Ledezma Supp BR

RESTRICTED Case: 12-73289, 12/16/2016, ID: 10237695, DktEntry: 81, Page 1 of 45
No. 12-73289
IN THE
United States Court of Appeals for the Ninth Circuit

SALOMON LEDEZMA-COSINO,
Petitioner,
v.
LORETTA E. LYNCH,
United States Attorney General,
Respondent.
PETITIONERS SUPPLEMENTAL BRIEF ON

REHEARING EN BANC
Nora E. Milner
MILNER & MARKEE LLP
16870 W. Bernardo Drive
Suite 320
San Diego, CA 92127
Kelsi Brown Corkran

Thomas M. Bondy
Randall C. Smith
Benjamin F. Aiken
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street NW
Washington, DC 20005
Counsel for Petitioner
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................... iii
INTRODUCTION ..................................................................................... 1
STATEMENT OF THE CASE ................................................................. 3
SUMMARY OF ARGUMENT .................................................................. 9
ARGUMENT .......................................................................................... 12
I.
II.
The INAs Habitual Drunkard Provision Violates The

Equal Protection Clause. ..................................................... 12
A.
The habitual drunkard provision identifies a class

of people as categorically immoral and on that
basis subjects the members of that class to
disfavored legal status. ............................................... 12
B.
The habitual drunkard provision lacks a rational

basis. ............................................................................ 17
The Habitual Drunkard Provision Cannot Be Saved By

Ignoring The Statutory Language Creating The
Unconstitutional Classification. .......................................... 25
CONCLUSION ....................................................................................... 37
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Andia v. Ashcroft,
359 F.3d 1181 (9th Cir. 2004) ............................................................. 34
Barsky v. Bd. of Regents of Univ.,
347 U.S. 442 (1954) ............................................................................. 16
Bray v. Alexandria Womens Health Clinic,
506 U.S. 263 (1993) ............................................................................. 33
Brown v. Brown,
38 Ark. 324 (1881)............................................................................... 32
Christian Legal Socy Chapter of the Univ. of Cal., Hastings
Coll. of the Law v. Martinez,
561 U.S. 661 (2010) ....................................................................... 32, 33
Citizens to Pres. Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971) ............................................................................. 34
City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ............................................9, 12, 14, 15, 16, 24, 28
F.C.C. v. Beach Commcns, Inc.,
508 U.S. 307 (1993) ............................................................................. 26
Gutierrez v. Holder,
662 F.3d 1083 (9th Cir. 2011) ............................................................. 22
Hereid v. Hereid,
209 Minn. 573 (1941) .......................................................................... 32
Lawrence v. Texas,
539 U.S. 558 (2003) ............................................................................. 33
Leavitt v. City of Morris,
105 Minn. 170 (1908) .......................................................................... 31
iii
Mendez-Castro v. Mukasey,
552 F.3d 975 (9th Cir. 2009) ............................................................... 29
Murphy v. People,
90 Ill. 59 (1878) ................................................................................... 31
Portillo-Rendon v. Holder,
662 F.3d 815 (7th Cir. 2011) ......................................................... 22, 29
Recinos De Leon v. Gonzales,
400 F.3d 1185 (9th Cir. 2005) ............................................................. 35
Romer v. Evans,
517 U.S. 620 (1996) ................................................................. 12, 13, 25
Saeed v. Lynch,
652 F. Appx 506 (9th Cir. 2016).35
SEC v. Chenery Corp.,
318 U.S. 80 (1943) ............................................................................... 34
Spraic v. U.S. R.R. Ret. Bd.,
735 F.2d 1208 (9th Cir. 1984) ....................................................... 26, 28
State v. Bateman,
204 P. 682 (Kan. 1922) ........................................................................ 15
U.S. Dept of Agric. v. Moreno,
413 U.S. 528 (1973) ............................................................................. 12
United States v. Chapel,
55 F.3d 1416 (9th Cir. 1995) ............................................................... 34
Virginia v. Am. Booksellers Ass n,
484 U.S. 383, 397 (1988) ..................................................................... 26
Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) ............................................................................. 27
iv
Administrative Decisions
In re Khanzetyan,
2008 WL 1924552 (BIA Apr. 1, 2008)................................................. 22
In re Ortega-Cabrera,
23 I. & N. Dec. 793 (BIA 2005) ........................................................... 35
Statutes
8 U.S.C. 1101(f)..................................................................................... 22
8 U.S.C. 1101(f)(9) ................................................................................ 13
8 U.S.C. 1227(a)(2)(B)(ii) ...................................................................... 27
8 U.S.C. 1229b ........................................................................................ 3
8 U.S.C. 1229b(b)(1)(A) ......................................................................... 27
8 U.S.C. 1229c................................................................................... 3, 36
Immigration Act of 1917,
Pub. L. No. 64-301, 39 Stat. 874 (1917) ............................................. 21
Immigration Act of 1990,
Pub. L. No. 101-649, 104 Stat. 4978 (1990)........................................ 21
Immigration and Nationality Act,
Pub. L. No. 82-414, 66 Stat. 163 (1952) ....................................... 14, 21
N.Y. Educ. Law 6514 ............................................................................ 16
Legislative Materials
H.R. Rep. No. 101-955 (1990) .................................................................. 21
Other Authorities
Lance Dodes, MD & Zachary Dodes, The Sober Truth:
Debunking the Bad Science behind 12-Step Programs and
the Rehab Industry (2015) .................................................................. 20
v
Anthony Frank, Habitual Drunkenness: Meaning in

