Argued
and Submitted En Banc January 18, 2017 San Francisco,
California
On
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A091-723-478
Kelsi
Brown Corkran (argued), Thomas M. Bondy, Randall C. Smith,
and Benjamin F. Aiken, Orrick Herrington & Sutcliffe LLP,
Washington, D.C.; Nora E. Milner, Milner & Markee LLP,
San Diego, California; for Petitioner.
Aimee
J. Carmichael (argued) and Lisa M. Damiano, Attorneys;
Patrick J. Glen, Senior Litigation Counsel; Terri J. Scadron
and John W. Blakeley, Assistant Directors; Benjamin C. Mizer,
Principal Deputy Assistant Attorney General; Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C.; for Respondent.
James
E. Tysse and G. Michael Parsons, Jr., Akin Gump Strauss Hauer
& Feld LLP, Washington, D.C., for Amici Curiae Drug
Policy Alliance, National Council on Alcoholism and Drug
Dependence, and Phoenix House.
Stephen B. Kang and Jennifer Chang Newell, ACLU Foundation
Immigrants' Rights Project, San Francisco, California;
Omar Jadwat, ACLU Foundation Immigrants' Rights Project,
New York, New York; for Amici Curiae ACLU Immigrants'
Rights Project and National Immigration Project of the
National Lawyers Guild.
Before: Sidney R. Thomas, Chief Judge, and Alex Kozinski,
Susan P. Graber, M. Margaret McKeown, Richard R. Clifton,
Carlos T. Bea, Sandra S. Ikuta, Mary H. Murguia, Morgan
Christen, Paul J. Watford, and John B. Owens, Circuit Judges.
SUMMARY[*]
Immigration
The en
banc court 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.
OPINION
GRABER, Circuit Judge.
Petitioner
Salomon Ledezma-Cosino, a native and citizen of Mexico,
petitions for review of a final order of the Board of
Immigration Appeals ("BIA"), which affirmed an
immigration judge's ("IJ") denial of
Petitioner's application for cancellation of removal. We
deny the petition.[1]
FACTUAL
AND PROCEDURAL BACKGROUND
Petitioner
entered the United States from Mexico, without admission or
inspection, in 1987. On May 7, 2008, police in Carlsbad,
California, arrested him on charges of driving under the
influence of intoxicants and driving with a suspended
license. A few days later, the Department of Homeland
Security issued a notice to appear, charging Petitioner with
removability under 8 U.S.C. § 1182(a)(6)(A)(i) because
he was an alien present in the United States without having
been admitted or paroled.
Petitioner
appeared, with counsel, before an IJ, admitted all the
factual allegations in the notice to appear, and conceded
removability. But, as now relevant, he applied for
cancellation of removal pursuant to 8 U.S.C. §
1229b(b)(1). To qualify for cancellation of removal,
Petitioner had to demonstrate, among other things, that he
was "a person of good moral character" during the
10-year period preceding his application for cancellation of
removal. Id. § 1229b(b)(1)(B). Congress has
defined the term "good moral character" to exclude
anyone who has been a "habitual drunkard" during
the relevant period. Id. § 1101(f)(1).
After a
hearing on the merits, the IJ denied Petitioner's
application for cancellation of removal. The IJ found that
Petitioner had not met his burden of establishing that he was
"a person of good moral character" because, during
the requisite 10-year period, he had been a "habitual
drunkard." The BIA affirmed that ground of decision and
dismissed the appeal. A timely petition for review to this
court followed. We have jurisdiction pursuant to 8 U.S.C.
§ 1252.
A
three-judge panel granted the petition, vacated the BIA's
decision, and remanded the matter for further proceedings on
the ground that the "habitual drunkard" provision
violates equal protection principles. Ledezma-Cosino v.
Lynch, 819 F.3d 1070 (9th Cir. 2016). Upon grant of
rehearing en banc, the panel's opinion was vacated.
Ledezma-Cosino v. Lynch, 839 F.3d 805 (9th Cir.
2016) (order).
STANDARDS
OF REVIEW
We
review the agency's factual findings for substantial
evidence. Angov v. Lynch, 788 F.3d 893, 898 (9th
Cir. 2015). We must uphold the findings unless the record
compels a contrary conclusion. Id. We review de novo
whether a statutory provision is constitutional. Vilchez
v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).
DISCUSSION
To
qualify for cancellation of removal, Petitioner had the
burden of establishing that he:
(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately
preceding the date of such application;
(B) has been a person of good moral character during such
period;
(C) has not been convicted of [specified offenses]; and
(D) establishes that removal would result in exceptional and
extremely unusual hardship to [certain family members].
8 U.S.C. § 1229b(b)(1). Congress has defined the term
"good moral character" in the following way:
For the
purposes of this chapter-
No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good
moral character is ...