Gurson Gourzong v. Attorney General United States

132 character”). We conclude

different in- specific with a

a threat communicated “accompanied by is an act to terrorize

tent corrupt mind” so motive or

a vicious morally turpitudinous. categorically

to be Because the Partyka, 417 F.3d 413. concluding, legally err so

BIA did not petition.6 deny

we will Javier’s CONCLUSION

IV.

n reasons, dis- foregoing we will For the petition

miss for lack of 13, July dated of the BIA’s order

review deny petition for review

2015 and 19, August dated

the BIA’s order GOURZONG, Oswald

Gurson

Petitioner GENERAL UNITED

ATTORNEY AMERICA, OF

STATES

Respondent

No. 15-2645 Appeals, States Court

United

Third Circuit.

Argued April on 2016)

(Opinion filed: June requires a scienter. It has Attorney which malicious on Larios v. Gener- 6. Javier’s reliance al, (3d Cir.2010), turpitude Fed.Appx. long is una- "moral been established that There, See, vailing. panel Court found e.g., of this normally inheres in the intent.” . analogous Jersey terroristic that an New Jean-Louis, at 469 Matter 582 F.3d encompassed non-turpitudinous threat statute Abreu-Semino, & N. Dec. 12 I. applied it could be conduct because INS, (BIA 1968)); see also Michel v. simple Id. at 709. threat to commit assault. Cir.2000) (”[C]orrupt scienter is simple that because as- reasoned turpitude.”). There- the touchstone of moral non-turpitudinous, commit a threat to sault is fore, required sec- we focus on the intent non-turpitudinous. simple Id. Larios assault is 2706(a)(1) agree with the BIA tion opinion we are precedential which is not defined under section the offense as disagree We with the to follow. bound 2706(a)(1) involving categorically a crime violence,” rath- panel’s on the "crime of focus turpitude. moral conduct itself— er than the criminalized On Petition for Review of an Order of the Board of Immigration Appeals (Agen- A038-201-760), cy No.: Immigration Judge: Honorable A. Durling Walter Craig R. Shagin, Esquire (Argued), The Shagin Street, Law Group, 120 South Jude, Inns of Harrisburg, St. PA Counsel for Petitioner Benjamin Mizer, Anthony C. Esquire, C. Payne, Bless, Esquire, Esquire Jesse M. (Argued), Tiffany Walters, Esquire, L. Williams, P. Esquire, Jennifer United Department Justice, States Office of Immigration Litigation, Room P.O. Station, Washing- Box Ben Franklin ton, Respondent DC Counsels for FISHER, RENDELL, Before: COWEN, Judges Circuit OPINION RENDELL, Judge: Circuit Gourzong, Petitioner Gurson Oswald Jamaica, native of was found an immi- gration judge pursuant to be removable 90, 92, 120 of the Uniform 237(a)(2)(A)(iii) Articles Immigration Section (“UCMJ”), which, (“INA”), Military Justice Act 8 U.S.C. Code Nationality time, respectively, will- 1227(a)(2)(A)(iii), prohibited, he had been because at that order, felony” spe- aggravated disobeying a lawful fully of an “convicted — order, 890(2), convicted id. cifically, failing obey he had been a lawful military States 892, and, present of the United for significantly § most person intercourse with having sexual of an act of sexual “committing] purposes, The Board of age of sixteen. under the who a female not his wife intercourse with (“BIA”) affirmed Appeals Immigration years,” age of sixteen has not attained Gourzong now Judge’s Order. Immigration 84-460, 3, 1956, Pub. L. No. Act of Jan. He con- the BIA’s Order. review of (current seeks 920, 1, version at § 70A Stat. court- by special that his conviction tends 920). Gourzong’s details of The removable, him not render martial does sparse. The Administrative conviction are by special courts-mar- convictions because represented that he was Record reflects the definition fall outside categorically tial A.R. proceedings, in by counsel at “conviction” found Section term of the charges, guilty to the pleaded and that he 101(a)(48)(A) INA, 8 U.S.C. nothing specific but reflects A.R. 1101(a)(48)(A). provides That definition charges for the the factual bases about term ‘convic- pertinent part “[t]he But of the courh-martial. composition alien, means, an respect tion’ with note 6. see infra guilt of the alien en- judgment of formal special members of the court-mar- The ” Specifically, .... by a court Id. tered months con- imposed tial a sentence of six contends that a Gourzong finement, and bad-conduct dis- pay, loss of a “court” there is martial is not because authority, convening charge. A.R. 129. The can that a possibility of the United States a Lieutenant Colonel judge legally trained convene without sentence, Corps, approved the but Marine it. with the agree over We presiding portion of the confinement suspended that, matter, convictions as a executing withheld bad-con- term and as convic- qualify A.R. The bad-conduct- discharge. 129. duct Gourzong is purposes of the INA. tions ultimately was execut- discharge sentence of commit- removable reason therefore however, 22, 1996, ed, after the August on mean- felony within the ting aggravated procedures set forth appellate review INA, jurisdic- thus lack ing of the and we 71(c) UCMJ, 10 U.S.C. Article of the the final Order of Removal. tion to review 871(c), A.R. had been satisfied. 130. 1252(a)(2)(C) (“[N]o court See 8 U.S.C. Security Department of Homeland any final jurisdiction have to review shall against brought removal against an alien who order of removal that, alleging because Gourzong having committed by reason removable court-martial, he by special his conviction ”). .... criminal offense a [covered] committed the having removable for was Background I. felony abuse of a aggravated of sexual Judge Immigration A.R. 51. An minor. Gourzong admitted to the United was based Gourzong to be removable found permanent lawful resident as a States aggravated of an both on his conviction having joined the Unit- In after conviction of two or more felony and on his by a military, he was convicted ed States second turpitude crimes of moral Camp court-martial convened —the conviction in the California, being a 2006 Pendelton, having violated conviction Pleas of Delaware the accused and the role of courts- of Common Court criminal Pennsylvania, making adjudging terroris- martial in un- County, penalties A.R. 51. military. tic threats.1 der the of the A.R. 5 (“Consequently, we fail to find possibil- appealed Immigration ity judge may ap- not be BIA, arguing to the Judge’s Order pointed by convening authority to a do not convictions special court-martial serves to diminish the as defined in qualify as “convictions” validity effect and undermine the of the (a)(48)(A) § 101 the INA. Cf adju- actions taken the members of that (“The 1101(a)(48)(A) term ‘conviction’ i.e., body, findings dicative of a formal alien, means, respect with to an a formal judgment guilt genuine entered in a alien entered proceeding pursuant gov- ”). particular, .... he focused his court erning laws of the United States Armed special court-mar argument on whether Forces, qualify so toas as a conviction for upon language tial is a “court.” He relied Moreover, immigration purposes.”). in Matter Rivera- opinion the BIA’s BIA possibility special found the (BIA Valencia, 2008), 24 I. & N. Dec. 484 court-martial could convene without a mili- BIA, finding in which the that convictions tary judge mitigated by rarity, to be by general qualify’ courts-martial do requirements and the Manual for INA, convictions under the had stated (a) Courts-Martial that court-martial mem- “a governmental the term “court” means “age, be chosen on the basis of edu- bers body consisting judges of one or more who cation, training, experience, length of ser- adjudicate and administer disputes sit to (b) vice, judicial temperament,” and and justice.” (quoting id. at 487 Black’s See (8th 2004)). specified, the president ed. “unless otherwise Dictionary Law Gour- that, mili- zong argued because a court- without a can, conditions, tary judge has the same and pro martial under certain legally judge, responsibility military judge.” ceed without a trained as a A.R. 5 not a “court” court-martial is under Rules for Courts-Martial (“ROM”) 801(a)). 502(a)(1), the INA. Gourzong now seeks review of the BIA’s Order. BIA, in A one-member of the non-precedential opinion, disagreed, find- II. Jurisdiction Standard

