Targeting the Habitual Drunkard - The Case of Ledezma-Cosino v Lynch (9th Cir. 2016)

Does being a “habitual drunkard” mean that one lacks good moral character? You may be wondering how this question relates to migration or the law? After all, being a habitual drunkard, in and of itself, does not typically give rise to a violation of the law. 

The issue recently arose in a decision released on March 24, 2016 by the United States Court of Appeals for the 9th Circuit (“the court” or “the 9th Circuit”). In Ledezma-Cosino v Lynch, the non-citizen applicant was subject to possible removal (i.e. deportation) proceedings. Although conceding his eligibility for removal, Ledezma-Cosino sought two forms of discretionary relief to escape such fate - (1) cancellation of removal; or (2) in the alternative, voluntary departure. The former allows an individual to remain in the United States while the latter would permit, among other benefits, the possibility of re-admission. However, there's a catch. Such discretionary relief is unavailable for those lacking good moral character. Congress dutifully provided a list of examples where someone lacked such character under 8 USC §1101(f). The first among that list is someone who is a habitual drunkard. 

The Immigration Judge who heard the matter in the first instance concluded, among other reasons, that Ledezma-Cosino was ineligible for the requested relief on account of his being a habitual drunkard. Focusing solely on this reason, the Board of Immigration Appeal affirmed the Immigration Judge's decision. Ledezma-Cosino appealed to the 9th Circuit. 

Before the court, Ledezma-Cosino argued that the statutory bar against habitual drunkards violated both the due process and the equal protection clauses of the 14th Amendment of the United States Constitution. Though the court quickly dispensed with the due process argument, it held that the provision in question violated Ledezma-Cosino's right to equal protection. Specifically, the court determined that the impugned classification (“habitual drunkard”) failed to have a rational connection to a legitimate state interest. It asserted: “The absence of a rational relationship between a medical disease and bad moral character therefore renders any classification based on that relationship a violation of the Equal Protection Clause.” Phrased another way, it was irrational for the government to contend that people suffering from chronic alcoholism were morally blameworthy persons solely because of this disease.

The government sought to escape this connection by mounting several questionable positions, which the court rejected at each turn. First, the government argued that the legislation does not exclude a person based on any status but rather on manifested symptoms (habitual and excessive drinking). The court quickly rejected this distinction articulating that: “A statute targeting people who habitually and excessively drink alcohol is, in effect, targeting individuals with chronic alcoholism.” This is like arguing that anti-sodomy laws did not target gay people for being gay but only sexual behaviour they engaged in with someone of the same sex.

 

Second, the government claimed that people suffering from alcoholism were morally blameworthy because they simply lacked the motivation to overcome their disease, thus justifying the denial of relief. In rejecting this argument, the court articulated that this inability to overcome their illness was an old trope refuted by medical literature - namely that the inability to stop drinking was a function of the underlying ailment. The court didn't stop there but characterized the government's opposition to the medical evidence as having “deplorable, troubling, and wholly unacceptable implications.” If one were to take the government's arguments to their logical conclusion, the court stated that many veterans suffering from post-traumatic stress disorder and chronic alcoholism would be deemed to be of bad moral character. 

Third, the government argued that bad moral character flowed from alcoholism by virtue of the increased risk of violent crime and self-harm. The court rejected the argument by first addressing that those who harm themselves or commit suicide do not show poor moral character. In addition, any links between alcoholism and violence the court determined similarly failed to demonstrate bad moral character. By analogy, the court observed that while there is a recognized higher risk of incidence of violence as well as self-harm by those who had bi-polar disorder, no one would argue that people with that disorder would be deemed as being of bad moral character because of the risks associated with that condition. 

Lastly, the government made one last ditch effort to maintain the legitimacy of the law by turning to history. Namely, it argued that habitual drunkards have been targeted through legislation as a way of protecting society since the country's infancy. The court dismantled this position noting that what history demonstrates is a clear animus against chronic alcoholics and those suffering from mental illnesses. Drawing from precedent, the court observed that animus (rooted in history) does not satisfy a legitimate state interest. Near the end of its judgment, the court posited: “We have...been taught through the passage of time that classifying alcoholics as evil people, rather than as individuals suffering from a disease, is neither rational nor consistent with our fundamental values.”

