less favorable facts in his record.

Judge Thomas adds that the statuary construction of “good moral character” welcomes redemption. But for the government to proceed as it does here means that even sober and recovering alcoholics during the relevant period of time would still be considered “habitual drunkards” and therefore lacking in good moral character. This, Judge Thomas claims, strengthens the argument for a case-by-case basis of assessment in these cases.

Judge Thomas would grant the petition for review and remand the decision to the BIA for reconsideration to apply the correct statutory standard or determine how to assess a “habitual drunkard” without implicating alcoholism as a disease.

KJ

http://lawprofessors.typepad.com/immigration/2017/06/case-summary-ledezma-cosino-v-sessions-9th-cir-2017.html

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