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.”
