Ledezma-Cosino v. Lynch

• Decision Date: 24 March 2016
• Docket Number: No. 12–73289.,12–73289.
• Citation: 819 F.3d 1070
• Parties: Salomon LEDEZMA–COSINO, aka Cocino Soloman Ledesma, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

819 F.3d 1070

Salomon LEDEZMA–COSINO, aka Cocino Soloman Ledesma, Petitioner,

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 12–73289.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2015.

Filed March 24, 2016.

Nora E. Milner (argued), Milner & Markee, LLP, San Diego, CA, for Petitioner.

Lisa M. Damiano (argued), Stuart F. Delery, Benjamin C. Mizer, and Terri J. Scadron, United States Department of Justice, Office of Immigration Litigation, Washington D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A091–723–478.

Before: STEPHEN REINHARDT and RICHARD R. CLIFTON, Circuit Judges and MIRANDA M. DU,^* District Judge.

Opinion by Judge REINHARDT

; Dissent by Judge CLIFTON.

OPINION

REINHARDT

, Circuit Judge:

The Board of Immigration Appeals (BIA) determined that Petitioner Salomon Ledezma–Cosino was not eligible for cancellation of removal or voluntary departure because, under 8 U.S.C. § 1101(f)(1)

, as a "habitual drunkard"—that is, a person with chronic alcoholism —he inherently lacked good moral character. He now petitions for review, contending that the Due Process Clause and Equal Protection Clause of the Constitution forbid the Government from making such an irrational classification as to moral character on the basis of a medical disability. We hold that, under the Equal Protection Clause, a person's medical disability lacks any rational relation to his classification as a person with bad moral character, and that § 1101(f)(1)

is therefore unconstitutional. We grant the petition for review, vacate the BIA's decision, and remand for further proceedings in light of this opinion.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D)

to review constitutional claims raised upon a petition for review. Cabrera–Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir.2005). This includes any alleged "colorable constitutional violation." Martinez–Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). As the BIA lacks jurisdiction to rule upon the constitutionality of the statutes it administers, In re Fuentes–Campos, 21 I. & N. Dec. 905 (BIA 1997), it did not rule on the constitutional claim raised by petitioner. We review that claim de novo. Chavez–Perez v. Ashcroft, 386 F.3d 1284, 1287 (9th Cir.2004).

BACKGROUND

Even when the government may deport a non-citizen, the Attorney General has the discretion not to do so by, among other avenues, cancelling the removal under 8 U.S.C. § 1229b

or allowing the non-citizen to voluntarily depart the country under 8 U.S.C. § 1229c. Each of these avenues provides a benefit for the non-citizen. The benefit of cancellation is obvious: the non-citizen may remain in the country. Voluntary departure's benefit is less intuitive, but no less important to the many non-citizens who receive this form of relief. If a non-citizen can voluntarily depart rather than be deported, "he or she avoids extended detention pending completion of travel arrangements; is allowed to choose when to depart (subject to certain constraints); and can select the country of destination. And, of great importance, by departing voluntarily the alien facilitates the possibility of readmission." Dada v. Mukasey, 554 U.S. 1, 11, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008).

Congress limited eligibility for cancellation or voluntary departure to non-citizens of "good moral character." 8 U.S.C. §§ 1229b(b)(1)(B)

; 1229c(b)(1)(B). Given the presumed difficulty of enumerating traits demonstrating good moral character, the relevant statute defines good moral character by listing the categories of people who lack it. 8 U.S.C. § 1101(f). This list includes, among others, people who have participated in genocide or torture, been convicted of an aggravated felony or several gambling offenses, spent 180 days in custody as a result of a conviction or convictions, lied to obtain a benefit in immigration proceedings, and people who are "habitual drunkard[s]." Id. (containing full list). Any person deemed to lack good moral character may not be considered for discretionary relief.

Ledezma–Cosino is a person who was determined to lack good moral character by virtue of his classification as a "habitual drunkard" under the statutory provision. He is a citizen of Mexico who entered the United States in 1997 without being legally admitted and has been in the country since that time except for a few brief departures. He has eight children, five of whom are United States citizens. He supports his family by working in the construction industry.