ing that the differences between of Review signifi- courts-martial were not a different result enough cant warrant jurisdiction Immigration Judge had A.R. 4- from that Rivera-Valencia. See un- Gourzong’s over removal rejected Gourzong’s argument BIA 5. The juris- der 8 U.S.C. 1229a. The had possibility legally that the of a lack of a Immigration Judge’s diction to review the judge placed by special convictions trained Order of Removal under 8 C.F.R. the definition of courts-martial outside 1003.1(b)(3) §§ and 1240.15. BIA in- “conviction” under the INA. The jurisdiction to generally stead concluded that We have final under 8 “genuine proceeding^]” giv- were review orders removal 1252(a)(1), jurisdiction but that procedural protections en the afforded to U.S.C. turpitude Immigration Judge's moral is not before us. 1. The determination that crimes of Gourzong was convicted of two or more interpretations, we “any single-member panel’s final to review of does not extend need not resolve this issue. an alien who is against order of removal having committed by reason removable Analysis III. felony],” id. aggravated

[an 1252(a)(2)(C). jurisdiction have We specific have never addressed the We “necessary juris- whether determine issue of whether convictions present here— diction-stripping fact[ ]” qualify can as convictions is, jurisdiction to determine have we an that can render alien removable was convicted of com- whether 237(a)(2)(A)(iii) resolu- INA. Our felony within the mitting aggravated an initially requires tion this issue consid- us the INA insofar as allows meaning types of courts- eration of the different jurisdiction we have whether to determine military justice system. martial in the review. Borrome petition over his U.S., Attorney Gen. a. Courts-Martial Classifications of 2012). ultimately Because we con- Special courts-martial are one of three Gourzong was convicted of com- clude that that can classifications of courts-martial felony within the aggravated mitting juris- try persons subject military’s INA, we lack meaning of the summary, special, general. diction: for review. petition over his Summary U.S.C. 816. courts-martial are, jurisdiction and as the have limited the BIA’s written decision Because suggests, summary name A nature. unpublished, non-prece- case was summary single courk-martial consists of a by single BIA dential decision issued officer, presides commissioned who over

