Lead Opinion
OPINION
Petitioner Gurson Oswald Gourzong, a native of Jamaica, was found by an immigration judge to be removable pursuant to
I. Background
Gourzong was admitted to the United States as a lawful permanent resident in 1983. In 1993, after having joined the United States military, he was convicted by a special court-martial convened at Camp Pendelton, California, of having violated Articles 90, 92, and 120 of the Uniform Code of Military Justice (“UCMJ”), which, at that time, prohibited, respectively, willfully disobeying a lawful order, 10 U.S.C. § 890(2), failing to obey a lawful order, id. § 892, and, most significantly for present purposes, “committing] an act of sexual intercourse with a female not his wife who has not attained the age of sixteen years,” Act of Jan. 3, 1956, Pub. L. No. 84-460, § 920, 70A Stat. 1, 73 (current version at 10 U.S.C. § 920). The details of Gourzong’s conviction are sparse. The Administrative Record reflects that he was represented by counsel in the proceedings, A.R. 131, and that he pleaded guilty to the charges, A.R. 128, but reflects nothing specific about the factual bases for the charges or the composition of the courh-martial. But see infra note 6.
The members of the special court-martial imposed a sentence of six months confinement, loss of pay, and bad-conduct discharge. A.R. 129. The convening authority, a Lieutenant Colonel of the United States Marine Corps, approved the sentence, but suspended a portion of the confinement term and withheld executing the bad-conduct discharge. A.R. 129. The bad-conduct-discharge sentence was ultimately executed, however, on August 22, 1996, after the appellate review procedures set forth in Article 71(c) of the UCMJ, 10 U.S.C. § 871(c), had been satisfied. A.R. 130.
The Department of Homeland Security brought removal proceedings against Gourzong in 2014, alleging that, because of his conviction by special court-martial, he was removable for having committed the aggravated felony of sexual abuse of a minor. A.R. 51. An Immigration Judge found Gourzong to be removable based both on his conviction of an aggravated felony and on his conviction of two or more crimes of moral turpitude — the second conviction being a 2006 conviction in the
Gourzong appealed the Immigration Judge’s Order to the BIA, arguing that convictions by special courts-martial do not qualify as “convictions” as defined in § 101 (a)(48)(A) the INA. Cf 8 U.S.C. § 1101(a)(48)(A) (“The term ‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court .... ”). In particular, he focused his argument on whether a special court-martial is a “court.” He relied upon language in the BIA’s opinion in Matter of Rivera-Valencia, 24 I. & N. Dec. 484 (BIA 2008), in which the BIA, finding that convictions by general courts-martial do qualify’ as convictions under the INA, had stated that the term “court” means “a governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice.” See id. at 487 (quoting Black’s Law Dictionary 378 (8th ed. 2004)). Gour-zong argued that, because a special court-martial can, under certain conditions, proceed without a legally trained judge, a special court-martial is not a “court” under the INA.
A one-member panel of the BIA, in a non-precedential opinion, disagreed, finding that the differences between general and special courts-martial were not significant enough to warrant a different result from that in Rivera-Valencia. See A.R. 4-5. The BIA rejected Gourzong’s argument that the possibility of a lack of a legally trained judge placed convictions by special courts-martial outside the definition of “conviction” under the INA. The BIA instead concluded that special courts-martial were “genuine criminal proceeding^]” given the procedural protections afforded to the accused and the role of special courts-martial in adjudging criminal penalties under the jurisdiction of the military. A.R. 5 (“Consequently, we fail to find the possibility that a military judge may not be appointed by the convening authority to a special court-martial serves to diminish the effect and undermine the validity of the actions taken by the members of that adjudicative body, i.e., findings of a formal judgment of guilt entered in a genuine criminal proceeding pursuant to the governing laws of the United States Armed Forces, so as to qualify as a conviction for immigration purposes.”). Moreover, the BIA found the possibility that a special court-martial could convene without a military judge to be mitigated by its rarity, and by the requirements in the Manual for Courts-Martial that (a) court-martial members be chosen on the basis of “age, education, training, experience, length of service, and judicial temperament,” and (b) “unless otherwise specified, the president of a special court-martial without a military judge has the same authority and responsibility as a military judge.” A.R. 5 (quoting Rules for Courts-Martial (“ROM”) § 502(a)(1), 801(a)). Gourzong now seeks review of the BIA’s Order.
