                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 SALOMON LEDEZMA-COSINO, AKA                     No. 12-73289
 Cocino Soloman Ledesma,
                        Petitioner,               Agency No.
                                                 A091-723-478
                     v.

 LORETTA E. LYNCH, Attorney                        OPINION
 General,
                       Respondent.


          On Petition for Review of an Order of the
              Board of Immigration Appeals

                    Argued and Submitted
             July 10, 2015—Pasadena, California

                     Filed March 24, 2016

 Before: Stephen Reinhardt and Richard R. Clifton, Circuit
        Judges and Miranda M. Du,* District Judge.

                 Opinion by Judge Reinhardt;
                  Dissent by Judge Clifton




 *
   The Honorable Miranda M. Du, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
2                  LEDEZMA-COSINO V. LYNCH

                           SUMMARY**


                            Immigration

    The panel granted Salomon Ledezma-Cosino’s petition
for review of the Board of Immigration Appeals’ decision
finding him ineligible for cancellation of removal or
voluntary departure because he lacked good moral character
as a “habitual drunkard” under 8 U.S.C. § 1101(f)(1).

    The panel held that Ledezma-Cosino is barred from
raising a due process claim, but he could bring an equal
protection challenge because it does not require a liberty
interest. The panel held that § 1101(f)(1) is unconstitutional
under the Equal Protection Clause because there is no rational
basis to classify people afflicted by chronic alcoholism as
innately lacking good moral character. The panel remanded
for further proceedings in light of the opinion.

    Dissenting, Judge Clifton wrote that the opinion
disregards the legal standard to be applied, and that
§ 1101(f)(1) should easily clear the very low bar of the
rational basis test. Judge Clifton would find that the majority
opinion includes several false legal premises, and it relies
upon the false factual dichotomy that diagnosis of chronic
alcoholism as “medical” means there can be no element of
drunkenness subject to free will or susceptible to a moral
evaluation.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                LEDEZMA-COSINO V. LYNCH                      3

                         COUNSEL

Nora E. Milner (argued), Milner & Markee, LLP, San Diego,
California, 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.


                         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.
4               LEDEZMA-COSINO V. LYNCH

    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 (2008).
                LEDEZMA-COSINO V. LYNCH                       5

     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
6               LEDEZMA-COSINO V. LYNCH

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
                LEDEZMA-COSINO V. LYNCH                      7

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 (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 (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 (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 (1977); Perez-Oropeza v. INS,
56 F.3d 43, 45 (9th Cir. 1995), a classification between non-
citizens 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
8               LEDEZMA-COSINO V. LYNCH

the distinction arbitrary or irrational.” City of Cleburne,
473 U.S. at 446. 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 (2010) (declining to
distinguish between status and conduct in cases in which the
conduct was intertwined with the status). The Government’s
argument does not in fact advance the resolution of the issue
before us. It simply states the obvious. Every person who is,
by definition, a habitual drunkard will regularly exhibit the
symptoms of his disease by drinking alcohol excessively. See
Black’s Law Dictionary (10th ed. 2009) (defining “habitual
                LEDEZMA-COSINO V. LYNCH                       9

drunkard” as “someone who consumes intoxicating
substances excessively; esp., one who is often intoxicated,”
and “[a]n alcoholic”).

    Given the classification in the statute, the question
becomes whether Congress’s disparate treatment of
individuals with alcoholism is “rationally related to a
legitimate state interest” in denying discretionary relief to
individuals who lack good moral character. Ariz. Dream Act
Coal. v. Brewer, 757 F.3d 1053, 1065 (9th Cir. 2014). In
other words, is it rational for the government to find that
people with chronic alcoholism are morally bad people solely
because of their disease?