The case highlights but one instance of discrimination that those with disabilities experience in the immigration process. This experience is by no means limited to the United States - indeed there is a long history of excluding disabled persons in other countries, including Canada. While Ledezma-Cosino is situated within the framework of removal proceedings, many face discrimination in other immigration contexts. Immigration policies are often constructed from an ableist perspective and with the view that a disabled person will be a drain on the host country. A person may be denied entry altogether (even for vacation) because, for example, a past history of depression requiring hospitalization. Even where a person has been permitted entry for work purposes and has demonstrated their value to the country, they may be denied a subsequent visa or request for permanent residency due to the perceived economic burden of a disabled child on the state. This has occurred in Australia and Canada. The antipathy toward those with a disability can also transpire where a foreign parent, who while residing in Canada, seeks to sponsor and bring their disabled child into the country. It may make little difference that an individual's actual or potential costs are or will be covered by private insurance or other funding. 

  

If discrimination on the basis of a disability is to be truly seen as prohibited, nations should strongly consider the appropriateness of permitting such discrimination against those seeking entry or to remain in a host country. As scholar-activist Kim Sauder argues: “It’s a little hard to argue that we [as disabled persons] are valued members of society when people are being excluded from the country for being like us.” 

Tough on Terror, Short on Nuance: Identifying the Use of Force as a Basis for Excluding Resisters Seeking Refugee Status by Amar Khoday

The Canadian Journal of Human Rights recently published an article of mine. The title and citation are "Tough on Terror, Short on Nuance: Identifying the Use of Force as a Basis for Excluding Resisters Seeking Refugee Status" (2015) 4:2 Can J Hum Rts 179.

The article can be found at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2620504 

The abstract is as follows:

The use of force has been a significant feature of many political struggles and resistance movements. The consequences for its participants may include the possibility of persecution, if not death. Some will flee and seek protection under the auspices of the 1951 Convention Relating to the Status of Refugees. Since the attacks of September 11th 2001, governments in Australia, Canada and the United States have passed broad national security legislation that effectively renders such persons inadmissible or excluded for the purposes of acquiring refugee status. Regardless of context, the targeting of government actors and the use of proportionate means, all political violence under such legislation becomes invalid. In this article, the author takes the position that such legislation should be repealed. In its place, Article 1F(b) of the Convention can be used to exclude those who engage in serious non-political crimes while allowing those who perpetrate legitimate political crimes to obtain refugee status. Article 1F(b) is the perfect tool as the purpose of the provision was to protect political resisters while excluding those who failed to observe the distinction between civilians and legitimate targets or who adopted disproportionate means and methods. Prevailing political crimes jurisprudence demonstrates that courts and tribunals possess the capability to differentiate between uses of force that are legitimate while rejecting those  that are not. They have done so by engaging in nuanced and contextual analyses. 

Designated Inhospitality: The Treatment of Asylum Seekers Who Arrive by Boat in Canada and Australia by Luke Taylor

A recent article written by Luke Taylor and entitled, "Designated Inhospitality: The Treatment of Asylum Seekers Who Arrive by Boat in Canada and Australia" was published in the McGill Law Journal - (2015) 60:2 McGill LJ 333.   The following is the English abstract:

This paper argues that there are distinct parallels between changes to the Immigration and Refugee Protection Act enacted by Bill C-31 (2012),  in particular the Designated Foreign National regime (DFN), and Australia’s treatment of asylum seekers who arrive by boat. It is contended that recent Australian history and policy demonstrate the perils of adopting an ideology of control and exclusion toward asylum seekers instead of a politics of hospitality, and that Australia’s present political climate provides a stark and salutary warning to Canada, as it follows a similar path of securitization. The paper first explains what is meant by a politics of hospitality. In Part I, it analyzes Australia’s attitude toward, and its treatment of, asylum seekers, focusing in particular on the period since 1989. It is argued that Australia’s inhospitable stance toward asylum seekers has had discernible negative outcomes that provide important les-sons for Canada. Part II provides a brief historical overview of Canadian policy toward asylum seekers, followed by an analysis of the DFN regime with reference to international law. It then argues that the DFN provisions contravene the Canadian Charter of Rights and Freedoms. The paper concludes by suggesting that Canada is at risk of following Australia’s security-oriented, inhospitable stance toward asylum seekers.

Excluding Atonement: The Supreme Court of Canada and Serious Non-Political Crimes

The 1951 Convention Relating to the Status of Refugees was created to provide protection to those fleeing their country of nationality or place of last habitual residence and who are unwilling or unable to return on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.[1] However, its protections are not without limitations. Amongst them is Article 1F(b) of the Convention which states that the "provisions of the Convention shall not apply to any person with respect to whom there are serious reasons to consider that [...] he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee."[2]

An important question that arises is whether an individual who has committed a "serious non-political crime" prior to their admission into the country of refuge can avoid exclusion if he or she has already been prosecuted and served time for the offence. If such persons are not fugitives from justice, should the exclusion clause apply? The questions were resolved by the Supreme Court of Canada in yesterday's decision, Febles v Canada (Citizenship and Immigration).[3] The Court concluded after examining the text of Article 1F(b), its context, and the overall object and purpose of the Convention that the provision is aimed at not only excluding fugitives escaping prosecution for having committed serious non-political crimes. It also pertained to those who have committed such crimes at all regardless of whether they have already been found criminally responsible, punished and have been rehabilitated.

Justice Abella, writing in dissent (with Justice Cromwell concurring) articulated that special attention needed to be paid toward the overall purpose of the Convention which was to protect human rights and advance certain humanitarian aims. Furthermore, an examination of the legislative history of Article 1F(b) suggested to the dissenting justices that the exclusion mandated under this provision was intended for those who were fleeing prosecution, but not to those who have already been punished and have served time. She observed:

In my view, depending on the seriousness of the crime, if an individual is believed to have committed a serious non-political crime, the purpose of Article 1F(b) can be met where the individual’s circumstances reflect a sufficient degree of rehabilitation or expiation that the claimant ought not to be disqualified from the humanitarian protection of the Refugee Convention. The completion of a sentence, along with factors such as the passage of time since the commission of the offence, the age at which the crime was committed, and the individual’s rehabilitative conduct, will all be relevant. On the other hand, individuals who have committed such serious crimes that they must be considered undeserving of the status of being a refugee would be excluded.[4]

While this perspective has not achieved broad consensus amongst courts or tribunals in all other jurisdictions, Justice Abella correctly posits that this position is supported by recent jurisprudence from England and Belgium, as well as the positions of the United Nations High Commissioner for Refugees.[5]

Assuming for the moment that the Court majority's position in Febles represents the correct legal interpretation, it perhaps signals the need for revisiting and revising the terms of Article 1F via a new international protocol.[6] The current language unjustly excludes individuals who may nevertheless warrant asylum (particularly where substantial mitigating circumstances may exist). Although, exclusion proceedings are technically not criminal proceedings, the impact of an adverse finding can be more severe than imprisonment - this is especially so where there is a well-founded fear of persecution for a Convention ground. In a typical criminal proceeding, if a person is found guilty of a crime, a court will usually weigh aggravating and mitigating circumstances to arrive at a proper punishment. 

With respect to an Article 1F(b) analysis, once it has been determined that an individual has committed a serious non-political crime (or any other crime identified under Article 1F), there is no analogous process to weigh the consequences of exclusion against any mitigating factors militating against this result. Some factors to consider in weighing for or against the exclusion, once it is found that there are serious grounds to consider that an individual has committed a serious non-political crime(s), should include the following: (a) the fact that a claimant would otherwise qualify as a refugee; (b) the fact of rehabilitation and having served time for the offences; (c) the relative seriousness of the crime; and (d) any other relevant circumstances surrounding the crime (including those articulated by Justice Abella). 

Not surprisingly, if a claimant would not even qualify as a refugee, any other factors would be moot in such an analysis. However, at present, many adjudicators do not even bother to make any assessment of whether claimants would otherwise qualify for refugee status once they have determined that a person is excluded. The existence of mitigating factors by itself should of course not have to mean that exclusion would be inappropriate either. Some crimes and/or the aggravating factors surrounding a serious non-political crime or set of crimes may very well militate against the granting of refugee status as Justice Abella indicated.[7]

Not surprisingly, the likelihood of seeing such a new international protocol come to fruition is not especially promising. We exist in an environment that is not particularly sympathetic to refugees and/or asylum-seekers. Added to this, those who would otherwise qualify for refugee status but have committed a serious non-political crime are deemed automatically unworthy regardless of circumstances and the existence of mitigating factors. They are viewed as criminals - period. In addition, a new protocol mandating the consideration and weighing of various factors for exclusion (including whether a claimant otherwise qualifies for refugee status) would require more work for States and particularly their administrative bodies and courts. Weighed against the humanitarian concerns underlying the Convention, they may not be compelling reasons to all, but they nevertheless exist.

Notwithstanding the factors that would militate against its creation, such a protocol would nevertheless work toward balancing the humanitarian objectives of the Convention with other considerations that could still favour exclusion in the appropriate circumstances. Ultimately, a more nuanced approach to these issues would be desirable.  

Notes

[1] Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

[2] Ibid, art 1F(b). 

[3] Febles v Canada (Citizenship and Immigration), 2014 SCC 68. 

[4] Ibid at para 132.

[5] Ibid at para 133

[6] I am of course fully aware that many aspects of the Refugee Convention should be revisited (including from the point of view of what is not in the Convention at present), but for the purpose of this post, I shall focus on this particular issue.    

[7] I have developed similar arguments with respect to Article 1F(a) in a chapter in my doctoral thesis, which I have since revised for publication. 

Can Human/People Smuggling Be Qualified As A Humanitarian Act

Are all human smugglers cut from the same cloth? How should they be constructed and how does the law as well as those who formulate the law do so? As we shall see below, human smugglers tend to be constructed as being motivated by money and vultures feeding off the vulnerabilities of others. While many human smugglers do engage in their acts for profit, others may do so largely for humanitarian purposes. From a legal perspective, international law defines human smuggling differently from domestic jurisdictions such as, amongst others, Canada and Australia.

The Law

Under article 3(a) of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, the smuggling of migrants is defined as the "procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident." By the Protocol's terms, unlawfully shepherding individuals facing persecution into another country for humanitarian purposes is not proscribed activity. Such recognition is important for it acknowledges that individuals fleeing persecution may need assistance to secure their migration to another jurisdiction even if illegally.[1]

States have however taken a different approach to human smuggling. Under Canadian law for example, it is defined much more broadly. Section 117(1) of the Immigration and Refugee Protection Act states the following: "No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or would be in contravention of this Act." The breadth of this provision suggests that even those who do so for humanitarian reasons are captured under these provisions. This is further confirmed by the fact that under s.121(1)(c) of the IRPA, the commission of acts committed under s.117 for "profit, whether or not any profit [is] realized" (amongst other reasons) is considered an aggravating factor.  The British Columbia Court of Appeal arrived at this very conclusion in R v Appulonappa. By contrast, engaging in human smuggling for humanitarian reasons might be considered a mitigating factor, but it is clear by the language that it will not relieve the smuggler of liability. 

In addition, engaging in "people" smuggling is grounds for inadmissibility into Canada, even where, as in s.117, such conduct is for humanitarian reasons. In Canada (Public Safety and Emergency Preparedness) v JP, Canada's Federal Court of Appeal concluded that people smuggling even for humanitarian grounds was a valid ground for inadmissibility (just as it is valid as basis for criminal liability under s.117 for human smuggling). As part of its decision, the Court of Appeal observed that in criminal cases, motives are usually irrelevant with respect to the elements of the crime. As such, whether or not someone engages in people smuggling with a humanitarian motive is irrelevant with respect to the intent to commit the prohibited act.

Rethinking Human Smugglers

To be sure, human/people smuggling for the purpose of financial gain should be appropriately outlawed. It exploits the vulnerabilities of those who may be fleeing on account of a well-founded fear of persecution. This is however clearly distinguishable from instances where a person assists another without seeking any financial gain. Furthermore, even where the smuggler receives some compensation which essentially covers the costs of the smuggling operation (i.e. food for the trip, fuel etc), one can hardly say that receipt of such compensation constitutes a "gain". Assisting other persons out of a desire to help does not necessitate that they become paupers or risk impoverishment. It is also useful to remember that not everyone is capable of undertaking an arduous journey without some assistance. If there is a right to seek asylum, it seems rather incongruous to deem as criminal behavior efforts to help asylum-seekers reach their destination (assuming again it is not undertaken for profit). The efforts of smugglers can assist many in obtaining refugee status. For example, it is worth noting that in the case of one human smuggler, Hadi Ahmadi, 886 of the 911 individuals he brought/smuggled into Australia received refugee status (this represents a 97% success rate).