Divorce and Criminal Law Statutes, 26 Marq. L. Rev. 104
(1942)................................................................................................... 32
K.M. Keyes et al., Stigma and Treatment for Alcohol
Disorders in the United States, American Journal of
Epidemiology (Aug. 2010), http://tinyurl.com/zdjbcwu ................ 23, 24
Harry Gene Levine, The Discovery of Addiction: Changing
Conceptions of Habitual Drunkenness in America, 39 J.
Studies on Alcohol 143 (1978) ............................................................ 32
James D. Livingston, et al., The effectiveness of interventions
for reducing stigma related to substance use disorders: a
systematic review, Addiction (Jan. 2012),
http://tinyurl.com/hqpalu6 .................................................................. 23
WR Miller, Motivation for Treatment: A Review with Special
Emphasis on Alcoholism, 98(1) Psychological Bulletin 84
(1985)................................................................................................... 19
Surgeon Generals Report, Facing Addiction in America: The
Surgeon Generals Report on Alcohol, Drugs, and Health
(Nov. 2016), http://tinyurl.com/zams9gk ................ 1, 16, 17, 18, 20, 23
World Health Organization, Neuroscience of Psychoactive
Substantive Use and Dependence (2004),
http://tinyurl.com/mhld7u .................................................................. 17
vi
INTRODUCTION
This case could not come at a more relevant time. Less than one
month ago, the United States Department of Health and Human
Services released a highly publicized report addressing the countrys
continuing and growing battle with chemical dependency. See Surgeon
Generals Report, Facing Addiction in America: The Surgeon Generals
Report on Alcohol, Drugs, and Health (Nov. 2016),
http://tinyurl.com/zams9gk. In the preface, Surgeon General Vivek
Murthy noted that [f]or far too long, too many in our country have
viewed addiction as a moral failing and that [t]his unfortunate stigma
has created an added burden of shame. Id. at v. He implored the
nation to recognize that addiction is not a character flawit is a
chronic illness that we must approach with the same skill and
compassion with which we approach heart disease, diabetes, and
cancer. Id.
It is a wonder, then, that the government has continued to
doggedly defend a provision of the Immigration and Nationality Act
that serves no purpose other than perpetuating the stigma the Surgeon
General warned againsta provision so antiquated and obsolete that
1
there is not a single published court decision enforcing it. The Board of
Immigration Appeals held here, at the governments urging, that the
INAs habitual drunkard provision prohibits Salomon LedezmaCosino, who has lived in the U.S. for almost 30 years, from even being
considered for discretionary relief from removal because his long-fought
battle with alcoholism renders him devoid of good moral character.
As the three-judge panel of this Court held, this classification of a
group as categorically immoral based on a recognized medical condition
has no rational basis. The INA already provides an adequate, nonstigmatizing mechanism for the government to deny relief from removal
to noncitizens who engage in actual misconduct relating to alcohol use:
a catch-all provision under which the immigration agencies can and do
deny relief based on alcohol-related misconduct. The intentionally
derogatory provision the government seeks to enforce against Ledezma
is a pointless anachronism that does nothing but cast shame upon the
10 million people in the United States suffering from alcohol addiction.
Consistent with the panels decision, the en banc Court should
strike the statute down as unconstitutional under the Equal Protection
Clause.
2
STATEMENT OF THE CASE

1. Ledezma is a native and citizen of Mexico who has lived in the
United States since 1987. Administrative Record (A.R.) 695. He and
his wife have raised eight children here, five of whom are U.S. citizens.
A.R. 262. Ledezma has been the primary breadwinner for his family,
supporting his wife and children by working as a specialist cement
mason and concrete finisher. A.R. 263.
Ledezma was placed in removal proceedings in 2008. A.R. 695.
He conceded removability because he was never admitted or paroled
into the United States, but he requested cancellation of removal under 8
U.S.C. 1229b or voluntary departure under 8 U.S.C. 1229c. A.R.
277, 695. An Immigration Judge denied his request for cancellation,
but granted Ledezma voluntary departure, noting that he had a very
strong factor in his favor: His son Lucio would soon turn 21 and could
then file a petition to allow his father to immigrate legally to the United
States. A.R. 271.
After Ledezma appealed, the Board of Immigration Appeals
remanded the case to the IJ because a tape recording of the hearing cut
off witness testimony. A.R. 41, 239. Remand proceedings were delayed,
3
however, after Ledezma was hospitalized for liver failure in June 2010.
A.R. 72. Doctors determined that his condition resulted from a 10-yearlong battle with alcoholism. A.R. 190, 193. He quit drinking following
his hospitalization. A.R. 96, 114.
When the remand proceedings restarted, Ledezma submitted the
medical records from his hospitalization and treatment as additional
support for his request for discretionary relief. A.R. 123-200. His adult
daughter, who was living with him while she completed school, testified
that she had seen a dramatic change, for the better, in [Ledezma]
since his hospitalization, and observed that he was engaged with his
family and he look[ed] healthier than before. A.R. 134. She worried
that he would not receive adequate medical care if forced to return to
Mexico and that he would become depressed following a separation from
his family, which would cause him to resume drinking. A.R. 102. She
questioned how her family would survive if left fatherless, and
worried that being separated from her father would be like missing
half of myself. A.R. 102, 135.
2. The IJ reaffirmed his denial of Ledezmas application for
cancellation of removal, but on different grounds. As relevant here, the
4
IJ concluded that Ledezma lacked good moral character under the INA
because his medical records indicated that he suffered from severe
alcohol dependency. A.R. 51. Under the INA, the IJ explained, if you
are an habitual drunkard, you do not have good moral character. A.R.
51. He thus concluded that, based on all the comments made by the
doctors, Ledezma was an alcoholic and therefore not eligible for
cancellation of removal. A.R. 51-52. And because good moral
character is also a requirement for voluntary departure, the IJ
indicated that he unfortunately had to modify his previous decision
granting voluntary departure and deny that relief as well. A.R. 54-55.
3. The BIA affirmed. The Board recognized that Ledezma was in
recovery, but observed that Ledezmas medical records showed an
approximately decade-long alcohol dependency consistent with his
daughters testimony that her father had been an alcoholic. A.R. 4.
The Board acknowledged Ledezmas argument that his alcoholism is a
medical condition and not a moral failing, but concluded that it was
irrelevant because the statutory language clearly bars an individual
deemed a habitual drunkard from demonstrating good moral
character. A.R. 4. The Board thus affirmed the IJs conclusion that
5
Ledezmas alcoholism rendered him ineligible to seek discretionary

