author: GRABER, Circuit Judge: KOZINSKI, Circuit Judge, WATFORD, Circuit Judge, THOMAS, Chief Judge,

text:
    Salomon LEDEZMA-COSINO, aka Cocino Soloman Ledesma, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
    No. 12-73289
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted En Banc January 18, 2017, San Francisco, California
    Filed May 30, 2017

      Kelsi Brown Corkran (argued), Thomas M. Bondy, Randall C. Smith, and Benjamin F. Aiken, Orrick Herrington & Sut-cliffe LLP, Washington, D.C.; Nora E. Milner, Milner & Markee LLP, San Diego, California; for Petitioner.
    Aimee J. Carmichael (argued) and Lisa M. Damiano, Attorneys; Patrick J. Glen, Senior Litigation Counsel; Terri J. Sca-dron and John W. Blakeley, Assistant Directors; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.
    James E. Tysse and G. Michael Parsons, Jr., Akin Gump Strauss Hauer & Feld LLP, Washington, D.C., for Amici Curiae Drug Policy Alliance, National Council on Alcoholism and Drug Dependence, and Phoenix House.
    Stephen B. Kang and Jennifer Chang Newell, ACLU Foundation Immigrants’ Rights Project, San Francisco, California; Omar Jadwat, ACLU Foundation Immigrants’ Rights Project, New York, New York; for Amici Curiae ACLU Immigrants’ Rights Project and National Immigration Project of the National Lawyers Guild. ■

      Before: SIDNEY R. THOMAS, Chief Judge, and ALEX KOZINSKI, SUSAN P. GRABER, M. MARGARET McKEOWN, RICHARD R. CLIFTON, CARLOS T. BEA, SANDRA S. IKUTA, MARY H. MURGUIA, MORGAN CHRISTEN, PAUL J. WATFORD, and JOHN B. OWENS, Circuit Judges.
   OPINION

GRABER, Circuit Judge:

Petitioner Salomon Ledezma-Cosino, a native and citizen of Mexico, petitions for. review of a final order of the Board of Immigration Appeals (“BIA”), which affirmed an immigration judge’s (“IJ”) denial of Petitioner’s application for cancellation of removal. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner entered the United States from Mexico, without admission or inspection, in 1987. On May 7, 2008, police in Carlsbad, California, arrested him on charges of driving under the influence of intoxicants and driving with a suspended license. A few days later, the Department of Homeland Security issued a notice to appear, charging Petitioner with remova-bility under 8 U.S.C. § 1182(a)(6)(A)(i) because he was an alien present in the United States without having been admitted or paroled.

Petitioner appeared, with counsel, before an IJ, admitted all the factual allegations in the notice to appear, and conceded removability. But, as now relevant, he applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(l). To qualify for cancellation of removal, Petitioner had to demonstrate, among other things, that he was “a person of good moral character” during the 10-year period preceding his application for cancellation of removal. Id. § 1229b(b)(l)(B). Congress has defined the term “good moral character” to exclude anyone who has been a “habitual drunkard” during the relevant period. Id. § 1101(f)(1).

After a hearing on the merits, the IJ denied Petitioner’s application for cancellation of removal. The IJ found that Petitioner had not met his burden of establishing that he was “a person of good moral character” because, during the requisite 10-year period, he had been a “habitual drunkard.” The BIA affirmed that ground of decision and dismissed the appeal. A timely petition for review to this court followed. We have jurisdiction pursuant to 8 U.S.C. § 1252.

A three-judge panel granted the petition, vacated the BIA’s decision, and remanded the matter for further proceedings on the ground that the “habitual drunkard” provision violates equal protection principles. Ledezma-Cosino v. Lynch, 819 F.3d 1070 (9th Cir. 2016). Upon grant of rehearing en banc, the panel’s opinion was vacated. Ledezma-Cosino v. Lynch, 839 F.3d 805 (9th Cir. 2016) (order).

STANDARDS OF REVIEW

We review the agency’s factual findings for substantial evidence. Angov v. Lynch, 788 F.3d 893, 898 (9th Cir. 2015). We must uphold the findings unless the record compels a contrary conclusion. Id. We review de novo whether a statutory provision is constitutional. Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).

DISCUSSION

To qualify for cancellation of removal, Petitioner had the burden of establishing that he:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of [specified offenses]; and
(D) establishes that removal would result in exceptional and extremely unusual hardship to [certain family members].

8 U.S.C. § 1229b(b)(l). Congress has defined the term “good moral character” in the following way:

For the purposes of this chapter—
No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established,- is, or was—
(1) a habitual drunkardf.]

Id. § 1101(f).

In his opening brief to this court, Petitioner argued that substantial evidence does not support the agency’s finding that he was a “habitual drunkard.” He also argued that, under due process principles, the statutory “habitual drunkard” provision is unconstitutionally vague. The three-judge panel ordered supplemental briefing on additional constitutional issues, including whether the statutory provision violates equal protection principles. We address those three issues in turn.

A. Substantial evidence supports the finding that Petitioner was a “habitual drunkard.

The immigration statutes do not define the term “habitual drunkard.” “When a statute does not define a term, we generally interpret that term by employing the ordinary, contemporary, and common meaning of the words that Congress used.” Arizona v. Tohono O’odham Nation, 818 F.3d 549, 556 (9th Cir. 2016) (internal quotation marks omitted). The ordinary meaning of “habitual drunkard” is a person who regularly drinks alcoholic beverages to excess. See, e.g., Black’s Law Dictionary 587 (4th ed. 1951) (defining “habitual drunkard” as “[h]e is a drunkard whose habit it is to get drunk; whose ebriety has become habitual,” citing a case that refers to a person who has been proved to be repeatedly drunk within a limited period); Black’s Law Dictionary 607, 827 (10th ed. 2014) (defining “habitual drunkard” as, among other things, “[s]omeone who habitually consumes intoxicating substances excessively; esp., one who is often intoxicated”).

Notably, not all alcoholics are habitual drunkards. As the government emphasizes in its brief to us, the statute asks whether a person’s conduct during the relevant time period meets the definition; the person’s status as an alcoholic, or not, is irrelevant to the inquiry. We know that Congress did not intend to equate “habitual drunkard” with “alcoholic” because, elsewhere in the statute, Congress used the term “alcoholic.” See 8 U.S.C. § 1101(f)(1) (1952) (defining those who lack “good moral character” for certain purposes to include “habitual drunkard[s]”); 8 U.S.C. § 1182(a)(5) (1952) (defining excludable aliens to include “[a]liens who are narcotic drug addicts or chronic alcoholics”); SEC v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (“It is a well-established canon of statutory interpretation that the use of different words or terms within a statute demonstrates that Congress intended to convey a different meaning for those words.”).

Here, the record amply supports the agency’s finding that Petitioner was a habitual drunkard. In 2010, treating doctors recorded a “more than ten year history of heavy alcohol abuse,” during which time Petitioner drank “1 liter of tequila per day on the average.” In 2008, he was convicted of driving under the influence. During Petitioner’s removal proceedings, Petitioner’s daughter testified that he had “a drinking problem” and that his liver had failed because of “[t]oo much alcohol,” “[t]oo much drinking.” At a minimum, the evidence does not compel the conclusion that Petitioner was not a habitual drunkard.

The dissenting opinion argues that the term “habitual drunkard” encompasses only those who “cause[] harm to other persons or the community.” Dissent at 1058. We need not decide whether “public harm” is a necessary component of the “habitual drunkard” definition. In making its determination that Petitioner was a habitual drunkard, the BIA expressly noted that Petitioner had been convicted of driving under the influence. Driving under the influence is, self-evidently, a public harm. At a minimum, the record does not compel the contrary result. We therefore disagree with the dissenting opinion that further proceedings are necessary in this case, even if public harm is required.

B. The statutory “habitual drunkard” provision is not unconstitutionally vague.

A statute is unconstitutionally vague if it “is so standardless that it authorizes or encourages seriously discriminatory enforcement” or if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited.” United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). As just noted, the term “habitual drunkard” readily lends itself to an objective factual inquiry. And whatever uncertainty the term “habitual drunkard” may raise in borderline cases, a person of ordinary intelligence would have fair notice that the term encompasses an average daily consumption of one liter of tequila for a 10-year period, leading to a conviction for driving under the influence. Because Petitioner has engaged in conduct that is clearly covered, he “cannot complain of the vagueness of the law as applied to the conduct of others.” Holder v. Humanitarian Law Project, 561 U.S. 1, 19, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010) (internal quotation marks omitted). Because the statute is not unconstitutionally vague under the criminal law standard, it necessarily satisfies any lesser vagueness standard that might apply in a non-criminal context. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

C. The statutory “habitual drunkard” provision does not violate equal protection principles.

“Where, as here, the Congress has neither invaded a substantive constitutional right or freedom, nor enacted legislation that purposefully operates to the detriment of a suspect class, the only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest.” Harris v. McRae, 448 U.S. 297, 326, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). “A legislative classification must be wholly irrational to violate equal protection.” De Martinez v. Ashcroft, 374 F.3d 759, 764 (9th Cir. 2004) (internal quotation marks omitted). Petitioner bears the burden “to negate every conceivable basis which might have supported the [legislative] distinction.” Angelotti Chiropractic, Inc. v. Baker, 791 F.3d 1075, 1086 (9th Cir. 2015), cert. denied, — U.S.-, 136 S.Ct. 2379, 195 L.Ed.2d 274 (2016) (internal quotation marks omitted).

Congress reasonably could have concluded that, because persons who regularly drink alcoholic beverages to excess pose increased risks to themselves and to others, cancellation of removal was unwarranted. We see nothing irrational about that legislative choice, which furthers the legitimate governmental interest in public safety. Nor does it matter that Congress has permitted cancellation of removal for other groups who may pose similar risks. “[I]n ‘the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.’ A legislature may address a problem ‘one step at a time,’ or even ‘select one phase of one field and apply a remedy there, neglecting the others.’ ” Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972) (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955)); see also McDonald v. Bd. of Election Comm’rs, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969) (“[A] legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.”).