He is also a chronic alcoholic or a "habitual drunkard." His medical records state that he has a ten-year history of alcohol abuse, during which he drank an average of one liter of tequila each day. Examining doctors have diagnosed him with acute alcoholic hepatitis

, decompensated cirrhosis of the liver

, and alcoholism. His abuse of alcohol has led to at least one DUI conviction.

Immigration and Customs Enforcement (ICE) detained Ledezma–Cosino in 2008. Over several hearings in front of the Immigration Judge (IJ), he conceded removability but sought cancellation of removal or voluntary departure. The IJ denied relief for several reasons, but the BIA affirmed solely on the ground that Ledezma–Cosino was ineligible because he lacked good moral character as a "habitual drunkard." The BIA recognized that Ledezma–Cosino raised a constitutional argument about this classification but noted that it does not have jurisdiction over constitutional issues.

Following the BIA's denial of his appeal from the IJ, Ledezma–Cosino petitioned for review. After oral argument, we ordered supplemental briefing on the question whether § 1101(f)(1)

violates due process or equal protection on the ground that chronic alcoholism is a medical condition not rationally related to the presence or absence of good moral character.

DISCUSSION

Ledezma–Cosino argues that the denial of his request for cancellation of removal or voluntary departure on the ground that he lacks good moral character because he is "a habitual drunkard" deprives him of due process and equal protection of the law. We first address whether he has a protectable liberty interest for his due process claim and then turn to his equal protection argument.

I

The Government first argues that Ledezma–Cosino is unable to raise a due process or equal protection claim because non-citizens lack a protectable liberty interest in discretionary relief. We agree that non-citizens cannot challenge denials of discretionary relief under the due process clause because they do not have a protectable liberty interest in a privilege created by Congress. Tovar–Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir.2004)

; Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir.2003). An equal protection claim, however, does not require a liberty interest. Sandin v. Conner, 515 U.S. 472, 487 & n. 11, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (holding that prisoner had no liberty interest for the purpose of the due process clause, but that he may nonetheless challenge arbitrary state action under the equal protection clause). Accordingly, Ledezma–Cosino is barred from raising a due process claim but may raise an equal protection challenge.

II.

"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)

. The Supreme Court has long held that the constitutional promise of equal protection of the laws applies to non-citizens as well as citizens. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Although Congress's power to regulate the exclusion or admission of non-citizens is extremely broad, see Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ; Perez–Oropeza v. INS, 56 F.3d 43, 45 (9th Cir.1995), a classification between noncitizens who are otherwise similarly situated nevertheless violates equal protection unless it is rationally related to a legitimate government interest, Jimenez–Angeles v. Ashcroft, 291 F.3d 594, 603 (9th Cir.2002)

. Here, the government interest is in excluding persons of bad moral character. The Government "may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational." City of Cleburne, 473 U.S. at 446, 105 S.Ct. 3249. The absence of a rational relationship between a medical disease and bad moral character therefore renders any classification based on that relationship a violation of the Equal Protection Clause.

At the outset, it is apparent from the face of the statute that Congress has created a classification dividing "habitual drunkards"—i.e. persons with chronic alcoholism

—from persons who do not suffer from the same disease and identifying the former as necessarily lacking good moral character. Although acknowledging the classification, the Government maintains that the statute does not target a status (alcoholism) but rather specific symptoms (habitual and excessive drinking) and that we therefore should not be concerned that the statute classifies a medical condition as constituting bad moral character. The Government is wrong. Just as a statute targeting people who exhibit manic and depressive behavior would be, in effect, targeting people with bipolar disorder and just as a statute targeting people who exhibit delusional conduct over a long period of time would be, in effect, targeting individuals with schizotypal personality disorder, a statute targeting people who habitually and excessively drink alcohol is, in effect, targeting individuals with chronic alcoholism. Cf. Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 689,...