Ledezma-Cosino v. Sessions

• Decision Date: 30 May 2017
• Docket Number: No. 12-73289,12-73289
• Parties: Salomon LEDEZMA-COSINO, aka Cocino Soloman Ledesma, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

857 F.3d 1042

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

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 12-73289

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc January 18, 2017, San Francisco, California

Filed May 30, 2017

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.

Concurrence by Judge Kozinski ;

Concurrence by Judge Watford ;

Dissent by Chief Judge Thomas

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 required to be established, is, or was—

(1) a habitual drunkard[.]

Id. § 1101(f).

In his opening brief to this court, Petitioner argued that substantial evidence does not support the agency's finding that he was a "habitual drunkard." He also argued that, under due process principles, the statutory "habitual drunkard" provision is unconstitutionally vague. The three-judge panel ordered supplemental briefing on additional constitutional issues, including whether the statutory provision violates equal protection principles. We address those three issues in turn.²

A. Substantial evidence supports the finding that Petitioner was a "habitual drunkard."

The immigration statutes do not define the term "habitual drunkard." "When a statute does not define a term, we generally interpret that term by employing the ordinary, contemporary, and common meaning of the words that Congress used." Arizona v. Tohono O'odham Nation , 818 F.3d 549, 556 (9th Cir. 2016) (internal quotation marks omitted). The ordinary meaning of "habitual drunkard" is a person who regularly drinks alcoholic beverages to excess. See, e.g. , Black's Law Dictionary 587 (4th ed. 1951) (defining "habitual drunkard" as "[h]e is a drunkard whose habit it is to get drunk; whose ebriety has become habitual," citing a case that refers to a person who has been proved to be repeatedly drunk within a limited period); Black's Law Dictionary 607, 827 (10th ed. 2014) (defining "habitual drunkard" as, among other things, "[s]omeone who habitually consumes intoxicating substances excessively; esp., one who is often intoxicated").

Notably, not all alcoholics are habitual drunkards. As the government emphasizes in its brief to us, the statute asks whether a person's conduct during the relevant time period meets the definition; the person's status as an alcoholic, or not, is irrelevant to the inquiry. We know that Congress did not intend to equate "habitual drunkard" with "alcoholic" because, elsewhere in the statute, Congress used the term "alcoholic." See 8 U.S.C. § 1101(f)(1) (1952) (defining those who lack "good moral character" for certain purposes to include "habitual drunkard[s]"); 8 U.S.C. § 1182(a)(5) (1952) (defining excludable aliens to include "[a]liens who are narcotic drug addicts or chronic alcoholics"); SEC v. McCarthy , 322 F.3d 650, 656 (9th Cir. 2003) ("It is a well-established canon of statutory interpretation that the use of different words or terms within a statute demonstrates that Congress intended to convey a different meaning for those words.").

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.³

The dissenting opinion argues that the term "habitual drunkard" encompasses only those who "cause[ ] harm to other persons or the community." Dissent at 1058. We need not decide whether "public harm" is a necessary component of the "habitual drunkard" definition. 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.

B. The statutory "habitual drunkard" provision is not unconstitutionally vague .

A statute is unconstitutionally vague if it "is so standardless that it authorizes or encourages seriously discriminatory enforcement" or if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited." United States v. Williams , 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). As just noted, the term "habitual drunkard" readily lends itself to an objective factual inquiry. 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. Because Petitioner has engaged in conduct that is clearly covered, he "cannot complain of the vagueness of the law as applied to the conduct of others." Holder v. Humanitarian Law Project , 561 U.S. 1, 19, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (...