Ledezma Supp BR Amicus Dpa

RESTRICTED Case: 12-73289, 12/16/2016, ID: 10236746, DktEntry: 75, Page 1 of 25
No. 12-73289
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________________________________________________________________________________________________________
SALOMON LEDEZMA-COSINO,
Petitioner,
v.
LORETTA E. LYNCH,
Respondent.
_________________________________________________________________________________________________________________
On Rehearing En Banc
BRIEF FOR AMICI CURIAE DRUG POLICY ALLIANCE, NATIONAL

COUNCIL ON ALCOHOLISM AND DRUG DEPENDENCE, AND PHOENIX
HOUSE IN SUPPORT OF PETITIONER
James E. Tysse
G. Michael Parsons, Jr.
AKIN GUMP STRAUSS
HAUER & FELD LLP
Robert S. Strauss Building
1333 New Hampshire Ave. NW
Washington, D.C. 20036-1564
Tel.: 202.887.4000
Fax: 202.887.4288
Email: jtysse@akingump.com
Attorneys for Amici Curiae
CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, amici curiae Drug Policy Alliance, the
National Council on Alcoholism and Drug Dependence, and Phoenix House
hereby certify that none is a publicly traded corporation.
None of these
organizations has a parent corporation, and no publicly traded corporation owns

10% or more of the stock of these organizations.
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT .........................................................i
INTEREST OF AMICI CURIAE ..............................................................................1
SUMMARY OF ARGUMENT ................................................................................3
ARGUMENT ............................................................................................................5
I.
II.
THE PANEL PROPERLY HELD THAT THE HABITUAL

DRUNKARD CLAUSE IS UNCONSTITUTIONAL. ................................5
A.
The Habitual Drunkard Clause Represents a Status-Based

Classification Fundamentally at Odds with the Consensus View
of the U.S. Government and the Medical and Scientific
Communities. .......................................................................................5
B.
Classifying Individuals as Habitual Drunkards is Not

Rationally Related to a Legitimate Government Interest.....................9
AFFIRMANCE WOULD CONTRIBUTE TO ECONOMIC,

SOCIETAL, AND INDIVIDUAL HARM WITHOUT ADVANCING
ANY LEGITIMATE GOVERNMENT INTEREST. ..................................14
CONCLUSION .......................................................................................................17
CERTIFICATE OF COMPLIANCE ......................................................................19
CERTIFICATE OF SERVICE ...............................................................................20
ii
TABLE OF AUTHORITIES
Cases:
Brown v. Lucky Stores, Inc.,
246 F.3d 1182 (9th Cir. 2001) .............................................................................. 9
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ..............................................................................................5
Gutierrez v. Holder,
662 F.3d 1083 (9th Cir. 2011) ............................................................................11
Nunez-Reyes v. Holder,
646 F.3d 684 (9th Cir. 2011) ................................................................................1
Romer v. Evans,
517 U.S. 620 (1996) ............................................................................................10
Statutes:
8 U.S.C.
1101(f)(1) .......................................................................................................3, 5
1229b(b)(1)(B) ...............................................................................................3, 5
1229c(b)(1)(B) ...............................................................................................3, 5
Other Authorities:
Am. College of Physicians, In the Clinic: Substance Use Disorders,
Annals of Internal Medicine (2016) ..................................................................... 8
Am. Psychiatric Assn, What is Addiction? (July 2015) ........................................... 8
Am. Socy of Addiction Med., Patients with Addiction Need
Treatment Not Stigma (Dec. 15, 2015) .............................................................. 8
Am. Socy of Addiction Med., Terminology Related to the Spectrum
of Unhealthy Substance Use (2013) ..................................................................... 8
Leshner, A. I., Science-Based Views of Drug Addiction and Its
Treatment, J. AM. MED. ASSN 282 (1999) ........................................................... 8
Natl Inst. On Alcohol Abuse and Alcoholism, Neuroscience:
Pathways to Alcohol Dependence, Alcohol Alert (Apr. 2009) ............................ 9
iii
Natl Inst. On Drug Abuse, Drugs, Brains, and Behavior: The