    The answer is no. Here, the Government concedes that
alcoholism is a medical condition, as we have long
recognized to be the case. Griffis v. Weinberger, 509 F.2d
837, 838 (9th Cir. 1975) (“The proposition that chronic acute
alcoholism is itself a disease, ‘a medically determinable
physical or mental impairment,’ is hardly debatable today.”).
Like any other medical condition, alcoholism is undeserving
of punishment and should not be held morally offensive.
Powell v. Texas, 392 U.S. 514, 549–51 (1968) (White, J.,
concurring) (describing chronic alcoholism as a “disease” and
stating that “the chronic alcoholic with an irresistible urge to
consume alcohol should not be punishable for drinking or for
being drunk”). Although people with alcoholism continue to
face stigma, “[p]rivate biases may be outside the reach of the
law, but the law cannot, directly or indirectly, give them
effect.” City of Cleburne, 473 U.S. at 448 (quoting Palmore
v. Sidoti, 466 U.S. 429, 433 (1984)). We are well past the
point where it is rational to link a person’s medical disability
with his moral character.
10              LEDEZMA-COSINO V. LYNCH

    The Government first argues that persons suffering from
alcoholism are morally blameworthy because they simply
lack the motivation to overcome their disease. The study on
which the Government relies, W.R. Miller, Motivation for
Treatment: A Review With Special Emphasis on Alcoholism,
98 Psychological Bulletin 84, (1985) (Ex. A), does not
support the proposition that alcoholics lack motivation. The
study actually refutes the proposition urged by the
Government, noting that the “trait model,” according to
which alcoholics employ defense mechanisms because they
lack sufficient motivation to stop drinking,

       ha[s] failed to find support in the empirical
       literature. Extensive searches for “the
       alcoholic personality” have revealed few
       definitive traits or patterns typical of
       alcoholics beyond those directly attributable
       to the effects of overdrinking. The character
       defense mechanism of denial has been found
       to be no more frequent among alcoholics than
       among nonalcoholics.

Id.     Put differently, the theory that alcoholics are
blameworthy because they could simply try harder to recover
is an old trope not supported by the medical literature; rather,
the inability to stop drinking is a function of the underlying
ailment.

    The Government’s position to the contrary has deplorable,
troubling, and wholly unacceptable implications. Taking the
Government’s logic as true, a disproportionate number of
today’s veterans, many of whom suffer from Post Traumatic
Stress Disorder, would lack good moral character because
they are consumed by—and cannot overcome—their
                LEDEZMA-COSINO V. LYNCH                    11

alcoholism. See Andrew Saxon, Returning Veterans with
Addictions, Psychiatric Times (July 14, 2011),
http://www.psychiatrictimes.com/military-mental-health/
returning-veterans-addictions/ (noting that 12% to 15% of
recently deployed veterans to Iraq tested positive for alcohol
problems); Thomas Brinson & Vince Treanor, Vietnam
Veterans and Alcoholism, The VVA Veteran (August 1984),
http://www.vva.org/archive/TheVeteran/2005_03/
feature_alcoholism.htm (“[Thirty-six] percent of the Vietnam
veterans studied demonstrated alcoholism or significant
alcohol-related problems which could develop into
alcoholism.”); National Center for PTSD, Department of
Veterans Affairs, http://www.ptsd.va.gov/public/
problems/ptsd_substance_abuse_veterans.asp (noting that
PTSD and substance abuse often occur simultaneously in
veterans and that 1 in 10 returning soldiers from Iraq and
Afghanistan seen at Veterans Affairs hospitals have a
substance abuse problem); Magdalena Cérda et al., Civilian
Stressors Associated with Alcohol Use Disorders in the
National Guard, 47 Am. J. of Preventative Med. 461 (2014)
(noting that soldiers in the National Guard have double the
rate of alcohol abuse and linking this high rate to civilian
stressors—including family disruption, problems with health
insurance, and legal problems—caused by intermittent
deployment).      A disproportionate number of Native
Americans similarly would be classified as lacking good
moral character under the Government’s theory. See RJ
Lamarine, Alcohol Abuse Among Native Americans, 13 J.
Community Health 143, 143 (1988) (“Epidemiological data
indicate that elevated morbidity and mortality attributable to
alcohol abuse among [Native Americans] remain at epidemic
levels.”); Palash Ghoash, Native Americans: The Tragedy of
Alcoholism, International Business Times (Feb. 11, 2012),
http://www.ibtimes.com/native-americans-tragedy-
12              LEDEZMA-COSINO V. LYNCH

