Sitting en banc, the Ninth Circuit has reversed the 3-judge panel's decision in Ledezma-Cosino v. Sessions, and upheld the habitual drunkard bar to good moral character. First, the court upheld the determination that Ledezma-Cosino met the definition of 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."
Second, the court determined that the bar was not unconstitutionally vague. "[T]he 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 vagueness of the law as applied to the conduct of others.'"
Finally, the court also determined that the bar did not violate equal protection. "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 13 groups who may pose similar risks."
The full text of Ledezma-Cosino v. Sessions can be found here: