                   FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

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

              v.
                                          OPINION
JEFFERSON B. SESSIONS III,
Attorney General,
                  Respondent.


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

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

                    Filed May 30, 2017

    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.

                Opinion by Judge Graber;
             Concurrence by Judge Kozinski;
             Concurrence by Judge Watford;
             Dissent by Chief Judge Thomas
2                LEDEZMA-COSINO V. SESSIONS

                            SUMMARY*


                            Immigration

    The en banc court denied Ledezma-Cosino’s petition for
review of the Board of Immigration Appeals’ decision
concluding that he was ineligible for cancellation of removal
on the ground that he failed to establish good moral character
because, during the requisite period, he had been a “habitual
drunkard.”

    In Part A, the en banc court held that substantial evidence
supported the agency’s finding that Ledezma-Cosino was a
“habitual drunkard.” In so concluding, the en banc court
noted that the ordinary meaning of the term refers to a person
who regularly drinks alcoholic beverages to excess, and noted
evidence of Ledezma-Cosino’s more-than-ten-year history of
alcohol abuse, conviction for driving under the influence, and
his daughter’s testimony that his liver failed from drinking.

    In Part B, the en banc court held that the term “habitual
drunkard” was not unconstitutionally vague because it readily
lends itself to an objective factual inquiry. The en banc court
also concluded that whatever uncertainty the term may raise
in borderline cases, a person of ordinary intelligence would
have notice that the term encompasses Ledezma-Cosino’s
conduct.

    In Part C, a plurality of the en banc court concluded that
the statutory “habitual drunkard” provision does not violate

    *
      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. SESSIONS                     3

equal protection. Applying ordinary rational basis review, the
plurality concluded that Congress reasonably could have
concluded that, because persons who regularly drink
alcoholic beverages to excess pose increased risks to
themselves and to others, cancellation of removal was
unwarranted.

    Concurring, Judge Kozinski, joined by Judges Bea and
Ikuta, disagreed that ordinary rational basis review applies to
decisions to exclude aliens. Under the plenary power
doctrine, Judge Kozinski would overrule circuit precedent
applying the domestic equal protection test to foreign
relations. Judge Kozinski would hold that the government’s
burden is even lighter than rational basis in that the court
should approve immigration laws that are facially legitimate
without probing or testing possible justifications. Judge
Kozinski would deny the petition for review summarily under
this facially legitimate standard.

    Concurring, Judge Watford, joined by Judges McKeown
and Clifton, agreed that the statutory classification is subject
to rational basis review and noted that the question whether
the volitional component of excessive drinking is weighty
enough to warrant treating habitual drunkards as morally
blameworthy for their conditions is a policy question for
Congress. Observing that the provision at issue is a
conclusive presumption, Judge Watford noted that the
Supreme Court has long held that conclusive presumptions
survive rational basis review even when the presumption
established is both over- and underinclusive. In response to
the suggestion that it is irrational to treat habitual drunkards
as lacking good moral character while not treating those
suffering other medical conditions as morally blameworthy,
Judge Watford wrote that Congress could rationally conclude
4             LEDEZMA-COSINO V. SESSIONS

that habitual drunkards are not similarly situated to those
suffering from other medical conditions.

    Dissenting, Chief Judge Thomas, joined by Judge
Christen, observed that Ledezma-Cosino was a recovering
alcoholic, diagnosed with the disease during the qualifying
period for good moral character. Analyzing the plain
language of the statute, its structure, and its legislative
history, Chief Judge Thomas concluded that the phrase
“habitual drunkard” is not synonymous with “alcoholic,” and
thus, a diagnosis of alcoholism is insufficient to trigger the
“habitual drunkard” provision and render a petitioner
categorically ineligible for cancellation of removal. Chief
Judge Thomas would construe the “habitual drunkard”
provision to apply to one who habitually abuses alcohol and
whose alcohol abuse causes harm to other persons or the
community. Accordingly, Chief Judge Thomas would grant
the petition for review and remand to the BIA to reconsider
the case under a proper construction of the law, and would
not reach the constitutional questions raised in the case.


                        COUNSEL

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
             LEDEZMA-COSINO V. SESSIONS               5

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.
6                 LEDEZMA-COSINO V. SESSIONS

                               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


    1
       Judges Graber, Clifton, Murguia, and Owens join this opinion in
full. Judges Kozinski, McKeown, Bea, Ikuta, and Watford join Parts A
and B only. Accordingly, this opinion states the view of the court with
respect to Parts A and B, and it states a plurality view with respect to Part
C. All nine judges who are not dissenting concur in the result.
              LEDEZMA-COSINO V. SESSIONS                   7

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).
8                LEDEZMA-COSINO V. SESSIONS

                       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).
               LEDEZMA-COSINO V. SESSIONS                     9

    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”).



    2
       The government advances alternative grounds to reject the
constitutional challenges. We need not, and do not, reach them.
10                LEDEZMA-COSINO V. SESSIONS

    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


     3
     The dissenting opinion begins with a false premise: that the BIA
denied Petitioner relief “simply because he is a recovering alcoholic.”
Dissent at 24. Fairly read, the BIA’s opinion relied solely on Petitioner’s
conduct. For example, the BIA noted that Petitioner “admitted to drinking
                  LEDEZMA-COSINO V. SESSIONS                            11

    The dissenting opinion argues that the term “habitual
drunkard” encompasses only those who “cause[] harm to
other persons or the community.” Dissent at 34. 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
       unconstitutionallyvague.

    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 (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


excessively for the 1-year period leading up to his 2010 hospital visit, but
minimized his behavior outside of this period.” (Emphasis added.)
Moreover, whether Petitioner stopped drinking after the relevant 10-year
statutory period is irrelevant as a matter of law.
12             LEDEZMA-COSINO V. SESSIONS

vagueness of the law as applied to the conduct of others.”
Holder v. Humanitarian Law Project, 561 U.S. 1, 19 (2010)
(internal quotation marks omitted). Because the statute is not
unconstitutionally vague under the criminal law standard, it
necessarily satisfies any lesser vagueness standard that might
apply in a non-criminal context. See Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498–99 (1982).

