Recent en banc moral turpitude case concurrence may be addressing the travel ban litigation.

Sunday, June 4th, 2017
By: Jonathan MontagJ.D.

The Ninth Circuit got into it this year on a relatively minor issue, a section of the Immigration and Nationality Act, INA § 101(f)(1), which states that an “habitual drunkard” lacks good moral character. On March 24, 2016, a three-judge panel of the court, in Ledezma-Cosino v. Lynch concluded that the section 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. Equal protection is part of the 14th Amendment to the Constitution. The Ledezma-Cosimo decision explained the definition, “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” The Supreme Court has long held that the constitutional promise of equal protection of the laws applies to non-citizens as well as citizens citing a 1886 decision, Yick Wo v. Hopkins.  In determining whether an immigration statute violates the equal protection clause, the usual test is whether the classification between noncitizens who are otherwise similarly situated nevertheless violates equal protection unless it is rationally related to a legitimate government interest. Essentially, does the government have a rational reason to treat one person or group differently from another? This is actually a very weak test the government has to pass. Rarely does the government fail the test as courts are extremely reticent to interfere with the government’s power to control immigration. The reticence is so intense that in 2015 in Kerry v. Din  the Supreme Court reiterated its position that the decisions of consulates regarding issuing visas are nearly never subject to judicial review, a concept aptly termed, “Consular Nonreviewability.”

There are some examples of a court finding an immigration law irrational. One notable case was Francis v. INS, in 1976, where the Second Circuit Court of Appeals that found that a statute, the former INA § 212(c), that allowed for the forgiveness for certain crimes to aliens applying to get into the United States but not aliens already in the United States. That led to 35 more years of litigation until the Supreme Court held unanimously in 2011, in Judalang v. Holder that the entire complex scheme that developed because of these equal protection problems was arbitrary, capricious, and, wait for it, irrational, overturning, I dare point out, an en banc Ninth Circuit case, Abebe v. Holder, which found the scheme rational.

In Lezema-Cosimo, the court held that because alcoholism is a disease, there is no rational basis to classify people afflicted by chronic alcoholism as innately lacking good moral character. On May 31, 2017, the Ninth Circuit, en banc, reversed the panel and held that it was indeed rational for Congress to determine that being a habitual drunkard shows a lack of good moral character. The bases are laid out in the decision. In a nutshell, the court concluded that the issue is not the alcoholism as disease, but the excessive drinking that makes one become an alcoholic can be considered morally deficient. Congress was within its (nearly unfettered) rights to determine that a person who drinks excessively all the time, with the risks that brings to society and to the person himself, is morally deficient in behaving this way. Such moral determinations are more a political question than a judicial one.

As the dissent in the case indicates, the issue itself is not a big one. There has been only one reported case on the issue of habitual drunkenness in the immigration context in 62 years. Having been practicing immigration law for more than 20 years, I can safely say it has never been an issue in a case. Like questions about having a title of nobility or having been a Communist, the question about habitual drunkennesss on forms seemed more like a comical anachronism than a serious concern. It is not the issue in the case that makes it interesting to me, it is the concurrence of one of the en banc panel members, Judge Kozinski.

While Judge Kozinski’s concurrence is relevant to the case, I suspect it has a more important purpose as it is an argument against barring the implementation of President Trump’s travel ban. The case is at the Ninth Circuit as well as the Fourth Circuit and the Supreme Court. It may be resolved before the Ninth Circuit ever rules on it and it may never go en banc in the 9th Circuit and if it does, Judge Kozinski may not be on the en banc panel. But if it does get to him, we know from Cosimo-Ledezma, an argument he will make. The argument is that when it comes to immigration laws, the government does not have to be rational, merely facially legitimate. So as not to put words in his mouth, I quote him:

In my view, it’s the near limitless power of the political branches over immigration and foreign affairs that puts the statute here beyond cavil. Untold masses were turned away at Ellis Island—or prevented from boarding ships for America—for medical reasons, my grandfather among them. This was a misfortune for those turned away, but excluding aliens for reasons Congress believes sufficient to serve the public welfare is a nigh-unquestioned power of a sovereign nation. I’m aware of no country that fails to adhere to this precept. Nor has the Supreme Court stepped back from it. Until and unless it does, we have no business applying domestic equal protection law to political judgments—even foolish ones—made in the sphere of foreign relations.

How can this not be a defense of President Trump’s authority to issue his travel ban pursuant to INA § 1182(f)? The statute states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Arguments opposing the travel  ban are based on rationality tests based partly on due process and equal protection concerns as well as a competing statute, NA §202(a)(1)(A), pledging non-discrimination in immigrant (not all, just immigrant) visa issuance (not admission to the country), and establishment clause issues. Judge Kozinki floated another argument, a first amendment one, earlier, asserting that President Trump has a first amendment right not only to say outrageous things, but a right not to be believed when he says them, or, more exactly, not to be held to their meaning.

If rationality is not a test of a statute and things President Trump says are of no moment, the travel ban has a much greater chance of succeeding. If, before someone’s grandfather is turned into Galician fertilizer, the United States needs to act rationally, the result could well be to overturn the ban. All is not without hope for ban opponents. Judge Kozinski’s arguments may not have legs or, if perchance they do, the ban may be found not even to be facially legitimate. For some things, no standard may not be low enough. Posted June 4, 2017.


 

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