Calderon also makes an equal protection argument concerning the impact of his alcoholism on the grounds for denying relief from removal. His argument relies on Ledezma-Cosino v. Lynch , 819 F.3d 1070 (9th Cir. 2016), a decision overruled by Ledezma-Cosino v. Sessions , 857 F.3d 1042 (9th Cir. 2017) (en banc). The equal protection argument therefore fails.

There is "nothing irrational about that legislative choice, which furthers the legitimate governmental interest in public safety." Ledezma-Cosino v. Sessions, 857 F.3d 1042, 1048 (9th Cir. 2017). Nor does it matter that the statute targets certain types of offenders and not others.

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.

Harris v. McRae, 448 U.S. 297, 326 (1980). See Ledezma-Cosino v. Sessions, 857 F.3d 1042, 1048 (9th Cir. 2017); Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1185 (9th Cir. 2011) ("We review equal protection challenges to federal immigration laws under the rational basis standard . . . ."). "A legislative classification must be wholly irrational to violate equal protection."

The Court also notes, without firmly deciding the question at this time, that the equal protection claim would likely be subject to rational basis review. SeeLedezma-Cosino v. Sessions , 857 F.3d 1042, 1048 (9th Cir. 2017).

Indeed, after Johnson , both federal and California courts have continued to rely on the "as-applied inquiry first" rule. ( Cook , supra , 914 F.3d at pp. 549-555 [applying rule in rejecting facial vagueness challenge to criminal statute]; Doe v. Valencia College (11th Cir. 2018) 903 F.3d 1220, 1233 [relying on rule in rejecting facial vagueness challenge to school rule regulating unprotected student speech]; Ledezma-Cosino v. Sessions (9th Cir. 2017) 857 F.3d 1042, 1047 [applying rule in rejecting facial vagueness challenge to deportation statute]; United States v. Bramer (8th Cir. 2016) 832 F.3d 908, 909 [applying rule in rejecting facial vagueness challenge to criminal statute]; Arrigoni Enterprises, LLC v. Town of Durham (2d Cir. 2015) 629 Fed.Appx. 23, 25 [applying rule in rejecting facial vagueness challenge to zoning ordinance]; In re Gary H. (2016) 244 Cal.App.4th 1463, 1476, 198 Cal.Rptr.3d 888 [applying rule in rejecting facial vagueness challenge to criminal statute]; but cf. Henry v. Spearman (9th Cir. 2018) 899 F.3d 703, 708 [stating precedent did not foreclose possibility that Johnson nullified rule, without deciding issue].)

Consequently, the asylum exclusion is not "wholly irrational" and so does not violate Gu's equal protection rights. Ledezma-Cosino v. Sessions, 857 F.3d 1042, 1048 (9th Cir. 2017), cert. denied, 138 S. Ct. 643 (2018) (citation omitted). Gu's asylum claim, tethered to his equal protection claim, is foreclosed.

There are almost as many definitions for terms such as "common drunk" or "habitual drunkard" as there are courts that have attempted to formulate them. See, e.g. , Ledezma-Cosino v. Sessions , 857 F.3d 1042, 1046 (9th Cir. 2017) (en banc) ("The ordinary meaning of ‘habitual drunkard’ is a person who regularly drinks alcoholic beverages to excess."); Tatum v. State , 32 Ala.App. 128, 22 So.2d 350, 351 (1945) ("A common drunkard is a person whose general rule of life is that of drunkenness ... sobriety being the exception."); Sowder v. Commonwealth , 261 Ky. 610, 88 S.W.2d 274, 275 (1935) (approving a jury instruction that defined "habitual drunkard" as a person who "has a fixed habit of frequently getting drunk, though not oftener drunk than sober, and though sober for weeks at a time"); Commonwealth v. Whitney , 71 Mass. 85, 87–88 (1855) (defining "common drunk" as a person who is "an habitual drunkard [and] is so to the disturbance of the public peace and good order"). Moreover, several courts have concluded that such terms simply are not amenable to any meaningful definition, given the variety of differing definitions assigned to common terms of this nature.

Consequently, the Court finds that it is conceivable that the No Feeding Ordinance was enacted for the legitimate purpose of advancing public safety. Ledezma-Cosino v. Sessions, 857 F.3d 1042, 1048 (9th Cir. 2017) (en banc); Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 922 (9th Cir. 2006). The Complaint (Doc. 1-3) also does not contain factual allegations regarding how the No Feeding Ordinance is not rationally related to advancing public safety.

We review the BIA's finding for substantial evidence. Ledezma-Cosino v. Sessions, 857 F.3d 1042, 1045 (9th Cir. 2017). Here, the BIA determined that Marroquin gave false testimony at his 2008 hearing, which was less than ten years prior to the BIA's final decision on his application in December 2017.