The Ninth Circuit Court of Appeals ordered that Ledezma-Cosino v. Lynch, originally decided by a three-judge panel of the Ninth Circuit on 3/24/16, be reheard en banc. (Ledezma-Cosino v. Lynch, 10/12/16).
The [three-judge] panel granted Salomon Ledezma-Cosino's petition for review of the Board of Immigration Appeals' decision finding him ineligible for cancellation of removal or voluntary departure because he lacked good moral character as a "habitual drunkard" under 8 U.S.C. § 1101(f)(1).
The panel held that Ledezma-Cosino is barred from raising a due process claim, but he could bring an equal protection challenge because it does not require a liberty interest. The panel held that § 1101(f)(1) is unconstitutional under the Equal Protection Clause because there is no rational basis to classify people afflicted by chronic alcoholism as innately lacking good moral character. The panel remanded for further proceedings in light of the opinion.
Dissenting, Judge Clifton wrote that the opinion disregards the legal standard to be applied, and that § 1101(f)(1) should easily clear the very low bar of the rational basis test. Judge Clifton would find that the majority opinion includes several false legal premises, and it relies upon the false factual dichotomy that diagnosis of chronic alcoholism as "medical" means there can be no element of drunkenness subject to free will or susceptible to a moral evaluation.