The crude joke goes something like this: the difference between a drunkard and an alcoholic is that the drunk does not have to attend meetings.
In a May 30, 2017 decision, Ledezma-Cosino v. Sessions, an en banc panel of the Ninth Circuit Court of Appeals provided a federal statutory distinction between the two terms as they are used in immigration law.
Salomon Ledezma-Cosino (“Cosino”) entered the United States in 1987 without official approval. The native and citizen of Mexico lived a law-abiding life in this country until May 7, 2008 when the police in Carlsbad, California arrested him for driving without a license and while under the influence of alcohol.
While he obeyed the laws of this country and paid his fair share of taxes, Cosino had one problem while in the U.S.—he loved alcoholic beverages. During one decade while in this country, he drank 1 liter of teguila on average every day. According to the Ninth Circuit, that level of alcohol consumption made him a “habitual drunkard.”
The appeals court turned to Black’s Law Dictionary to define a habitual drunkard as a person “whose habit it is to get drunk; whose ebriety [sic] has become habitual.”
The Merriam-Webster definition of “habitual” is “regularly or repeatedly doing or practicing something or acting in some manner.” In other words, habitual means doing the same thing over and over expecting the same result. With respect to drinking, it means consuming alcohol over and over expecting to achieve drunkenness.
These terms were important to Cosino’s status in the United States.
Within days of Cosino’s 2008 DUI arrest, the Department of Homeland Security, acting under the authority of 8 U.S.C. § 1182(a)(6)(A)(i), issued a “notice to appear” for removal proceedings because he was an alien “present in the United States without having been admitted or paroled.”
Cosino was convicted in 2008 for the driving under the influence offense.
Under Section 1229b(b)(1) of the immigration statute, Cosino moved for a cancellation of the removal order. To qualify for a cancellation of removal order, the unlawful immigrant must establish that he or she:
- Has been physically present in the United States for a continuing period of not less than 10 years immediately preceding the date of such application [for cancellation of removal];
- Has been a person of good moral character during such period;
- Has not been convicted of [enumerated offenses]; and
- Establishes that removal would result in exceptional and extremely unusual hardship to [certain family members].
It was the “good moral character” requisite that presented a problem for Cosino.
Section 1229b(b)(i) defines that term to mean:
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—
- a habitual drunkard …
“Habitual Drunkard” Lacks Good Moral Character
The problem is that the removal statute does not define the term “habitual drunkard” which forced the Ninth Circuit to turn to a legal dictionary for an applicable definition.
At Cosino’s removal hearing before an Immigration Judge (IJ), the government presented doctors who had treated Cosino and who found that he had a “more than ten year history of heavy alcohol abuse.” His daughter also testified that he had a “drinking problem” that resulted in his liver failing because of “too much alcohol, too much drinking.”
Dissent Argued Petitioner was Recovering Alcoholic
This was enough evidence for the IJ to conclude that Cosino was a “habitual drunkard” within the meaning of immigration law. The majority panel of the Ninth Circuit upheld the IJ’s conclusion. The dissenting judges, however, believed that the evidence established that Cosino was not a habitual drunkard but rather was a “recovering alcoholic.”
This distinction is important. The government argued on appeal that the removal statute required only an inquiry into “whether a person’s conduct during the relevant time period meets the definition [of habitual drunkard); the person’s status as an alcoholic, or not, is irrelevant to the inquiry.”
In a nutshell, the government’s position—as adopted by the Ninth Circuit—is that the only inquiry necessary is whether an unlawful resident repeatedly consumes alcohol with the purpose to get drunk. It does not matter if the consumption of alcohol is due a person’s dependency upon alcohol; in other words, that he or she is an alcoholic.
The Ninth Circuit confirmed this position by saying that Congress, under Section 1101(f)(1) (1952), intended to create a difference between a “habitual drunkard” and an “alcoholic.” Yet, under Section 1182(a)(5) (1952), Congress said that “excludable aliens” include “aliens who are narcotic drug addicts or chronic alcoholics.”
We fail to see the difference.
In effect, in one statute Congress said there is a difference between someone who repeatedly consumes alcohol and someone who is dependent upon alcohol, indicating that alcohol dependency, a recognized physical or mental disorder, is not grounds for denial of admission into the country, but, then, in another statute said, “chronic alcoholics” (those dependent upon alcohol) are the same as “drug addicts,” both of whom should be removed from the country.
The National Institute of Alcohol Abuse and Alcoholism defines “chronic drinking” (habitual drinking) as people who drink more than the recommended one drink for women and two drinks for men per day, or more than seven drinks for women and fourteen drinks for men per week.
The National Institutes of Health defines “alcoholism” as the need to drink more and more in order to get drunk; that there is a craving for alcohol that cannot be satisfied until a drink is taken; and that there is an inability to stop drinking once the drinking starts.
We agree with the proposition, as pointed out by the Ninth Circuit, that driving under the influence is a danger to public safety; but we do not accept the premise that two decades of law-abiding living by an undocumented resident should be discarded by a single act of wrongdoing. And we certainly do not accept the premise that someone who drinks alcohol excessively lacks “good moral character.”
1/3 of Americans Lack “Good Moral Character”
When it comes to morality, the religious proverb “people who live in glass houses shouldn’t throw stones” applies here. Roughly, 32 million lawful American residents suffer from some sort of alcohol disorder; another 25 million lawful American residents regularly abuse drugs; and another 30 million lawful American residents have driven vehicles while drunk.
In effect, roughly one out of every three lawful American residents regularly engage in behavior that does not meet Congress’s and the Ninth Circuit’s definition of “good moral character.”
Thus, the Ninth Circuit’s ruling that being a habitual drunkard is grounds for removal from this country of an undocumented person is flawed at its core.