alcoholism-214046 (“According to the Indian Health
Services, the rate of alcoholism among Native Americans is
six times the U.S. average.”); Patricia Silk-Walker et al.,
Alcoholism, Alcohol Abuse, and Health in American Indians
and Alaska Natives, 1 Am. Indian and Alaska Native Mental
Health Res. 65 (1988) (“[Four] of the top 10 causes of death
among American Indians are attributable in large part to
alcohol abuse . . . .”). Finally, a disproportionate number of
people who are homeless would not only be deprived of the
government assistance they so desperately need but they
would be officially condemned as bad people, undeserving of
such help. Dennis McCarty et al., Alcoholism, Drug Abuse,
and the Homeless, 46 Am. Psychologist 1139 (1991) (citing
credible estimates that alcohol abuse affects 30% to 40% of
homeless persons); Substance Abuse & Mental Health Servs.
Admin., Current Statistics on the Prevalence and
Characteristics of People Experiencing Homelessness in the
United States, at 2 (2011) (same). Surely, the Government
does not seriously assert that the veterans of the wars in
Vietnam, Iraq, and Afghanistan who suffer from chronic
alcoholism, as well as a highly disproportionate number of
Native Americans, and a substantial portion of America’s
homeless population are all people of bad moral character.

    The Government next contends that individuals suffering
from habitual alcoholism have bad moral character because
they “are at an increased risk of committing acts of violence
or self-harm,” citing several studies to the effect that
alcoholism leads to the commission of certain crimes. See
D.W. Webster & J.S. Vernick, Keeping Firearms From Drug
and Alcohol Abusers, 15 Inj. Prev. 425 (2009) (Ex. B)
(arguing that alcohol abusers should be barred from acquiring
firearms because of the increased risk of violence); Phyllis
W. Sharps et al., The Role of Alcohol Use in Intimate Partner
                LEDEZMA-COSINO V. LYNCH                     13

Femicide, 10 Am. J. Addictions 122, 133 (2001) (Ex. C)
(discussing the link between alcohol and intimate partner
violence); Frederick P. Rivara et al., Alcohol and Illicit Drug
Abuse and the Risk of Violent Death in the Home, 278 JAMA
569 (1997) (Ex. D) (noting that alcohol abuse is linked to
being a victim of homicide and suicide); Gary M. McClelland
et al., Alcohol Intoxication and Violent Crime: Implications
for Public Health Policy, 10 Am. J. Addictions 70 (2000)
(Ex. E) (tracing the relation between police encounters and
alcohol). Several of these studies have no link to moral
culpability at all; even the Government would concede that
being a victim of a crime or committing suicide does not
show poor moral character. More important, the link between
alcohol and violence does not make being the victim of the
disease of alcoholism equivalent to possessing poor moral
character. Indeed, although individuals with bipolar disorder
have a lifetime incidence of aggressive behavior 14 to 25
percentage points higher than average and are at greater risk
of self-harm, Jan Volavka, Violence in Schizophrenia and
Bipolar Disorder, 25 Psychiatria Danubina 24, 27 (2013); KR
Jamison, Suicide and Bipolar Disorder, 61 J. Clinical
Psychiatry 47–51 (2000), no one would suggest that people
with bipolar disease lack good moral character. Alcoholism
is no different. On a similar note, the Government points to
state laws that bar individuals with alcoholism from carrying
firearms and policies that bar individuals with alcoholism
from obtaining residence at the U.S. Soldiers’ and Airmen’s
Home as evidence that people with alcoholism pose a
particular moral threat. These examples are irrelevant.
Unlike the statute at issue, these policies are designed for a
different purpose—the avoidance of unnecessary conflict—
14                 LEDEZMA-COSINO V. LYNCH

not to limit activities of alcoholics because they lack good
moral character.1

    The Government last argues that “habitual drunkards have
been the target of laws intending to protect society since the
infancy of the nation” and that such history proves the
rationality of the legislation. History is a useful guide in this
case, but it undercuts rather than buttresses the Government’s
argument. Because of the failure to understand mental
illness, people with mental disabilities have in the past faced
severe prejudice. City of Cleburne, 473 U.S. at 438. The
very article the Government cites points to a darker origin for
the targeting of habitual drunkards by immigration laws. The
article contends that the laws, passed in the mid-1950s,
“operated as forms of social control over immigrants and
were driven by economic, political and xenophobic impulses”
rather than a concern over moral character. Jayesh Rathod,
Distilling Americans: The Legacy of Prohibition on U.S.
Immigration Law, 51 Hous. L. Rev. 781, 846 (2013); see also
id. at 823. As we recently learned in the context of laws
discriminating on the basis of sexual orientation, “new
insights and societal understandings can reveal unjustified
inequality . . . that once passed unnoticed and unchallenged.”
Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015). These
new insights are particularly common in the field of mental