II. Jurisdiction and Standard of Review
The Immigration Judge had jurisdiction over Gourzong’s removal proceedings under 8 U.S.C. § 1229a. The BIA had jurisdiction to review the Immigration Judge’s Order of Removal under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15.
We generally have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1), but that jurisdiction
Because the BIA’s written decision in this case was an unpublished, non-prece-dential decision issued by a single BIA member, to the extent it was interpreting statutes, we will not afford it Chevron deference. Mahn v. Attorney Gen. of U.S.,
III. Analysis
We have never addressed the specific issue of whether convictions by special courts-martial can qualify as convictions that can render an alien removable under § 237(a)(2)(A)(iii) of the INA. Our resolution of this issue initially requires consideration of the different types of courts-martial in the military justice system.
a. Classifications of Courts-Martial
Special courts-martial are one of three classifications of courts-martial that can try persons subject to the military’s jurisdiction: summary, special, and general. 10 U.S.C. § 816. Summary courts-martial have limited jurisdiction and are, as the name suggests, summary in nature. A summary courk-martial consists of a single commissioned officer, who presides over the proceedings, represents both the government and the accused, and makes the ultimate finding as to the accused’s guilt. See id. § 816; Middendorf v. Henry,
General courts-martial are the classification of courts-martial with the authority to impose the most severe punishments. General courts-martial consist of either “a military judge and not less than five members” or, if the accused so requests, “only a military judge,” 10 U.S.C. § 816(1), and “have jurisdiction to try persons ... for any offense made punishable [under the UCMJ] and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death .... ” Id. § 818(a). Courts are in wide agreement that convictions by general courts-martial receive the weight of equivalent convictions in the civilian system. See, e.g., United States v. Shaffer,
Special courts-martial, which are at issue here, are similar to general courts-martial in their general jurisdiction, but they differ with respect to the penalties that can be imposed and with respect to their composition. They have “jurisdiction to try persons ... for any noncapital offense made punishable by [the UCMJ] and, under such regulations as the President may prescribe, for capital offenses.” 10 U.S.C. § 819. However, they may not
A bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months may not be adjudged unless a complete record of the proceedings and testimony has been made, counsel ... was detailed to represent the accused, and a military judge was detailed to the trial, except in any case in which a military judge could not be detailed to the trial because of physical conditions or military exigencies. In any such case in which a military judge was not detailed to the trial, the convening authority shall make a detailed written statement, to be appended to the record, stating the reason or reasons a military judge could not be detailed.
Id. § 819. Notably, convictions by special courts-martial, like convictions by general courts-martial, are counted when determining a defendant’s criminal history under the U.S. Sentencing Guidelines. U.S.S.G. § 4A1.2(g) (“Sentences resulting from military offenses are counted if imposed by a general or special court-martial.”). Moreover, as the Ninth Circuit Court of Appeals has noted, “[i]t is also well settled that a general or special court-martial precludes a subsequent civilian criminal prosecution for the same offense.” Stoltz,
b. Section 101(a) (4.8) (A) of the INA
Since we must determine whether Gourzong was convicted of an aggravated felony, we consider the issue of first impression: whether judgments of guilt by special courts-martial are “convictions” under § 237(a)(2)(A)(iii) of the INA. We have previously addressed what “factors may be relevant in deciding whether a finding of guilt constitutes a conviction” under § 101(a)(48)(A) of the INA. See Castillo v. Attorney Gen. U.S.,
The single-member panel of the BIA in this case applied this open-ended approach in determining whether a conviction by special court-martial can be a “conviction” under § 101(a)(48)(a). In so doing, the BIA relied heavily upon the BIA’s precedential opinion in Matter of Rivera-Valencia. In Riverar-Valeneia, the BIA found, after analyzing the characteristics of general courts-martial and the procedural protections they offer, that a general court-martial is a “ ‘genuine criminal proceeding’, that is, a proceeding that is ‘criminal in nature under the governing laws of the prosecuting jurisdiction.’ ” 24 I. & N. Dec. at 486-87 (quoting Matter of Eslamizar, 23 I. & N. Dec. 684, 688 (BIA 2004)); see also Castillo,
Gourzong notes that the BIA did not acknowledge or refer to Riverar-Valeneia’s view as to the ordinary meaning of the word “court” as “a governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice,” 24 I. & N. Dec. at 487, and urges that the BIA thus improperly departed from precedent without explanation. Cf. Johnson v. Ashcroft,
We disagree. First, Rivem-Valencia was not so limited. The BIA in Riverctr-Valencia offered its view as to what constitutes a “court” in the context of rejecting an argument, similar to the one made here, that sought to cut through the open-ended inquiry and focus instead on a limited understanding of the word “court.” It is not clear that this discussion was necessary to the BIA’s conclusion that convictions by general courts-martial meet the definition in § 101(a)(48)(A). See Riverctr-Valencia, 24 I. & N. Dec. at 488 (“[Tjhis Board has from its earliest days considered judgments entered by courts-martial, both domestic and foreign, to be valid ‘convictions’ for immigration purposes. We see nothing in the language of section 101 (a)(48)(A) that would lead us to conclude that Congress intended to modify this historical understanding by limiting the term ‘court’ to those organized under Article III of the Constitution or its counterparts under State law.” (citations omitted)). More fundamentally, though, the BIA’s view in Riv-erar-Valenda that a court is “a governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice,” id. at 487 (alterations omitted), does not resolve the question here of whether special courts-martial are, as a general matter, courts — after all, a typical special court-martial is presided over by a military judge, and all special courts-martial “sit to adjudicate disputes and administer justice.”
More importantly, however, the BIA correctly identified several characteristics of special courts-martial that compel finding that they, like general courts-martial, are typically “genuine criminal proceedings.” See A.R. 4-5 (finding that “the differences between a general court-martial[ ] and a special court-martial are not so significant so as to warrant a different result”
IV. Conclusion
Because we agree with the BIA that convictions by special courts-martial are, as a general matter, convictions for purposes of § 101(a)(48)(A) of the INA, we conclude that we lack jurisdiction over Gourzong’s petition for review. See 8 U.S.C. § 1252(a)(2)(C) (“[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a [covered] criminal offense.”). We will therefore dismiss his petition for review.
Notes
. The Immigration Judge's determination that Gourzong was convicted of two or more crimes of moral turpitude is not before us.
. We have not decided the extent of deference we owe — if any — to a single-member panel's interpretations of prior BIA precedents (such as the opinion from Rivera-Valencia). Other courts have adopted varying deferential standards. Compare Mansour v. Holder,
. Although not material to our analysis, this current version of 10 U.S.C. § 819 differs slightly from the version in effect on the date of Gourzong's conviction. At the time' of his conviction, a special court-martial could not impose confinement of more than six months or forfeiture of pay for more than six months. See National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 577, 113 Stat. 512, 625 (1999). Under the amended statute, the penalties of confinement and forfeiture of pay can extend up to one year. Id.
. As we noted in Castillo, that each element must be proven beyond a reasonable doubt is a necessary but not sufficient condition for a proceeding to qualify as a "genuine criminal proceeding.” Id. at 307. A decision maker must undertake an "open-ended inquiiy” of the other characteristics of the proceeding to determine if it qualifies as a “genuine criminal proceeding.” Id.
. We note that factors beyond those cited by the BIA below buttress the conclusion that special courts-martial are, as a general matter, "genuine criminal proceeding[s].” See Castillo,
. A study of the record and the UCMJ reveals that Gourzong's court-martial more than likely was presided over by a military judge given that he was adjudged a bad conduct discharge that was approved and eventually executed. See 10 U.S.C. § 819 ("A bad-conduct discharge ... may not be adjudged unless ... a military judge was detailed to the trial, except in any case in which a military judge could not be detailed to the trial because of physical conditions or military exigencies.”). It is unlikely that "physical conditions or military exigencies” prevented the detailing of a military judge to Camp Pendelton, California, see A.R. 128, and, besides, there is no "detailed written statement ... appended to the record, stating the reason or reasons a military judge could not be detailed,” 10 U.S.C. § 819.
Notably, the bad conduct discharge was not executed immediately by the convening authority because it first had to meet the requirements of Article 71(c) of the UCMJ, see A.R. 130, which provides that the bad conduct discharge cannot "be executed until there is a final judgment as to the legality of the proceedings ....” 10 U.S.C. § 871(c)(1). "A judgment as to legality of the proceedings is final in such cases when review is completed by a Court of Criminal Appeals,” unless appellate review was waived or the appeal withdrawn. Id. This procedural protection via appellate review reaffirms our confidence that Gourzong's conviction by special court-martial qualifies as a conviction under § 101(a)(48)(A).
. We do not foreclose the possibility that an alien could demonstrate that his or her particular special court-martial lacked many of the characteristics of a "genuine criminal proceeding” under the. open-ended inquiry such that his or her specific judgment of guilt by a special court martial should not be considered to be a "conviction” under § 101(a)(48)(A) of the INA. Gourzong, however, has made no showing that his special court-martial lacked any of the factors that we have deemed relevant under the open-ended inquiry, such as "how the prosecuting jurisdiction characterized the offense at issue, the consequences of a finding of guilt, and the rights available to the accused as well as any other characteristics of the proceeding itself.” Cf. Castillo,
. The panel wishes to express its thanks to the Shagin Law Group and Craig R. Shagin, Esquire, for agreeing to serve as pro bono counsel and for their excellent advocacy on behalf of Mr. Gourzong.
Dissenting Opinion
dissenting.
Gourzong was not “convicted of an aggravated felony within the meaning of the definition of ‘conviction’ in § 101(a)(48)(A) of the INA.” (Maj. Op. at 141.) This statutory definition incorporates two basic requirements: (1) “a formal judgment of guilt” of the alien — (2) entered by a “court.” Regardless of whether or not
The majority does not mention the government’s history of changing its positions throughout the course of this immigration proceeding — or its failure to brief the merits of Gourzong’s petition for review when it should have. After Gourzong appealed to the BIA, the government requested summary affirmance, asserting that the issues on appeal were squarely controlled by existing precedent, did not involve the application of precedent to novel facts, and were not so substantial as to warrant a written opinion. It asked in the alternative for affirmance in a brief one-member decision, and the BIA actually dismissed the administrative appeal in such a non-prece-dential fashion. Nevertheless, the government, in lieu of filing a brief on the merits, then asked this Court to remand for the BIA “to further consider its finding that a special court-martial, with or without a military judge present, satisfies the conventional definition of a ‘court’ such that a conviction by special court-martial, regardless of whether a military judge is present, qualifies as a conviction under the [INA]” and to determine whether there was any evidence in the record indicating that a military judge was not present (Respondent’s Motion to Remand at 1). See, e.g., Borrome v. Attorney General,
This matter, in turn, should be decided based on the administrative record now before the Court, i.e., on the basis of a special court-martial conducted without a military judge. The majority may well be correct that a military judge is typically detailed to preside over a special court-martial. Nevertheless, we should still focus on what the government has shown actually happened in Gourzong’s own special court-martial — and not what usually happens in such proceedings either now or when his court-martial convened in November of 1993 and January of 1994. Simply put, I do not believe that the government has established that any military judge was detailed to preside over a spe
The majority places particular emphasis on this Court’s ruling in Castillo v. Attorney General,
Given the statutory language as well as the existing case law, the BIA’s ruling in this case should not be upheld merely because we may agree that, like general courts-martial, special courts-martial “are typically ‘genuine criminal proceedings.’ ” (Maj. Op. at 140 (citing AR4-AR5).) In other words, it is not enough to point out that the prosecution must establish guilt
Just as it purported to define “a formal judgment of guilt” as a judgment entered in a genuine criminal proceeding, see, e.g. Castillo,
A special court-martial clearly does not constitute “a governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice” where a special court-martial member presides in place of a military judge. The