Science of Addiction (2014) .................................................................................. 9
U.S. DEPT OF HEALTH & HUMAN SERVS., OFFICE OF THE SURGEON
GENERAL, FACING ADDICTION IN AMERICA: THE SURGEON
GENERALS REPORT ON ALCOHOL, DRUGS, AND HEALTH (2016) ................passim
White House Office on Natl Drug Control Policy, National Drug
Control Strategy (2014) ........................................................................................9
World Health Org., Neuroscience of Psychoactive Substance Use and
Dependence 19 (2004) ..........................................................................................8
iv
INTEREST OF AMICI CURIAE1

Amici curiae are nonprofit organizations that promote sensible policies
related to alcoholism and related medical conditions, and that advocate to reduce
the stigma associated with these conditions.
The Drug Policy Alliance (DPA) is a 501(c)(3) nonprofit organization that
leads the nation in promoting drug policies that are grounded in science,
compassion, health, and human rights. Established in 1994, DPA is a non-profit,
non-partisan organization with more than 20,000 members nationwide dedicated to
advancing policies that reduce the harms of substance use and to seeking solutions
that promote public health and public safety. DPA is actively involved in the
legislative process and seeks to roll back the excesses of the drug war, block new
and harmful initiatives, and promote sensible drug policy reforms.
The
organization also regularly files legal briefs as amicus curiae, including in this
Court. See, e.g., Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011).
The National Council on Alcoholism and Drug Dependence (NCADD) is
the oldest advocacy organization in this country addressing Americas most widely
abused drugalcohol, alone or in combination with other drugs. Founded in 1944,
1
Amici certify that (1) this brief was authored entirely by counsel for amici
curiae and not by counsel for any party, in whole or part; and (2) apart from amici
curiae and its counsel, no other person contributed money to fund the preparation
or submission of this brief. All parties have consented to the filing of this brief.
See Dkt. No. 60.
1
it has a network of 80 affiliates in 28 states. NCADDs mission is to advocate for

prevention, intervention, research, and treatment, and to reduce the stigma
associated with alcoholism and other drug problems by working continuously to
change public attitudes and behaviors.
Phoenix House is an organization that is passionate about healing
individuals, families, and communities challenged by substance use disorders and
related mental health conditions. It is one of the nations largest not-for-profit
providers of treatment and prevention services for individuals with substance use
disorders, with more than 120 programs in ten states. In the last year, 19,000
patients participated in the evidence-based programs offered through its affiliated
Phoenix House entities, from prevention to outpatient, long-term residential
treatment, and recovery support.
These programs serve adults, adolescents,
mothers with children, veterans, individuals under supervision of the criminal

justice system, and other groups.
As organizations committed to rational and scientifically grounded treatment
of substance use disorders, amici curiae are deeply interested in ensuring that
alcoholism and related conditions are understood and treated as neurological
conditions, and that harmful stereotypes are not reinforced through outdated and
discriminatory statutes.
SUMMARY OF ARGUMENT
The Immigration and Nationality Act (INA) prohibits removable noncitizens who lack good moral character from consideration for cancellation of
removal or voluntary departure. See 8 U.S.C. 1229b(b)(1)(B), 1229c(b)(1)(B).
The INA also includes a provision that labels habitual drunkard[s] as persons
who categorically lack moral character. Id. 1101(f)(1). A three-judge panel of
this Court correctly held that the habitual drunkard clause is an unconstitutional
status-based classification that lacks any rational basis.
Amici curiae agree with petitioner that the panel correctly applied these
principles in holding that there is no rational relationship between a medical
disease such as alcoholism and bad moral character, thereby rendering the
habitual drunkard clause found in section 1101(f)(1) unconstitutional as a
violation of the Equal Protection Clause. Panel Op. 8. Because the habitual
drunkard clause employs a status-based classification that is not rationally related
to a legitimate government interest, the panels decision should be affirmed.
Amici curiae file this brief to emphasize two additional points. First, the
habitual drunkard clauses status-based classification is inconsistent with the
consensus views of the U.S. Surgeon General, the U.S. government as a whole, and
the medical and scientific communities. The notion that substance use disorder is a
medical condition, not a moral failing, is a view that has gained universal
acceptance as most recently recognized in the Surgeon Generals comprehensive

and forceful Report on Alcohol, Drugs, and Health. Because the INA already
provides the government with the authority to regulate any troubling conduct that
may be associated with substance misuse, the habitual drunkard clause thus
serves only one role:
branding individuals with a medically recognized
neurological condition as moral degenerates in the eyes of the law.
This
classification is not rationally related to any legitimate government interest.

