The Supreme Court last week denied certiorari in Ledezma-Cosino v. Sessions, allowing to stand an en banc order from the Court of Appeals for the Ninth Circuit finding that an alien could be denied cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act (INA) as a "habitual drunkard".
The petitioner in that case was a native and citizen of Mexico who entered the United States without inspection in 1987. He was arrested in Carlsbad, Calif., on May 7, 2008, on charges of driving under the influence of intoxicants and driving with a suspended license. Shortly thereafter, the Department of Homeland Security (DHS) charged petitioner with removability under section 212(a)(6)(A)(i) of the INA, for entering the United States without having been admitted or paroled.
He applied for cancellation of removal under section 240A(b)(1) of the INA as relief from removal. To be granted relief under that provision, an alien must establish that he or she has been physically present in the United States for not less than 10 years before filing that application, has not been convicted of an offense listed in specified grounds of removability, and that his or her removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Most importantly for petitioner's case, an applicant for cancellation of removal must also, under section 240A(b)(1)(B) of the INA, establish that he or she "has been a person of good moral character" during that 10-year period prior to application. "Good moral character" for purposes of this provision is defined in the negative, with a series of offenses, statuses, convictions, and conditions excluding such a showing. In particular, section 101(f) of the INA states, in pertinent part:
For the purposes of this Act-- 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 required to be established, is or was- (1) a habitual drunkard ....
The immigration judge denied petitioner's application for cancellation removal, finding that petitioner failed to establish that he was "'a person of good moral character' because, during the requisite 10-year period, he had been a 'habitual drunkard.'" The Board of Immigration Appeals (BIA) affirmed that decision, and the alien filed a petition with the circuit court. A three-judge panel of that court granted that petition and vacated the decision of the BIA, remanding the matter for further consideration "on the grounds that the 'habitual drunkard' provision violates equal protection principles."
The government sought prehearing en banc, which the circuit court granted, vacating the panel decision.
While this provision has been a part of the INA since that law was passed in 1952, there had only ever been one case, prior to the Ninth Circuit's decision, that has applied this paragraph: Matter of H-, 6 I&N Dec. 614 (BIA 1955).
In that case, the BIA held that an alien, who was removable under former section 241(a)(4) of the INA because he had been convicted of two crimes involving moral turpitude after entry not arising out of a single scheme of criminal misconduct, was ineligible for unspecified discretionary relief as he "was unable to prove the required good moral character during the past five years because he was a habitual drunkard."
The BIA noted:
While counsel contests this conclusion, he has offered no additional evidence to supplement that already in the record below. During the hearing held on November 12, 1954, Dr. M----- S----- H-----, resident psychiatrist at Wayne County General Hospital in Eloise, Michigan, testified that from his own personal knowledge he could state that respondent has been a habitual drunkard since September 15, 1954, and that from a reading of hospital records, he could conclude that respondent had been a chronic alcoholic since May 14, 1953. Dr. H----- stated that respondent had been committed to the hospital for treatment by the Wayne County Probate Court upon a declaration of mental incompetency and admitted to the hospital on May 14, 1953. Since that time, hospital records reveal that respondent has managed to leave the hospital surreptitiously on several occasions (the last of which was July 15, 1954), and immediately began drinking heavily, necessitating his immediate and forcible return to the hospital at the instance of relatives.
Perhaps, as a result of the lack of legal guidance on the application of this paragraph, it has only occasionally been raised as a bar to good moral character and rarely, if ever, found.
In the majority decision, the en banc panel of the Ninth Circuit held that "substantial evidence supports the finding that petitioner was a 'habitual drunkard.'" In making this finding, court looked to legal dictionaries in determining the "ordinary meaning" of the term "habitual drunkard" to be "a person who regularly drinks alcoholic beverages to excess."