     C. The statutory “habitual drunkard” provision does not
        violate equal protection principles.

    “Where, as here, the Congress has neither invaded a
substantive constitutional right or freedom, nor enacted
legislation that purposefully operates to the detriment of a
suspect class, the only requirement of equal protection is that
congressional action be rationally related to a legitimate
governmental interest.” Harris v. McRae, 448 U.S. 297, 326
(1980). “A legislative classification must be wholly irrational
to violate equal protection.” De Martinez v. Ashcroft, 374
F.3d 759, 764 (9th Cir. 2004) (internal quotation marks
omitted). Petitioner bears the burden “to negate every
conceivable basis which might have supported the
[legislative] distinction.” Angelotti Chiropractic, Inc. v.
Baker, 791 F.3d 1075, 1086 (9th Cir. 2015), cert. denied, 136
S. Ct. 2379 (2016) (internal quotation marks omitted).

    Congress reasonably could have concluded that, because
persons who regularly drink alcoholic beverages to excess
pose increased risks to themselves and to others, cancellation
of removal was unwarranted. We see nothing irrational about
that legislative choice, which furthers the legitimate
governmental interest in public safety. Nor does it matter that
Congress has permitted cancellation of removal for other
               LEDEZMA-COSINO V. SESSIONS                    13

groups who may pose similar risks. “[I]n ‘the area of
economics and social welfare, a State does not violate the
Equal Protection Clause merely because the classifications
made by its laws are imperfect.’ A legislature may address a
problem ‘one step at a time,’ or even ‘select one phase of one
field and apply a remedy there, neglecting the others.’”
Jefferson v. Hackney, 406 U.S. 535, 546 (1972) (quoting
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489
(1955)); see also McDonald v. Bd. of Election Comm’rs, 394
U.S. 802, 809 (1969) (“[A] legislature need not run the risk
of losing an entire remedial scheme simply because it failed,
through inadvertence or otherwise, to cover every evil that
might conceivably have been attacked.”).

    Petitioner does not seriously dispute the foregoing
analysis. Instead, he asserts that it is irrational to classify
habitual drunkards as persons who lack good moral character.
Petitioner misunderstands the nature of the equal protection
inquiry.

    The constitutional inquiry is limited to assessing
congressional action. “[T]he only requirement of equal
protection is that congressional action be rationally related to
a legitimate governmental interest.” McRae, 448 U.S. at 326.
“Where there are plausible reasons for Congress’ action, our
inquiry is at an end.” FCC v. Beach Commc’ns, Inc., 508
U.S. 307, 313–14 (1993) (internal quotation marks omitted).

    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
14             LEDEZMA-COSINO V. SESSIONS

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.

    The Supreme Court’s decision in Beach Communications
is instructive on this point. Congress required persons to
obtain a franchise if they wished to operate a “cable system,”
47 U.S.C. § 541, and Congress defined that term to
encompass some facilities but not others, 47 U.S.C. § 522(7).
The Supreme Court addressed an equal protection challenge
to the statutory scheme by asking whether the congressional
action—requiring operators of some facilities to obtain a
franchise but not requiring operators of other facilities to
obtain a franchise—was irrational. Beach Commc’ns, 508
U.S. at 317–20. The Court did not ask whether, in the
abstract, it was rational for Congress to define the term “cable
system” in the manner that Congress had chosen.

    That same approach applies here. We must ask whether
the operative congressional action is rational, not whether the
mere definition of a statutory term is rational. Because the
denial of cancellation of removal to habitual drunkards is
                 LEDEZMA-COSINO V. SESSIONS                           15

rationally related to the legitimate governmental interest in
public safety, Petitioner’s equal protection argument fails.

    Judge Kozinski’s concurring opinion faults us for
applying ordinary rational basis review; the concurrence
asserts that an even more deferential standard applies. But
we have consistently held, citing the same cases that the
concurrence cites, that ordinary rational basis review is the
appropriate standard in the immigration context. See, e.g.,
Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1185 (9th Cir.
2011) (“We review equal protection challenges to federal
immigration laws under the rational basis standard . . . .”);
Ablang v. Reno, 52 F.3d 801, 804 (9th Cir. 1995) (holding
that the deferential test described by the Supreme Court “is
equivalent to the rational basis test typically applied in equal
protection cases”).4 Our sister circuits agree.5 Because
Petitioner’s equal protection fails under the ordinary rational
basis test, this case provides no reason to question that
longstanding approach.

    Petition DENIED.




    4
      Accord Masnauskas v. Gonzales, 432 F.3d 1067, 1071 (9th Cir.
2005); Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. 2002); Ram v.
INS, 243 F.3d 510, 517 (9th Cir. 2001); Friend v. Reno, 172 F.3d 638,
645–46 (9th Cir. 1999); United States v. Viramontes-Alvarado, 149 F.3d
912, 916 (9th Cir. 1998); Wauchope v. U.S. Dep’t of State, 985 F.2d 1407,
1414 n.3 (9th Cir. 1993); United States v. Barajas-Guillen, 632 F.2d 749,
752 (9th Cir. 1980).
    5
      E.g., Ashki v. INS, 233 F.3d 913, 919–20 (6th Cir. 2000); Breyer v.
Meissner, 214 F.3d 416, 422 n.6 (3d Cir. 2000); Azizi v. Thornburgh, 908
F.2d 1130, 1133 & n.2 (2d Cir. 1990).
16             LEDEZMA-COSINO V. SESSIONS

KOZINSKI, Circuit Judge, with whom Circuit Judges BEA
and IKUTA join, concurring.