Petitioner does not seriously dispute the foregoing analysis. Instead, he asserts that it is irrational to classify habitual drunkards as persons who lack good moral character. Petitioner misunderstands the nature of the equal protection inquiry.

The constitutional inquiry is limited to assessing congressional action. “[T]he only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest.” McRae, 448 U.S. at 326, 100 S.Ct. 2671. “Where there are plausible reasons for Congress’ action, our inquiry is at an end.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (internal quotation marks omitted).

Here, Congress’ action was the denial of cancellation of removal to habitual drunkards. It is irrelevant, for purposes of analyzing the equal protection claim, whether habitual drunkards lack good moral character. Congress achieved its result by using an intermediate category of persons who lack “good moral character” and by then defining that category to include habitual drunkards, among others. But the specific term, “good moral character,” has no significance under rational basis review, which does not require a court to account for all of a statute’s text, just whether the statute is rationally related to a legitimate governmental interest. Congress could have chosen any phrase for the intermediate category—-“special class of persons not eligible for cancellation of removal,” for example—and the effect would be the same. Or Congress could have eliminated the intermediate label altogether and simply listed behaviors that would disqualify applicants from obtaining cancellation of removal—and again the effect would be the same. The intermediate label is therefore of no constitutional moment, even if we were to agree that the label is unfortunate, outdated, or inaccurate.

The Supreme Court’s decision in Beach Communications is instructive on this point. Congress required persons to obtain a franchise if they wished to operate a “cable system,” 47 U.S.C. § 541, and Congress defined that term to encompass some facilities but not others, 47 U.S.C. § 522(7). The Supreme Court addressed an equal protection challenge to the statutory scheme by asking whether the congressional action—requiring operators of some facilities to obtain a franchise but not requiring operators of other facilities to obtain a franchise—was irrational. Beach Commc’ns, 508 U.S. at 317-20, 113 S.Ct. 2096. The Court did not ask whether, in the abstract, it was rational for Congress to define the term “cable system” in the manner that Congress had chosen.

That same approach applies here. We must ask whether the operative congressional action is rational, not whether the mere definition of a statutory term is rational. Because the denial of cancellation of removal to habitual drunkards is rationally related to the legitimate governmental interest in public safety, Petitioner’s equal protection argument fails.

Judge Kozinski’s concurring opinion faults us for applying ordinary rational basis review; the concurrence asserts that an even more deferential standard applies. But we have consistently held, citing the same eases that the concurrence cites, that ordinary rational basis review is the appropriate standard in the immigration context. See, e.g., 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.... ”); Ablang v. Reno, 52 F.3d 801, 804 (9th Cir. 1995) (holding that the deferential test described by the Supreme Court “is equivalent to the rational basis test typically applied in equal protection cases”). Our sister circuits agree. Because Petitioner’s equal protection fails under the ordinary rational basis test, this case provides no reason to question that longstanding approach.

Petition DENIED.

KOZINSKI, Circuit Judge,

with whom Circuit Judges BEA and IKUTA join, concurring.

The majority analyzes this case as if it involved governmental conduct in the domestic sphere, but it doesn’t. The President and Congress have excluded an alien pursuant to their plenary power over immigration. The Supreme Court “has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 522, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). We thus owe far more deference here than in an ordinary domestic context. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977).

For well over a century, the Court has sharply curtailed review of laws governing the admission or exclusion of aliens under the plenary power doctrine. The Court has said that “over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.” Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quotation marks and alteration omitted). This is because the power to exclude or expel is “an inherent and inalienable right of every sovereign and independent nation.” Fong Yue Ting v. United States, 149 U.S. 698, 711, 13 S.Ct. 1016, 37 L.Ed. 905 (1893). Such power is inherent because the very idea of nationhood requires the drawing of thorny lines—between members and non-members, between admitted and excluded. Our Constitution is the organizing document of a well-defined polity, not an international Golden Rule.

In recent years, the federal courts have been less than consistent in articulating the strength and scope of the plenary power doctrine. See Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L. Q. 925, 930 (1995). Today’s opinion adds to the uncertainty by applying the domestic equal protection test to the sphere of foreign relations. That our circuit has made this error before, as the majority notes, is of no moment when we are sitting en banc. Our principal duty as an en banc court is to correct our circuit law when it has gone astray. I would overrule our precedent and hold that the government’s burden is even lighter than rational basis: We approve immigration laws that are facially legitimate without probing or testing possible justifications. See Fial-lo, 430 U.S. at 799, 97 S.Ct. 1473 (citing Mandel, 408 U.S. at 770, 92 S.Ct. 2576).

One reason for the confusion in this area may be that courts have had difficulty articulating a standard below ordinary rational basis review, even though the existence of such a standard—call it “minimally rational basis”—ineluctably follows from the Supreme Court’s repeated insistence that Congress can “make rules as to aliens that would be unacceptable if applied to citizens.” Demore, 538 U.S. at 522, 123 S.Ct. 1708. What could the Supreme Court mean if not that something less than ordinary rational basis applies?

The majority interprets section 1101(f)(1) as applying solely to conduct rather than medical status, and it reads the statute’s “good moral character” language to mean nothing. Such interpretive gerrymandering may be necessary to preserve the constitutionality of a statute that operates in the domestic sphere. But there’s no need to nip and tuck the text here. Congress can exclude Ledezma on account of a medical condition or it can do so because it considers him immoral. This is a facially legitimate exercise of Congress’s plenary power, and we have no business passing judgment on it.

Judge Watford’s deft concurrence shows why the difference in standards matters. I agree with him that the statute draws distinctions between aliens based on moral judgment. But the discrimination here would be far more problematic if a legislature allocated public housing or Medicare only to those citizens with “good moral standing”—and conclusively excluded “habitual drunkards” from the eligible list. In my view, it’s the near limitless power of the political branches over immigration and foreign affairs that puts the statute here beyond cavil.

Untold masses were turned away at Ellis Island—or prevented from boarding ships for America—for medical reasons, my grandfather among them. This was a misfortune for those turned away, but ex-eluding aliens for reasons Congress believes sufficient to serve the public welfare is a nigh-unquestioned power of a sovereign nation. I’m aware of no country that fails to adhere to this precept. Nor has the Supreme Court stepped back from it. Until and unless it does, we have no business applying domestic equal protection law to political judgments—even foolish ones— made in the sphere of foreign relations. I would deny the petition summarily with a citation to Fiallo.

WATFORD, Circuit Judge,

joined by McKEOWN and CLIFTON, Circuit Judges, concurring:

We took this case en banc to decide whether the Immigration and Nationality Act’s “habitual drunkard” provision, 8 U.S.C. § 1101(f)(1), is facially unconstitutional on the theory that it violates the equal protection component of the Fifth Amendment’s Due Process Clause. I think the majority rightly rejects that challenge, but my reasons for reaching that conclusion differ.

The statutory classification at issue does not implicate a fundamental right or target a suspect class, so it is subject to rational basis review. FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); Fiallo v. Bell, 430 U.S. 787, 793 n.5, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). No one disputes that it is perfectly rational for Congress to deny cancellation of removal to those who lack good moral character. See 8 U.S.C. § 1229b(b)(l)(B). Congress’ judgment on that score is entitled to considerable deference, given the breadth of its authority to regulate the admission and exclusion of non-citizens. Fiallo, 430 U.S. at 792, 97 S.Ct. 1473. The only question, then, is whether Congress had a rational basis for establishing a conclusive presumption, not subject to rebuttal, that habitual drunkards lack good moral character, which is what § 1101(f)(1) does.

Conclusive presumptions of this sort are, by their nature, blunt instruments. No doubt there are individuals who, if given the opportunity to do so, could establish that they possess good moral character notwithstanding the fact that they are or were an habitual drunkard. It may well be that the petitioner in this case, Salomon Ledezma-Cosino, is one of those people. But the Supreme Court has long held that conclusive presumptions survive rational basis review even when the presumption established is both over- and underinclu-sive. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 316-17, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam) (upholding mandatory retirement age of 50 for police officers); Weinberger v. Salfi, 422 U.S. 749, 776-77, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (upholding provision denying Social Security benefits to surviving spouse of wage earner married less than nine months at time of wage earner’s death). Here, if Congress could rationally conclude that a substantial number of those found to be habitual drunkards would also be found, upon examination, to lack good moral character, then it could establish the conclusive presumption' created by § 1101(f)(1) simply to avoid the administrative costs that individual determinations of good moral character would entail. See Salfi, 422 U.S. at 777, 95 S.Ct. 2457.

I think Congress could rationally conclude that most habitual drunkards would be found to lack good moral character if individual determinations were permitted. That could be true, of course, only if habitual drunkards may in some sense be deemed morally blameworthy for acquiring their condition, for it would be irrational to brand someone as lacking in good moral character due to a medical condition developed through no fault of their own. In my view, Congress could rationally deem habitual drunkards to be at least partially responsible for having developed their condition. Habitual drunkards are those who have allowed themselves to become so addicted to alcohol that they can no longer control their habit of drinking to excess. That loss of control does not come about overnight; it is acquired as a result of frequent, repetitive acts of excessive drinking. See, e.g., Bouvier’s Law Dictionary 489 (William Edward Baldwin ed., Baldwin’s Century ed. 1948) (defining the term “habitual drunkard” in this way: “A person given to inebriety or the excessive use of intoxicating drink, who has lost the power or the will, by frequent indulgence, to control his appetite for it.”). Drinking to excess with such frequency that it leads to the loss of one’s ability to refrain from excessive drinking in the future is conduct that Congress could rationally view as volitional, and therefore the proper subject of moral blame.

None of this is to say that Congress’ decision to regard habitual drunkards as morally blameworthy for their condition is a wise one. We know considerably more about alcohol addiction today than we did back in 1952, when Congress enacted § 1101(f)(1). Scientists tell us, for example, that some people are much more prone to becoming addicted to substances like aleo-hoi than others, with genetic factors accounting for 40 to 70 percent of individual differences in the risk for addiction. U.S. Department of Health and Human Services, Office of the Surgeon General, Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health 2-22 (2016). In addition, there is a high correlation between alcohol abuse and post-traumatic stress disorder (PTSD), a condition that virtually no one could be blamed for acquiring. As the Surgeon General’s report notes, “[i]t is estimated that 30-60 percent of patients seeking treatment for alcohol use disorder meet criteria for PTSD, and approximately one third of individuals who have experienced PTSD have also experienced alcohol dependence at some point in their lives.” Id. at 2-22 to 2-23 (footnotes omitted).

Still, as a result of advances in our understanding of the neurobiology underlying addiction, we know that substance use disorders (including addiction, the most severe form) “typically develop gradually over time with repeated misuse” of the substance in question, and that one of the key factors in determining whether a person develops an addiction is “the amount, frequency, and duration of the misuse.” Id. at 1-6 to 1-7. Modern science thus confirms that, at least to some extent, there is indeed a volitional component to developing an addiction to alcohol, even if many other factors outside an individual’s control also contribute. Whether the volitional component is weighty enough to warrant treating habitual drunkards as morally blameworthy for their condition is a policy question for Congress to resolve. Under rational basis review, it is not for us “to judge the wisdom, fairness, or logic” of Congress’ decision in that regard. Beach Communications, 508 U.S. at 313, 113 S.Ct. 2096.

It has been suggested that Congress’ decision to treat habitual drunkards as lacking in good moral character is irrational because Congress has not classified individuals suffering from other chronic medical conditions, such as diabetes, heart disease, and bipolar disorder, as morally blameworthy for their conditions. The mere fact that a classification drawn by Congress may be underinclusive, however, is not sufficient to render it invalid under rational basis review. Salfi, 422 U.S. at 776, 95 S.Ct. 2457. In any event, Congress could rationally conclude that habitual drunkards are not similarly situated to those suffering from other medical conditions. Even if there is arguably a volitional component involved in developing medical conditions like diabetes and heart disease (say, consuming excessive amounts of sugar or red meat), Congress could rationally view that conduct as less morally blameworthy than consuming excessive amounts of alcohol to the point of losing control over the ability to abstain. Plus, the well-documented connection between alcohol addiction and harm to others (in the form of drunken driving, domestic violence, and the like) distinguishes alcohol addiction from other medical conditions that pose a risk primarily to the health of the individual sufferer, rather than to the safety of others. These differences provide a rational basis for Congress’ decision to classify habitual drunkards as lacking in good moral character, but not those suffering from other medical conditions.

THOMAS, Chief Judge,

with whom CHRISTEN, Circuit Judge, joins, dissenting:

The government proposes to bar the petitioner from immigration relief simply because is he a recovering alcoholic. It reasons that, because he was diagnosed with the disease during the qualifying period, he categorically must be labeled a “habitual drunkard,” and is per se ineligible for cancellation of removal as someone who lacks good moral character. But the terms “alcoholic” and “habitual drunkard” are not synonymous, either as a matter of immigration law, or as a matter of fact. For that reason, I would grant the petition for review and remand for the Board of Immigration Appeals (“BIA”) to reconsider the case under a proper construction of the law. Therefore, I must respectfully dissent.

I

A

As we observed more than four decades ago, “[t]he proposition that chronic acute alcoholism is itself a disease, ‘a medically determinable physical or mental impairment,’ is hardly debatable today.” Griffis v. Weinberger, 509 F.2d 837, 838 (9th Cir. 1975). It has been recognized as a disease by the American Medical Association since 1956. American Medical Association, Manual on Alcoholism for Physicians (American Medical Association, 1957). Alcoholism is a neurobiological medical condition, and an individual’s risk of becoming alcoholic depends on a number of factors beyond volitional choice, including genetics and environmental influences. See, e.g., U.S. Dep’t of Health & Human Servs., Office of the Surgeon General, Facing Addiction in America: the Surgeon General’s Report on Alcohol, Drugs, and Health (2016) [hereinafter Surgeon General’s Report]; World Health Org., Neuroscience of Psychoactive Substance Use and Dependence (2004). Indeed, the Surgeon General has rejected the notion that alcoholism and other addictions are moral failings; instead, they are chronic illnesses “that we must approach with the same skill and compassion with which we approach heart disease, diabetes, and cancer.” Surgeon General’s Report at v, 1-2.

Despite this near-universal medical consensus, the government urges that a diagnosis of the disease of alcoholism must categorically mean that someone lacks good moral character and is therefore per se ineligible for cancellation of removal. This view is not supported by the statute, and certainly not by common sense. Perhaps, as some suggest, the phrase “habitual drunkard” is purely anachronistic. That well may be so, as evidenced by the fact that, aside from this case, there is only one reported BIA decision—from more than a half century ago—discussing it. Matter of H, 6 I & N Dec. 614 (1955). But it is still part of the statute and, if the government now intends to invoke it, a more definitive explanation of its meaning is required.

B

Our analysis must begin with the acknowledgment that this case presents serious constitutional questions as to the vagueness of the statute and whether it violates the Equal Protection Clause. In such circumstances, we are instructed to avoid constitutional issues “where an alternative interpretation of the statute is ‘fairly possible.’ ” INS v. St. Cyr., 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citation omitted). Fortunately, we need not confront those constitutional questions, because an examination of the statute confirms that a diagnosis of the disease of alcoholism does not, as a matter of immigration, mean that a petitioner lacks good moral character as a “habitual drunkard.”

Employing the familiar tools of statutory construction, and mindful of the need to avoid constitutional questions, we look first at the plain words of the statute, “particularly to the provisions made therein for enforcement and relief.” Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). “[W]hen deciding whether the language is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ ” King v. Burwell, — U.S.-, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)). In addition, we examine the legislative history, the statutory structure, and “other traditional aids of statutory interpretation” in order to ascertain congressional intent. Middlesex Cnty., 453 U.S. at 13, 101 S.Ct. 2615. As part of statutory analysis, “[w]e also look to similar provisions within the statute as a whole and the language of related or similar statutes to aid in interpretation.” United States v. LKAV, 712 F.3d 436, 440 (9th Cir. 2013).

The present “good moral character” definition was enacted as part of the Immigration and Naturalization Act of 1952 (“INA”), which defined certain categories of individuals who were, per se, lacking in good moral character, including “habitual drunkard[s],” adulterers, gamblers, persons who gave false testimony for the purpose of obtaining immigration benefits, murderers, and those who had been convicted of a crime and confined to a penal institution for an aggregate of at least 180 days. Public L. 82-414 § 101(f), 66 Stat. 163,172 (1952).

So, did Congress mean to include in the term “habitual drunkard” all individuals who had been diagnosed with alcoholism, or did it intend to distinguish between the two concepts? The text and history of the INA lead to the conclusion that Congressional intent was to create a distinction.

First, Congress well knew how to use the terms “alcoholism” and “alcoholic” in immigration law. In the Immigration Act of 1917, Congress added “persons with chronic alcoholism” to the classes of aliens excluded from admission to the United States. Immigration Act of 1917, Pub. L. No. 64-301, § 3, 39 Stat. 874, 875 (1917) (repealed 1952). With enactment of the INA, Congress repealed many of the provisions of the 1917 Act relating to categories of excludable aliens, but explicitly modified the exclusion provisions to include “[a]liens who are narcotic drug addicts or chronic alcoholics.” 66 Stat 163, 172-73 (1952). “[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (internal quotation marks omitted); see also Center for Community Action and Environmental Justice v. BNSF R.R. Co., 764 F.3d 1019, 1024 (9th Cir. 2014). Therefore, the structure and context of the INA indicate a Congressional intent to distinguish the phrases. In addition, during the period when the INA was enacted, common public understanding was that the concepts were distinct. For example, Webster’s New World Dictionary— published four years after the passage of the INA—distinguishes between a drunkard and an alcoholic: a “drunkard” is “a person who often gets drunk; inebriate,” whereas an “alcoholic” is “one who has chronic alcoholism.” Webster’s New World Dictionary 17, 231 (1956). Webster’s Collegiate Dictionary, published in 1947, defined “alcoholism” as “a diseased condition caused by excessive use of alcoholic liquors” and a “drunkard” as a “toper or “sot.” Webster’s Collegiate Dictionary (5th ed. 1947). And, as previously observed, the American Medical Association recognized alcoholism as a disease in 1956.

Second, the statutory context of the phrase “habitual drunkard” is critical. It is contained in the definition of “good moral character,” as one of the listed categories of character attributes that preclude relief. 8 U.S.C. § 1101(f)(1). The general concept of “good moral character” as a prerequisite to obtaining immigration benefits dates back to the adoption of the first naturalization statute in 1790, Act of Mar. 26, 1970, ch. 3, § 1, 1 Stat. 103, and grounded in the notion that an applicant should have spent some time as a resident and then “be able to bring testimonials of a proper and decent behavior.” It deals with one’s character, not one’s medical afflictions.

According to the present statute’s terms, its purpose is to define which individuals necessarily lack good moral character. See 8 U.S.C. § 1101(f) (“No person shall be regarded as, or found to be, a person of good moral character who ... is, or was ... a habitual drunkard.”). Other noncitizens who necessarily lack good moral character—and are therefore categorically barred from receiving discretionary relief—under Section 101(f) are (1) individuals engaged in prostitution, the smuggling of illegal immigrants into the country, or polygamy; (2) individuals “whose income is derived principally from illegal gambling activities” or who have “been convicted of two or more gambling offenses”; (3) individuals who have “been convicted of an aggravated felony”; or (4) individuals engaged in conduct relating to “assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings.” 8 U.S.C. § 1101(f).

Every other category in Section 101(f) describes conduct that results in public harm or harm to others. Under the doctrine of noscitur a sociis, according to which “a word is known by the company it keeps,” S.D. Warren Co. v. Maine Bd. of Env’l Protection, 547 U.S. 370, 378, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006), “habitual drunkard” should apply only to individuals who engage in certain types of harmful conduct. Therefore, an individual’s status as suffering from the disease of alcoholism cannot be sufficient to trigger the “habitual drunkard” provision; being an alcoholic does not necessarily result in public harm or harm to others^.

Third, not only does the context of “good moral character” suggest analysis of conduct, rather than a disease, but the statutory provisions as to the avenue of relief afforded strengthens that conclusion. The phrase “good moral character” is employed in various immigration contexts including naturalization, see 8 U.S.C. § 1427(a)(3), becoming a lawful permanent resident, see 8 U.S.C. § 1255b, adjustment of status, see 8 U.S.C. § 1154, grant of voluntary departure, see 8 U.S.C. § 1229c, and cancellation of removal, 8 U.S.C. § 1229b.

For our contextual purposes, the relevant provision is cancellation of removal and its predecessor statute, suspension of deportation. Relief via suspension of deportation was established by the INA. One of the eligibility requirements for suspension of deportation was that the applicant be someone whose deportation would result in “exceptional and extremely unusual hardship” to the alien or an immediate family member who was a citizen or lawful permanent resident. 8 U.S.C. § 1254(a)(1) (repealed). Among the critical factors in determining the requisite hardship was “health, especially tied to inadequate medical care in the home country.” Urban v. INS, 123 F.3d 644, 648 (7th Cir. 1997); see also In re Anderson, 16 I. & N. Dec. 596, 597-98 (1978) (noting among the relevant factors to be “condition of health” and “severe illness”); In re Louie, 10 I. & N. Dec. 223, 225 (1963) (granting suspension of deportation based on medical condition of father). In 1962, Congress replaced the “exceptional and extremely unusual hardship” standard with “extreme hardship.”

In 1997, Congress eliminated the remedy of suspension of deportation, and replaced it with “cancellation of removal,” which is the operative statute in this case. 8 U.S.C. § 1229b. Eligibility for relief was still predicated on hardship, with a stricter standard returning to the original language of “exceptional and extremely unusual hardship,” and limiting the hardship determination to qualifying relatives. Id. Medical condition continued to be an important factor in determining eligibility for relief. See, e.g., Fernandez v. Gonzales, 439 F.3d 592, 601-02 (9th Cir. 2006) (noting it would be error for the BIA to refuse to hear evidence of a life-threatening medical condition in the context of cancellation of removal); see also In re Gonzalez Reciñas, 23 I. & N. Dec. 467, 470 (2002) (noting that the new hardship standard “is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.”). In short, medical condition and health have always been important considerations in determining hardship, either through suspension of deportation or cancellation of removal. Thus, it would be inconsistent with the statute, when considered in context, to construe it to mean that the disease of alcoholism, by itself, would per se disqualify a petitioner from relief when the establishment of a serious medical condition can be a qualifying factor.

Fourth, in a different section of the INA, Section 212(a)(l)(A)(iii), Congress demonstrated a more nuanced understanding of alcohol dependence. There, it established that a noncitizen is inadmissible if he or she “is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General) to' have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.” See 8 U.S.C. § 1182(a)(l)(A)(iii)(I); see also 8 U.S.C. § 1182(a)(l)(A)(iii)(II). An implementing regulation treats alcoholics as having a “physical or mental disorder” for the purpose of inadmissibility under this statute. See 42 C.F.R. 34.2(n); Am. Psychiatric Ass’n, supra; Center for Disease Control & Prevention, Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders for Civil Surgeons (2013), available at http://tinyurl. com/jqaggoo. It is important to emphasize, however, that this statute only refuses admissibility to alcoholics whose alcohol-related behavior “pose[s] ... a threat to the property, safety, or welfare of the alien or others.” 8 U.S.C. § 1182(a)(l)(A)(iii)(I). It does not exclude alcoholics based on an outdated stigma that they are categorically immoral.

Finally, as we have noted, the assessment of good moral character in the immigration context requests the agency to “weigh and balance the favorable and unfavorable facts or factors, reasonably bearing on character, that are presented in evidence.” Torres-Guzman v. INS, 804 F.2d 531, 534 (9th Cir. 1986). Although this general concept does not construe the “habitual drunkard” provision, it reinforces the idea of the general purpose of the statute, and the need for a case-by-case determination. Consistent with this approach, courts have declined to find a lack of good moral character based on isolated alcohol-related conduct. For example, several district courts have held that a single conviction for driving under the influence (“DUI”)—and sometimes more than one— cannot render someone a person of bad moral character under Section 101(f). See, e.g., Rangel v. Barrows, No. 4:07-cv-279, 2008 WL 4441974, at *4 (E.D. Tex. Sept. 25, 2008) (“[T]he applicable law is unanimous in support of the proposition that, in the absence of aggravating factors, a single [DUI] conviction is insufficient to deny an application for naturalization on the basis that the applicant lacks good moral character.”); Ragoonanan v. U.S. Citizenship & Immigration Servs., No. 07-3461 PAM/JSM, 2007 WL 4465208, at *5 (D. Minn. Dec. 18, 2007) (holding that “a single [DUI] conviction resulting in probation” is insufficient to establish bad moral character); Yaqub v. Gonzales, No. 1:05-cv-170, 2006 WL 1582440, at *4 (S.D. Ohio June 6, 2006) (concluding that “two DUI arrests” are insufficient to find petitioner lacks good moral character); Le v. Elwood, No. Civ.A. 02-CV-3368, 2003 WL 21250632, at *3 (E.D. Pa. 2003) (concluding that two DUI convictions, did not, standing alone, “amount to a finding of ‘habitual drunkard’ ”).

In addition, the statutory construct of “good moral character” has also embraced the concept of redemption. See, e.g., Santa-maria-Ames v. INS, 104 F.3d 1127, 1132 (9th Cir. 1996) (“Whether the petitioner can establish that he has reformed and rehabilitated from this prior conduct is germane to the determination of whether he has established good moral character... .”); Yuen Jung v. Barber, 184 F.2d 491 (9th Cir. 1950) (noting that if a prior bad act precluded one from establishing good moral character, “would require a holding that Congress had enacted a legislative doctrine of predestination and eternal damnation”) Here, however, the government’s proposed holding would mean that all sober, recovering alcoholics who were diagnosed during the seven year qualifying period would necessarily be considered “habitual drunkards” and categorically ineligible for relief. The construction more consistent with the statute would be to allow the agency to consider and balance the equities of each individual circumstance on a case by ease basis.

In short, when we consider the plain language of the statute, its structure, and its legislative history, we must conclude ■that the phrase “habitual drunkard” is not synonymous with “alcoholic.” Thus, a diagnosis of the disease of alcoholism is insufficient to trigger the “habitual drunkard” provision, and render a petitioner categorically ineligible for discretionary cancellation of removal relief.

Instead, the phrase “habitual drunkard” is best understood in the context of its statutory setting of “good moral character,” which has commonly been understood to reflect, as Judge Learned Hand put it, the “common conscience” of the community. Johnson v. United States, 186 F.2d 588, 590 (2d Cir. 1951). To that end, courts have generally focused on whether the challenged conduct is harmful to the public, or whether it is purely private. See Nemetz v. INS, 647 F.2d 432, 436 (4th Cir. 1981) (noting that the appropriate analysis “is whether the act is harmful to the public or is offensive merely to a personal morality.”); In re Labady, 326 F.Supp. 924, 927 (S.D.N.Y. 1971) (“The most important factor to be considered is whether the challenged conduct is public or private in nature.”).

Thus, in context, the best construction of “habitual drunkard” within the “good moral character” definition is one who habitually abuses alcohol and whose alcohol abuse causes harm to other persons or the community. This interpretation is consistent with the statutory language, structure, and context, and avoids any constitutional infirmity.

To be sure, an alcoholic may also fit the definition of “habitual drunkard” by conduct that causes harm to others or the public. But to' say that status of being diagnosed an alcoholic always means that one is a “habitual drunkard,” is not consistent with the statute.

II

A proper construction of the phrase “habitual drunkard” is critical to the outcome of this petition. Mr. Ledezma-Cosi-no has been in the United States for twenty years. He works in construction, specializing in cement masonry and concrete finishing. He and his wife have eight children, five of whom are United States citizens. At his first immigration hearing, he admitted removability, but applied for cancellation of removal and voluntary departure under 8 U.S.C. § 1229b-c. In support of his application for cancellation of removal, he contended that his removal would result in exceptional and extremely unusual hardship to his children because of economic disadvantage, the difficulties of adjusting to life in Mexico, and his youngest daughter’s asthma. At the first hearing, the immigration judge (“IJ”) found, on the merits, that Ledezma-Cosino had not established the statutory hardship requirement. The IJ denied cancellation of removal, but granted voluntary departure.

Ledezma-Cosino appealed to the BIA. The BIA remanded the case because the trial transcript was defective because there was no record of the last witness, Ledez-ma-Cosino’s daughter, Yadira Ledezma. The BIA instructed the IJ to complete the record.

At the first post-remand hearing, the government attested to the IJ that there had been no negative developments as to Ledezma-Cosino between the hearings. At the scheduled second hearing, counsel requested a continuance because Ledezma-Cosino had been hospitalized with a liver ailment. At a subsequent scheduling hearing, counsel presented medical records to show that his client had been hospitalized.

At the hearing on the merits, the judge placed the medical records into the record himself. Yadira L.edezma testified, as well as Ledezma-Cosino. The judge questioned both about Ledezma-Cosino’s drinking because it had been reflected in the medical records. Ledezma-Cosino testified that he had. been sober since the hospitalization. At the conclusion of the testimony, the government argued that he had not satisfied the hardship requirement and questioned whether he had been truthful on his application. The government did not argue that he was categorically ineligible for relief because he was a “habitual drunkard.”

