MARIUSZ TOMASZCZUK v. MATTHEW G. WHITAKER, Aсting Attorney General
No. 17-4229
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
November 20, 2018
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0254p.06
Argued: October 18, 2018
Decided and Filed: November 20, 2018
Before: KEITH, CLAY, and NALBANDIAN, Circuit Judges.
COUNSEL
ARGUED: Jeremy Liss, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, New York, New York, for Petitioner. Aimee J. Carmichael, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jeremy Liss, Aidan Synnott, Nora Ahmed, PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP, New York, New York, George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES, Farmington Hills, Michigan, for Petitioner. Justin R. Markel, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
OPINION
CLAY, Circuit Judge. Petitioner Mariusz Tomaszczuk petitions this Court to review the November 3, 2017, Decision of the Board of Immigration Appeals (“BIA“), dismissing
BACKGROUND
Petitioner is a native and citizen of Poland. Petitioner‘s wife is a lawful permanent resident of the United States, and she and Petitioner have a son who is a United States citizen. Petitioner last entered the United States, to remain, in April 1999. The Department of Homelаnd Security commenced removal proceedings against Petitioner on October 14, 2016, by filing with the immigration court a notice to appear, charging Petitioner with being removable pursuant to
On April 4, 2017, Petitioner filed an apрlication for cancellation of removal. Petitioner‘s hearing before an Immigration Judge (“IJ“) took place on May 8, 2017, at which Petitioner, his wife, and his son testified. On May 15, 2017, the IJ issued an order denying Petitioner‘s application. The IJ‘s order found that Petitioner was a “habitual drunkard” under
Following the Boаrd‘s decision, Petitioner petitioned this Court for review pursuant to
DISCUSSION
The Attorney General may cancel the scheduled removal of a nonpermanent resident from the United States under various circumstances.
(1) a habitual drunkard;
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(3) a member of one or more of the classes of persons, whether inadmissible or not, described in paragraphs (2)(D) [relating to those who engage in or facilitate prostitution or other unlawful commercialized vice], (6)(E) [relating to smugglers], and (10)(A) [relating to practicing polygamists] of section 1182(a) of this title; or subparagraphs (A) and (B) of section 1182(a)(2) of this title [relating to crimes of moral turpitude and multiple criminal convictions] and subparagraph (C) thereof [relating to controlled substance traffickers] . . . (except as such paragraph relates to a single offense of simple possession of 30 grams or less of marihuana), if the offense described therein, for which such person was convicted or of which he admits the commission, was committed during such period;
(4) one whose income is derived principally from illegal gambling activities;
(5) one who has been convicted of two or more gambling offenses committed during such period;
(6) one who has given false testimony for the purpose of obtaining any benefits under this chapter;
(7) one who during such period has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and еighty days or more, regardless of whether the offense, or offenses, for which he has been confined were committed within or without such period;
(8) one who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43)); or
(9) one who at any time has engaged in conduct dеscribed in section 1182(a)(3)(E) of this title (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 1182(a)(2)(G) of this title (relating to severe violations of religious freedom).
Petitioner claims on appeal that
I. Void for Vagueness Challenge to § 1101(f)(1)
This Court reviews challenges to the constitutionality of a statute de novo. United States v. Coss, 677 F.3d 278, 289 (6th Cir. 2012). Petitioner argues that
However, we do not reach the merits of this challenge because we hold that Petitioner is unable to raise it. An individual “must establish that [he or] she has been deprived of a life, liberty, or property interest sufficient to trigger the protection of the Due Process Clause” before being allowed to raise a Due Process challenge. Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000).
Petitioner relies on Shuti v. Lynch, 828 F.3d 440 (6th Cir. 2016) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018) to argue that Ashki does not control in this case. However, those cases are inapposite because they involved aliens who only became removable by virtue of the statute that the aliens challenged. See Shuti, 828 F.3d at 442; Dimaya, 138 S. Ct. at 1210–11. By contrast, Petitioner concedes that he is removable regardless of the “habitual drunkard” provision‘s constitutionality and only argues that its constitutionality might affect his eligibility for discretionary relief. Thus, Shuti and Dimaya do not affect this Court‘s holding in Ashki.
