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Ninth Circuit Judges Sound Off In Two Cases, Highlighting The Debate Over Justice And The Future Of Immigration Law And Policy

By Susan E. Hill, June 1, 2017

On Tuesday May 30, 2017 the Ninth Circuit published two decisions, wherein two judges on opposing sides of the spectrum weighed in with their opinions and comments to underscore different viewpoints of immigration policy.

Habitual Drunkards, and How Far Should the Constitution Protect Immigrants?

First, in a highly contested re-hearing decision, a full panel of the Ninth Circuit reviewed challenges and interpretations of the “habitual drunkard” provision, which identifies such people as those who lack good moral character.  In Ledezma-Cosino v. Sessions, No. 12-73289 (9th Cir. 5/30/17), the Court determined that Ledezma failed to show he had good moral character due to his history of heavy drinking.  This was a departure from last year, when only a three-judge panel of the Ninth Circuit determined that Ledezma should not be punished for his medical condition of alcoholism.  Hill & Piibe’s earlier blog post from October 14, 2016 examined this case when most judges on the Ninth Circuit voted to re-hear it.

Now on rehearing, the Court isolated its focus on Ledezma’s “conduct,” noting that he had a ten-year history of heavy alcohol abuse, where doctors recorded that he drank one liter of tequila per day on average.   He also was convicted of a DUI offense, and he suffered liver failure from heavy drinking.  This “conduct” was different than the medical condition of alcoholism.  Therefore, the full panel of judges determined he was an habitual drunkard, that he lacked good moral character, and properly was denied a green card under cancellation of removal provisions.

This opinion brings further gems, though, because it addressed Ledezma’s constitutional challenges—these types of cases are appreciated by lawyers, who can gain ideas and perspective on how to challenge immigration statutes and regulations.  First the Court rejected the notion that “habitual drunkard” was an unfairly vague term: Ledezma’s conduct clearly fell under any concept of the term.  Second, the Court found no violation of the Equal Protection clause, because Congress could have a rational basis to single out habitual drunkards from all other immigrants as persons who pose a risk to public safety.

Interestingly, Judge Kozinski wrote a separate dissent arguing that the “rational basis” test is too strict, and that courts should approve immigration laws without even looking behind or caring about the reason why Congress wrote them.  This position is a massive departure from longstanding principles throughout the nation, which currently favor the courts’ power to review immigration laws for constitutional violations.  Judge Kozinski’s opinion confirms that a battle is brewing over how far the Constitution reaches to protect immigrants.

Frustration over “inhumane” deportation policy

Also on Tuesday, Judge Reinhardt issued a blistering condemnation of President Trump’s new orders for vigorous enforcement of deportation laws.  In Magana Ortiz v. Sessions, No. 17-16014 (9th Cir. 5/30/17), the two-judge panel acknowledged it was powerless under the laws to stop the government from going forward and deporting Magana while he waited for a green card.  Magana had filed his paperwork about a year ago, but the government would not wait for a decision.  Despite being here since the age of 15, building a successful coffee farm business, and having three children and a wife who were citizens, the government insisted on deporting him and forcing him to undergo extensive delay and trepidation in trying to get his green card outside the U.S.

Judge Reinhardt issued a special, six-page order on what normally could be a case decided behind closed doors, with no publication.  Furious that “the government forces us to participate in ripping apart a family,” he referenced Trump’s “bad hombres” deportation policy and labeled Mr. Magana as a “good hombre” who is “a pillar of his community and a devoted father and husband.”  The order chastised the government for lacking compassion and diminishing the United States and the courts’ pursuit of justice.

At our law firm, we also have seen the government being more aggressive and refusing to exercise its compassion for people who are in the process of obtaining legal status.  Where we used to be confident about sending clients for check-in appointments with US ICE, now we have to advise them to confer with us and see if we can prepare any documents that will prevent them from being taken into custody and deported while their green card paperwork is pending.

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