Second, affirming a Board of Immigration Appeals (Board) decision
assigning moral opprobrium to what is universally recognized as a neurological
disease would do substantial harm to the very economic and social interests the
government claims to protect. The Surgeon General believes that substance use
disorder represents one of the most pressing public health crises of our time.
Substance misuse and substance use disorder negatively affect a substantial
number of citizens and non-citizens alike, and the conduct associated with the
disorder carries staggering costs for our economy, our healthcare system, and our
society in general.
Although many treatments options are available, they go
largely unused. One of the primary barriers to a systemic and effective approach to
prevention and treatment in our nation is the crippling stigma associated with
addiction and the irrational misperception that those afflicted with substance use
disorder are morally culpable for their own neurological condition. By asserting
that habitual drunkards are morally blameworthy as a class, section 1101(f)(1)

perpetuates that harmful stigma while serving no legitimate purpose.
ARGUMENT
I.
THE PANEL PROPERLY HELD THAT THE

DRUNKARD CLAUSE IS UNCONSTITUTIONAL.
A.
HABITUAL
The Habitual Drunkard Clause Represents a Status-Based

Classification Fundamentally at Odds with the Consensus View of
the U.S. Government and the Medical and Scientific
Communities.
Salomon Ledezma-Cosino was found by an Immigration Judge (IJ) to

have a serious alcohol dependency problem and a history of alcohol addiction
and abuse based on medical records provided by [Ledezma] himself. (AR51,
AR53.) According to the IJ and the Board of Immigration Appeals (Board), this
meant that Ledezma satisfied the habitual drunkard clause and was categorically
barred from the remedies he sought because he was not a person of good moral
character. 8 U.S.C. 1101(f)(1); see id. 1229b(b)(1)(B), 1229c(b)(1)(B).
It is black-letter equal-protection law that the government may not rely on a
classification whose relationship to an asserted goal is so attenuated as to render
the distinction arbitrary or irrational. City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 446 (1985). The reason the habitual drunkard clause cannot
survive constitutional scrutiny is because, as the panels decision recognizesand
as the IJs decision demonstratesthe clause classifies individuals based on the
condition of having substance use disorder rather than the conduct often
associated with substance misuse. See Panel Op. 8 ([A] statute targeting people
who habitually and excessively drink alcohol is, in effect, targeting individuals
with chronic alcoholism. . . . Every person who is, by definition, a habitual
drunkard will regularly exhibit the symptoms of his disease by drinking alcohol
excessively.).
As the panel properly recognized, substance use disorder
represents a separate, chronic neurological condition distinct from the conduct and
consequences of substance misuse itself.
The Surgeon Generals Report on Alcohol, Drugs, and Health (the
Report), recently released by the U.S. Department of Health & Human Services,
makes this distinction clear. U.S. DEPT OF HEALTH & HUMAN SERVS., OFFICE OF
THE
SURGEON GENERAL, FACING ADDICTION
GENERALS REPORT
ON
ALCOHOL, DRUGS,
IN
AND
AMERICA:
THE SURGEON
HEALTH (2016).
Substance
misuse is the use of alcohol or drugs in a manner, situation, amount, or frequency

that could cause harm to the user or to those around them. Report 1-1. Substance
misuse can have serious consequences. [S]ubstance misuse problems include
many of the legitimate and serious concerns the respondent refers to in this case,
such as motor vehicle crashes, intimate partner and sexual violence, [and] child
abuse and neglect. Id. at 1-5 (footnotes omitted).
Such conduct and consequences, however, are readily distinguishable from

substance use disorder, which is an independent illness. Report 1-5. As
individuals continue to misuse alcohol or other substances, progressive changes,
called neuroadaptations, occur in the structure and function of the brain. Id. at 22. Decades of research demonstrate that prolonged, repeated misuse can lead
to profound disruptions of [the] brain circuits involved in the experience of
pleasure or reward, habit formation, stress, and decision-making, and that [t]hese
neuroadaptations compromise brain function. Id. at 2-24, 1-5, 2-2.2
According to the Surgeon General, the fact that substance use disorder is a
medical condition disproves the notion that becoming addicted to alcohol or other
drugs indicates immorality or a character flaw: [S]evere substance use disorders,
commonly called addictions, were once viewed largely as a moral failing or
character flaw, but are now understood to be chronic illnesses characterized by
clinically significant impairments in health, social function, and voluntary control
over substance use. Report 2-1. In fact, addiction has many features in common
with disorders such as diabetes, asthma, and hypertension. Id.
The brain regions associated with these functionsand intimately involved