The IJ then, sua sponte, declared Le-dezma-Cosino ineligible for relief because he was a “habitual drunkard,” and also denied voluntary departure for that reason. The BIA dismissed his appeal on the sole basis that he is a “habitual drunkard” and therefore failed to “me[e]t the requisite period of good moral character” required for discretionary relief. In reaching this conclusion, the BIA considered only that Ledezma-Cosino (1) was hospitalized for a serious liver condition in 2010 and drank alcohol excessively for a year leading up to his hospital visit, (2) had a decade-long alcohol dependency, (3) was an alcoholic according to his daughter’s testimony, and (4) was convicted of a DUI in 2008.

Aside from the DUI conviction, there was no evidence in the record of any harm to the public or others. Indeed, the only evidence was that he was an excellent worker. Thus, if the evidence pertaining to his diagnosis of alcoholism is set aside, there was not sufficient evidence to sustain the determination of ineligibility for cancellation or voluntary departure based on the “habitual drunkard” clause.

Therefore, I would remand this petition to the BIA for application of the correct statutory standard or, to the extent there is remaining statutory ambiguity, for it to determine the meaning of the phrase “habitual drunkard” in a way that does not make the phrase synonymous with “alcoholic.”

Whether or not the agency would ultimately grant relief in this case is a separate question. In the end, the decision as to whether an applicant is afforded discretionary cancellation of removal is committed solely to the executive branch, not subject to our review. But legal eligibility for relief is subject to our review, and it is important for future cases of those who seek relief, and the attorneys who represent them, that the law is accurately defined. Given the government’s new reliance on what had been considered an antediluvian phrase, resolution of its meaning is particularly critical.

Because I would resolve the petition on the basis of statutory interpretation, or remand, I would not reach the constitutional questions raised in this case.

For these reasons, I respectfully dissent.

      . Judges Graber, Clifton, Murguia, and Owens join this opinion in full. Judges Kozinski, McKeown, Bea, Ikuta, and Watford join Parts A and B only. Accordingly, this opinion states the view of the court with respect to Parts A and B, and it states a plurality view with respect to Part C. All nine judges who are not dissenting concur in the result.

      . The government advances alternative grounds to reject the constitutional challenges. We need not, and do not, reach them.

      . The dissenting opinion begins with a false premise: that the BIA denied Petitioner relief "simply because he is a recovering alcoholic.” Dissent at 1053. Fairly read, the BIA's opinion relied solely on Petitioner's conduct. For example, the BIA noted that Petitioner "admitted to drinking excessively for the 1-year period leading up to his 2010 hospital visit, but minimized his behavior outside of this period.” (Emphasis added.) Moreover, whether Petitioner stopped drinking after the relevant 10-year statutory period is irrelevant as a matter of law.

      . Accord Masnauskas v. Gonzales, 432 F.3d 1067, 1071 (9th Cir. 2005); Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. 2002); Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001); Friend v. Reno, 172 F.3d 638, 645-46 (9th Cir. 1999); United States v. Viramontes-Alvarado, 149 F.3d 912, 916 (9th Cir. 1998); Wauchope v. U.S. Dep’t of State, 985 F.2d 1407, 1414 n.3 (9th Cir. 1993); United States v. Barajas-Guillen, 632 F.2d 749, 752 (9th Cir. 1980).

      . E.g., Ashki v. INS, 233 F.3d 913, 919-20 (6th Cir. 2000); Breyer v. Meissner, 214 F.3d 416, 422 n.6 (3d Cir. 2000); Azizi v. Thornburgh, 908 F.2d 1130, 1133 & n.2 (2d Cir. 1990).

      . Although Fiallo held that this standard is the most probing scrutiny we may apply to such laws, 430 U.S. at 795, 97 S.Ct. 1473, the Supreme Court expressly left open the question of whether some immigration laws “are so essentially political in character as to be nonjusticiable,” id. at 793 n.5, 97 S.Ct. 1473. Some Supreme Court cases can be read as so holding. See, e.g., Galvan v. Press, 347 U.S. 522, 530-31, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (noting that "a whole volume” of authorities. reject the proposition "that the Due Process Clause qualifies the scope of political discretion heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens”); Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 39 L.Ed. 1082 (1895) ("The power of congress to exclude aliens altogether ... and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.”).

      . The literature scrutinizing scrutiny is vast. See, e.g., Tara Leigh Grove, Tiers of Scrutiny in a Hierarchical Judiciary, 14 Geo. J. L. & Pub. Pol’y 475 (2016); Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L. J. 3094 (2015); Aziz Z. Huq, Tiers of Scrutiny in Enumerated Powers Jurisprudence, 80 U. Chi. L. Rev. 575 (2013). I believe our usual tiers—rational, intermediate and strict—are better understood as rough ordinal concepts rather than hermetically sealed categories that preempt the field. New categories can join this ordering; Strict scrutiny emerged in Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); intermediate scrutiny came in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Other courts and commentators have hinted wryly at mythical creatures like "rational basis with bite,” "intermediate-intermediate scrutiny” and "strict scrutiny light.” See Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 759 (2011); Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 791, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (Scalia, J., dissenting); Crawford v. Marion Cty. Election Bd., 472 F.3d 949, 954 (7th Cir. 2007) (Evans, J., dissenting). And while the "facially legitimate” standard sketched in Mandel and Fiallo is necessarily lower than ordinary rational basis, there may be other ways to describe this same conclusion. For example, I see no logical difference between saying that something less than ordinary rational basis applies and saying that the set of acceptable rational bases is broader in the immigration context than elsewhere.

      . More broadly, I note that a medical diagnosis does not ipso facto innoculate one from moral judgment. Plenty of medical conditions, including alcoholism, are shaped by behavior our society deems volitional. How we evaluate this volitional component—and draw the line between determinism and free will—is a question of philosophy, not scientific inquiry. Morality does not end where diagnosis begins, and it’s scientific hubris to pretend otherwise.

      . 1 Annals of Congress 1154 (1790) (Joseph Gales ed., 1834) (statement of Rep. Jackson).

      . The other two requirements were that the applicant had been physically present in the United States for a continuous period of not less than seven years immediately preceding the application date, and was a person of good moral character during that period. 8 U.S.C. § 1254(a)(1) (repealed).


source: Caselaw Access Project

author: BYBEE, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant, v. Gary Edward KOVALL, Defendant-Appellee. United States of America, Plaintiff, Twenty-Nine Palms Band of Mission Indians, Third-Party-Plaintiff-Appellant, v. David Alan Heslop, Defendant-Appellee.
    No. 15-50419, No. 15-50420
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 10, 2017, Pasadena, California
    Filed May 30, 2017

      Richard Freeman (argued) and Evan C. Mix, Sheppard Mullin Richter & Hampton LLP, San Diego, California, for Third-Party-Plaintiff-Appellant.
    Edward Murray Robinson (argued), Torrance, California, for Defendant-Appellant Gary Edward Kovall.
    David William Shapiro (argued), Boersch Shapiro LLP, Oakland, California, for Defendant-Appellant David Alan Hes-lop.
    Lindsey Greer Dotson (argued), Assistant United States Attorney, Public Corruption & Civil Rights Section; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney’s Office, Los Ange-les, California; for Plaintiff.
    Before: SUSAN P. GRABER, JAY S. BYBEE, and MORGAN B. CHRISTEN, Circuit Judges.
   OPINION

BYBEE, Circuit Judge:

We are asked whether the victim of a crime may appeal a restitution order handed down as part of a criminal defendant’s sentence. We answered “no” when we were asked about victims’ rights for restitution ordered under the Victim and Witness Protection Act of 1982. United States v. Mindel, 80 F.3d 394, 397 (9th Cir. 1996). The victim here claims that the awarding of restitution under the Mandatory Victims Restitution Act of 1996 presents a different situation, warranting a different rule. We disagree, and join the First, Third, Fifth, Eighth, and Tenth Circuits in holding that a victim may not directly appeal the restitution component of a criminal defendant’s sentence under the Mandatory Victims Restitution Act. See United States v. Slovacek, 699 F.3d 423, 425-27 (5th Cir. 2012); United States v. Stoerr, 695 F.3d 271, 273 (3d Cir. 2012); United States v. Aguirre-González, 597 F.3d 46, 54-55 (1st Cir. 2010); United States v. Hunter, 548 F.3d 1308, 1316 (10th Cir. 2008); United States v. United Sec. Sav. Bank, 394 F.3d 564, 567 (8th Cir. 2004) (per curiam).

I

Given the highly legal nature of the question presented—and the complexity of the factual background—the facts will be recited only briefly and in relevant part. Defendants Kovall and Heslop conspired to engage in, and ultimately engaged in, a scheme to

corruptly give[], offer[], or agree[] to give anything of value to any person, with intent to influence or reward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.

18 U.S.C. § 666(a)(2). In essence, Defendants schemed to use Kovall’s position of influence with the Twenty-Nine Palms Band of Mission Indians (“the Tribe”) to convince the Tribe to enter into contracts with Defendants’ co-conspirators at inflated prices. Defendants would then receive kickbacks based on the Tribe’s overpay-ments.

Defendants pled guilty to conspiracy to commit federal programs bribery under 18 U.S.C. § 371. Pursuant to the Mandatory Victims Restitution Act, see id. § 3663A, the district court ordered Defendants to pay restitution to the Tribe. To determine the proper amount of restitution, the district court held hearings where it heard from the Tribe, Defendants, and the government. See id. § 3771(a)(4) (giving victims a right to be heard when entitled to restitution). The Tribe presented evidence of its losses; the government and Defendants responded.

At the end of the day, the Tribe did not get all that it asked for. The district court determined the amount of restitution— broken down between the “direct loss” suffered as a result of the offenses and “other fees” incurred as collateral consequences of the offenses—and entered the sentences. Defendants appealed the restitution award, claiming that the district court abused its discretion in calculating the “other fees” amount. The Tribe also filed an appeal, challenging both the “direct loss” and the “other fees” amounts of the restitution order; we asked the parties to address whether the Tribe could do so.

II

There are three primary acts that govern restitution in criminal cases in the federal courts: the Victim and Witness Protection Act of 1982 (“VWPA”), largely codified at 18 U.S.C. §§ 3663, 3664; the Mandatory Victims Restitution Act of 1996 (“MVRA”), largely codified at 18 U.S.C. § 3663A; and the Crime Victims’ Rights Act (“CVRA”), largely codified at 18 U.S.C. § 3771. We address each act in turn to describe how the current restitution scheme works.