This rather uncompromising approach which deems all human/people smuggling as criminal behavior is well represented in political discourse. Speaking as the Australian Prime Minister (as he then was) Kevin Rudd asserted that "People smugglers are engaged in the world's most evil trade and they should all rot in jail because they represent the absolute scum of the earth." He added, ""People smugglers are the vilest form of human life. They trade on the tragedy of others and that's why they should rot in jail and in my own view, rot in hell."

In contrast to this rather stark image projected by Mr. Rudd, others have articulated a rival image - that of a humanitarian seeking to help others escape persecution. One such person is Ali Al Jenabi, an Iraqi citizen, who, along with his family, was persecuted by Saddam Hussein's regime. Mr. Al Jenabi managed to escape Iraq and reach Australia. He sought to bring his family and others into the country. However as Bruce Haigh explains, due to lack of money and dishonest operatives in the informal transport networks, Al Jenabi entered the people smuggling "business" and managed to bring members of his family and hundreds more into Australia. Refugees such as Al Jenabi are well acquainted with the perils of fleeing persecution and can operate to help assist and navigate others to safety. While some human smugglers may personify the type of individuals Mr. Rudd described, they do not represent the entirety of those who attempt to assist others to find safe harbour.

Current Canadian (and Australian) law has not responded well to the diversity that exists among human smugglers. Furthermore, current domestic law in these and other jurisdictions has failed to consider the humanitarian purposes of the Refugee Convention and the protection of those fleeing persecution. Politicians have blinded themselves to the challenges faced by asylum-seekers in getting to their destination through legitimate routes. Lawmakers must appreciate the need for nuance and distinctions between smugglers and should design a system that countenances these differences.

[1] It is perhaps worth noting that article 31(1) of the 1951 Convention Relating to the Status of Refugees provides that contracting states shall not impose penalties on refugees for their illegal entry or presence into the contracting state. The terms of the article are directed at the refugees themselves and not those who may smuggle them in. However, it nevertheless reflects an understanding that refugee's migration into a contracting state may have to take place through illegal means or entry. If a bona fide refugee's illegal entry should not be punished under the terms of the Convention, should those who smuggle them in (provided it is not for profit) also be exposed to penalties and legal sanctions? Imposing penalties on those who can assist a refugee's migration to a safe territory may deter those from engaging in such assistance. Professor Guy S. Goodwin-Gill has observed however that notwithstanding the terms of s.31, states have nevertheless imposed penalties on refugees themselves. See Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection" in Erika Feller et al, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (London: Cambridge University Press, 2003), online: <http://www.refworld.org/docid/470a33b10.html>.

 

Sources

Primary Sources

B010 v Canada (Citizenship and Immigration), 2013 FCA 87, online: CanLII  <http://canlii.ca/t/fwmwt>.

Canada (Public Safety and Emergency Preparedness) v JP, 2013 FCA 262, online: CanLII <http://canlii.ca/t/g1t6s>.

Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 (entered into force22 April 1954). 

Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 15 December 2000, 40 ILM 384 (2001) (28 January 2004), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>.

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 ILM 335 (2001), UN Doc A/55/383 at 25 (2000) (entered into force 29 September 2003), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>. 

R v Appulonappa, 2014 BCCA 163, online: CanLII <http://canlii.ca/t/g6pg1>.

United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 ILM 335 (2001), UN Doc A/55/383 at 25 (2000) (entered into force 29 September 2003), online: <http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf>. 

Secondary Sources

Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection" in Erika Feller et al, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (London: Cambridge University Press, 2003).

Bruce Haigh, "People smuggler or the Schindler of Asia?" The Drum (7 May 2012), online: <http://www.abc.net.au/news/2012-05-07/haigh-people-smuggler-or-the-schindler-of-asia3f/3994310>.

Project Safecom, "The Case of Mr. Hadi Ahmadi" (undated), online: <http://www.safecom.org.au/ahmadi-case.htm>.

Refugee Action Coalition Sydney, "People Smuggling" (undated), online: <http://www.refugeeaction.org.au/?page_id=1809>.

Emma Rodgers, "Rudd wants people smugglers to 'rot in hell'" ABC News (17 April 2009), online: <http://www.abc.net.au/news/2009-04-17/rudd-wants-people-smugglers-to-rot-in-hell/1653814>.

Andreas Schloenhardt & Connor Davies, "Smugglers and Samaritans: Defences to People Smuggling in Australia" (2013) 36(3) University of New South Wales Law Journal 954, online: <http://www.austlii.edu.au/au/journals/UNSWLJ/2013/36.html>.