member, interpreting to the extent was proceedings, represents gov- both the statutes, will not afford it Chevron we accused, ernment and the and makes the U.S., Attorney Mahn v. Gen. deference. guilt. ultimate as to the accused’s 2014). (3d 170, Instead, 767 F.3d 173 Cir. 816; Henry, See id. v. 425 Middendorf statutory interpretation, those issues 25, 41, 1281, 47 L.Ed.2d 556 U.S. 96 S.Ct. law, questions of will be along 1301(b). with other (1976); summary RCM A court- de novo. Id. To the extent the reviewed jurisdiction if only martial has the accused BIA single-member panel interpreting was object summary does not to trial and, of review is unsett precedent, the standard regardless, martial lacks However, “officers, cadets, cadets, try because even under de led.2 aviation midshipmen.” Although we with the 10 agree novo standard of review U.S.C. 820. (citations omitted) precedents.” (citing decided the extent of deference Auer v. 2. We have not single-member panel's Robbins, 452, 461, 905, we owe—if 519 U.S. 117 S.Ct. —to (such precedents interpretations prior BIA (1997))); Zheng Dep't 137 L.Ed.2d 79 v. U.S. Rivera-Valencia). opinion as the from Other Justice, 129, 2005) 416 F.3d 131 Cir. adopted varying courts have deferential stan ("The prior determination that BIA [a BIA's Holder, Compare dards. 412, Mansour v. 739 F.3d precedent] apply ... does not reasonable (8th 2014) (finding that Auer 414 Cir. interpretation (citing that merits deference.” single-member pan BIA deference is owed to Co., Bowles v. Seminole Rock & Sand 325 U.S. regulations); interpretations el of BIA Aburto- 410, 414, 1215, 65 S.Ct. 89 L.Ed. 1700 (6th Mukasey, Rocha v. 535 F.3d 503 Cir. Holder, (1945))), with Lezama-Garcia 2008) ("An interpretation agency's of its own 2011) (9th (affording Cir. F.3d precedents receives considerable deference— single-member no deference for its applies equal a form of deference that interpretations regulations). interpretation of BIA measure to the BIA's may try persons (holding that a conviction summary general courts-martial any noncapital offenses under qualify predicate court-martial can as the “death, UCMJ, they may impose dis- offense under the Armed Career Criminal missal, or bad-conduct dis- dishonorable Act); Martinez, States v. United F.3d than one charge, confinement for more (7th 1997) 421, 424 (holding Cir. that con month, without confinement for hard-labor by general victions courts-martial can days, specified more than 45 restriction predicate serve as the felonies for the fel months, for more than two or forfei- limits on-in-possession firearm prohibition at 18 than one ture of more two-thirds of § 922(g)(1)); United States v. Mac pay.” juris- month’s Id. Given their limited (9th 1993) Donald, nature, summary diction and convictions (“We hold that a general court-martial is a by summary courts-martial are not neces- within meaning ‘court’ of 18 U.S.C. sarily weight military given outside conviction, § 922(g)(1) and a such as Mac justice system. example, For convictions Donald’s, for which an punish individual is by summary courts-martial are not count- exceeding year, able for a term one determining a defendant’s crimi- ed when amounts to a ‘crime’ for purposes of history Sentencing nal U.S. Rivera-Valencia, § 922(g)(1).”); 24 I. & N. § 4A1.2(g). Guidelines. U.S.S.G. Further- (holding Dec. at 486-89 convictions more, Supreme Court has determined general qualify as convic summary are not INA); tions under 237 of the see also “criminal prosecution[s]” purposes (“Sentences § 4A1.2(g) resulting U.S.S.G. right the Sixth Amendment’s to counsel. from if im offenses are counted Middendorf, 425 U.S. at 96 S.Ct. posed court-mar tial.”). Relatedly, Jeopardy the Double General courts-martial are the classifica- prosecution Clause bars federal for an of tion of courts-martial with the to previously fense tried before a general impose punishments. the most severe Gen- Shaffer, court-martial. 807 F.3d at eral courts-martial of “a mili- consist either (“[CJourt-martial 946-47 conviction is a bar tary judge and not less than five mem- prosecution.”); to successive federal Unit or, if requests, “only bers” the accused so (9th Stoltz, 1127, 1129 ed States F.3d 816(1), military judge,” § a 2013) (“If a Cir. servicemember is tried try ... persons “have to for court-martial, general or the Dou any punishable offense made [under Jeopardy ble Clause of the Fifth Amend may, under such limitations as UCMJ] subsequent prosecu ment bars a civilian may prescribe, adjudge any the President offense.”). tion for the same punishment chapter, not forbidden ” courts-martial, Special which are at is- .... including penalty of death Id. here, general sue are similar to courts- 818(a). § in agreement Courts are wide jurisdiction, martial their but by general that convictions respect to the they penalties differ with weight equivalent of convic- receive imposed respect that can be and with See, system. civilian e.g., tions Unit- (8th “jurisdiction composition. They their have Shaffer, ed States v. 807 F.3d 2015) (“[W]e try any noncapital ... for of- persons Cir. hold that Shaffer’s con- punishable by fense by general [the UCMJ] viction a made is convic- and, regulations as the Presi- tion in ‘a court of the United within under such States’ 3559(c).”); may capital § for offenses.” prescribe, 18 U.S.C. United v. dent States (4th 2014) Grant, However, they may § not 753 F.3d 484-85 Cir. 10 U.S.C. 819. “death, offense.” prosecution for the same of dishonor- penalties impose the dismissal, Stoltz, for confinement 720 F.3d 1128. discharge, able year, hard labor without than one more 101(a)(4.8)(A) the INA b. Section of months, than more three confinement we must determine wheth Since exceeding pay two-thirds pay forfeiture of aggravat was convicted of an er month, pay of for more or forfeiture per of first felony, ed we consider issue year.” Special Id.3 than one guilt by judgments whether impression: (a) than three “not less consist of either un courts-martial are “convictions” (b) members”; military judge “a and not 237(a)(2)(A)(iii) § of the INA. We have der (c) members;” only or a than three less may addressed what “factors be previously requests. so military judge if the accused a 816(2). deciding relevant in whether Moreover: under constitutes a conviction” discharge, confinement A bad-conduct 101(a)(48)(A) of the INA. See Castillo v. months, six or forfeiture for more than U.S., Attorney Gen. may not for more than six months pay 2013). Castillo, petitioner In had record of adjudged complete unless removability under charged been with testimony has been 237(a)(2)(A)(ii) INA, which, like made, repre- ... was detailed to counsel 237(a)(2)(A)(iii),requires showing accused, military judge and a sent the trial, an alien has been “convicted” crime. except any to the was detailed military judge petitioner 729 F.3d at 298. The in which a could case shoplift physi- to the trial contended that his conviction be detailed because military exigencies. by municipal court was not a convic ing cal conditions or military judge purposes such case which of the INA because he had tion trial, only “disorderly per not detailed to the the conven- was been convicted authority shall make a detailed writ- Jersey law—that sons offense” New statement, appended to be is, ten no petty offense for which he had record, or reasons a stating the reason by jury indictment right to trial military judge could not be detailed. jury. Setting at 299. aside wheth grand Id. disorderly persons offense constitut er the Notably, Id. convictions pertinent part ed a “crime” under the courts-martial, by general like convictions INA, Weexamined what characteristics courts-martial, are counted when deter- bring its convictions under proceeding of a history criminal un- mining a defendant’s of “conviction” the definition Sentencing der the Guidelines. U.S. 101(a)(48)(A) Castillo, § of the INA. See (“Sentences resulting § 4A1.2(g) U.S.S.G. (leaving open ques n.l the 729 F.3d at 302 im- military offenses are counted if from remand). of In what[?]” tion “conviction posed by general or court-mar- tial.”). rejected approach a narrow Moreover, doing, so we the Circuit as Ninth noted, only single looked to a factor —name that Appeals “[i]t Court of has is also required-proof ly, court- whether the conviction general settled that a well beyond a reasonable subsequent martial civilian of each element precludes analysis, pay than six Although material to our this or forfeiture of for more months. § National Defense Authorization Act for current version of 10 U.S.C. 819 differs 2000, 106-65, 577, § slightly in effect on the date Fiscal Year Pub. L. No. from the version 512, (1999). Gourzong's 625 Under the amended of conviction. At the time' of his 113 Stat. statute, conviction, penalties and for- could not of confinement up year. pay can extend to one Id. impose of more than six months feiture of confinement and, instead, “open- an found that “the differences adopted gen- between a doubt4 — as to whether the inquiry” ended eral a special court-martial[ ] and genuine in a ... guilt of was “entered significant martial are not so so as to at proceeding.” criminal See id. 307. We warrant different result” from that factors, to several relevant “includ- pointed Riverar-Valeneia. See A.R. 4-5. The BIA jurisdiction char- prosecuting how the that a judgment here noted under issue, acterized the offense at the conse- court-martial, general as under a rights quences guilt, and the court-martial, beyond must be found a rea- available to the accused as well as doubt, and that persons sonable accused proceeding it- other characteristics of before a court-martial have the self.” Id. right against compulsory self-incrimina- panel of the BIA in single-member The tion, right representation by to counsel applied open-ended approach this case public expense, and the to call right determining whether a conviction present witnesses and evidence. See id. We can a “conviction” special court-martial agree with the BIA’s that con- conclusion 101(a)(48)(a). doing, In so the BIA are, victions as a heavily upon precedential relied the BIA’s matter, general convictions within the opinion Matter Rivera-Valencia. 101(a)(48)(A).5 meaning of found, Riverar-Valeneia, the BIA after an- that BIA Also, Articles”). subchapter "Punitive even that the BIA below buttress the conclusion though consequences are, special general as a mat- by special degree a court-martial differ in ter, "genuine proceeding[s].” See criminal imposed by general from those that can be a 307; Middendorf, 729 F.3d at see also court-martial, (at they can include the time of ("General 425 U.S. at 96 S.Ct. 1281 and conviction) Gourzong’s up to six months’ con- pro- special judicial courts-martial resemble ”). penalties pen- finement and severe financial ceedings by spe- .... The offenses triable — prototypical imposed by crimi- every noncapital alties of those cial include court-martial, by general and nal courts. See 10 U.S.C. 819. offense triable by the term ‘court’ understanding limiting it acts arbi- adapt policies, change or III organized to under Article from its established those trarily departs if it counterparts or its under announcing princi- a Constitution without precedents omitted)). (internal (citations fun- More departure.” State law.” pled reason omitted)). damentally, though, fur- the BIA’s view Riv- urges, He quotation marks governmen- that a court is “a ther, view as to the erar-Valenda that Rivera-Valenda’s that, judges body consisting here and tal of one or more “court” controls meaning of adjudicate special disputes who sit to and adminis- possibility because of (alterations justice,” omit- legally without a ter id. can convene ted), question not resolve the here of grant must therefore his does judge, we trained are, a whether as petition for review. matter, all, a general typical courts—after First, Rivem-Valencia disagree. We presided by court-martial is over The BIA in Riverctr- limited. was not so military judge, and all courts-mar- to what consti its view as Valencia offered adjudicate disputes tial “sit to and admin- rejecting in the context of tutes a “court” justice.”6 when ister Even the instances here, to the one made argument, similar military special courts-martial lack a through open-ended sought to cut that with, judge, they president gen- have a un focus instead on limited inquiry and eral, responsibili- “the same “court.” It is not derstanding of the word ty military judge,” single- as a as the necessary to discussion was clear that this member of the BIA noted below. See conclusion that convictions the BIA’s 801(a)). A.R. 5 ROM meet the definition general courts-martial Riverctr-Valencia, however, 101(a)(48)(A). the BIA importantly, More §in See (“[Tjhis correctly Board has identified several characteristics 24 I. & N. Dec. at 488 judg compel courts-martial that find- days earliest considered from its courts-martial, courts-martial, they, general that like both do ments entered typically “genuine proceed- are foreign, to be valid ‘convictions’ mestic and nothing ings.” (finding A.R. 4-5 that “the dif- immigration purposes. We see (a)(48)(A) language court-martial[ ] of section 101 ferences between in the sig- court-martial are not so us to conclude that Con that would lead modify this historical nificant so as to warrant different result” gress intended Notably, discharge study UCMJ reveals the bad conduct was not 6. A of the record Gourzong's than like- court-martial more immediately by convening that executed au- by military judge given ly presided was over thority meet the re- because it first had to adjudged discharge that a bad conduct he was UCMJ, 71(c) quirements of Article of the see eventually approved and executed. that was provides which bad conduct A.R. ("A dis- See 10 U.S.C. bad-conduct discharge executed until there is a cannot "be charge may adjudged ... a ... not be unless legality pro- of the final as to the trial, military judge except was detailed to the 871(c)(1). ceedings ....” "A military judge which a could case in legality judgment as to physical the trial because of not be detailed to completed review is final in such cases when military exigencies.”). It is un- conditions or Appeals,” ap- a Court of Criminal unless likely "physical conditions or appeal pellate review was waived or the with- exigencies” prevented detailing of a mili- procedural protection ap- Id. This via drawn. California, Pendelton, tary judge Camp see pellate confidence that review reaffirms our and, besides, "detailed A.R. there is no Gourzong's special court-mar- conviction record, appended ... written statement qualifies conviction tial military judge stating or reasons a the reason detailed,” 101(a)(48)(A). could 10 U.S.C. 819. not be Riverctr-Valencia). Gourzong’s al courts-martial have that in to “fi- from nally fails because its focus on a sin argument any they determine case over which open-ended ap contravenes the gle factor jurisdiction,” have general and because in Castillo and that proach adopted we was significant procedural courts-martial offer by BIA in actually applied Riveras- accused). protections offered to the We Castillo, examining we were Valencia. single-member therefore find that pan- if the definition of “con how to determine BIA correctly el of the concluded that (a)(48)(A) viction” found at of the Gourzong aggravated was convicted of an is, INA has been meb—that how deter felony meaning within the of the definition guilt “a formal of judgment mine whether 101(a)(48)(A) of “conviction” in of the by a court.” We determined entered [was] INA.7 analysis determining