     The majority analyzes this case as if it involved
governmental conduct in the domestic sphere, but it doesn’t.
The President and Congress have excluded an alien pursuant
to their plenary power over immigration. The Supreme Court
“has firmly and repeatedly endorsed the proposition that
Congress may make rules as to aliens that would be
unacceptable if applied to citizens.” Demore v. Kim, 538
U.S. 510, 522 (2003). We thus owe far more deference here
than in an ordinary domestic context. See Fiallo v. Bell, 430
U.S. 787, 792 (1977).

     For well over a century, the Court has sharply curtailed
review of laws governing the admission or exclusion of aliens
under the plenary power doctrine. The Court has said that
“over no conceivable subject is the legislative power of
Congress more complete than it is over the admission of
aliens.” Kleindienst v. Mandel, 408 U.S. 753, 766 (1972)
(quotation marks and alteration omitted). This is because the
power to exclude or expel is “an inherent and inalienable
right of every sovereign and independent nation.” Fong Yue
Ting v. United States, 149 U.S. 698, 711 (1893). Such power
is inherent because the very idea of nationhood requires the
drawing of thorny lines—between members and non-
members, between admitted and excluded. Our Constitution
is the organizing document of a well-defined polity, not an
international Golden Rule.

    In recent years, the federal courts have been less than
consistent in articulating the strength and scope of the plenary
power doctrine. See Stephen H. Legomsky, Ten More Years
of Plenary Power: Immigration, Congress, and the Courts, 22
                  LEDEZMA-COSINO V. SESSIONS                            17

Hastings Const. L. Q. 925, 930 (1995). Today’s opinion adds
to the uncertainty by applying the domestic equal protection
test to the sphere of foreign relations. That our circuit has
made this error before, as the majority notes, is of no moment
when we are sitting en banc. Our principal duty as an en banc
court is to correct our circuit law when it has gone astray. I
would overrule our precedent and hold that the government’s
burden is even lighter than rational basis: We approve
immigration laws that are facially legitimate without probing
or testing possible justifications. See Fiallo, 430 U.S. at 799
(citing Mandel, 408 U.S. at 770).1

    One reason for the confusion in this area may be that
courts have had difficulty articulating a standard below
ordinary rational basis review, even though the existence of
such a standard—call it “minimally rational basis”—
ineluctably follows from the Supreme Court’s repeated
insistence that Congress can “make rules as to aliens that
would be unacceptable if applied to citizens.” Demore, 538




    1
      Although Fiallo held that this standard is the most probing scrutiny
we may apply to such laws, 430 U.S. at 795, the Supreme Court expressly
left open the question of whether some immigration laws “are so
essentially political in character as to be nonjusticiable,” id. at 793 n.5.
Some Supreme Court cases can be read as so holding. See, e.g., Galvan
v. Press, 347 U.S. 522, 530–31 (1954) (noting that “a whole volume” of
authorities reject the proposition “that the Due Process Clause qualifies
the scope of political discretion heretofore recognized as belonging to
Congress in regulating the entry and deportation of aliens”); Lem Moon
Sing v. United States, 158 U.S. 538, 547 (1895) (“The power of congress
to exclude aliens altogether . . . and to have its declared policy in that
regard enforced exclusively through executive officers, without judicial
intervention, is settled by our previous adjudications.”).
18               LEDEZMA-COSINO V. SESSIONS

U.S. at 522. What could the Supreme Court mean if not that
something less than ordinary rational basis applies?2

    The majority interprets section 1101(f)(1) 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.


     2
       The literature scrutinizing scrutiny is vast. See, e.g., Tara Leigh
Grove, Tiers of Scrutiny in a Hierarchical Judiciary, 14 Geo. J. L. & Pub.
Pol’y 475 (2016); Vicki C. Jackson, Constitutional Law in an Age of
Proportionality, 124 Yale L. J. 3094 (2015); Aziz Z. Huq, Tiers of
Scrutiny in Enumerated Powers Jurisprudence, 80 U. Chi. L. Rev. 575
(2013). I believe our usual tiers—rational, intermediate and strict—are
better understood as rough ordinal concepts rather than hermetically
sealed categories that preempt the field. New categories can join this
ordering: Strict scrutiny emerged in Korematsu v. United States, 323 U.S.
214 (1944); intermediate scrutiny came in Craig v. Boren, 429 U.S. 190
(1976). Other courts and commentators have hinted wryly at mythical
creatures like “rational basis with bite,” “intermediate-intermediate
scrutiny” and “strict scrutiny light.” See Kenji Yoshino, The New Equal
Protection, 124 Harv. L. Rev. 747, 759 (2011); Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753, 791 (1994) (Scalia, J., dissenting);
Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 954 (7th Cir. 2007)
(Evans, J., dissenting). And while the “facially legitimate” standard
sketched in Mandel and Fiallo is necessarily lower than ordinary rational
basis, there may be other ways to describe this same conclusion. For
example, I see no logical difference between saying that something less
than ordinary rational basis applies and saying that the set of acceptable
rational bases is broader in the immigration context than elsewhere.
                 LEDEZMA-COSINO V. SESSIONS                           19

    Judge Watford’s deft concurrence shows why the
difference in standards matters. I agree with him that the
statute draws distinctions between aliens based on moral
judgment.3 But the discrimination here would be far more
problematic if a legislature allocated public housing or
Medicare only to those citizens with “good moral
standing”—and conclusively excluded “habitual drunkards”
from the eligible list. In my view, it’s the near limitless
power of the political branches over immigration and foreign
affairs that puts the statute here beyond cavil.

    Untold masses were turned away at Ellis Island—or
prevented from boarding ships for America—for medical
reasons, my grandfather among them. This was a misfortune
for those turned away, but excluding aliens for reasons
Congress believes sufficient to serve the public welfare is a
nigh-unquestioned power of a sovereign nation. I’m aware of
no country that fails to adhere to this precept. Nor has the
Supreme Court stepped back from it. Until and unless it
does, we have no business applying domestic equal protection
law to political judgments—even foolish ones—made in the
sphere of foreign relations. I would deny the petition
summarily with a citation to Fiallo.