in the development and persistence of substance use disordersare the basal
ganglia (particularly, the sub-regions of the nucleus accumbens and the dorsal
striatum), the extended amygdala, and the prefrontal cortex. Report 2-5, 2-6.
The Reports finding that addiction is a medical, not moral, issue, reflects a
widespread consensus within the medical community.
According to the
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5),

substance dependence is a medical condition understood to fall under the broader
category of substance use disorders, which vary by level of severity based on the
number of diagnostic criteria met by the individual. See Am. Socy of Addiction
Med., Terminology Related to the Spectrum of Unhealthy Substance Use (2013),
available at http://www.asam.org/docs/default-source/public-policy-statements/1terminology-spectrum-sud-7-13.pdf?sfvrsn=2. Groups including the World Health
Organization, American Medical Association, American Society of Addiction
Medicine, American Psychiatric Association, and the American College of
Physicians agree that addiction is a medical issue, not a moral one. 3
See, e.g., World Health Org., Neuroscience of Psychoactive Substance Use

and
Dependence
19
(2004),
available
at
http://www.who.int/substance_abuse/publications/en/Neuroscience.pdf;
A.
I.
Leshner, Science-Based Views of Drug Addiction and Its Treatment, J. AM. MED.
ASSN 282 (1999); Am. Socy of Addiction Med., Patients with Addiction Need
Treatment
Not
Stigma,
(Dec.
15,
2015),
available
at
http://www.asam.org/magazine/read/article/2015/12/15/patients-with-a-substanceuse-disorder-need-treatment---not-stigma; Am. Psychiatric Assn, What is
Addiction? (July 2015), available at https://www.psychiatry.org/patientsfamilies/addiction/what-is-addiction; Am. College of Physicians, In the Clinic:
Substance Use Disorders, Annals of Internal Medicine (2016), available at
http://annals.org/aim/article/2511007/substance-use-disorders.
It is also a view universally and officially recognized within the federal

government as a whole. The White Houses Office on National Drug Control
Policy, the National Institute on Drug Abuse, and the National Institute on Alcohol
Abuse and Alcoholism all recognize addiction as a neurological disease that alters
brain chemistry and function.4
In addition, Congress has recognized that
alcoholism is a protected disability under the [Americans with Disabilities Act].

Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th Cir. 2001). With the release
of the Surgeon Generals report, there can be no doubt where the U.S. government
as a whole stands on this issue.
See Report I ([A]ddiction is a chronic
neurological disorder and needs to be treated as other chronic conditions are.).

B.
Classifying Individuals as Habitual Drunkards is Not

Rationally Related to a Legitimate Government Interest.
1. With this distinction between substance misuse problems and substance

use disorder in mind, the irrational nature of the habitual drunkard clauses
status-based classification becomes clear.
The statute accomplishes nothing
beyond casting moral blame upon large segments of society that have a
4
See, e.g., White House Office on Natl Drug Control Policy, National Drug
Control
Strategy
(2014)
available
at
https://www.whitehouse.gov/sites/default/files/ndcs_2014.pdf; Natl Institute on
Drug Abuse, Drugs, Brains, and Behavior: The Science of Addiction (2014)
available
at
https://www.drugabuse.gov/publications/drugs-brains-behaviorscience-addiction/preface; Natl Inst. on Alcohol Abuse and Alcoholism,
Neuroscience: Pathways to Alcohol Dependence, Alcohol Alert (Apr. 2009)
available at https://pubs.niaaa.nih.gov/publications/AA77/AA77.pdf.
neurological disorder. As the panel aptly stated: We are well past the point
where it is rational to link a persons medical disability with his moral character.
Panel Op. 9. The panel thus anticipated the Surgeon Generals conclusion that one
of the long-held, but incorrect, stereotypes about substance misuse and substance
use disorders is the notion that alcohol and drugs problems are the product of
faulty character or willful rejection of social norms. Report 7-67-7.
The respondent argues that the habitual drunkard clause merely reaches
dangerous or immoral conduct and thus rationally advances the governments
interest in protecting public safety, health, and welfare. But that argument is belied
by the facts of this case, in which Ledezma was denied statutory rights for which
he might otherwise have been eligible because of a medical conditiona serious
alcohol dependency problem and a history of alcohol addiction and abuse
revealed by his medical reports, not by a record of his conduct. (AR51, AR53.)
Indeed, the record indicates that Ledezma had quit drinking following a hospital
stay.
(AR96, AR114.)
The government may not constitutionally classify
individuals based on mere animus towards a politically unpopular group. Romer