   1
     What actions may be taken to limit the possibility that individuals
suffering from chronic alcoholism will commit criminal acts is another
question, one not necessary for us to consider here, although banning them
from possessing firearms or driver’s licenses are obvious areas for
consideration. Similarly, when or how persons with chronic alcoholism
may be punished for criminal acts committed while in an alcoholic state
is another question to be considered elsewhere. None of this has anything
to do, however, with whether individuals suffering from the disease of
alcoholism are innately without good moral character.
                LEDEZMA-COSINO V. LYNCH                      15

health, where the Supreme Court has shifted from upholding
sterilization of the mentally ill, notoriously declaring that
“[t]hree generations of imbeciles are enough,” Buck v. Bell,
274 U.S. 200, 207 (1928), to deploring the “grotesque
mistreatment” of those with intellectual and mental
disabilities, City of Cleburne, 473 U.S. at 438. Here, the over
half-century that has passed since the “habitual drunkard”
clause took effect has provided similar new insights in
treating alcoholism as a disease rather than a character defect.

    If anything, history tells us that animus was the impetus
behind the law. That animus, of course, “is not a legitimate
state interest.” Ariz. Dream Act, 757 F.3d at 1067 (citing
Romer v. Evans, 517 U.S. 620, 634 (1996)). We have also
been taught through the passage of time that classifying
alcoholics as evil people, rather than as individuals suffering
from a disease, is neither rational nor consistent with our
fundamental values. In sum, the Government’s reliance on
history not only fails to support the singling out of chronic
alcoholics as without moral character but tells us that such a
classification is violative of the Equal Protection Clause of
our Constitution.

                      CONCLUSION

    There is no rational basis for classifying persons afflicted
by chronic alcoholism as persons who innately lack good
moral character. As such, we hold 8 U.S.C. § 1101(f)(1)
unconstitutional, vacate the BIA’s decision, and remand for
further proceedings consistent with this opinion.

   VACATED and REMANDED.
16               LEDEZMA-COSINO V. LYNCH

CLIFTON, Circuit Judge, dissenting:

    The words “equal protection” did not appear in the
opening brief filed on behalf of Petitioner Solomon Ledezma-
Cosino. Given that, it is not surprising that they did not
appear in the government’s answering brief, either. Ledezma
did not file a reply brief. So how did the issue arise?

    The argument deemed persuasive in the majority opinion
is an argument of the majority’s own creation. Ledezma did
not make that argument until urged to do so by the majority
at oral argument and via a subsequent order for supplemental
briefing. Perhaps that pride of authorship helps to explain
why the majority finds the argument persuasive, despite its
obvious and multiple flaws.

    Our decision in this case disregards the legal standard to
be applied. The “rational basis” test sets a very low bar, and
Congress has exceptionally broad power in determining
which classes of aliens may remain in the country. The
statute at issue here, 8 U.S.C. § 1101(f)(1), should easily clear
that bar.

    It does not, in the majority’s view, only because the
majority relies upon a false factual dichotomy – that
diagnosis of the condition of chronic alcoholism as “medical”
means that there can be no element of drunkenness that is
subject to free will or susceptible to a moral evaluation. The
majority then goes on to hold that it is irrational for Congress
to have reached a conclusion on that subject contrary to the
majority’s own view. Specifically, the majority assumes that
a person found to be a habitual drunkard is in that state only
because of factors beyond his control, such that it is irrational
to hold him accountable for it. But chronic alcoholics do not
                 LEDEZMA-COSINO V. LYNCH                       17

have to be habitual drunkards. Ledezma himself puts the lie
to the majority’s assumed premise, because despite his
alcoholism, and to his credit, the record in this case tells us
that he ultimately overcame that condition and stopped
drinking.

    I respectfully dissent.

I. The Legal Standard

    The majority opinion concludes that 8 U.S.C. § 1101(f)(1)
fails the rational basis test. That means that the statute, in the
words of the majority opinion, at 7–8, is not “rationally
related to a legitimate government interest” and its
“‘relationship to an asserted goal is so attenuated as to render
the distinction arbitrary or irrational.’” (quoting City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985)).