    3
      More broadly, I note that a medical diagnosis does not ipso facto
innoculate one from moral judgment. Plenty of medical conditions,
including alcoholism, are shaped by behavior our society deems volitional.
How we evaluate this volitional component—and draw the line between
determinism and free will—is a question of philosophy, not scientific
inquiry. Morality does not end where diagnosis begins, and it’s scientific
hubris to pretend otherwise.
20             LEDEZMA-COSINO V. SESSIONS

WATFORD, Circuit Judge, joined by McKEOWN and
CLIFTON, Circuit Judges, concurring:

    We took this case en banc to decide whether the
Immigration and Nationality Act’s “habitual drunkard”
provision, 8 U.S.C. § 1101(f)(1), is facially unconstitutional
on the theory that it violates the equal protection component
of the Fifth Amendment’s Due Process Clause. I think the
majority rightly rejects that challenge, but my reasons for
reaching that conclusion differ.

    The statutory classification at issue does not implicate a
fundamental right or target a suspect class, so it is subject to
rational basis review. FCC v. Beach Communications, Inc.,
508 U.S. 307, 313 (1993); Fiallo v. Bell, 430 U.S. 787, 793
n.5 (1977). No one disputes that it is perfectly rational for
Congress to deny cancellation of removal to those who lack
good moral character. See 8 U.S.C. § 1229b(b)(1)(B).
Congress’ judgment on that score is entitled to considerable
deference, given the breadth of its authority to regulate the
admission and exclusion of non-citizens. Fiallo, 430 U.S. at
792. The only question, then, is whether Congress had a
rational basis for establishing a conclusive presumption, not
subject to rebuttal, that habitual drunkards lack good moral
character, which is what § 1101(f)(1) does.

    Conclusive presumptions of this sort are, by their nature,
blunt instruments. No doubt there are individuals who, if
given the opportunity to do so, could establish that they
possess good moral character notwithstanding the fact that
they are or were an habitual drunkard. It may well be that the
petitioner in this case, Salomon Ledezma-Cosino, is one of
those people. But the Supreme Court has long held that
conclusive presumptions survive rational basis review even
               LEDEZMA-COSINO V. SESSIONS                   21

when the presumption established is both over- and
underinclusive. See, e.g., Massachusetts Board of Retirement
v. Murgia, 427 U.S. 307, 316–17 (1976) (per curiam)
(upholding mandatory retirement age of 50 for police
officers); Weinberger v. Salfi, 422 U.S. 749, 776–77 (1975)
(upholding provision denying Social Security benefits to
surviving spouse of wage earner married less than nine
months at time of wage earner’s death). Here, if Congress
could rationally conclude that a substantial number of those
found to be habitual drunkards would also be found, upon
examination, to lack good moral character, then it could
establish the conclusive presumption created by § 1101(f)(1)
simply to avoid the administrative costs that individual
determinations of good moral character would entail. See
Salfi, 422 U.S. at 777.

    I think Congress could rationally conclude that most
habitual drunkards would be found to lack good moral
character if individual determinations were permitted. That
could be true, of course, only if habitual drunkards may in
some sense be deemed morally blameworthy for acquiring
their condition, for it would be irrational to brand someone as
lacking in good moral character due to a medical condition
developed through no fault of their own. In my view,
Congress could rationally deem habitual drunkards to be at
least partially responsible for having developed their
condition. Habitual drunkards are those who have allowed
themselves to become so addicted to alcohol that they can no
longer control their habit of drinking to excess. That loss of
control does not come about overnight; it is acquired as a
result of frequent, repetitive acts of excessive drinking. See,
e.g., Bouvier’s Law Dictionary 489 (William Edward
Baldwin ed., Baldwin’s Century ed. 1948) (defining the term
“habitual drunkard” in this way: “A person given to inebriety
22             LEDEZMA-COSINO V. SESSIONS

or the excessive use of intoxicating drink, who has lost the
power or the will, by frequent indulgence, to control his
appetite for it.”). Drinking to excess with such frequency that
it leads to the loss of one’s ability to refrain from excessive
drinking in the future is conduct that Congress could
rationally view as volitional, and therefore the proper subject
of moral blame.

    None of this is to say that Congress’ decision to regard
habitual drunkards as morally blameworthy for their
condition is a wise one. We know considerably more about
alcohol addiction today than we did back in 1952, when
Congress enacted § 1101(f)(1). Scientists tell us, for
example, that some people are much more prone to becoming
addicted to substances like alcohol than others, with genetic
factors accounting for 40 to 70 percent of individual
differences in the risk for addiction. U.S. Department of
Health and Human Services, Office of the Surgeon General,
Facing Addiction in America: The Surgeon General’s Report
on Alcohol, Drugs, and Health 2-22 (2016). In addition,
there is a high correlation between alcohol abuse and post-
traumatic stress disorder (PTSD), a condition that virtually no
one could be blamed for acquiring. As the Surgeon General’s
report notes, “[i]t is estimated that 30–60 percent of patients
seeking treatment for alcohol use disorder meet criteria for
PTSD, and approximately one third of individuals who have
experienced PTSD have also experienced alcohol dependence
at some point in their lives.” Id. at 2-22 to 2-23 (footnotes
omitted).

    Still, as a result of advances in our understanding of the
neurobiology underlying addiction, we know that substance
use disorders (including addiction, the most severe form)
“typically develop gradually over time with repeated misuse”
               LEDEZMA-COSINO V. SESSIONS                   23

of the substance in question, and that one of the key factors
in determining whether a person develops an addiction is “the
amount, frequency, and duration of the misuse.” Id. at 1-6 to
1-7. Modern science thus confirms that, at least to some
extent, there is indeed a volitional component to developing
an addiction to alcohol, even if many other factors outside an
individual’s control also contribute. Whether the volitional
component is weighty enough to warrant treating habitual
drunkards as morally blameworthy for their condition is a
policy question for Congress to resolve. Under rational basis
review, it is not for us “to judge the wisdom, fairness, or
logic” of Congress’ decision in that regard. Beach
Communications, 508 U.S. at 313.