that the correct judgment whether there was a “formal of IV. Conclusion guilt by ... entered a court” is to conduct agree Because we BIA with the open-ended inquiry into whether the are, convictions “genuine came in a criminal finding of matter, a general pur- as convictions for Castillo, proceeding.” 729 F.3d at 306-07. 101(a)(48)(A) poses INA, §of of the we Thus, we are satisfied that courts- jurisdiction conclude that we lack over are, matter, courts, general martial Gourzong’s petition for review. See 8 given proceed the characteristics of then* 1252(a)(2)(C) (“[N]o court shall ings open inquiry: as examined under our jurisdiction any have to review final order (as au the manner which against of removal an alien who is remova- them, by Congress) thorized characterizes having ble reason of committed a [cov- guilt, of a consequences finding offense.”). ered] criminal We will therefore accused, rights available to the and the petition dismiss his for review.8 of the proceedings. other characteristics These are the same factors that the COWEN, Judge, dissenting. Circuit Riveras-Valencia, looked to in and the ag- was not “convicted of an by the BIA applied same ones below. See felony gravated meaning within Rivera-Valencia, 24 I. & N. Dec. at 487- 101(a)(48)(A) definition of ‘conviction’in (finding before 141.) (Maj. Op. of the INA.” at This statu- “genuine pro courts-martial are criminal because, factors, tory incorporates definition two basic re- ceeding^]” among other (1) quirements: “a formal by general courts-martial are convictions (2) guilt” characterized as “criminal” the laws of entered alien— military, or not gener- Regardless the United States because “court.” of whether possibility inquiry, prosecuting 7. We do not foreclose the that an ended such as "how the issue, partic- characterized the offense at alien could demonstrate that his or her consequences guilt, many and the ular court-martial lacked of the rights any available to the accused as well as "genuine pro- characteristics of proceeding other itself.” open-ended characteristics ceeding” inquiry under such the. 307. specific judgment guilt by that his or her Cf. martial should not be court consid- ered "conviction” express wishes to its thanks 101(a)(48)(A) Gourzong, Shagin Group Craig Shagin, of the INA. howev- Law R. Es- er, showing quire, agreeing pro has made no that his bono to serve as coun- advocacy lacked of the factors that sel and for their excellent on behalf open- Gourzong. we have deemed relevant under the of Mr. [INA]” a conviction under the qualifies satisfied special