    The rational basis test does not set a standard that is tough
to satisfy. A legislative classification “must be upheld
against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis
for the classification.” F.C.C. v. Beach Communications,
Inc., 508 U.S. 307, 313 (1993). Federal statutes enjoy “a
strong presumption of validity,” “and those attacking the
rationality of the legislative classification have the burden ‘to
negative every conceivable basis which might support it[.]’”
Id. at 314–15 (quoting Lehnhausen v. Lake Shore Auto Parts
Co., 410 U.S. 356, 364 (1973)). Rational basis review does
not provide “a license for courts to judge the wisdom,
fairness, or logic of legislative choices.” Id. at 313.

   The rational basis test is particularly forgiving in the
context of immigration policy. “[O]ver no conceivable
18              LEDEZMA-COSINO V. LYNCH

subject is the legislative power of Congress more complete
than it is over the admission of aliens.” Fiallo v. Bell,
430 U.S. 787, 792 (1977). Likewise, “the right to terminate
hospitality to aliens,” and “the grounds on which such
determination shall be based, have been recognized as matters
solely for the responsibility of the Congress and wholly
outside the power of this Court to control.” Id. “In the
exercise of its broad power over naturalization and
immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens.” Demore v. Kim,
538 U.S. 510, 511 (2003).

II. False Factual Premise

    The majority begins with a false factual dichotomy – that
diagnosis of the condition of chronic alcoholism as “medical”
means that there can be no element of drunkenness that is
subject to free will or susceptible to a moral evaluation. But
if chronic alcoholics really had no ability to control their
conduct, then such individuals would never be able to stop
drinking. We know that is not the case, as Ledezma himself
laudably demonstrated. Chronic alcoholics do not have to be
habitual drunkards.

    The majority, in disregard of the standard of review,
discredited scientific and behavioral evidence tending to
establish the volitional component of alcoholism that is
properly subject to moral evaluation. One study cited by the
government collected reams of scientific literature addressing
the dominant view that “motivation” is a critical component
of positive treatment outcomes. See William R. Miller,
Motivation for Treatment: A Review With Special Emphasis
on Alcoholism, 98 Psychological Bulletin 84 (1985)
(recounting survey evidence that among alcoholism treatment
                LEDEZMA-COSINO V. LYNCH                      19

personnel “75% believed patient motivation to be important
to recovery, and 50% viewed it as essential”). The study
noted that “motivation is frequently described as a
prerequisite and a sine qua non for treatment, without which
the therapist can do nothing[.]” Id. Endorsing that concept,
the author concluded that motivation could be increased by
“setting demanding but attainable goals.” Id. at 99. Put
differently, the Miller study showed that chronic alcoholics
who received consistent reinforcement for their daily decision
not to drink were more likely to avoid relapsing into habitual
intoxication.

    The majority opinion, at 10, discredits reliance on the
Miller study by mischaracterizing the government’s
argument. The majority argues that the study does not
support the proposition that alcoholics lack motivation and
notes that the study discredits what is known as the “trait
model.” But the government never argued that alcoholics
lack motivation or that they fit a specific trait model. It
argued only that habitual drunkenness has a volitional
component. That point is amply supported by the Miller
study and by the voluminous literature it discussed. By
contrast, the position favored by the majority – that alcoholics
have no ability to refrain from habitual drunkenness – finds
very little support in the scientific literature. See, e.g., Am.
Psych. Assoc., Diagnostic and Statistical Manual of Mental
Disorders 490, 493 (5th ed. 2013) (explaining that “[a]lcohol
use disorder is often erroneously perceived as an intractable
condition”).

    Even if the issue were debatable, that does not provide a
license for the majority to override Congress. “[A] legislative
choice is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence or
20                 LEDEZMA-COSINO V. LYNCH

empirical data.” Beach Communications, 508 U.S. at 315.
Congress could have rationally speculated that chronic
alcoholism has a volitional component. Therefore, it could
rationally exclude habitual drunkards from discretionary
deportation benefits because such individuals engage in
volitional conduct that imposes a significant burden on public
health and safety.

III.      False Legal Premises

       The majority also engages several false legal premises.