    It has been suggested that Congress’ decision to treat
habitual drunkards as lacking in good moral character is
irrational because Congress has not classified individuals
suffering from other chronic medical conditions, such as
diabetes, heart disease, and bipolar disorder, as morally
blameworthy for their conditions. The mere fact that a
classification drawn by Congress may be underinclusive,
however, is not sufficient to render it invalid under rational
basis review. Salfi, 422 U.S. at 776. In any event, Congress
could rationally conclude that habitual drunkards are not
similarly situated to those suffering from other medical
conditions. Even if there is arguably a volitional component
involved in developing medical conditions like diabetes and
heart disease (say, consuming excessive amounts of sugar or
red meat), Congress could rationally view that conduct as less
morally blameworthy than consuming excessive amounts of
alcohol to the point of losing control over the ability to
abstain. Plus, the well-documented connection between
alcohol addiction and harm to others (in the form of drunken
driving, domestic violence, and the like) distinguishes alcohol
24             LEDEZMA-COSINO V. SESSIONS

addiction from other medical conditions that pose a risk
primarily to the health of the individual sufferer, rather than
to the safety of others. These differences provide a rational
basis for Congress’ decision to classify habitual drunkards as
lacking in good moral character, but not those suffering from
other medical conditions.



THOMAS, Chief Judge, with whom CHRISTEN, Circuit
Judge, joins, dissenting:

    The government proposes to bar the petitioner from
immigration relief simply because is he a recovering
alcoholic. It reasons that, because he was diagnosed with the
disease during the qualifying period, he categorically must be
labeled a “habitual drunkard,” and is per se ineligible for
cancellation of removal as someone who lacks good moral
character. But the terms “alcoholic” and “habitual drunkard”
are not synonymous, either as a matter of immigration law, or
as a matter of fact. For that reason, I would grant the petition
for review and remand for the Board of Immigration Appeals
(“BIA”) to reconsider the case under a proper construction of
the law. Therefore, I must respectfully dissent.

                               I

                               A

    As we observed more than four decades ago, “[t]he
proposition that chronic acute alcoholism is itself a disease,
‘a medically determinable physical or mental impairment,’ is
hardly debatable today.” Griffis v. Weinberger, 509 F.2d 837,
838 (9th Cir. 1975). It has been recognized as a disease by
               LEDEZMA-COSINO V. SESSIONS                  25

the American Medical Association since 1956. American
Medical Association, Manual on Alcoholism for Physicians
(American Medical Association, 1957). Alcoholism is a
neurobiological medical condition, and an individual’s risk of
becoming alcoholic depends on a number of factors beyond
volitional choice, including genetics and environmental
influences. See, e.g., U.S. Dep’t of Health & Human Servs.,
Office of the Surgeon General, Facing Addiction in America:
the Surgeon General’s Report on Alcohol, Drugs, and Health
(2016) [hereinafter Surgeon General’s Report]; World Health
Org., Neuroscience of Psychoactive Substance Use and
Dependence (2004). Indeed, the Surgeon General has
rejected the notion that alcoholism and other addictions are
moral failings; instead, they are chronic illnesses “that we
must approach with the same skill and compassion with
which we approach heart disease, diabetes, and cancer.”
Surgeon General’s Report at v, 1-2.

    Despite this near-universal medical consensus, the
government urges that a diagnosis of the disease of
alcoholism must categorically mean that someone lacks good
moral character and is therefore per se ineligible for
cancellation of removal. This view is not supported by the
statute, and certainly not by common sense. Perhaps, as some
suggest, the phrase “habitual drunkard” is purely
anachronistic. That well may be so, as evidenced by the fact
that, aside from this case, there is only one reported BIA
decision–from more than a half century ago–discussing it.
Matter of H, 6 I & N Dec. 614 (1955). But it is still part of
the statute and, if the government now intends to invoke it, a
more definitive explanation of its meaning is required.
26             LEDEZMA-COSINO V. SESSIONS

                                B

    Our analysis must begin with the acknowledgment that
this case presents serious constitutional questions as to the
vagueness of the statute and whether it violates the Equal
Protection Clause. In such circumstances, we are instructed
to avoid constitutional issues “where an alternative
interpretation of the statute is ‘fairly possible.’” INS v. St.
Cyr., 533 U.S. 289, 299–300 (2001) (citation omitted).
Fortunately, we need not confront those constitutional
questions, because an examination of the statute confirms that
a diagnosis of the disease of alcoholism does not, as a matter
of immigration, mean that a petitioner lacks good moral
character as a “habitual drunkard.”

    Employing the familiar tools of statutory construction,
and mindful of the need to avoid constitutional questions, we
look first at the plain words of the statute, “particularly to the
provisions made therein for enforcement and relief.”
Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers
Ass’n, 453 U.S. 1, 13 (1981). “[W]hen deciding whether the
language is plain, we must read the words ‘in their context
and with a view to their place in the overall statutory
scheme.’” King v. Burwell, __ U.S. __, 135 S. Ct. 2480, 2489
(2015) (quoting FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000)). In addition, we examine the
legislative history, the statutory structure, and “other
traditional aids of statutory interpretation” in order to
ascertain congressional intent. Middlesex Cnty., 453 U.S. at
13. As part of statutory analysis, “[w]e also look to similar
provisions within the statute as a whole and the language of
related or similar statutes to aid in interpretation.” United
States v. LKAV, 712 F.3d 436, 440 (9th Cir. 2013).
              LEDEZMA-COSINO V. SESSIONS                   27

    The present “good moral character” definition was
enacted as part of the Immigration and Naturalization Act of
1952 (“INA”), which defined certain categories of individuals
who were, per se, lacking in good moral character, including
“habitual drunkard[s],” adulterers, gamblers, persons who
gave false testimony for the purpose of obtaining immigration
benefits, murderers, and those who had been convicted of a
crime and confined to a penal institution for an aggregate of
at least 180 days. Public L. 82-414 § 101(f), 66 Stat. 163,
172 (1952).