relief. A.R. 4.
4. a. This Court stayed Ledezmas order of removal, and granted
his petition for review. A three-judge panel agreed with the Board that
it is apparent from the face of the statute that Congress has created a
classification dividing habitual drunkardsi.e. persons with chronic
alcoholismfrom persons who do not suffer from the same disease and
identifying the former as necessarily lacking good moral character for
the purposes of the INA. Slip op. 8. This sort of classification is not
permissible under the Equal Protection Clause, the panel observed,
unless it is rational for the government to find that people with chronic
alcoholism are morally bad people solely because of their disease. Slip
op. 9. The panel concluded that it is not, explaining [w]e are well past
the point where it is rational to link a persons medical disability with
his moral character. Slip op. 9.
The panel considered a number of possible justifications for the
provision, but concluded that none of them was rationally related to a
legitimate government interest. First, the panel considered the
governments argument that persons suffering from alcoholism
6
simply lack the motivation to overcome their disease. Slip op. 10. The
panel rejected that contention as nothing more than an old trope not
supported by the medical literature, and noted that it had deplorable,
troubling, and wholly unacceptable implications, because it implied
that military veterans, Native Americans, and the homelessall of
whom suffer from disproportionately high rates of alcoholismare more
likely than others to be morally bad people. Slip op. 10-12.
Next, the panel rejected the governments argument that
alcoholics increased risk of violent behavior could serve as a rational
basis for labeling habitual drunkards as categorically lacking good
moral character. Slip op. 12-14. Much of the evidence the government
offered in support of this rationale, the panel explained, did not support
the conclusion, as it related to links between alcohol abuse and
instances of self-harm or victimization, rather than violent conduct.
Slip op. 13. And even evidence showing some correlation between
alcoholism and heightened risk of violent conduct, the panel observed,
did not justify deeming people who suffer from alcoholism categorically
immoral; other medical conditionssuch as bipolar disorderlikewise
involve heightened risks of violence and self-harm, yet no one would
7
suggest that people with bipolar disease invariably lack good moral
character. Slip op. 13.
Finally, the panel noted the governments contention that
habitual drunkards had long been the target of punitive legislation.
That argument, the panel pointed out, undercut[] rather than
buttresse[d] the Governments argument, because it showed that the
provision was rooted in severe prejudice that had receded in the face
of new insights in treating alcoholism as a disease rather than a
character defect. Slip op. 14-15. Ultimately, the panel concluded that
the history of the habitual drunkard provision confirmed that animus
was the impetus behind the law, and so classifying alcoholics as evil
people, rather than as individuals suffering from a disease, is neither
rational nor consistent with our fundamental values. Slip op. 15.
b. Judge Clifton dissented. In Judge Cliftons view, the habitual
drunkard provision is constitutional because there is a volitional
component of alcoholism that is properly subject to moral evaluation.
Slip op. 18. Judge Clifton further stated that the panel erred in
focusing on the statutes explicit linkage between alcoholism and good
moral character. Slip op. 25. He argued that the panel should have
8
instead considered whether it would be constitutionally permissible for

Congress directly to provide that aliens who are habitual drunkards are
ineligible for cancellation of removal, without making reference to
moral character. Slip op. 25. Because he believed that the habitual
drunkard provision would be constitutionally permissible if framed
that way, he concluded that it should be upheld.
This Court subsequently granted the governments petition to
rehear this case en banc. Dkt. 56.
SUMMARY OF ARGUMENT
The panel correctly concluded the habitual drunkard provision
violates equal protection because it irrationally labels a class of people
categorically immoral and singles them out for disfavored treatment.
The Supreme Court has held that a law that distinguishes between
people on the basis of a medical condition violates the equal protection
guarantee where it is rooted in mere negative attitudes. City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985). That
analysis applies with equal force to the habitual drunkard provision.
As the panel explained, the governments claim that alcoholics choose
whether to drink, and thus may be deemed immoral for doing so, has
9
been debunked by a wealth of medical literature and has deplorable,

troubling, and wholly unacceptable implications for the many
marginalized groupsNative Americans, veterans, the homelesswho,
by the governments account, are disproportionately people of bad moral
character. Slip op. 10-12. The government fails to identify any purpose
the provision serves other than stigmatizing people who suffer from
alcoholism. Indeed, in the six decades since Congress enacted the INA,
the government has barely invoked the provision, presumably because
it is wholly unnecessary: The Act elsewhere affords IJs and the Board
discretion to deny relief from removal where a noncitizen has engaged
in actual misconduct relating to alcohol use. The classification imposed
by the habitual drunkard provision is pointless, cruel, and illegitimate.
The government seeks to resuscitate the provision largely by
rewriting it. Unable to articulate any rational basis for equating
alcohol addiction with bad moral character, the government instead
urges this Court to consider only whether Congress could rationally
conclude that alcoholics should be ineligible for discretionary relief from
removal. But courts cannot ignore statutory language, particularly
10
statutory language creating an irrational classification that stigmatizes

millions of people suffering from a serious medical condition.
The government also attempts in its rehearing petition to avoid
the irrational classification by decoupling alcohol abuse from
alcoholism, arguing that the provision does not target alcoholism. The
government took a different position before the panel, however, and in
any event cannot dispute that the Board deemed Ledezma a habitual
drunkard based on his diagnosis of alcoholism. Accordingly, even if
this Court were to accept the governments newfound approach to the
statute, a remand to the Board would be necessary. An agencys
decision may be affirmed only on the grounds identified by the agency
itself. Furthermore, because an application for discretionary relief is a
continuing one, in light of the passage of time, this Court should
remand to the agency in any event to allow Ledezma to show that his
years of sobriety since his 2010 hospitalization render him eligible for
discretionary immigration relief.
11
ARGUMENT
I.
The INAs Habitual Drunkard Provision Violates The Equal