       A. The Majority Misidentifies the Goal of the Statute

    The majority opinion, at 9, identifies the central question
in this case as whether it is “rational for the government to
find that people with chronic alcoholism are morally bad
people solely because of their disease[.]” But that is
decidedly not the question that is before the court. The real
question is whether “there is any reasonably conceivable state
of facts that could provide a rational basis for” denying
discretionary deportation benefits to habitual drunkards.
Beach Communications, 508 U.S. at 313. The answer should
be obvious. Congress has unquestionable power to exclude
certain groups of aliens regardless of any moral culpability.
See Kim, 538 U.S. at 521–22. This is particularly true where
the identified group threatens or even simply burdens
institutions of public health and safety.

    Such is the case here. The impacts of alcohol abuse on
crime and public safety are “extensive and far-reaching.”
U.S. Dep’t of Justice, Alcohol and Crime 2 (1998). “About
3 million violent crimes occur each year in which victims
perceive the offender to have been drinking at the time of the
                LEDEZMA-COSINO V. LYNCH                     21

offense.” Id. at 5. “Two-thirds of victims who suffered
violence by an intimate . . . reported that alcohol had been a
factor. Among spouse victims, 3 out of 4 incidents were
reported to have involved an offender who had been
drinking.” Id. Approximately “40% of individuals in the
United States experience an alcohol-related adverse event at
some time in their lives, with alcohol accounting for up to
55% of fatal driving events.” DSM V, supra, at 496.

    The majority responds, at 13, by invoking its false
framework. It argues that “the link between alcohol and
violence does not make being the victim of the disease of
alcoholism equivalent to possessing poor moral character.”
That is irrelevant to the real question in this case, which is
whether Congress had a rational basis for excluding habitual
drunkards from discretionary deportation benefits. Clearly it
did. The demonstrable link between alcohol use and violence
firmly establishes the rationality of 8 U.S.C. § 1101(f).

   B. A Medical Condition Is Not a Constitutional Talisman

    Another false legal premise is the majority’s apparent
view that Congress could not rationally exclude a category of
aliens on the basis of a medical condition. But the
government’s ability to exclude individuals is “exceptionally
broad.” Fiallo v. Bell, 430 U.S. at 792. Does the majority
seriously doubt the government’s ability to exclude
individuals infected with the Ebola virus or individual
carriers of antibiotic-resistant bacteria from this country? Or
perhaps the majority believes that because a condition is
medically describable, it is impervious to moral judgment.
But we know that cannot be the case. Pedophilia is a
medically describable condition that can overwhelm an
individual’s decision-making capacity, and yet nothing would
22              LEDEZMA-COSINO V. LYNCH

or should prevent Congress from excluding known
pedophiles under the framework of moral character. In short,
the bare fact that a condition is medically describable does
not create a constitutional talisman that exempts the afflicted
from Congress’s legitimate immigration policies.

     C. Ledezma Failed to Identify Similarly Situated Groups

    At the majority’s encouragement, Ledezma submitted a
supplemental brief arguing that it was irrational to distinguish
between habitual drunkards and individuals with heart
disease, cancer, diabetes, syphilis, and HIV. But these groups
are not similarly situated to habitual drunkards “in those
respects relevant to [Congress’s] policy.” Arizona Dream Act
Coalition v. Brewer, 757 F.3d 1053, 1064 (9th Cir. 2014). At
a broad level, there is no evidence that the undifferentiated
class of individuals with “medical diseases” are responsible
for 3 out of 4 instances of spousal abuse, 55% of fatal driving
events, or 3 million violent crimes per year. Even descending
to the particulars, Ledezma proffered no evidence that
individuals suffering from the conditions that he listed pose
the same kind of threat to public safety as habitual drunkards.
Because these groups are not similarly situated with respect
to the government’s legitimate policy interest, Congress had
a rational basis for treating habitual drunkards differently.

    Moreover, nobody chooses to have heart disease, cancer,
diabetes, or other such diseases. There is a volitional element
to habitual drunkenness that distinguishes that condition from
diseases generally. To be sure, there are connections between
lifestyle choices and some other medical conditions, such as
between smoking and lung cancer. But it is not irrational for
Congress to view that connection as substantially more
                LEDEZMA-COSINO V. LYNCH                     23

attenuated or to decide to treat those afflicted with those
diseases differently than those who are habitual drunkards.