v. Evans, 517 U.S. 620, 632 (1996). Yet the provision in question classifies
habitual drunkards as categorically lacking in good moral character.
That moral condemnation of habitual drunkards in this case is especially
jarring given that the clause serves no point. The INA already contains a clause
10
that permits the government to constitutionally exclude individuals from the

United States for lack of good moral character based on their substance-misuserelated conduct. Specifically, section 1101(f)s catch-all clause has already been
interpreted and used by the government to reach alcohol-related conduct that may
threaten public safety, health, and welfare. See, e.g., Gutierrez v. Holder, 662 F.3d
1083, 1088 n.6 (9th Cir. 2011) (finding that a non-citizen lacked good moral
character based on [his convictions for driving under the influence] rather than
whether or not he was a habitual drunkard).
The habitual drunkard clause, in contrast, has gone virtually unused by the
government since its inception. See Ledezma-Cosino v. Lynch, No. 12-73289, Dkt.
No. 54, at 10 (noting that no federal or state judicial decision, and only one
published Board decision, has ever interpreted the provision). For good reason: It
is wholly unrelated to any legitimate state interest. Given the conduct-focused
interpretation of the catch-all provision, the habitual drunkard clause offers the
government little more than a separate status-based method of branding individuals
suffering from substance use disorder as morally culpable in their own
neurological illness. Thus, striking the habitual drunkard clause from the statute
will not prevent the statute from functioning as it always has, and the government
may continue to regulate the conduct associated with substance misuse problems
the way it always has.
11
2.
In seeking rehearing, the respondent suggested that there exists a
volitional component of alcohol use and recovery that may properly be subject to
moral evaluation. But that argument betrays dated assumptions about alcoholism
and volition in at least two distinct ways. First, people do not voluntarily choose
to become dependent on alcohol or other substances. Whether alcohol use, or use
of another substance, progresses to a substance use disorder depends on many
factors that may be outside a persons control, such as genetic makeup and other
individual biological factors; the age when use begins; psychological factors
related to a persons unique history and personality; and environmental factors,
such as the availability of drugs, family and peer dynamics, financial resources,
cultural norms, exposure to stress, and access to social support. Report 2-22-3.
Second, for those who develop substance use disorder, biological changes in
brain functioning can reduce or eliminate the voluntariness of ones
decisionmaking in any given instance, including the decision to get medical help or
to achieve and maintain sobriety. This volitional impairment occurs as a result of
the addiction cycle, which can be described as a repeating cycle with three
stages associated with particular brain regions: the basal ganglia, the extended
amygdala, and the prefrontal cortex. Report 2-6. As alcohol or substance use
progresses, repeated activation of the habit circuitry of the basal ganglia . . .
contributes to the compulsive substance seeking and taking that are associated with
12
addiction. Id. at 2-12. Subsequent stages of the disease lead to a drive to alleviate
negative feelings and promote first impulsiv[e] and then compulsiv[e]
substance seeking.
Id. at 2-8.
Compulsive substance seeking is a key
characteristic of addiction, as is the loss of control over use. Id. [T]hese

changes in the brain persist long after substance use stops, and [i]t is not yet
known how much these changes may be reversed or how long that process may
take. Id. at 2-2.
In all events, it is unnecessary for this Court to wade into a philosophical
debate over the extent of alcoholisms volitional component. One need not find
human agency wholly irrelevant to all instances or consequences of substance
misuse to find the status of having substance use disorder amoral, not immoral.
The Surgeon Generals Report does not deny that agency can play some role in a
comprehensive approach to treating substance use disorder; but that fact does not
call into question the basic reality that this chronic neurological condition exists
and that substance use disorder dramatically impacts regions of the brain involved
in motivation, the experience of reward, the formation of habits, stress response,
and executive functions such as the ability to organize thoughts and activities,
prioritize tasks, manage time, make decisions, and regulate ones actions,
emotions, and impulses. Report 2-6.
13
*****
There may be legitimate, rational reasons for employing legislative
classifications that apply to persons suffering from substance use disordersuch
as streamlining or enhancing access to certain types of treatmentbut the
habitual drunkard clause does no such thing. Instead, the clause reflects nothing
more than the biased and harmful remnants of a bygone era.
As the panel
rightfully held, there is nothing rational about categorically labeling persons