A

The Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248, gives district courts the discretion to order a defendant who is convicted of a criminal offense to pay restitution, in full or in part, to the victim of that offense. 18 U.S.C. § 3663(a)(1)(A)—(B). In determining whether to order restitution, the court must consider the amount of loss suffered by the victim, the financial resources and needs of the defendant, and other factors that the court deems appropriate. Id. § 3663(a)(l)(B)(i); see also id. § 3663(a)(l)(B)(ii) (allowing a district court to decline to order restitution if doing so would complicate or prolong the sentencing process).

The VWPA provides that, if the criminal offense caused property loss or damage,' the court may order the defendant either to return the property or to pay the value of property to the victim. Id. § 3663(b)(1). If the victim suffered bodily injury, the court may order the defendant to pay for the cost of medical and other professional treatment, physical and occupational therapy and rehabilitation, and lost income; if the offense resulted in loss of life, the defendant may be ordered to pay for funeral and related services; in any case, the defendant may also have to pay for lost income and child care, make restitution in services in lieu of money, and pay for time spent by the victim “in an attempt to remediate the intended or actual harm.” Id. § 3663(b)(2)-(6).

The VWPA also creates procedural rules for determining restitution and enforcing an award. For example, the probation office must provide certain notice to identified victims, including the right to submit information concerning any losses and the date, time, and place of the sentencing hearing. Id. § 3664(d)(2)(A)(iii), (iv). In determining the proper amount of restitution, the government bears the burden of proving the amount of loss and must do so by a preponderance of the evidence; the defendant, however, has the burden of demonstrating financial ability and the needs of any dependents. Id. § 3664(e).

B

As part of the Antiterrorism and Effective Death Penalty Act of 1996, Congress enacted the Mandatory Victims Restitution Act of 1996. Pub. L. No. 104-132, tit. II, §§ 201-11, 110 Stat. 1227, 1227-41; see 18 U.S.C. § 3663A. Most notably, for certain crimes—crimes of violence, offenses against property, and any offense committed by fraud or deceit, among others—the district court has no discretion under the MVRA and “shall order” restitution. 18 U.S.C. § 3663A(a)(l), (c)(1)(A). The rights to restitution conferred by the MVRA are generally enforceable under the procedures in the VWPA. See id. § 3663A(d). As noted above, the MVRA also amended the VWPA to make some additions to the general rules and procedures for awarding restitution. See supra note 4.

c

As a part of the Justice for All Act of 2004, Congress passed the Crime Victims’ Rights Act. Pub. L. No. 108-405, tit. I, § 102(a), 118 Stat. 2261, 2261-64; see 18 U.S.C. § 3771. The CVRA expands the rights afforded to victims of crime. Those rights now include the right to be reasonably protected from the accused, the right to timely notice of proceedings, the right to be heard at public proceedings, the right to be informed of a plea bargain, and the right “to full and timely restitution as provided in law.” 18 U.S.C. § 3771(a). The government is obligated to use its “best efforts” to advise crime victims of these enumerated rights. Id. § 3771(c)(1).

The CVRA provides mechanisms for enforcing a victim’s rights under the Act. The government, the victim, or the victim’s lawful representative may assert the victim’s rights in the district court in which the defendant is being prosecuted. See id. § 3771(d)(1), (3). The district court must decide a motion asserting a victim’s rights “forthwith.” Id. § 3771(d)(3). And if the district court denies the relief sought, “the movant may petition the court of appeals for a writ of mandamus.” Id. The court of appeals has seventy-two hours to decide such an application, is to “apply ordinary standards of appellate review,” and if it denies the relief sought, must clearly state its reasons in a written opinion. Id.) see also Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1018 (9th Cir. 2006) (apologizing for our “regrettable failure” to comply with the seventy-two-hour requirement).

There are limitations on the relief a victim may obtain. The CVRA provides that the failure to provide a right under the Act is not grounds for a new trial. 18 U.S.C. § 3771(d)(5). Nevertheless, under certain circumstances (not relevant here) a victim may move to re-open a plea or a sentence. Id. The CVRA expressly states that it does not create a cause of action for damages and “shall [not] be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.” Id. § 3771(d)(6).

Ill

The Tribe has taken a direct appeal from the district court’s restitution awards. We held in United States v. Mindel that “the beneficiary of [a] criminal restitution order made pursuant to the VWPA[ ] does not have standing to pursue [an] appeal.” 80 F.3d 394, 396 (9th Cir. 1996). The Tribe argues that Mindel is limited to appeals from restitution awards issued under the VWPA and that the Tribe has standing to appeal an award under the MVRA. We conclude that the Tribe has Article III standing to appeal an award under the MVRA, but we also hold that neither the MVRA nor the Due Process Clause confers a right on the Tribe to challenge restitution awards except as provided in 18 U.S.C. § 3771(d)(3).

A

In order to meet the “irreducible constitutional minimum of standing,” three elements must be met: (1) a party must have suffered an “injury in fact,” which is an actual or imminent invasion of a legally protected, concrete, and particularized interest, (2) “there must be a causal connection between the injury and the conduct complained of,” and (3) it must be likely that the injury will be redressable by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The general rule is that non-parties to a criminal prosecution have no standing to appeal the judgment. See Diamond v. Charles, 476 U.S. 54, 56, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“Because a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statute’s defense, we dismiss the appeal for. want of jurisdiction.”); United States v. Alcatel-Lucent Fr., SA, 688 F.3d 1301, 1307 (11th Cir. 2012) (per curiam) (recognizing the “default rule” that “crime victims have no standing to appeal a defendant’s sentence”); United States v. Grundhoefer, 916 F.2d 788, 791 (2d Cir. 1990) (“The direct, distinct and palpable injury in a criminal sentencing proceeding plainly falls only on the defendant who is being sentenced.”); see also Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.”). The Tenth Circuit explained, “Criminal trials ... place an individual citizen against the United States government. While non-parties may have an interest in aspects of the case, they do not have a tangible interest in the outcome.” United States v. Hunter, 548 F.3d 1308, 1312 (10th Cir. 2008). The Supreme Court has rejected the standing of non-parties to challenge criminal sentences even when the non-parties claim some kind of collateral effect on their own interests. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 156-57, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (holding that the petitioner lacked standing to challenge the death sentence of another prisoner, even though he claimed Arkansas had a system of “comparative review in death penalty cases”).

A victim’s challenge to an order of restitution stands on slightly different footing than a non-party appeal from a sentence imposed on a defendant. The victim has a more direct interest in the outcome of the case and, where the district court’s judgment involves a monetary award of restitution to a victim, the victim has a discrete and quantifiable interest in the judgment. That the victim has such an interest, however, does not guarantee that the victim has either standing or the right to appeal the restitution order.

We first addressed third-party standing to appeal a restitution award in Mindel. In Mindel, the district court required Mindel to make restitution payments under the VWPA, and portions of Mindel’s stock and property were held as security. See 80 F.3d at 396 (noting that the district court “expressly incorporat[ed]” a civil settlement agreement between Mindel and the victims). Mindel failed to meet his payment obligations, and the victims foreclosed on the security for the restitution. Mindel then asked the district court to modify his restitution obligations. In light of the foreclosure and Mindel’s diminished ability to pay, the district court rescinded Mindel’s obligation to make further payments, and the victims appealed the district court’s order. Id. We held that the victims had not suffered an “injury in fact” and therefore lacked standing to pursue the appeal. Id. at 397; see also Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (“[T]he decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the ' situation of the defendant.”). Looking to an Eleventh Circuit opinion, we agreed that the victims’ interest was compensatory, while the government’s interest was penal, and a “restitution order serves a penal rather than a compensatory purpose.” Mindel, 80 F.3d at 397 (citing United States v. Johnson, 983 F.2d 216, 217-20 (11th Cir. 1993)); see also United States v. Brown, 744 F.2d 905, 910 (2d Cir. 1984) (“[T]he VWPA ... compensate^] the victim ... in a manner distinct from the normal functioning of a civil adjudication .... [U]nlike a civil suit, the victim is not a party to a sentencing hearing and therefore has only a limited ability to influence the outcome.”).

The Tribe argues that the MVRA changed the legal landscape because the MVRA, unlike the VWPA, makes restitution mandatory for certain crimes. See 18 U.S.C. § 3663A(a)(l). Whereas district courts may award restitution under the VWPA, they must award restitution to the victims of the crimes identified by the MVRA. Compare id. § 3663(a)(1)(A) (“may order”), with id. § 3663A(a)(l) (“shall order”). Moreover, we have held that restitution under the MVRA is not purely penal. See United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004) (“The primary and overarching goal of the MVRA is to make victims of crime whole.”); see also United States v. Serawop, 505 F.3d 1112, 1122 & n.4 (10th Cir. 2007) (“Even assuming the statute is ambiguous, we have recognized that the MVRA does not inflict criminal punishment, and thus is not punitive.”). Accordingly, “[w]e’ve held in some contexts that ‘restitution under the MVRA is punishment.’ But in other contexts, we’ve held that it’s not. Sometimes we’ve held it’s a hybrid, with ‘both compensatory and penal purposes.’” United States v. Green, 722 F.3d 1146, 1150 (9th Cir. 2013) (citations omitted).