Protection Clause.
To withstand equal protection review, legislation that
distinguishes between two classes of people must be rationally related

to a legitimate governmental purpose. Cleburne, 473 U.S. at 446. The
government may not rely on a classification whose relationship to an
asserted goal is so attenuated as to render the distinction arbitrary or
irrational. Id. And certain motiveslike animus, Romer v. Evans,
517 U.S. 620, 632 (1996); mere negative attitudes, Cleburne, 473 U.S.
at 448; or a bare desire to harm a politically unpopular group, U.S.
Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973)are not legitimate
government interests at all.
The panel correctly concluded that the habitual drunkard
provision fails rational basis review under these basic precepts.
A.
The habitual drunkard provision identifies a class of

people as categorically immoral and on that basis
subjects the members of that class to disfavored legal
status.
The habitual drunkard provision identifies persons by a single

traitchronic alcoholism, a recognized medical condition. Romer, 517
U.S. at 633. And it categorically disqualifies individuals with that trait
12
from the right to seek specific protection from the law, id., because it
uniformly bars noncitizens who suffer from alcoholism from even
attempting to demonstrate that they possess the good moral character
necessary to obtain discretionary relief from removal.
[L]aws singling out a certain class for disfavored legal
status are rare, because [c]entral both to the idea of the rule of law
and to our Constitutions guarantee of equal protection is the
principle that government remain open on impartial terms to all who
seek its assistance. Id. The habitual drunkard clause reflects the
rarity of such statutes. It appears alongside eight other provisions that
describe people who lack good moral character under the INA, but it is
unlike the others. All of the other provisions refer to specific conduct
and conduct with a clear connection to judgments about moral
character. One provision, for instance, refers to one who at any time
has 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)(9). Most of the others refer to
noncitizens who have been convicted of specified crimes. The habitual
drunkard provision stands alone in defining those who lack good moral
13
character based on a status identified with a specific medical condition.

In that respect, the habitual drunkard provision is an artifact of the
original INA, which enumerated a number of groups that it deemed
categorically undesirable (e.g., the feeble-minded, the insane,
paupers, professional beggars, or vagrants), and expressly
distinguished between groups identified by status and groups identified
by conduct (e.g., Aliens who are prostitutes or who have engaged in
prostitution). See Immigration and Nationality Act, Pub. L. No. 82414, 212, 66 Stat. 163, 182 (1952).
In City of Cleburne v. Cleburne Living Center, the Supreme Court
struck down a municipal ordinance that singled out for special hardship
a group of people based on a medical condition. 473 U.S. at 450. The
ordinance required a special permit before the construction of a group
home for people who suffered from developmental disabilitiesin the
statutes archaic parlance, the feeble-minded. Id. at 436. Applying
rational basis review, the Court considered a number of potential
justifications for the ordinance. It ultimately concluded that none of
them explained why it was rational to require a special-use permit
before the construction of a home for the developmentally disabled
14
when a permit was not required for other types of multiple dwellings,
such as boarding and lodging houses, fraternity or sorority houses,
dormitories, or nursing homes for convalescents or the aged. Id. at
447. The Court held that the citys inability to identify any plausible
justification for distinguishing between people with developmental
disabilities and others showed that the ordinance was actually rooted in
vague, undifferentiated fears and an irrational prejudice against the
mentally retarded. Id. at 449-50.
Cleburne governs this case. Like the ordinance at issue there, the
statute here directly targets a class of people for special hardship on the
basis of a medical condition. Indeed, antiquated laws targeting
habitual drunkards often grouped such persons together with those
suffering from developmental disabilities or mental illness. A 1907
Kansas statute, for instance, grouped habitual drunkards with
lunatics, insane persons, idiots, [and] imbeciles, among others. State
v. Bateman, 204 P. 682, 683 (Kan. 1922). An old New York statute
similarly placed a habitual drunkard in the same category as one who
has become insane. Barsky v. Bd. of Regents of Univ., 347 U.S. 442,
450 (1954) (emphasis added) (quoting N.Y. Educ. Law 6514).
15
Like the ordinance invalidated in Cleburne, moreover, the

habitual drunkard provision is ultimately rooted in mere negative
attitudes and vague, undifferentiated fears directed at those it
targets. 473 U.S. at 448-49. Indeed, while the Court in Cleburne had to
discern the animus underlying the ordinance indirectly from the lack of
any other justification for disfavoring people suffering from
developmental disabilities, here the statute proclaims its animus on its
face. In branding people who suffer from alcoholism as categorically
lacking in good moral character, the statute reflects an outdated and
irrational prejudice towards those who suffer from alcoholism. As the
Surgeon Generals Report indicates, severe substance abuse
disorders were once regarded largely as a moral failing or character
flaw, but are now understood to be chronic illnesses characterized by
clinically significant impairments in health, social function, and
voluntary control over substance abuse. Surgeon Generals Report at
2-1. The statute is a relic of a past age, and serves no legitimate
purpose today.
16
B.
The habitual drunkard provision lacks a rational

basis.
The government offered the panel only two justifications for the
habitual drunkard provisions linkage of chronic alcoholism with a lack
of good moral character. Neither passes constitutional muster.
1. The government argued that it is rational to deem people
suffering from alcoholism as categorically immoral because the
capacity for success in treatment of alcoholism hinges to a far more
significant degree on the alcoholics motivation and commitment to a
treatment program than it does for other medical conditions. Pet. 1213; Govt 1st Supp. Br. 10. This misguided contention serves only to
confirm that the classification is rooted in irrational and outdated
thinking.
The governments own medical experts have recognized that
willpower alone will not overcome the problem of addiction. Surgeon
Generals Report at 4-29. As the World Health Organization has
explained, [a]t the heart of addiction is the idea that the users
control over and volition about use of the drug has been lost or
impaired. World Health Organization, Neuroscience of Psychoactive
Substantive Use and Dependence 12 (2004), http://tinyurl.com/mhld7u.
17
Far from distinguishing alcoholism from other medical conditions based

on the supposed role that willpower may play, the governments top
medical officer has observed that, [a]lthough the mechanisms may be
different, addiction has many features in common with disorders such
as diabetes, asthma, and hypertension, since [a]ll of these disorders
are chronic, subject to relapse, and influenced by genetic,
developmental, behavioral, social, and environmental factors. Surgeon
Generals Report at 2-1. No one could rationally proclaim that suffering
from diabetes or asthma makes someone categorically immoral; from a
standpoint free of prejudice, the same is true of alcoholism.
In light of the scientific consensus that alcoholism is influenced
byand its successful treatment depends ona wide range of factors, it
is unsurprising the government can muster only the thinnest support
for its assertion that all an alcoholic needs to overcome his condition is
willpower. Both in its briefing before the three-judge panel and again
in its rehearing petition, the government cited only one source for its
mind over matter theory of alcohol dependence: an article in a
scientific journal quoting a proclamation from Alcoholics Anonymous
that alcoholics [r]arely fail if they follow[] [the organizations]
18
path. Pet. 13; Govt 1st Supp. Br. 10. But, as the three-judge panel
pointed out, the scientific article quoting that assertion does so in the
process of debunking it. The article cites AAs statement as an instance
of the trait model of alcoholism treatment, which regards alcoholics as
poorly motivated, resistant, denying, and having poor prognosis, and
invariably blames any failure in the treatment process on negative
dispositional characteristics of clients. WR Miller, Motivation for
Treatment: A Review with Special Emphasis on Alcoholism, 98(1)
Psychological Bulletin 84, 84 (1985). The article concludes that such an
understanding of alcoholism treatment is inadequate: Trait models
viewing motivation as a client attribute have not improved our ability to
predict or influence compliance with the treatment process, but rather
have favored moralistic attributions when treatment fails. Id. at 99.
The article is not alone in its critical take on AAs claim that when
alcoholics fail to achieve recovery through AAs 12-step program, it is
because they are constitutionally incapable of being honest with
themselves. Id. at 84-85. Alcoholics Anonymous is a nonscientific and
nonmedical organization, and it has offered no empirical support for
this assertion, which has been soundly disproven by actual data
19
showing the organizations success rate to be quite low. See Lance

Dodes, MD & Zachary Dodes, The Sober Truth: Debunking the Bad
Science Behind 12-Step Programs and the Rehab Industry 52-53 (2015)
(examining data to conclude that roughly 5 to 8 percent of the total
population of people who enter AA are able to achieve and maintain
sobriety for longer than one year). The recent Surgeon Generals
Report specifically noted that AA is not a form of treatment but
instead provides support and fellowship for people recovering from
addictive behaviors. Surgeon Generals Report at 4-29 (emphasis
added). And the assertion that self-motivation is all a person suffering
from alcoholism needs to remain sober ignores conclusive research
establishing that continued alcohol abuse causes changes in the
structure and function of the brain, which drive the transition from
controlled, occasional substance use to chronic misuse, which can be
difficult to control, and which also endure long after an individual
stops using substances. Id. at 2-2.
2. The government has further contended that Congress could
legitimately have singled out habitual drunkards for moral
disapproval and disfavored legal status because of the potential threat
20
they pose to the safety of themselves or others. But, as the panel

recognized, evidence showing some link between alcohol abuse and the
risk of self-harm or violence does not support a statute that labels
people suffering from alcoholism as categorically immoral. Indeed, from
1917 to 1990, the immigration statutes did exclude people suffering
from alcoholism from entering the United States for health and safety
reasons, without any reference to moral character. See Immigration Act
of 1917, Pub. L. No. 64-301, 3, 39 Stat. 874, 875 (repealed 1952);
212(a)(5), 66 Stat. at 182. Congress then recognized that the
purported health and safety concern was outmoded and repealed the
provision. H.R. Rep. No. 101-955 (1990), at 128; see Immigration Act of
1990, Pub. L. No. 101-649, 601(a), 104 Stat. 4978, 5067 (1990).
Congress thus knew how to exclude certain noncitizens, including
those with chronic alcoholism, on health and safety grounds. But
Congress did something very different with the habitual drunkard
provision, which operates only by stigmatizing those who suffer from
alcoholism as categorically immoral.
Importantly, the stigma that the provision imposes is wholly
unnecessary to protect public safety. Following the list of persons
21
categorically devoid of good moral character is a catch-all provision:

The fact that any person is not within any of the foregoing classes shall
not preclude a finding that for other reasons such person is or was not
of good moral character. 8 U.S.C. 1101(f). In accordance with this
provision, the Board has repeatedly denied discretionary relief where a
noncitizens alcohol-related conduct shows an indifference to the
welfare of others. Portillo-Rendon v. Holder, 662 F.3d 815, 816 (7th
Cir. 2011); see also Gutierrez v. Holder, 662 F.3d 1083, 1090 (9th Cir.
2011) (IJ denied discretionary relief based on conduct including eight
months in prison, seven or eight DUI convictions with the most recent
three years prior to the hearing, and driving with a suspended license
at the time of the hearing); In re Khanzetyan, 2008 WL 1924552, at *2*3 (BIA Apr. 1, 2008) (concluding that the adverse equities warrant a
discretionary denial where noncitizen had been convicted of 22
offenses, including driving under the influence). Because the agency
may always consider conduct that potentially threatens public safety in
making the discretionary determination, the habitual drunkard
provision serves no purpose in that respect; its sole function is to
22
stigmatize those suffering from alcoholism by declaring them inherently