Petitioner also cites post-Ashki cases where this Court purported to recognize some Due Process interest in discretionary relief. See Montanez-Gonzalez v. Holder, 780 F.3d 720 (6th Cir. 2015); Abdallahi v. Holder, 690 F.3d 467 (6th Cir. 2012). However, Ashki was the first case in which this Court directly addressed the issue of whether a deportable alien has a liberty interest in rеceiving discretionary relief, and in that case we unambiguously held that such an alien lacks such a liberty interest. 233 F.3d at 920–21. This Court recently reaffirmed Ashki in United States v. Estrada, 876 F.3d 885 (6th Cir. 2017). In that case, we noted that there exists a circuit split on the question of whether “an alien has [a] constitutional right to be informed of eligibility for, or to be considered for, discretionary relief,” and we recognized that this Court answers that question in the negative. Id. at 888–89. Because the cases that Petitioner cites conflict with Ashki and because a panel of this Court cannot overturn a prior panel, Gaddis ex rel. Gaddis v. Redford Tp., 364 F.3d 763, 770 (6th Cir. 2004), the decisions that Petitioner cites do not supersede Ashki, which is the controlling case.
For this reason, we do not reach the merits of Petitioner‘s void for vagueness challenge.
§ 1101(f)(1)
Petitioner‘s Equal Protection challenge to
It is undisputed in this case that the statute is subject to rational basis review. Ashki, 233 F.3d at 920 (“[D]istinctions made by the federal government among aliens receive only rational basis scrutiny.“). The Supreme Court has stated that rational basis review “is not a liсense for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Commc‘ns, Inc., 508 U.S. 307, 313 (1993). “[A] classification in a statute [subject only to rational basis review] comes to us bearing a strong presumption of validity” such that “[w]here there are ‘plausible reasons’ for Congress’ action, ‘our inquiry is at an end.‘” Id. at 313–14 (quoting United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)). Likewise, a classification in a statute is permissible even when it is both over- and underinclusive. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 316–17 (1976); Weinberger v. Salfi, 422 U.S. 749, 776–77 (1975). Such imprecision is allowed in part because “the legislature must be allowed leeway to approach a perceived problem incrementally.” Beach Commc‘ns, Inc., 508 U.S. at 316 (citing Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955)).
To decide whether being a “habitual drunkard” is rationally rеlated to having “good moral character,” we must first define “habitual drunkard.” Neither the Supreme Court nor this Court has interpreted the term; indeed, few courts have. A BIA decision over sixty years ago held that “chronic alcohol[ism]” could constitute habitual drunkenness. Matter of H-, 6 I. & N. Dec. 614, 616 (BIA 1955). Recently, the Ninth Circuit, sitting en banc, was divided on the question of whether alcoholism alone was enough to fit the definition of habitual drunkard, or whether there needed to be some harmful conduct associated with one‘s drinking. See Ledezma-Cosino v. Sessions, 857 F.3d 1042 (9th Cir. 2017) (en banc).
The dictionary definitions of “habitual drunkard” from around the time the statute was passed are not very helpful. Two entries emphasize the loss of willpower; another requires “a fixed habit of frequently getting drunk, though not oftener drunk than sober, and though sober
Two canons of statutory interpretation lead us to conclude that alcoholism alone does not make an individual a “habitual drunkard,” and that there must be some harmful conduct associated with one‘s drinking to fit this definition. First, the canon that different words in a statute have different meanings suрports this conclusion, since Congress used both “habitual drunkard” and “chronic alcoholic” in the Immigration and Nationality Act. Compare Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 182 (codified as amended at
Further, the canon of noscitur a sociis makes clear that Congress intended the term “habitual drunkard” to focus on an individual‘s conduct, as opposed to his or her status as an alcoholic alone. “[T]he commonsensе canon of noscitur a sociis . . . counsels that a word is given more precise content by the neighboring words with which it is associated.” United States v. Williams, 553 U.S. 285, 294 (2008). Using this canon, we find that each term in
Together, this is sufficient evidence to conclude that Congress intended the term “habitual drunkard” to focus on the conduct associated with an applicant‘s drinking, rather than solely on whether the applicant has the status of an alcoholic.
Because the term “habitual drunkard” focuses on an individual‘s conduct—i.e., the harm to others or negative consequences to society that results from one‘s drinking—Petitioner‘s equal protection challenge falls flat. A tendency to drink to excess and engage in harmful conduct is, under the statute, rationally related to lacking good moral character, and the statute therefore survives rational basis review. As discussed above, this is so regardlеss of whether the categorization is somewhat over- or underinclusive.
Because Congress could find that habitual drunkenness was rationally related to lacking good moral character, we hold that
III. Due Process Claims
Petitioner alleges that the Immigration Judge and the BIA violated his Due Process rights by considering evidence outside of the relevant ten-year period and by harboring bias against him. This Court lacks jurisdiction over these claims because Petitioner did not properly preserve them.
Petitioner failed to satisfy the еxhaustion requirement in this case because these claims were not included in either Petitioner‘s notice of appeal to the BIA or his supporting brief.
Because Petitioner failed to exhaust his administrative remedies, we lack jurisdiction over these claims.
CONCLUSION
For the reasons set forth abovе, we DENY the petition for review.