    So, did Congress mean to include in the term “habitual
drunkard” all individuals who had been diagnosed with
alcoholism, or did it intend to distinguish between the two
concepts? The text and history of the INA lead to the
conclusion that Congressional intent was to create a
distinction.

    First, Congress well knew how to use the terms
“alcoholism” and “alcoholic” in immigration law. In the
Immigration Act of 1917, Congress added “persons with
chronic alcoholism” to the classes of aliens excluded from
admission to the United States. Immigration Act of 1917,
Pub. L. No. 64-301, § 3, 39 Stat. 874, 875 (1917) (repealed
1952). With enactment of the INA, Congress repealed many
of the provisions of the 1917 Act relating to categories of
excludable aliens, but explicitly modified the exclusion
provisions to include “[a]liens who are narcotic drug addicts
or chronic alcoholics.” 66 Stat 163, 172–73 (1952). “[W]hen
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Barnhart
v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (internal
28             LEDEZMA-COSINO V. SESSIONS

quotation marks omitted); see also Center for Community
Action and Environmental Justice v. BNSF R.R. Co., 764 F.3d
1019, 1024 (9th Cir. 2014). Therefore, the structure and
context of the INA indicate a Congressional intent to
distinguish the phrases. In addition, during the period when
the INA was enacted, common public understanding was that
the concepts were distinct. For example, Webster’s New
World Dictionary—published four years after the passage of
the INA—distinguishes between a drunkard and an alcoholic:
a “drunkard” is “a person who often gets drunk; inebriate,”
whereas an “alcoholic” is “one who has chronic alcoholism.”
Webster’s New World Dictionary 17, 231 (1956). Webster’s
Collegiate Dictionary, published in 1947, defined
“alcoholism” as “a diseased condition caused by excessive
use of alcoholic liquors” and a “drunkard” as a “toper or
“sot.” Webster’s Collegiate Dictionary (5th ed. 1947). And,
as previously observed, the American Medical Association
recognized alcoholism as a disease in 1956.

     Second, the statutory context of the phrase “habitual
drunkard” is critical. It is contained in the definition of “good
moral character,” as one of the listed categories of character
attributes that preclude relief. 8 U.S.C. § 1101(f)(1). The
general concept of “good moral character” as a prerequisite
to obtaining immigration benefits dates back to the adoption
of the first naturalization statute in 1790, Act of Mar. 26,
1970, ch. 3, § 1, 1 Stat. 103, and grounded in the notion that
an applicant should have spent some time as a resident and
then “be able to bring testimonials of a proper and decent
behavior.”1 It deals with one’s character, not one’s medical
afflictions.

     1
       1 Annals of Congress 1154 (1790) (Joseph Gales ed., 1834)
(statement of Rep. Jackson).
               LEDEZMA-COSINO V. SESSIONS                    29

    According to the present statute’s terms, its purpose is to
define which individuals necessarily lack good moral
character. See 8 U.S.C. § 1101(f) (“No person shall be
regarded as, or found to be, a person of good moral character
who . . . is, or was . . . a habitual drunkard.”). Other
noncitizens who necessarily lack good moral character—and
are therefore categorically barred from receiving
discretionary relief— under Section 101(f) are (1) individuals
engaged in prostitution, the smuggling of illegal immigrants
into the country, or polygamy; (2) individuals “whose income
is derived principally from illegal gambling activities” or who
have “been convicted of two or more gambling offenses”; (3)
individuals who have “been convicted of an aggravated
felony”; or (4) individuals engaged in conduct relating to
“assistance in Nazi persecution, participation in genocide, or
commission of acts of torture or extrajudicial killings.” 8
U.S.C. § 1101(f).

    Every other category in Section 101(f) describes conduct
that results in public harm or harm to others. Under the
doctrine of noscitur a sociis, according to which “a word is
known by the company it keeps,” S.D. Warren Co. v. Maine
Bd. of Env’l Protection, 547 U.S. 370, 378 (2006), “habitual
drunkard” should apply only to individuals who engage in
certain types of harmful conduct. Therefore, an individual’s
status as suffering from the disease of alcoholism cannot be
sufficient to trigger the “habitual drunkard” provision; being
an alcoholic does not necessarily result in public harm or
harm to others.

    Third, not only does the context of “good moral
character” suggest analysis of conduct, rather than a disease,
but the statutory provisions as to the avenue of relief afforded
strengthens that conclusion. The phrase “good moral
30                LEDEZMA-COSINO V. SESSIONS

character” is employed in various immigration contexts
including naturalization, see 8 U.S.C. § 1427(a)(3), becoming
a lawful permanent resident, see 8 U.S.C. § 1255b,
adjustment of status, see 8 U.S.C. § 1154, grant of voluntary
departure, see 8 U.S.C. § 1229c, and cancellation of removal,
8 U.S.C. § 1229b.

    For our contextual purposes, the relevant provision is
cancellation of removal and its predecessor statute,
suspension of deportation. Relief via suspension of
deportation was established by the INA. One of the
eligibility requirements for suspension of deportation was that
the applicant be someone whose deportation would result in
“exceptional and extremely unusual hardship” to the alien or
an immediate family member who was a citizen or lawful
permanent resident. 8 U.S.C. § 1254(a)(1) (repealed).2
Among the critical factors in determining the requisite
hardship was “health, especially tied to inadequate medical
care in the home country.” Urban v. INS, 123 F.3d 644, 648
(7th Cir. 1997); see also In re Anderson, 16 I. & N. Dec. 596,
597–98 (1978) (noting among the the relevant factors to be
“condition of health” and “severe illness”); In re Louie, 10 I.
& N. Dec. 223, 225 (1963) (granting suspension of
deportation based on medical condition of father). In 1962,
Congress replaced the “exceptional and extremely unusual
hardship” standard with “extreme hardship.”