immoral.
Far from reducing the risk of violence, the stigma the provision
imposes on alcohol addiction actually threatens public safety by
undermining treatment. As the Surgeon General explains, the stigma
traditionally attached to alcoholism and other forms of addiction
create[s] an added burden of shame that has made people with
substance use disorders less likely to come forward and seek help.
Surgeon Generals Report at v. Stigma exacerbates social alienation
and contributes to poor mental and physical health, noncompletion of substance use treatment, delayed recovery and
reintegration processes, and increased involvement in risky
behavior. James D. Livingston, et al., The effectiveness of interventions
for reducing stigma related to substance use disorders: a systematic
review, Addiction (Jan. 2012) (citations omitted),
http://tinyurl.com/hqpalu6; see also generally K.M. Keyes et al., Stigma
and Treatment for Alcohol Disorders in the United States, American
Journal of Epidemiology (Aug. 2010), http://tinyurl.com/zdjbcwu. By
tagging those suffering from alcoholism with a badge of moral
23
disapproval, the habitual drunkard provision subverts the very public

safety rationale the government advances to justify it.
Furthermore, the purported public safety concerns the
government cites do not explain why the statute targets only alcoholics,
even though people who suffer from other medical conditions like
bipolar disorder similarly experience higher average incidences of
violence. Slip op. 13. Again, Cleburne is instructive. There the city
sought to justify requiring a special permit before the construction of a
home for the developmentally disabled by citing concerns about an
increase in traffic and density in the area. 473 U.S. at 449. Those
concerns plainly supply a legitimate basis for a land-use regulation, but
the Court concluded that they did not answer the question of why it is
rational to treat the mentally retarded differently. Id. Here the
government has likewise failed to explain why concerns about increased
rates of violence justify singling out alcoholismamong all medical
conditions and all forms of addictionfor special moral opprobrium.
Rational basis review does not demand narrow tailoring, but it
does require that a statute be narrow enough in scope and grounded in
a sufficient factual context for [a court] to ascertain some relation
24
between the classification and the purpose it serve[s]. Romer, 517 U.S.
at 632-33. The governments vague allusions to public safety fail to
explain why it is rational to distinguish alcoholism from all other
comparable medical conditionsfrom bipolar disorder to addiction to
substances like crystal methamphetamine and PCP (phencyclidine)
and brand those unfortunate individuals who suffer from that
particular condition as uniquely and singularly morally bad.
II.
The Habitual Drunkard Provision Cannot Be Saved By

Ignoring The Statutory Language Creating The
Unconstitutional Classification.
Although the governments rehearing petition briefly reasserts the
willpower argument that the panel rightly rejected, see Pet. 12-13, it
primarily defends the habitual drunkard provision by rewriting it. This
Court should reject the governments revisionist arguments as contrary
to the statutory language and the BIAs decision.
1. First, the government contends that the Court should uphold
the habitual drunkard provision by ignoring the bad moral character
classification. According to the government, while [i]t is correct to note
that Congress effectuated this categorical ban by linking habitual
drunkards with a lack of good moral character, the panel focused too
25
narrowly on this tree to the exclusion of the forestultimately, this

provision is about the class of aliens Congress wanted to be eligible for
specified relief and benefits. Pet. 15. This argument echoes the panel
dissents view that the panels decision was [p]ointless[]: Because
Judge Clifton could imagine a different statute that would deny
noncitizens who suffer from alcoholism access to discretionary relief
without reference to the good moral character requirement, he
concluded the statute Congress actually enacted must be rooted in a
legitimate purpose. Slip op. 25.
A court conducting rational basis review may of course uphold a
statute based on reasons not articulated by the legislature. F.C.C. v.
Beach Commcns, Inc., 508 U.S. 307, 315 (1993). But where, as here,
the language and legislative history clearly show Congresss intent,
courts lack authority to rewrite a statute to avoid possible
constitutional problems. Spraic v. U.S. R.R. Ret. Bd., 735 F.2d 1208,
1211 (9th Cir. 1984); see also Virginia v. Am. Booksellers Ass n, 484
U.S. 383, 397 (1988) ([W]e will not rewrite a law to conform it to
constitutional requirements.). And when an examination of the
legislative scheme and its history demonstrates that the asserted
26
purpose could not have been a goal of the legislation, courts need not
in equal protection cases accept at face value assertions of legislative
purposes. Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975).
The habitual drunkard provisions place in the legislative scheme
precludes any effort to sever it from the good moral character rubric.
Congress knows how to enact legislation that deems certain noncitizens
ineligible for discretionary immigration relief without making
determinations about their moral character. For example, the INA
limits eligibility for cancellation of removal to those who have been
physically present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such application.
8 U.S.C. 1229b(b)(1)(A). And the INA renders those who abuse or are
addicted to controlled substances deportable, but without deeming them
categorically immoral and therefore ineligible to seek discretionary
relief. See 8 U.S.C. 1227(a)(2)(B)(ii).
Instead of taking a similarly neutral approach to alcoholism,
Congress intentionally lumped alcoholics in with people who have
engaged in genocide or torture; in other words, people who are
categorically ineligible for relief because of their gross iniquity. The
27
government and panel dissents contention that this Court should

uphold the provision by imagining that Congress could have enacted a
different provision, and that that provision could be rationally related to
a legitimate government interest, is antithetical to the premises
underlying rational basis review. The deference such review affords to
Congress arises from respect for the separation of powers, which
precludes courts from closely scrutiniz[ing] legislative choices as to
whether, how, and to what extent legitimate government interests
should be pursued. Cleburne, 473 U.S. at 441-42. That same
principle forecloses courts from rewriting statutes based on the
assumption that Congress did not mean what it plainly said; there is
nothing deferential about ignoring the actual manner in which a statute
operates in favor of the courts own more expansive construction of the
statute and its purpose. Pet. 16; see Spraic, 735 F.2d at 1211.
Furthermore, in rewriting the habitual drunkard provision to
remove its moral classification, the government mischaracterizes the
statutes function. The government contends that its more expansive
construction of the statute is constitutionally permissible because
there are rational bases on which Congress could conclude that
28
habitual drunkards are not entitled to discretionary relief or other

