Salomon Ledezma-Cosino v. Loretta E. Lynch

819 F.3d 1070, 2016 WL 1161260, 2016 U.S. App. LEXIS 5500
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 24, 2016
Docket12-73289
StatusPublished
Cited by6 cases

This text of 819 F.3d 1070 (Salomon Ledezma-Cosino v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salomon Ledezma-Cosino v. Loretta E. Lynch, 819 F.3d 1070, 2016 WL 1161260, 2016 U.S. App. LEXIS 5500 (9th Cir. 2016).

Opinions

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 [1073]*1073that, 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 reviéw. 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)(l)(B); 1229c(b)(l)(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.

Ledezmar-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 cirrho[1074]*1074sis 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 remova-bility 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 reviéw. 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 fpr 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.

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819 F.3d 1070, 2016 WL 1161260, 2016 U.S. App. LEXIS 5500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salomon-ledezma-cosino-v-loretta-e-lynch-ca9-2016.