suffering from a neurological disease as morally blameworthy.
II.
AFFIRMANCE
WOULD CONTRIBUTE TO ECONOMIC,
SOCIETAL, AND INDIVIDUAL HARM WITHOUT ADVANCING
ANY LEGITIMATE GOVERNMENT INTEREST.
The preface to the Surgeon Generals Report makes clear that substance use
disorders represent one of the most pressing public health crises of our time.
Report V. While adopting the panels reasoning would have no impact on the
governments ability to protect its legitimate interests (as explained above),
affirming the Boards decision would cause serious economic and social harm to
the public by entrenching unsupported stigmas and discouraging individuals with
substance use disorderboth citizens and non-citizensfrom seeking vital
medical treatment.
Labeling individuals suffering from substance use disorder as immoral (as
the law provides), or as inherently lazy or violent, is harmful both to those
14
individuals and to society as well. As the Report makes clear, substance use
disorders and substance misuse have staggering consequencesmore than $400
billion annually in crime, health, and lost productivity. Report 1-2. Alcohol
misuse and alcohol use disorders alone costs the United States approximately $249
billion in lost productivity, health care expenses, law enforcement, and other
criminal justice costs. Id. Given the extent of these problems, the government
should not be discouraging individualswhether tacitly or expresslyfrom
seeking the medical and psychological treatment they need.
There are a range of treatment interventions, therapies, services, and
medications available to identify, treat, and manage substance use problems and
disorders. Report 4-2. But, while evidence shows that treatment for substance
use disorders is cost-effective compared with no treatment, many of these
avenues for treatment go unused or underused.
Id.
Unfortunately, the vast
majority of individuals with substance use disorder go untreated. Out of the 20.8
million people (nearly 8 percent of the population) who met the diagnostic criteria
for substance use disorder in 2015, only 2.2 million individuals (10.4 percent)
received any type of treatment. Id. at 1-7. A decision that affirms the use of a
non-citizens medical records to deny voluntary departure or cancellation of
removal will naturally make other non-citizens hesitant to seek medical or other
treatment for fear of risking their statutory rights.
15
In addition, one of the major barriers to effective prevention and treatment is

the stigma surrounding substance use disorder. Prejudice and discrimination . . .
can have a profound influence on individuals willingness to talk to their health
care professional about their substance use concerns; to seek or access treatment
services; and to be open . . . about their treatment and recovery needs. Report 777-8. Ending widespread cultural misperceptions about substance use disorder
like those reflected in the habitual drunkard clauseis critical to normalizing
prevention, encouraging treatment, and improving outcomes.
As the Surgeon
General makes clear at the outset of his Report:

We . . . need a cultural shift in how we think about addiction. For far
too long, too many in our country have viewed addiction as a moral
failing. This unfortunate stigma has created an added burden of
shame that has made people with substance use disorders less likely to
come forward and seek help. It has also made it more challenging to
marshal the necessary investments in prevention and treatment. We
must help everyone see that addiction is not a character flaw it is a
chronic illness that we must approach with the same skill and
compassion with which we approach heart disease, diabetes, and
cancer.
Report V.
Substance use disorder, like other chronic diseases, can be successfully
managed and treated to the benefit of the individual and society alike. But this is
only possible if the kind of irrational opprobrium and vicious, outdated stereotypes
found in the habitual drunkard clause are not given a new lease on life.
Recognizing that substance use disorders are medical conditions and not moral
16
failings can help remove negative attitudes and promote open and healthy
discussion between individuals with substance use disorders and their loved ones,
as well as with their health care professionals. Report 7-8.
If the Boards decision is affirmed, however, it will entrench a harmful and
irrational stigma. That will discourage both citizens and non-citizens struggling
with substance use disorder from seeking medical help, and, in turn, compound the
very same threats to public health, safety, and welfare that the government seeks to
prevent. There is simply no legitimate interest served by permitting a statute to
brand a group of people with a neurological disorder as categorically immoral.
That is the sole function of the habitual drunkard clause, and it is a function that
is harmful, irrational, andas the panel correctly heldunconstitutional.
CONCLUSION
For the foregoing reasons, amici curiae respectfully request that the petition
for review of the Boards decision be granted on the ground that the habitual
drunkard clause is an unconstitutional status-based classification.
17
Respectfully submitted,
/s James E. Tysse
James E. Tysse
G. Michael Parsons, Jr.
AKIN GUMP STRAUSS
HAUER & FELD LLP
Attorneys for Amici Curiae
Dated: December 16, 2016
18
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following:
This brief complies with this Courts November 21, 2016 Order regarding
briefing (Dkt. 68), with the type-volume limitation of Rule 29(d) and Rule
32(a)(7)(B) of the Federal Rules of Appellate Procedure, and with Circuit Rule 32
because this brief contains fewer than 7,000 words, excluding the parts of the brief
exempted by Rule 32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure.
This brief complies with the typeface requirements of Rule 32(a)(5) of the
Federal Rules of Appellate Procedure and the type style requirements of Rule
32(a)(6) of the Federal Rules of Appellate Procedure because this brief has been
prepared in a proportionally spaced typeface using the 2010 version of Microsoft
Word in 14 point Times New Roman.
/s/ James E. Tysse