     2
      The other two requirements were that the applicant had been
physically present in the United States for a continuous period of not less
than seven years immediately preceding the application date, and was a
person of good moral character during that period. 8 U.S.C. § 1254(a)(1)
(repealed).
               LEDEZMA-COSINO V. SESSIONS                   31

     In 1997, Congress eliminated the remedy of suspension
of deportation, and replaced it with “cancellation of removal,”
which is the operative statute in this case. 8 U.S.C. § 1229b.
Eligibility for relief was still predicated on hardship, with a
stricter standard returning to the original language of
“exceptional and extremely unusual hardship,” and limiting
the hardship determination to qualifying relatives. Id.
Medical condition continued to be an important factor in
determining eligibility for relief. See, e.g., Fernandez v.
Gonzales, 439 F.3d 592, 601–02 (9th Cir. 2006) (noting it
would be error for the BIA to refuse to hear evidence of a
life-threatening medical condition in the context of
cancellation of removal); see also In re Gonzalez Recinas, 23
I. & N. Dec. 467, 470 (2002) (noting that the new hardship
standard “is not so restrictive that only a handful of
applicants, such as those who have a qualifying relative with
a serious medical condition, will qualify for relief.”). In
short, medical condition and health have always been
important considerations in determining hardship, either
through suspension of deportation or cancellation of removal.
Thus, it would be inconsistent with the statute, when
considered in context, to construe it to mean that the disease
of alcoholism, by itself, would per se disqualify a petitioner
from relief when the establishment of a serious medical
condition can be a qualifying factor.

    Fourth, in a different section of the INA, Section
212(a)(1)(A)(iii), Congress demonstrated a more nuanced
understanding of alcohol dependence. There, it established
that a noncitizen is inadmissible if he or she “is determined
(in accordance with regulations prescribed by the Secretary
of Health and Human Services in consultation with the
Attorney General) to have a physical or mental disorder and
behavior associated with the disorder that may pose, or has
32             LEDEZMA-COSINO V. SESSIONS

posed, a threat to the property, safety, or welfare of the alien
or others.” See 8 U.S.C. § 1182(a)(1)(A)(iii)(I); see also 8
U.S.C. § 1182(a)(1)(A)(iii)(II). An implementing regulation
treats alcoholics as having a “physical or mental disorder” for
the purpose of inadmissibility under this statute. See 42
C.F.R. 34.2(n); Am. Psychiatric Ass’n, supra; Center for
Disease Control & Prevention, Technical Instructions for
Physical or Mental Disorders with Associated Harmful
Behaviors and Substance-Related Disorders for Civil
Surgeons (2013), available at http://tinyurl.com/jqaggoo. It
is important to emphasize, however, that this statute only
refuses admissibility to alcoholics whose alcohol-related
behavior “pose[s] . . . a threat to the property, safety, or
welfare of the alien or others.”                    8 U.S.C.
§ 1182(a)(1)(A)(iii)(I). It does not exclude alcoholics based
on an outdated stigma that they are categorically immoral.

    Finally, as we have noted, the assessment of good moral
character in the immigration context requests the agency to
“weigh and balance the favorable and unfavorable facts or
factors, reasonably bearing on character, that are presented in
evidence.” Torres-Guzman v. INS, 804 F.2d 531, 534 (9th
Cir. 1986). Although this general concept does not construe
the “habitual drunkard” provision, it reinforces the idea of the
general purpose of the statute, and the need for a case-by-case
determination. Consistent with this approach, courts have
declined to find a lack of good moral character based on
isolated alcohol-related conduct. For example, several
district courts have held that a single conviction for driving
under the influence (“DUI”)—and sometimes more than
one—cannot render someone a person of bad moral character
under Section 101(f). See, e.g., Rangel v. Barrows, No. 4:07-
cv-279, 2008 WL 4441974, at *4 (E.D. Tex. Sept. 25, 2008)
(“[T]he applicable law is unanimous in support of the
               LEDEZMA-COSINO V. SESSIONS                   33

proposition that, in the absence of aggravating factors, a
single [DUI] conviction is insufficient to deny an application
for naturalization on the basis that the applicant lacks good
moral character.”); Ragoonanan v. U.S. Citizenship &
Immigration Servs., No. 07-3461 PAM/JSM, 2007 WL
4465208, at *5 (D. Minn. Dec. 18, 2007) (holding that “a
single [DUI] conviction resulting in probation” is insufficient
to establish bad moral character); Yaqub v. Gonzales, No.
1:05-cv-170, 2006 WL 1582440, at *4 (S.D. Ohio June 6,
2006) (concluding that “two DUI arrests” are insufficient to
find petitioner lacks good moral character); Le v. Elwood, No.
Civ.A. 02-CV-3368, 2003 WL 21250632, at *3 (E.D. Pa.
2003) (concluding that two DUI convictions, did not,
standing alone, “amount to a finding of ‘habitual drunkard’”).

    In addition, the statutory construct of “good moral
character” has also embraced the concept of redemption. See,
e.g., Santamaria-Ames v. INS, 104 F.3d 1127, 1132 (9th Cir.
1996) (“Whether the petitioner can establish that he has
reformed and rehabilitated from this prior conduct is germane
to the determination of whether he has established good
moral character . . . .”); Yuen Jung v. Barber, 184 F.2d 491
(9th Cir. 1950) (noting that if a prior bad act precluded one
from establishing good moral character, “would require a
holding that Congress had enacted a legislative doctrine of
predestination and eternal damnation.”) Here, however, the
government’s proposed holding would mean that all sober,
recovering alcoholics who were diagnosed during the seven
year qualifying period would necessarily be considered
“habitual drunkards” and categorically ineligible for relief.
The construction more consistent with the statute would be to
allow the agency to consider and balance the equities of each
individual circumstance on a case by case basis.
34             LEDEZMA-COSINO V. SESSIONS

    In short, when we consider the plain language of the
statute, its structure, and its legislative history, we must
conclude that the phrase “habitual drunkard” is not
synonymous with “alcoholic.” Thus, a diagnosis of the
disease of alcoholism is insufficient to trigger the “habitual
drunkard” provision, and render a petitioner categorically
ineligible for discretionary cancellation of removal relief.