The circuit court found:
Here, the record amply supports the agency's finding that Petitioner was a habitual drunkard. In 2010, treating doctors recorded a "more than ten year history of heavy alcohol abuse," during which time Petitioner drank "1 liter of tequila per day on the average." In 2008, he was convicted of driving under the influence. During Petitioner's removal proceedings, Petitioner's daughter testified that he had "a drinking problem" and that his liver had failed because of "[t]oo much alcohol," "[t]oo much drinking." At a minimum, the evidence does not compel the conclusion that Petitioner was not a habitual drunkard.
The majority made clear that "not all alcoholics are habitual drunkards," distinguishing between the petitioner's conduct during the period in question and his "status as an alcoholic".
In its decision, the majority also addressed the dissent's argument that the term "habitual drunkard" should apply quote "only to those who cause harm to other persons or the community," finding:
In making its determination that Petitioner was a habitual drunkard, the BIA expressly noted that Petitioner had been convicted of driving under the influence. Driving under the influence is, self-evidently, a public harm. At a minimum, the record does not compel the contrary result. We therefore disagree with the dissenting opinion that further proceedings are necessary in this case, even if public harm is required.
Importantly, the majority determined that this provision was not "unconstitutionally vague". Under Supreme Court precedent, a statute fails to comport with due process due to vagueness if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." The majority in the circuit court determined that the term in question "readily lends itself to an objective factual inquiry." It continued:
And whatever uncertainty the term "habitual drunkard" may raise in borderline cases, a person of ordinary intelligence would have fair notice that the term encompasses an average daily consumption of one liter of tequila for a 10-year period, leading to a conviction for driving under the influence.
Further, the majority held that the provision "does not violate equal protection principles." In making this finding, the court applied the "rational basis" test. "In order for a statute or ordinance to pass rational basis review: the statute or ordinance must have a legitimate state interest [and] there must be a rational connection between the statute's ... means and goals."
The majority held: "Congress reasonably could have concluded that, because persons who regularly drink alcoholic beverages to excess pose increased risks to themselves and others, cancellation of removal was unwarranted." In making this finding, the court concluded that it did not matter that Congress permitted cancellation of removal to other groups posing similar risks.
It also rejected petitioner's argument "that it is irrational to classify habitual drunkards as persons who lack good moral character," finding that petitioner "misunderstands the nature of the equal protection inquiry." It noted:
Here, Congress' action was the denial of cancellation of removal to habitual drunkards. It is irrelevant, for purposes of analyzing the equal protection claim, whether habitual drunkards lack good moral character. Congress achieved its result by using an intermediate category of persons who lack "good moral character" and by then defining that category to include habitual drunkards, among others. But the specific term, "good moral character," has no significance under rational basis review, which does not require a court to account for all of a statute's text, just whether the statute is rationally related to a legitimate governmental interest. Congress could have chosen any phrase for the intermediate category — "special class of persons not eligible for cancellation of removal," for example — and the effect would be the same. Or Congress could have eliminated the intermediate label altogether and simply listed behaviors that would disqualify applicants from obtaining cancellation of removal—and again the effect would be the same. The intermediate label is therefore of no constitutional moment, even if we were to agree that the label is unfortunate, outdated, or inaccurate.
Interestingly, Judge Kozinski asserted in concurrence that the majority erred in "applying the domestic equal protection test" to this immigration provision, arguing that the government's burden should be "even lighter than rational basis". Specifically, he contended that the court should, in accordance with Fiallo v. Bell, "approve immigration laws that are facially legitimate without probing or testing possible justifications." He continued:
The majority interprets [section 101(f)(1) of the INA] as applying solely to conduct rather than medical status, and it reads the statute's "good moral character" language to mean nothing. Such interpretive gerrymandering may be necessary to preserve the constitutionality of a statute that operates in the domestic sphere. But there's no need to nip and tuck the text here. Congress can exclude Ledezma on account of a medical condition or it can do so because it considers him immoral. This is a facially legitimate exercise of Congress's plenary power, and we have no business passing judgment on it.
Given the Ninth Circuit's decision, its findings on the constitutionality of this provision, and the rules that it sets forth therein for application of this provision, it is likely that this bar will be used in future cancellation cases, particularly those involving aliens convicted of multiple drunk-driving offenses.