The differences between the MVRA and the VWPA require a different result here than we reached in Mindel. There are two differences, albeit related, that lead us to conclude that victims entitled to restitution under the MVRA have suffered injury in fact when full restitution is not ordered. The first, and most obvious, is that awarding restitution under the MVRA is mandatory, not discretionary. 18 U.S.C. § 3663A(a)(l). Like the VWPA, the MVRA is quite specific as to what the order of restitution shall include. The MVRA covers injury to life and property and provides measures for how to value the damages suffered by the crime victims, including medical expenses, physical therapy, child care, and funeral expenses. Id. § 3663A(b). The mandate in the MVRA means that qualified defendants have at least some claim of entitlement to restitution. See Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (holding that a “legitimate claim of entitlement” is an injury in fact). Second, because of the restitution mandate, we have now recognized that the policy behind MVRA restitution is at least partially compensatory, and not merely penal, in nature. We thus conclude that victims who contend that they are covered by the MVRA but have not been properly compensated by a district court’s restitution order may claim sufficient “injury in fact” to satisfy Article III. Cf. United States v. Perry, 360 F.3d 519, 531-32 (6th Cir. 2004) (holding that the “Intervenor has undoubtedly suffered an injury in fact because the district court vacated Intervenor’s property interest [obtained in a restitution order] after it had been secured by the judgment lien”).

We recognize that two circuits have concluded that putative victims of crime do not have standing to appeal a restitution order under the MVRA. See United States v. Stoerr, 695 F.3d 271, 275-78 (3d Cir. 2012); United States v. United Sec. Sav. Bank, 394 F.3d 564, 567 (8th Cir. 2004) (per curiam) (citing, inter alia, United States v. Mindel). For reasons we explain in the next Section, we agree with those courts that victims cannot appeal from a restitution award, but we respectfully disagree that it is because the victims lack Article III standing.

Having concluded that the Tribe has grounds to complain of an injury in fact, we have little difficulty concluding that the Tribe can show a causal connection between the district court’s restitution order and its injury and that its injury is redressable at law.

B

The fact that a would-be litigant has Article III standing does not guarantee the right to take an appeal. See Devlin v. Scardelletti, 536 U.S. 1, 6-7, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002) (holding that an unnamed class member satisfied standing where the question was “whether petitioner should be considered a ‘party’ for the purposes of appealing the approval of the settlement”). In the federal system, there is no general right to an appeal. See Carroll v. United States, 354 U.S. 394, 399, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957) (“It is axiomatic, as a matter of history as well as doctrine, that the existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute.”). This is true even in criminal cases. See Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940) (“Not until 1889 was there review as of right in criminal cases.”); United States v. Sanges, 144 U.S. 310, 319, 12 S.Ct. 609, 36 L.Ed. 445 (1892) (“For a long time after the adoption of the Constitution, ... [it was] settled that criminal cases could not be brought from a Circuit Court of the United States to this court by writ of error, but only by certificate of division of opinion upon specific questions of law.”). The power to create “appellate Jurisdiction” in the federal courts is limited to “such Regulations as the Congress shall make.” U.S. Const, art. Ill, § 2, cl. 2; Sanges, 144 U.S. at 319, 12 S.Ct. 609 (“The appellate jurisdiction of this court rests wholly on the acts of Congress.”). Congress has granted the courts of appeals broad power to hear “appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. But the power to hear appeals does not tell us who may perfect an appeal.

In civil litigation, the “well settled” general rule is that “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U.S. 301, 304, 108 5.Ct. 586, 98 L.Ed.2d 629 (1988) (per cu-riam); see Karcher v. May, 484 U.S. 72, 77, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) (“[W]e have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom.”). This “general rule” is reflected in the Federal Rules of Appellate Procedure, which similarly provide that only parties to the underlying litigation may appeal the judgment. See Fed. R. App. P. 3(c)(1) (“The notice of appeal must: (A) specify the party or parties taking the appeal....”). The Federal Rules of Civil Procedure provide a mechanism for interested persons to intervene in the original litigation, either because they have a statutory right or an interest in the property or transaction that is the subject of the suit, or because they share a common question of law or fact that gives them an interest in the outcome of the suit. See Fed. R. Civ. P. 24(a), (b). But even if a person has an interest in the outcome of the litigation, unless the person intervenes in the suit or has a statutory right to appeal, the person cannot appeal a suit to which it has not become a party. “[T]he better practice is for such a nonparty to seek intervention for purposes of appeal; denials of such motions, are, of course, appealable.” Marino, 484 U.S. at 304,108 S.Ct. 586.

A similar rule applies in criminal proceedings. Not until the Act of 1889 did Congress grant defendants the right to appeal their conviction after a final judgment. See 28 U.S.C. § 1291; Carroll, 354 U.S. at 400-01, 77 S.Ct. 1332; Sanges, 144 U.S. at 321-22, 12 S.Ct. 609. For many years, the government had no right to take an appeal from a judgment in a criminal case. See Sanges, 144 U.S. at 323, 12 S.Ct. 609 (holding that there was “[no] indication of an intention [by Congress] to confer upon the United States the right to bring up a criminal case of any grade after judgment below in favor of the defendant”). Congress finally granted the United States the right of appeal in the Criminal Appeals Act of 1907. United States v. Sisson, 399 U.S. 267, 292-96, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). Congress later granted the government the right to appeal an order dismissing an indictment or granting a new trial, suppressing evidence, or granting the release of a person convicted or charged with an offense. 18 U.S.C. § 3731; see Fed. R. App. P. 4(b)(1). Similarly, Congress has provided that either the government or the defendant may appeal a final sentence and has specified the conditions on which they may appeal. 18 U.S.C. § 3742(a), (b). By contrast to the rules governing civil litigation, the Federal Rules of Criminal Procedure do not provide for a right of intervention. Hunter, 548 F.3d at 1312.

Nothing in the MVRA alters these rules. The MVRA does not confer on victims the right to appeal from a district court’s restitution order. The Tribe offers no provision of the MVRA as evidence that Congress granted victims the right to appeal. In light of the longstanding rule that appellate jurisdiction is determined by statute, this is fatal to the Tribe’s case for a right to appeal. The Third Circuit has aptly explained:

[T]he MVRA gives no indication that it disturbs the default rule that only the Government and the defendant can appeal a defendant’s sentence. Instead, as the Government explains, § 3664(o)(l)(B) notes that a restitution order can be “appealed and modified” pursuant to 18 U.S.C. § 3742. Section 3742 permits appeals by the defendant and by the Government, but does not purport to allow appeals by non-parties.

Stoerr, 695 F.3d at 278. This conclusion finds further support in a provision of the CVRA: “In any appeal in a criminal case, the Government may assert as error the district court’s denial of any crime victim’s right in the proceeding to which the appeal relates.” 18 U.S.C. § 3771(d)(4). That Congress authorized the government to defend the restitution rights of victims and did not authorize the victims themselves to pursue their own appeal is nearly conclusive evidence that victims have no right of appeal. See Stoerr, 695 F.3d at 279 (“[T]he MVRA’s statutory scheme indicates that Congress intended for the Government, rather than for payers and victims, to be primarily responsible for ensuring proper restitution payments.”).

The Tribe argues that Congress granted victims an implied right to appeal, as evidenced by the various provisions of the MVRA that permit victims to participate in the proceedings and require the district court to award restitution to victims. 18 U.S.C. §§ 3663A(a)(l), 3664(d)(2). This observation is too thin to satisfy the rigorous demands that the Supreme Court has placed on defendants and the government alike to demonstrate their right to appeal. See, e.g., Sanges, 144 U.S. at 323, 12 S.Ct. 609. Absent some statute authorizing appeal by victims, we decline to infer such a right, and we join the other circuits that have similarly refused to recognize such a right. See United States v. Slovacek, 699 F.3d 423, 425-27 (5th Cir. 2012); Stoerr, 695 F.3d at 278-79; United States v. Aguirre-Gonzalez, 597 F.3d 46, 53-55 (1st Cir. 2010); Hunter, 548 F.3d at 1311-12; United Sec. Sav. Bank, 394 F.3d at 567.

Finally, we reject the Tribe’s claim to a right to appeal for another reason: although Congress has not granted victims a right to appeal a restitution order, it has provided victims with a more limited statutory remedy. The CVRA confers on victims a discrete set of nine rights. We have previously described these, see supra Section II.C, but they are largely rights to notice of and participation in any court proceedings. See 18 U.S.C. § 3771(a)(1)—(9). The CVRA does not expand the substantive rights to restitution for loss of property and life that were set out in the VWPA and MVRA, but simply repeats that a crime victim has the “right to full and timely restitution as provided in law.” Id. § 3771(a)(6). The rights described in § 3771(a) “shall be asserted in the district court in which a defendant is being prosecuted for the crime.” Id. § 3771(d)(3). That subsection further provides that “[i]f the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus,” and it supplies instructions about our handling of the petition and the timing of our decision. Id. Congress thus granted victims a limited right to seek a writ of mandamus in the courts of appeals and omitted any reference to their right to appeal. The Supreme Court has reminded us that when Congress’s statutes provide a means of obtaining relief, we “must be chary of reading others into [them].” TAMA v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). In other words, Congress’s MVRA restitution procedure is “carefully crafted and [its] detailed enforcement scheme provides ‘strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ ” Mertens v. Hewitt Assocs., 508 U.S. 248, 254, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (citation omitted). The Tribe has no right to bring the appeal in this case.

C

The Tribe makes an alternative argument that because the MVRA gives victims a statutory right to restitution, it cannot be deprived of that right without a remedy, including a right to appeal. Citing the Sixth Circuit’s opinion in United States v. Perry, 360 F.3d 519 (6th Cir. 2004), the Tribe claims that it is “aggrieved by the district court’s restitution order.” Perry stood on a very different procedural ground from this case. Perry did not involve a direct appeal from a restitution order. Rather, in Perry, the district court had ordered restitution to various victims of securities fraud. The appellant in Perry was an “intervenor” who obtained a lien on Perry’s real property, arguably in preference to other victims. The district court vacated the lien and allowed Perry to sell the property and pay the proceeds over to the district court for distribution to all the victims, including the intervenor. The in-tervenor then filed an appeal, and the government moved to dismiss for want of standing. Id. at 521-22.

The Sixth Circuit held that the interve-nor had standing under the MVRA. Id. at 524. The MVRA gives a victim the right, after restitution has been ordered, to require a district court to issue a lien against the defendant’s property. See 18 U.S.C. § 3664(m)(l)(B). The Sixth Circuit held that a nonparty victim could appeal the district court’s decision to remove such a lien. Perry, 360 F.3d at 526. It reasoned that depriving a victim of such a constitutionally recognized property interest without any due process might raise constitutional concerns. See id. at 525. Thus, it chose to construe the statute to allow for an appeal of the district court’s order removing the lien so as to avoid the possibility of constitutional problems. See id.