James E. Tysse
AKIN GUMP STRAUSS
HAUER & FELD LLP
Tel: 202.887.4000
Fax: 202.887.4288
19
CERTIFICATE OF SERVICE
I hereby certify that on December 16, 2016, I electronically filed the
foregoing with the Clerk of the Court for the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/ James E. Tysse

James E. Tysse
AKIN GUMP STRAUSS
HAUER & FELD LLP
Tel: 202.887.4000
Fax: 202.887.4288
20

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RESTRICTED Case: 12-73289, 12/16/2016, ID: 10236746, DktEntry: 75, Page 1 of 25

BRIEF FOR AMICI CURIAE DRUG POLICY ALLIANCE, NATIONAL

RESTRICTED Case: 12-73289, 12/16/2016, ID: 10236746, DktEntry: 75, Page 2 of 25

CORPORATE DISCLOSURE STATEMENT

organizations has a parent corporation, and no publicly traded corporation owns

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THE PANEL PROPERLY HELD THAT THE HABITUAL

The Habitual Drunkard Clause Represents a Status-Based

Classifying Individuals as Habitual Drunkards is Not

AFFIRMANCE WOULD CONTRIBUTE TO ECONOMIC,

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Natl Inst. On Drug Abuse, Drugs, Brains, and Behavior: The

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INTEREST OF AMICI CURIAE1

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it has a network of 80 affiliates in 28 states. NCADDs mission is to advocate for

These programs serve adults, adolescents,

mothers with children, veterans, individuals under supervision of the criminal

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acceptance as most recently recognized in the Surgeon Generals comprehensive

branding individuals with a medically recognized

neurological condition as moral degenerates in the eyes of the law.

classification is not rationally related to any legitimate government interest.

Although many treatments options are available, they go

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that habitual drunkards are morally blameworthy as a class, section 1101(f)(1)

THE PANEL PROPERLY HELD THAT THE

The Habitual Drunkard Clause Represents a Status-Based

Salomon Ledezma-Cosino was found by an Immigration Judge (IJ) to

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As the panel properly recognized, substance use disorder

SURGEON GENERAL, FACING ADDICTION

misuse is the use of alcohol or drugs in a manner, situation, amount, or frequency

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Such conduct and consequences, however, are readily distinguishable from

The brain regions associated with these functionsand intimately involved

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Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5),

See, e.g., World Health Org., Neuroscience of Psychoactive Substance Use

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It is also a view universally and officially recognized within the federal

In addition, Congress has recognized that

alcoholism is a protected disability under the [Americans with Disabilities Act].

See Report I ([A]ddiction is a chronic

neurological disorder and needs to be treated as other chronic conditions are.).

Classifying Individuals as Habitual Drunkards is Not

1. With this distinction between substance misuse problems and substance

The statute accomplishes nothing

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The government may not constitutionally classify

individuals based on mere animus towards a politically unpopular group. Romer

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that permits the government to constitutionally exclude individuals from the

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In seeking rehearing, the respondent suggested that there exists a

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Compulsive substance seeking is a key

characteristic of addiction, as is the loss of control over use. Id. [T]hese

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rightfully held, there is nothing rational about categorically labeling persons

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