     Instead, the phrase “habitual drunkard” is best understood
in the context of its statutory setting of “good moral
character,” which has commonly been understood to reflect,
as Judge Learned Hand put it, the “common conscience” of
the community. Johnson v. United States, 186 F.2d 588, 590
(2d Cir. 1951). To that end, courts have generally focused on
whether the challenged conduct is harmful to the public, or
whether it is purely private. See Nemetz v. INS, 647 F.2d 432,
436 (4th Cir. 1981) (noting that the appropriate analysis “is
whether the act is harmful to the public or is offensive merely
to a personal morality.”); In re Labady, 326 F. Supp. 924, 927
(S.D.N.Y. 1971) (“The most important factor to be
considered is whether the challenged conduct is public or
private in nature.”).

    Thus, in context, the best construction of “habitual
drunkard” within the “good moral character” definition is one
who habitually abuses alcohol and whose alcohol abuse
causes harm to other persons or the community. This
interpretation is consistent with the statutory language,
structure, and context, and avoids any constitutional
infirmity.

    To be sure, an alcoholic may also fit the definition of
“habitual drunkard” by conduct that causes harm to others or
the public. But to say that status of being diagnosed an
               LEDEZMA-COSINO V. SESSIONS                  35

alcoholic always means that one is a “habitual drunkard,” is
not consistent with the statute.

                              II

    A proper construction of the phrase “habitual drunkard”
is critical to the outcome of this petition. Mr. Ledezma-
Cosino has been in the United States for twenty years. He
works in construction, specializing in cement masonry and
concrete finishing. He and his wife have eight children, five
of whom are United States citizens. At his first immigration
hearing, he admitted removability, but applied for
cancellation of removal and voluntary departure under 8
U.S.C. § 1229b–c. In support of his application for
cancellation of removal, he contended that his removal would
result in exceptional and extremely unusual hardship to his
children because of economic disadvantage, the difficulties of
adjusting to life in Mexico, and his youngest daughter’s
asthma. At the first hearing, the immigration judge (“IJ”)
found, on the merits, that Ledezma-Cosino had not
established the statutory hardship requirement. The IJ denied
cancellation of removal, but granted voluntary departure.

     Ledezma-Cosino appealed to the BIA. The BIA
remanded the case because the trial transcript was defective
because there was no record of the last witness, Ledezma-
Cosino’s daughter, Yadira Ledezma. The BIA instructed the
IJ to complete the record.

    At the first post-remand hearing, the government attested
to the IJ that there had been no negative developments as to
Ledezma-Cosino between the hearings. At the scheduled
second hearing, counsel requested a continuance because
Ledezma-Cosino had been hospitalized with a liver ailment.
36             LEDEZMA-COSINO V. SESSIONS

At a subsequent scheduling hearing, counsel presented
medical records to show that his client had been hospitalized.

    At the hearing on the merits, the judge placed the medical
records into the record himself. Yadira Ledezma testified, as
well as Ledezma-Cosino. The judge questioned both about
Ledezma-Cosino’s drinking because it had been reflected in
the medical records. Ledezma-Cosino testified that he had
been sober since the hospitalization. At the conclusion of the
testimony, the government argued that he had not satisfied the
hardship requirement and questioned whether he had been
truthful on his application. The government did not argue
that he was categorically ineligible for relief because he was
a “habitual drunkard.”

    The IJ then, sua sponte, declared Ledezma-Cosino
ineligible for relief because he was a “habitual drunkard,” and
also denied voluntary departure for that reason. The BIA
dismissed his appeal on the sole basis that he is a “habitual
drunkard” and therefore failed to “me[e]t the requisite period
of good moral character” required for discretionary relief. In
reaching this conclusion, the BIA considered only that
Ledezma-Cosino (1) was hospitalized for a serious liver
condition in 2010 and drank alcohol excessively for a year
leading up to his hospital visit, (2) had a decade-long alcohol
dependency, (3) was an alcoholic according to his daughter’s
testimony, and (4) was convicted of a DUI in 2008.

    Aside from the DUI conviction, there was no evidence in
the record of any harm to the public or others. Indeed, the
only evidence was that he was an excellent worker. Thus, if
the evidence pertaining to his diagnosis of alcoholism is set
aside, there was not sufficient evidence to sustain the
               LEDEZMA-COSINO V. SESSIONS                      37

determination of ineligibility for cancellation or voluntary
departure based on the “habitual drunkard” clause.

    Therefore, I would remand this petition to the BIA for
application of the correct statutory standard or, to the extent
there is remaining statutory ambiguity, for it to determine the
meaning of the phrase “habitual drunkard” in a way that does
not make the phrase synonymous with “alcoholic.”

    Whether or not the agency would ultimately grant relief
in this case is a separate question. In the end, the decision as
to whether an applicant is afforded discretionary cancellation
of removal is committed solely to the executive branch, not
subject to our review. But legal eligibility for relief is subject
to our review, and it is important for future cases of those
who seek relief, and the attorneys who represent them, that
the law is accurately defined. Given the government’s new
reliance on what had been considered an antediluvian phrase,
resolution of its meaning is particularly critical.

    Because I would resolve the petition on the basis of
statutory interpretation, or remand, I would not reach the
constitutional questions raised in this case.

    For these reasons, I respectfully dissent.