benefits. Pet. 16 (emphasis in original). This is a misleading
strawman. No one has suggested any entitlement to relief, with or
without the habitual drunkard provision. Discretionary relief under the
INA is just thatdiscretionary. It ultimately hinges on an exercise of
administrative discretion that is not subject to judicial review.
Portillo-Rendon, 662 F.3d at 817; see also Mendez-Castro v. Mukasey,
552 F.3d 975, 978 (9th Cir. 2009) (courts are barred from reviewing the
merits of a hardship determination). The habitual drunkard provision
operates not to eliminate entitlement to discretionary relief and
benefits, but to preclude a noncitizen from even seeking such relief. As
applied to Ledezma, for instance, the provision prevented the IJ and
BIA from even considering whether, notwithstanding his alcoholism
diagnosis, Ledezmas years of sobriety coupled with his other positive
features, such as his long employment history and consistent support of
his family, establish the moral character necessary for discretionary
relief. Indeed, the IJ initially determined that Ledezmas circumstances
warranted voluntary departure, A.R. 271, but after reviewing the
29
medical records, concluded that unfortunately Ledezmas alcoholism

diagnosis rendered him ineligible for such relief, A.R. 55.
2. For the first time in its rehearing petition, the government
contends that the habitual drunkard provision does not turn on any
medical diagnosis relating to alcoholism [but] on the conduct of the
alien during the relevant period during which good moral character is
required. Pet. 11 (emphasis in original). But the government did not
take that position in its briefing before the three-judge panel. There, it
asserted that Ledezma is barred from showing good moral character as
a habitual drunkard if, during the relevant time period, he consumed
any intoxicating substance frequently or excessively, or if he was an
alcoholic. Govt Supp. Br. 7-8 (emphases in original).
Moreover, the governments newfound theory has no basis in the
agencys decision. The IJ explained that Ledezma did not have good
moral character because, based on all the comments made by the
doctors, he is an alcoholic. A.R. 51. The Board likewise affirmed the
IJs decision because it discern[ed] no clear error in the IJs findings
regarding his alcoholism, noting that his daughter testified that her
father had been an alcoholic. A.R. 4.
30
The agencys determination that the status indicated by the

habitual drunkard provision refers to the condition of alcoholism is
consistent with the statutory language. Decades before the provisions
enactment in the 1950s, the term habitual drunkard had developed an
established meaning in the legal context, referring to a person who
suffered from a disease of the mind and body, analogous to insanity.
Leavitt v. City of Morris, 105 Minn. 170, 176 (1908). Habitual
drunkards, the Minnesota Supreme Court observed, were persons who
have lost the power or will to control their appetite for intoxicating
liquors or narcotics, and have the fixed habit of drunkenness [and]
are in need of care and treatment. Id. They were people who hav[e]
the involuntary tendency to become intoxicated, Murphy v. People, 90
Ill. 59, 60 (1878) (internal quotation marks omitted); people for whom
[t]he indulgence had become so extensive that an enfeebled will,
broken down through frequent acquiescence, either prevents or does not
desire any active resistance to alcoholic opportunity, Hereid v. Hereid,
209 Minn. 573, 575 (1941); people who were addicted to habitual
drunkenness, Brown v. Brown, 38 Ark. 324, 328 (1881); see also
Anthony Frank, Habitual Drunkenness: Meaning in Divorce and
31
Criminal Law Statutes, 26 Marq. L. Rev. 104, 104 (1942) (collecting

cases). They were, in short, people who suffer from what we now
recognize as alcoholism: The modern reader translates the behavioral
description of the habitual drunkard into modern termsinto the
alcoholic. Harry Gene Levine, The Discovery of Addiction: Changing
Conceptions of Habitual Drunkenness in America, 39 J. Studies on
Alcohol 143, 148 (1978).
The governments contention that the habitual drunkard provision
describes conduct, moreover, is ultimately a distinction without a
difference. Even if the statute is construed as describing conduct, that
conduct is simply the manifestation of the symptoms of alcoholism. As
the panel explained, a statute that targets conduct intertwined with a
status is no different than a statute that targets the status. See Slip op.
8. The Supreme Court has held the same. See Christian Legal Socy
Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561
U.S. 661, 689 (2010); Lawrence v. Texas, 539 U.S. 558, 575 (2003); cf.
Bray v. Alexandria Womens Health Clinic, 506 U.S. 263, 270 (1993) (A
tax on wearing yarmulkes is a tax on Jews.).
32
And nothing better demonstrates the intertwining of status and

conduct than the governments own ever-shifting positions in this case:
The IJ and the Board both determined that Ledezma was ineligible for
discretionary relief because he suffered from alcoholism. Then, before
the panel, the government defended that decision by asserting that it
could establish Ledezmas habitual drunkard status by showing either
that he drank frequently and excessively, or was an alcoholic.
Govt Supp. Br. 7-8 (emphasis in original). Finally, now, before the en
banc Court, the government insists that [i]t is the conduct of the alien
that disqualifies him from relief, not any underlying medical diagnosis,
even though the evidence of that conduct remains what it has always
beenmedical records, showing a diagnosis of alcoholism. Pet. 11.
In any event, should this Court conclude that the provision refers
to some, as-of-yet unidentified form of conduct,1 then remand is
necessaryfirst to the three-judge panel to resolve the challenges
Ledezma agrees with the ACLU that the only conduct-based

interpretation of the habitual drunkard provision that would render it
constitutional would be one where it applies solely to noncitizens whose
alcohol abuse results in harm to the health or safety of others. See
ACLU Immigrants Rights Project Amicus Br.
33
1
raised by Ledezmas petition that have not yet been addressed,2 and
then to the agency. [A]n administrative order cannot be upheld unless
the grounds upon which the agency acted in exercising its powers were
those upon which its action can be sustained. SEC v. Chenery Corp.,
318 U.S. 80, 95 (1943); see also Andia v. Ashcroft, 359 F.3d 1181, 1184
(9th Cir. 2004) (In reviewing the decision of the BIA, we consider only
the grounds relied upon by that agency.). If the agency may arrive at a
different decision under a different standard, remand is necessary
because the court is not empowered to substitute its judgment for that
of the agency. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971).
As noted, both the IJ and the Board based their decisions in this
case on Ledezmas alcoholism diagnosis, and not on any particular
conduct on his part. And in reaching that conclusion, the Board noted
the lack of precedent interpreting the term. A.R. 4. If this Court
determines that the agency misconstrued the statute when it
determined that it designates people who suffer from alcoholism, and
See, e.g., Petrs Br. 17-24 (raising an unconstitutional vagueness