On the one hand, military judges (as the BIA specifically noted in Rivera-V alencia) are licensed attorneys certified for judicial duty by the respective Judge Advocate General. Rivera-Valencia, 24 I. & N. Dec. at 488 n. 8. “The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member for detail in accordance with regulations.” 10 U.S.C. § 826(c). Pursuant to the Manual for Courts-Martial, a military judge is detailed “by a person assigned as a military judge and directly responsible to the Judge Advocate General or the Judge Advocate General’s desig-nee.” R.C.M. § 503(b)(1). A commissioned officer certified as qualified for duty as a military judge of a general court-martial “may perform such duties only when he is assigned and directly responsible to the Judge Advocate General, or his designee” and may perform other duties as assigned by or with the approval of the Judge Advocate General (or designee). 10 U.S.C. § 826(c). The military judge may be changed by an authority competent to detail the military judge without cause before the court-martial is assembled or, after assembly, on account of disqualification or for good cause shown. R.C.M. § 505(e). “The convening authority may not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to a special court-martial which relates to the performance of duty as a military judge.” R.C.M. § 104(b)(2)(B); see also id. (stating that when military judge is normally rated or the military judge’s report is reviewed by convening authority, manner in which such military judge will be rated or evaluated upon performance of duty as military judge may be prescribed in regulations which shall ensure absence of command influence); 10 U.S.C. § 826(c) (stating that, unless court-martial was convened by President or respective Secretary, convening authority is prohibited from preparing or reviewing any report on effectiveness, fitness, or efficiency of detailed military judge relating to performance as military judge). In the end, the respective Judge Advocate General has responsibility for the professional supervision of military judges. See, e.g., R.C.M. § 109(a).
On the other hand, the court-martial members are either active duty commissioned officers, warrant officers, or enlisted persons. R.C.M. § 502(a)(1). They are detailed by “the convening authority” as, “in his opinion are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” 10 U.S.C. § 825(d)(2). While the convening authority is prohibited from considering or evaluating the members’ performance of duty as a court-martial member in the preparation of an effectiveness, fitness, or efficiency report or any other document used to determine advancements, transfer, or retention, R.C.M. § 104(b)(1), the convening authority may, before the court-martial is assembled, change the members without showing cause (and delegate to the staff judge advocate, legal officer, or other principal assistant to the convening authority the power to excuse a certain number of members without cause), R.C.M. § 505(c)(1)(A), (B). After assembly, the convening authority may excuse members for good cause shown on the record. R.C.M. § 505(c)(2)(A)(i). In turn, the highest-ranking member of the special court-martial serves as its president. R.C.M. § 502(b)(1).
Accordingly, I would grant the petition for review.
. In Castillo, we omitted from our discussion of Rivera-Valencia the BIA's own interpretation of the term "court.” See Castillo,
. The majority observes that we have yet to decide whether Auer deference should be accorded to a single-member's interpretation of prior BIA precedent. I note that the government does not invoke this specific doctrine (and, on the contrary, indicates in its second brief that we need not even consider the Chevron doctrine).
. I further note that the other members of the special court-martial can object to the president's rulings on interlocutory questions of fact, and the president is authorized to consult with his or her fellow members before making a decision on such matters. R.C.M. § 801(e)(2)(B), (3)(D). The president, in turn, deliberates with the other special court-martial members to determine whether the accused is proved guilty. R.C.M. § 502(a)(2). Accordingly, a court-martial president actually appears to represent a sort of amalgamation of a civilian judge and jury foreperson. Like their civilian counterparts (who do not participate in jury deliberations), military judges do not vote with the court-martial members and are prohibited from consulting with the members except in the presence of the accused and respective counsel. 10 U.S.C. § 826(c). Likewise, their legal and interlocutory rulings are not subject to member review. R.C.M. § 801(e)(1)(A).