Gourzong’s (a any question I need whether there was and to determine requirement the first decide), clearly not indicating did in record that evidence the do not—and not— under the requirement (Respon military judge present was not meet the second 1). See, e.g., interpretation precedential own to Remand at BIA’s dent’s Motion put, Simply Attorney General, “court.” the term Borrome v. gov- “a not constitute 2012) (“Now does the 156 n. more consisting of one or body ernmental a different tune. singing is Government adjudicate disputes and sit judges who to con opportunity ... The BIA had the place of a justice” where—in administer and, the at the Government’s sider issues military judge certified legally trained so.”). insistence, The chose not to do Court military judge and assigned by an detailed to brief the mer government ordered the Judge Advo- ultimately answerable its, cursory brief government’s the but duty member of active cate General—an arguments for merely reiterates the same Forces, who is Armed States the United in motion. it had set forth the remand authority, convening returns by the chosen (and represent Threatened with sanctions once duties regular her to his or counsel), finally government the ed new concluded, and need not is proceeding the In this sec a real merits brief. submitted not) (and possess would likely most brief, drastically government ond the training experience, judicial legal or approach by its whole withdraw changes Ac- the court-martial. over presides by indicating requests the remand respectfully dissent. I must cordingly, not consider the Court need even gov- not mention the majority does principles, though even Chevron deference history changing positions its ernment’s this doc government emphasized had immigration throughout the course I in trine its earlier submissions. While mer- failure to brief the proceeding offered appreciate apologies —or when petition for review Gourzong’s its of attorney, I remain Department of Justice’s appealed After it should have. government’s conduct troubled BIA, requested sum- government this case. affirmance, asserting that the issues mary matter, turn, be decided This should by ex- controlled on were appeal squarely record now on the administrative based appli- did involve isting precedent, Court, i.e., on the basis before facts, and to novel precedent cation of without a special court-martial conducted as to warrant were not so substantial majority may well be military judge. The in the It asked alternative opinion. written military judge typically is correct that a deci- in a brief one-member for affirmance over a preside detailed to sion, actually the BIA dismissed Nevertheless, we should still focus martial. non-prece- in such a appeal administrative government has shown actual- on what the Nevertheless, govern- dential fashion. ly happened Gourzong’s own merits, ment, filing a brief on the in lieu of usually hap- court-martial —and not what to remand for the then this Court asked now or in such either pens consider its BIA “to further his court-martial convened No- when court-martial, with or without January 1994. Sim- of 1993 and vember satisfies the con- military judge present, govern- I do not believe that the ply put, of a ‘court’ such that a ventional definition any military court-martial, ment has established regard- conviction spe- over a judge preside was detailed to military judge present, less of whether cial court-martial that occurred more than “judgment guilt” Congress of likely most twenty years ago. meager The rather rec- judgment intended to refer to a in a crim ” ord contained no clear proceeding.’ references to a inal Id. at 304 In re Eslamizar, fact, In military judge. (BIA the IJ relied on his 23 I. & N. Dec. 687 2004) (en banc)). personal own experience spe- as a former ruling Our in Castillo judge opine cial court-martial to on the likewise did not specifically address this record that a military judge was detailed “court” language. On contrary, the we as here. As Gourzong’s pro able bono counsel that Jersey sumed the New Municipal IJ, explains, far requiring “[t]he from DHS Court constituted a “court” under clear, prove by to convincing unambig- terms of immigration fact, In statute. uous evidence each and every repeatedly element nec- we referred to a “court” essary support deportation, to an order of throughout our discussion of BIA case law Woodby INS, 276, 286, v. 385 U.S. 87 “genuine S.Ct. and the proceeding” criminal ap (1966), See, e.g., merely 17 L.Ed.2d 362 proach. (“However, as- id. at 307 sumed evidence not the record and for does not mean that a judgment was en petitioner which had no means to rebut.” tered in a genuine true or criminal pro (cid:127) (Petitioner’s 5.) govern- Brief at As ceeding therefore constituted a con —and notes, 1101(a)(48)(A)— ment likewise “the Board held that pursuant viction court-martial, a conviction merely with because a court entered a formal or military judge present, quali- without a judgment guilt requisite under the ‘rea by fies as a conviction a ‘court’ under the sonable proof doubt’ standard of im (em- (Respondent’s INA.” posed First Brief at 8 punishment.” a form of (emphasis added) AR4-AR5).) added)). phasis (citing In precedential in In decision Rivera-Valencia, re 24 I. & N. Dec. 484 majority The places particular emphasis (BIA 2008), expressly the BIA distin on this ruling Court’s in Castillo v. Attor- guished “genuine proceeding” criminal ney General, (3d 2013), 729 F.3d 296 Cir. inquiry from question of “whether that open-ended and the “genuine notion of a adjudication guilt was entered However, criminal proceeding.” ” ‘court,’ id. at 487.1 recognized As the IJ 101(a)(48)(A) actually defines “a convic- proceeding, the current Board “[t]he as, alia, tion” inter “a formal judgment of analysis broke its down into the two re (or, guilt of the alien entered if court” 101(a)(48)(A): (1) quirements under a for (1) adjudication withheld, has been where alien; (2) judgment mal of guilt of the judge” jury “a or guilty has found the alien (AR52 by a (citing entered court.” Rivera- or the plea guilty alien has entered a Valencia, 486-88).) 24 I. & N. Dec. at nolo contendere or has admitted sufficient (2) guilt, facts to warrant a statutory language Given the as well as judge” law, “the has ordered some form of existing ruling case the BIA’s restraint). punishment, penalty, or The upheld merely this case should not be be- “genuine that, criminal proceeding” approach may agree cause we like represents courts-martial, an interpretation of the “formal special courts-martial “are ” guilt” requirement typically ‘genuine proceedings.’ —not AR4-AR5).) requirement. “court” specifically (Maj. Op. The BIA (citing 140 In “ words, explained that ‘a far more enough point sensible read- other it is not out namely, of the statute exists: prosecution must establish Castillo, In we omitted from our discussion tion of the term "court.” See interpreta- Rivera-Valencia the own BIA's F.3d at 308. An administra- agency decision. edential highlight doubt or