challenge); see also, e.g., United States v. Chapel, 55 F.3d 1416, 1420
(9th Cir. 1995).
34
2
concludes instead that the statute refers to certain conduct only, it

should remand so the agency may determine in the first instance
whether Ledezma in fact engaged in the requisite conduct. Nor can this
Court affirm merely because the BIA decision mentioned some conduct
in addition to Ledezmas alcoholism. A.R. 4. Remand remains
necessary because it is not clear from the BIAs opinion whether the
BIA intended to rely on Ledezmas conduct as an alternative grounds
for denying discretionary relief or as an integral part of the
discretionary analysis. Saeed v. Lynch, 652 F. Appx 506, 508 (9th Cir.
2016); see also Recinos De Leon v. Gonzales, 400 F.3d 1185, 1189 (9th
Cir. 2005) (remand is necessary where court is compelled to guess at
the theory underlying the agencys action) (citation omitted).
Additionally, a remand to the agency is necessary to consider
whether voluntary departure is now appropriate given the passage of
time. The BIA has held that the time period for establishing good moral
character is a continuing one and runs through the pendency of the
administrative process. In re Ortega-Cabrera, 23 I. & N. Dec. 793, 798
(BIA 2005). When the IJ issued his initial decision, Ledezma had only
recently begun to receive treatment for his alcoholism; he now has more
35
than half a decade of treatment and sobriety. The IJ originally granted

Ledezma voluntary departure; he later concluded that he
unfortunately had to modify that decision because, as an alcoholic,
Ledezma was categorically ineligible for discretionary relief. If, as the
government now argues, a recovering alcoholic may establish good
moral character so long as he was in recovery during the period such
good moral character is required, Pet. 11-12 (emphasis in original),
Ledezma would now be eligible because he has been sober for more than
the five years that 8 U.S.C. 1229c requires. See A.R. 96.
****
Judge Clifton was right in sensing some [p]ointlessness in these
proceedings. Slip op. 25. The triviality, however, rests not in the
majority opinion, but in the governments insistence on dusting off an
obsolete legislative opprobrium of a medical condition to foreclose
Ledezma from seeking discretionary reliefrelief that the INA already
allows IJs to deny where a noncitizens alcoholism results in actual
misconduct that threatens the health and safety of others. By contrast,
the panels decision recognizing the irrationality and
unconstitutionality of this derogatory provision matters deeply to the
36
millions of people in our country suffering from alcohol addiction. As

the panel correctly recognized, the Equal Protection Clause ensures
that the victims of this widespread disease do not also suffer from a
government-imposed stigma on their medical condition. The en banc
Court should hold the same.
CONCLUSION
The petition for review of the BIAs decision should be granted.
Respectfully submitted,
Nora E. Milner
MILNER & MARKEE LLP
16870 W. Bernardo Drive
Suite 320
San Diego, CA 92127
/s/Kelsi Brown Corkran

Kelsi Brown Corkran
SUTCLIFFE LLP
1152 15th Street NW
(202) 339-8400
Thomas M. Bondy
Randall C. Smith
Benjamin F. Aiken
SUTCLIFFE LLP
1152 15th Street NW

December 16, 2016
37
CERTIFICATE OF COMPLIANCE
This brief complies with this Courts order because this brief
contains 6,931 words, excluding the parts of the brief exempted by Fed.
R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word 2010 in Century Schoolbook 14-point font.
ORRICK, HERRINGTON & SUTCLIFFE LLP
/s/ Kelsi Brown Corkran
Kelsi Brown Corkran
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system on December 16, 2016.
I certify that all participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF
system.
ORRICK, HERRINGTON & SUTCLIFFE LLP
/s/ Kelsi Brown Corkran
Kelsi Brown Corkran

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RESTRICTED Case: 12-73289, 12/16/2016, ID: 10237695, DktEntry: 81, Page 1 of 45

United States Court of Appeals for the Ninth Circuit

PETITIONERS SUPPLEMENTAL BRIEF ON

Kelsi Brown Corkran

Counsel for Petitioner

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The INAs Habitual Drunkard Provision Violates The

The habitual drunkard provision identifies a class

The habitual drunkard provision lacks a rational

The Habitual Drunkard Provision Cannot Be Saved By

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Anthony Frank, Habitual Drunkenness: Meaning in

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STATEMENT OF THE CASE

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Ledezmas alcoholism rendered him ineligible to seek discretionary

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instead considered whether it would be constitutionally permissible for

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been debunked by a wealth of medical literature and has deplorable,

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statutory language creating an irrational classification that stigmatizes

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The INAs Habitual Drunkard Provision Violates The Equal

distinguishes between two classes of people must be rationally related

The habitual drunkard provision identifies a class of

The habitual drunkard provision identifies persons by a single

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character based on a status identified with a specific medical condition.

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Like the ordinance invalidated in Cleburne, moreover, the

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The habitual drunkard provision lacks a rational

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Far from distinguishing alcoholism from other medical conditions based

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showing the organizations success rate to be quite low. See Lance

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they pose to the safety of themselves or others. But, as the panel

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categorically devoid of good moral character is a catch-all provision:

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stigmatize those suffering from alcoholism by declaring them inherently

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disapproval, the habitual drunkard provision subverts the very public

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The Habitual Drunkard Provision Cannot Be Saved By

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narrowly on this tree to the exclusion of the forestultimately, this

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