But Perry has little to do with a non-party victim’s ability to appeal a restitution order. The crux of the Sixth Circuit’s logic relies on the fact that it was dealing with a post-restitution-order lien and that a lien is a property interest in state law and within the meaning of the Fifth and Fourteenth Amendments. See id. The Third, Eighth, Eleventh, and D.C. Circuits all recognized (or strongly hinted) that Perry is limited to its procedural posture: where a district court takes away a judgment lien in satisfaction of an existing restitution order. See Stoerr, 695 F.3d at 279-80 (rejecting Perry because a right to restitution is not a right created by state law, thus not a cognizable property interest); Alcatel-Lu-cent, 688 F.3d at 1306-07 (noting that Perry does not stand for the proposition that a victim may appeal a actual restitution award); United States v. Monzel, 641 F.3d 528, 543 & n.15 (D.C. Cir. 2011) (“[T]he victim in Perry was not appealing an order awarding restitution.... ”); United Sec. Sav. Bank, 394 F.3d at 567 (rejecting Perry while noting that it applied only to the release of a judgment lien). Indeed, Perry did not extend its ruling to cover a run-of-the-mill right to restitution under the MVRA. See Perry, 360 F.3d at 530-31 (contrasting itself with cases that “involved the appeal of an order rescinding or modifying a restitution order”).

Even assuming that the MVRA grants victims a constitutionally protected property interest within the meaning of the Due Process Clause, Perry does not counsel for allowing a direct appeal here. Although depriving the Tribe of legally owed restitution without any process would risk unconstitutionality, the Tribe has been given full process of law. Under 18 U.S.C. § 3771(d)(3), a non-party victim has the opportunity to prove damages in the first instance; if the district court nonetheless issues a ruling that a victim disagrees with, the victim (or government) can ask the district court for relief; and, if denied, the victim (or government) may petition an appellate court for a writ of mandamus. And if that fails, the government can still directly appeal the restitution order, although the government may—in an exercise of its own prosecutorial discretion'—choose not to appeal. 18 U.S.C. § 3771(d)(4), (6); see United States v. Cienfuegos, 462 F.3d 1160, 1161 (9th Cir. 2006) (“The Government appeals the district court’s denial of its motion to order restitution.... ”).

These procedures do not violate the Fifth Amendment’s Due Process Clause. To determine the constitutional sufficiency of procedure under the Due Process Clause, the Court has enunciated a balancing test involving three factors: (1) the private interest that will be affected; (2) the risk of an erroneous deprivation through the procedures used, and the probable value of additional or substitute procedural safeguards; and (3) the government’s interest in not applying additional procedural safeguards. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Mathews’s first factor looks to the “private interest,” and while the private interest in restitution is not insignificant, it is nonetheless slight. Restitution is only partly compensatory, as its historical roots grow from entirely punitive purposes. See Mindel, 80 F.3d at 397. Indeed, restitution is an alternative to seeking a judgment in civil courts via regular civil proceedings. See 18 U.S.C. § 3664(j)(2) (“Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim[.]”). So regardless of any failure to receive restitution, a victim can get damages in a civil trial.

The second Mathews factor fares only slightly better than the first. The risk of erroneous deprivation is minimal given the aforementioned substantial process afforded to victims. A victim can first make her case to the district court and, if she thinks that the district court erred, she can ask the district court to reconsider. If the district court still thinks that it got it right, then her recourse is a writ of mandamus or asking the government to appeal directly. And so even if the writ of mandamus standard that we are to apply looks for only “clear error,” see Stanley v. Chappell, 764 F.3d 990, 996 (9th Cir. 2014), the likelihood that this process will result in a restitution order that is wrong, but not clearly wrong, is slight. There may be some value added by permitting an appeal, but the right to due process has never been understood to require the right to an appeal. In any event, Congress has already built a number of safeguards for victims seeking restitution.

The third Mathews factor weighs against recognizing a right to appeal. The costs of allowing every putative victim the right to appeal every putative MVRA defendant’s restitution order (or lack thereof) might be great, which would increase the costs of appeal to defendants and might thereby impair defendants’ own important rights to appeal. Thus, the government’s interest in not allowing a victim to re-open a defendant’s sentence, except within the strict parameters of § 3771, is significant.

Considering the three factors together, we conclude that, as a matter of due process, the statutory scheme fully protects victims, and we hold that non-party-victims may not directly appeal a criminal defendant’s restitution award. Congress may, of course, judge the situation differently and decide in the future to give victims additional rights.

TV

Because nothing in the MVRA authorizes victims to appeal a restitution order, and the Due Process Clause does not require it, we hold that the Tribe cannot directly appeal the restitution order.

The Tribe’s appeal is DISMISSED.

      . The district court entered two restitution awards, one for each defendant. Therefore, the Tribe filed two appeals, one for each defendant. Nonetheless, for ease, we will refer to the restitution awards and appeals in this case as singular.

      . Heslop also appealed his underlying conviction. All issues other than the Tribe’s ability to appeal are dealt with in a memorandum disposition filed herewith.

      . Congress has also created a number of other mandatory restitutionary schemes for specific areas of criminal offenses. See 18 U.S.C. § 2248 (sexual abuse); id. § 2264 (domestic violence and stalking); id. § 2327 (telemarketing fraud). These are not relevant to our discussion here.

      . The MVRA amended the VWPA to provide for additional procedural protections for victims. See, e.g., 18 U.S.C. § 3664(d)(1). For convenience, we discuss the VWPA as amended.

      . The Third Circuit’s decision in Stoerr is distinguishable on other grounds. In Stoerr, the putative victim was not a direct victim of the fraudulent kickback scheme, but was the defendant’s employer, who had voluntarily compensated the victims for its employee’s actions. 695 F.3d at 276. The employer then claimed that it was also a victim and entitled to restitution under the MVRA. The court held that the employer did not have standing to appeal the defendant’s sentence and order of restitution and noted that the employer had a civil remedy against its former employee. Id. at 274. There is language in Stoerr that suggests that the Third Circuit might hold that actual victims also lack standing, but the decision does not have to be read so broadly.

      . We break from this rule "only in exceptional circumstances.” S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 804 (9th Cir. 2002) (citation omitted). Necessary, but not sufficient, conditions for finding an exceptional circumstance are that the non-party "actually participated in proceedings before the district court and the equities weigh in favor of hearing the appeal.” EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1504 (9th Cir. 1990). This judicially created exception has never been extended to the criminal context, and we decline to do so here.

      . We are aware of, and the Tribe relies heavily upon, United States v. Kones, 77 F.3d 66 (3d Cir. 1996). In that case a victim appealed the district court’s refusal to order restitution under the VWPA. The Third Circuit did not discuss the victim’s right to bring the appeal, but only noted that it had "appellate jurisdiction pursuant to 28 U.S.C. § 1291.” Id. at 68. No court, including the Third Circuit, has followed Kones. Stoerr, 695 F.3d at 277 n.5 (stating that it does not consider itself bound by this "bald” and "drive-by jurisdictional” statement (citations omitted)); see United States v. Fast, 709 F.3d 712, 716 (8th Cir. 2013) (criticizing Kones), vacated on other grounds sub nom. Vicky, Child Pornography Victim v. Fast,-U.S.-, 134 S.Ct. 1934, 188 L.Ed.2d 955 (2014) (mem.); In re Amy Unknown, 701 F.3d 749, 756 n.5 (5th Cir. 2012) (en banc) (same), rev’d on other grounds sub nom. Paroline v. United States, - U.S. -, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014); Alcatel-Lucent, 688 F.3d at 1307 n.2 (same); United States v. Monzel, 641 F.3d 528, 541 n.13 (D.C. Cir. 2011) (same). We decline to follow Kones because it is an unreasoned decision and contrary to well-established principles.

      . The record in Perry does not disclose how the non-party victim formally intervened in the criminal case. While holding that the civil rather than criminal notice-of-appeal deadlines applied, however, the court noted that "although the judgment lien is related to a criminal proceeding, ... a dispute over a lien is more appropriately classified as a 'civil-type' litigation.” Perry, 360 F.3d at 524.

      . We addressed a similar issue in United States v. Berger, 574 F.3d 1202 (9th Cir. 2009). Berger was ordered to pay some $3' million in restitution to his fraud victims. After the district court issued a final sentence and restitution order, the government filed an application to disburse the proceeds. Berger’s ex-wife objected on the ground that she was entitled to half the proceeds as community property. We did not question the ex-wife’s standing or right to appeal the distribution order. Id. at 1204. She was not appealing the restitution order itself and did not claim to be one of Berger’s victims. Instead, she appealed from a different order, one that affected whatever rights she had under California law to the property of the marriage. Id. at 1205-06.

      . We note that, in determining whether to issue a writ under § 3771(d)(3), we have held that "we must issue the writ whenever we find that the district court's order reflects an abuse of discretion or legal error.” Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006) (recognizing that this "unique regime” under § 3771(d)(3) is different from the ordinary standard for issuing mandamus). But see, e.g., In re Antrobus, 519 F.3d 1123, 1124 (10th Cir. 2008) (holding that mandamus issued pursuant to § 3771(d)(3) must satisfy the regular mandamus standards). See generally Monzel, 641 F.3d at 532-33 (listing circuits on each side of the split).
      In 2015, Congress amended § 3771(d)(3) by adding, "[i]n deciding such application [for a writ of mandamus], the court of appeals shall apply ordinary standards of appellate review.” Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, tit. I, § 113, 129 Stat. 227, 241 (2015). We need not address whether the amendment affects our decision in Kenna. See generally Hazama v. Tillerson, 851 F.3d 706, 710 (7th Cir. 2017) (contrasting "ordinary standards of appellate review” with the ordinary standards of mandamus review).