    The majority, dissatisfied with Ledezma’s selection of
control groups and undeterred by the fact that it is the
petitioner’s burden to negative every conceivable basis in
support of the statute, argues, at 13, that it is irrational to
distinguish between chronic alcoholics and individuals with
bipolar disorder, because individuals with bipolar disorder
also have an increased incidence of aggressive and violent
behavior. But habitual drunkards are distinguishable from
individuals with bipolar disorder. Whereas the contribution
of alcohol to crimes of violence is substantial, “the
contribution of people with mental illnesses to overall rates
of violence is small,” and “the magnitude of the relationship
is greatly exaggerated in the minds of the general
population.” Institute of Medicine, Improving the Quality of
Health Care for Mental and Substance-Use Conditions 103
(2006). Congress had a rational basis for distinguishing
between the mentally ill and habitual drunkards – habitual
drunkards pose a far more serious threat to public health and
safety.

    Even if the classification chosen by Congress was
arguably under-inclusive, that is not a rational basis problem.
A statute does not fail rational-basis review merely because
it was “not made with mathematical nicety or because in
practice it results in some inequality.” Heller v. Doe,
509 U.S. 312, 321 (1993) (quotation marks and citation
omitted).

    In sum, none of the groups that Ledezma cited are
similarly situated to habitual drunkards in the respects
relevant to Congress’s exclusion.
24              LEDEZMA-COSINO V. LYNCH

     D. The Majority Applies Heightened Scrutiny By Stealth

    The rational basis test sets out a standard that is not
difficult to satisfy. Statutory classifications enjoy “a strong
presumption of validity.” Beach Communications, 508 U.S.
at 314. “[T]hose attacking the rationality of the legislative
classification have the burden to negative every conceivable
basis that might support it[.]” Id. at 315 (internal quotation
marks and citation omitted). Courts must refrain from
engaging in “courtroom fact-finding” and must indulge every
reasonable inference in support of a statute. Id. “Where there
are plausible reasons for Congress’ action, our inquiry is at an
end.” Id. at 313–14 (internal quotation marks and citation
omitted).

    These standards are common grist for the appellate mill,
yet the majority opinion bypasses them almost entirely.
Nowhere does the majority apply a presumption of
constitutionality. Nowhere does it hold the Petitioner to his
burden of negating every conceivable rationale offered in
support of the law. It rejects as unpersuasive the scientific
and behavioral data indicating that overcoming chronic
alcoholism involves free will. The majority opinion is cast in
the language of rational basis review, but it sidesteps the
essential question, which is whether Congress had a rational
basis for excluding habitual drunkards from discretionary
deportation benefits.

    The majority prefers to focus on Congress’s manner of
acting, i.e., its use of a moral character framework. But
whether Congress chose the best method to do something that
it undoubtedly has the authority to do is the stuff of narrow
tailoring. In short, the majority opinion has applied
heightened scrutiny by stealth, and in so doing, has usurped
                LEDEZMA-COSINO V. LYNCH                     25

Congressional authority in an area where that authority is at
its apex.

IV.    The Pointlessness of This Decision

    I cannot help but wonder about the point of the exercise
undertaken by the majority opinion. That Congress has the
power to exclude aliens with medical conditions is
unquestioned, even though there is no fault or moral
component to most diseases. There are reasons for Congress
to decide that the country should not accept or harbor sick
aliens who might infect others or whose treatment might
impose heavy costs. There are reasons for Congress to decide
that habitual drunkards in particular should be excluded
because of the harm they might do to others and the heavy
costs that their presence might impose on this country.
Nobody has contended that it would be irrational for
Congress directly to provide that aliens who are habitual
drunkards are ineligible for cancellation of removal. The
majority simply doesn’t like the way that Congress has
accomplished that result, by way of the requirement for “good
moral character.” But what good does the majority opinion
really accomplish by preventing Congress from doing
something that it surely could do directly? I do not see the
point.

V. Conclusion

    The rational basis test sets a very low bar, and Congress
has exceptionally broad power in determining which classes
of aliens may remain in the country. The statute at issue here,
8 U.S.C. § 1101(f)(1), should easily clear that bar. The
majority holds that it does not by subverting the standards of
26               LEDEZMA-COSINO V. LYNCH

rational basis review to substitute its policy preference for
that of Congress.

    Properly applied, rational basis review “is a paradigm of
judicial restraint.” Beach Communications, 508 U.S. at 313.
Regrettably, the majority opinion is not. It is an unwarranted
intrusion on separation of powers, and it demands correction.

     I respectfully dissent.
