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Ledezma-Cosino v. Sessions

United States Court of Appeals, Ninth Circuit

May 30, 2017

Salomon Ledezma-Cosino, aka Cocino Soloman Ledesma, Petitioner,
Jefferson B. Sessions III, Attorney General, Respondent.

          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.



         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.


          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]


         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).


         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).


         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 ...

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