Gurson Gourzong v. Attorney General United States
826 F.3d 132
3rd Cir.
2016

Background

  • Gourzong, a Jamaican national and lawful permanent resident, was convicted by a special court-martial in 1993 of sexual intercourse with a person under 16 and later received a bad-conduct discharge.
  • DHS initiated removal proceedings in 2014, charging Gourzong with removability as having been convicted of an aggravated felony; the IJ also found a separate later conviction for making terroristic threats.
  • Gourzong argued his special court-martial conviction does not qualify as a §101(a)(48)(A) “conviction” because a special court-martial can, in some circumstances, proceed without a legally trained military judge and therefore may not be a "court.”
  • A single-member BIA panel affirmed, finding special courts-martial generally constitute “genuine criminal proceedings” with sufficient procedural protections; it rejected focusing on the possibility that a military judge might be absent.
  • The Third Circuit majority applied Castillo’s open-ended “genuine criminal proceeding” inquiry, agreed special courts-martial are generally convictions under §101(a)(48)(A), and dismissed Gourzong’s petition for lack of jurisdiction under 8 U.S.C. §1252(a)(2)(C).
  • Judge Cowen dissented, arguing the statutory requirement that a conviction be ‘‘entered by a court’’ means a body presided over by a legally trained judge and that the record does not establish a military judge presided over Gourzong’s trial.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether a special court-martial judgment is a “conviction” under §101(a)(48)(A) of the INA Gourzong: special court-martial may lack a legally trained judge, so it is not a "court" and thus not a conviction under the INA DHS/BIA: special courts-martial are "genuine criminal proceedings" with procedural protections and therefore qualify as convictions even if a military judge is sometimes absent Court: Special court-martial convictions are, as a general matter, convictions under §101(a)(48)(A); petitioner’s review dismissed for lack of jurisdiction under §1252(a)(2)(C)
Proper analytic framework to determine ‘‘conviction’’ under §101(a)(48)(A) Gourzong: focus on whether a legally trained judge presided (the statutory word "court") DHS/BIA: apply Castillo’s open-ended inquiry into whether the proceeding was a genuine criminal proceeding (characterization, consequences, rights) Court: Adopt Castillo’s open-ended approach; single-factor focus on presence of a military judge is insufficient
Applicability of BIA precedent (definition of “court”) to special courts-martial Gourzong: BIA’s Rivera‑Valencia defined “court” as a governmental body of judges; departure without explanation is arbitrary DHS: Rivera‑Valencia supports treating military courts as convictions; distinctions between general and special courts are not significant Court: River a‑Valencia’s dicta on "court" not controlling; BIA’s application to special courts‑martial is reasonable under the open-ended test
Whether the record shows Gourzong’s specific court-martial lacked characteristics of a genuine criminal proceeding Gourzong: record is sparse and does not show a military judge presided; IJ relied on assumptions DHS: procedural protections, sentencing and appellate review make it likely a military judge presided; petitioner made no showing his trial lacked genuine-criminal-proceeding features Court: Petitioner did not demonstrate his particular trial lacked necessary characteristics; therefore conviction counts as a conviction

Key Cases Cited

  • Borrome v. Attorney Gen. of U.S., 687 F.3d 150 (3d Cir. 2012) (court may decide whether an aggravated-felony predicate is present to determine jurisdiction)
  • Castillo v. Attorney Gen. of U.S., 729 F.3d 296 (3d Cir. 2013) (adopts open-ended “genuine criminal proceeding” inquiry for §101(a)(48)(A) convictions)
  • Mahn v. Attorney Gen. of U.S., 767 F.3d 170 (3d Cir. 2014) (discusses deference to BIA unpublished decisions)
  • Middendorf v. Henry, 425 U.S. 25 (U.S. 1976) (describes nature of courts‑martial and procedural features)
  • United States v. Shaffer, 807 F.3d 943 (8th Cir. 2015) (general court‑martial conviction treated as conviction for federal statutes)
  • United States v. Grant, 753 F.3d 480 (4th Cir. 2014) (general court‑martial conviction can qualify as predicate for federal sentencing statutes)
  • United States v. Martinez, 122 F.3d 421 (7th Cir. 1997) (general court‑martial convictions can serve as predicate felonies for federal prohibitions)
  • United States v. MacDonald, 992 F.2d 967 (9th Cir. 1993) (general court‑martial is a "court" for purposes of federal firearm prohibition)
  • United States v. Stoltz, 720 F.3d 1127 (9th Cir. 2013) (general and special courts‑martial bar subsequent civilian prosecution under double jeopardy)
  • Woodby v. INS, 385 U.S. 276 (U.S. 1966) (government bears burden of proof in deportation proceedings)
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