beyond reasonable arbitrarily departs if it agency the accused acts possessed tive rights various fact, proceeding. precedent without from an established superflu- render would approach depar- for its principled such reason providing See, language. statutory Ashcroft, “court” See, e.g., ous v. ture. Johnson Cooper, e.g., F.3d 2002). States United majority F.3d (“It 2005) (3d is a well known 312 Cir. by in- minimize this definition attempts to that construction courts statutory canon of may have been dicta of- dicating that it statutory language to should construe argu- rejecting in the context of fered that would render interpretations avoid through to cut the sought ment “that (citing TRW Inc. superfluous.” any phrase and focus instead on open-ended inquiry ” Andrews, 122 S.Ct. 534 U.S. understanding of the word ‘court.’ limited (2001))). 151 L.Ed.2d 339 140.) However, already I (Maj. at have Op. “a formal to define purported Just as “open-ended I this explained why believe judgment entered guilt” as judgment of really implicates the “formal inquiry” see, e.g. proceeding, in a genuine requirement. Exercis- guilt” Castillo, (reviewing at 302-311 immigration matters of expertise-in Eslamizar), with beginning BIA law case law, clearly appropriately— BIA the —and definition of a adopted its own agency the does not define the noted that the INA Recognizing “court” in Rivera-Valencia. “court,” adopted the meaning of the term the term “does not define the INA common mean- “ordinary, contemporary, ” its ordi- ‘court,’ gave BIA “the word term, applied and then this ing” of this mean- and common nary, contemporary, gen- in context of a general definition body consisting of ing: governmental ‘[a] (which, according to the eral court-martial adjudicate sit to judges more who one or majority, shares several BIA as well as the ” justice.’ Rivera- administer disputes and court-martial). with a similarities Valencia, (quoting at 24 I. & N. Dec. 487 (“ See, e.g., F.3d at 302 ‘On 2004)). Dictionary (8th ed. Black’s Law hand, “if the statute is silent or the other Determining that a court-martial respect specific with is- ambiguous definition, the this conventional satisfied sue, whether question for the court is alia, observed, military BIA inter permis- on a agency’s answer is based general judge presides over each ’” (quot- of the statute.” sible construction specifically “[a] It noted martial. Id. Ashcroft, 218, 222 F.3d ing Acosta v. a member of a military judge must be 2003))). why the I fail to see qualifications Federal or State bar whose (or Court) apply agency this should duty certified judicial have been here.2 the same definition or her Judge Advocate General for his clearly does not A court-martial of the service.” Id particular branch body consisting governmental “a 826(b)). constitute In its (citing 488 n. 3 adjudi- who sit to judges of one or more dismissing non-precedential disposition justice” administer disputes cate appeal, the BIA Gourzong’s administrative pre- member where a this definition— did not even mention military judge. in which, contrast, prec- place in a sides in was set forth specific yet doctrine majority we have ment does not invoke 2. The observes that (and, contrary, in its second ac- on the indicates decide whether Auer deference should be interpretation that we need not even consider single-member's brief corded to doctrine). govern- precedent. Chevron prior BIA I note that the that, in majority military judge asserts the in- when normally “[e]ven is rated or military judge’s when courts-martial lack a report stances is reviewed with, military judge, they president convening authority, have a manner which such general, respon- military ‘the same judge will be rated or evaluated sibility military judge,’ single- as the upon performance duty as as military BIA judge may prescribed member noted below.” in regulations AR5).) However, (Maj. at 140 Op. which shall ensure absence of command detail, 826(c) influence); Gourzong explains that, some (stating president is no unless court-martial was convened military judge. real substitute for a respective Secretary, President or conven- ing authority prohibited preparing from (as hand, military judges On the one reviewing any effectiveness, or report on alencia) specifically noted Rivera-V fitness, efficiency of detailed judicial attorneys are licensed certified for judge relating performance military as duty by respective Judge the Advocate end, judge). In the respective Judge the Rivera-Valencia, 24 General. I. & N. Dec. Advocate responsibility General has for military judge gener- at 488 n. 8. “The of a professional the supervision military al designated by court-martial shall be the See, e.g., 109(a). judges. § R.C.M. General, Judge designee, Advocate or his military hand, of the armed force of which the the On other the court-martial judge is member for detail accordance duty members are either active commis- 826(c). regulations.” officers, officers, § with Pur- sioned warrant or enlist- Courts-Martial, 502(a)(1). § suant to the Manual for persons. They ed R.C.M. are military judge “by person as, is by convening authority” detailed detailed “the military assigned judge directly opinion as and “in his qualified are best for the responsible Judge duty education, to the Advocate age, General reason of training, service, Judge desig- experience, or the Advocate General’s length judicial 503(b)(1). 825(d)(2). § nee.” A temperament.” § R.C.M. commissioned qualified duty officer certified as for as a convening authority prohibit- While the is military judge of a court-martial considering evaluating ed from or “may perform only such duties when he performance duty is members’ as a court- assigned directly responsible to the martial preparation member of an General, effectiveness, Judge fitness, Advocate or designee” efficiency report his or may perform other assigned duties as or other document used to determine advancements, transfer, retention, approval Judge or with the Advo- or (or 104(b)(1), § cate designee). convening General 10 U.S.C. R.C.M. authori- 826(c). § military judge may ty may, before the court-martial is assem- changed by bled, an authority competent change showing to de- without members (and military judge tail the without delegate judge cause before cause to the staff ad- or, vocate, officer, the court-martial is assembled after legal principal or other as- assembly, disqualification convening authority on account of or sistant to the the pow- 505(e). good for cause shown. R.C.M. er to excuse a certain number of members (B). cause), 505(c)(1)(A), convening authority may prepare “The without R.C.M. any report concerning assembly, or review the effec- convening After tiveness, fitness, efficiency military may good or of a excuse members cause judge detailed to a special court-martial shown on record. R.C.M. 505(c)(2)(A)(i). turn, performance duty which relates to the highest-rank- military judge.” R.C.M. member of the 104(b)(2)(B); 502(b)(1). (stating president. see also id. serves as its R.C.M. or her intelli- his impugning Without America, UNITED STATES of impartiality, is or

gence, experience, Plaintiff-Appellee, president clear that (and legal lack the typically martial would experience possessed training and judicial) all, judge. After would

by a SERAFINI, Bryan Defendant- assigned to (Gourzong was logistics officer Appellant. battalion) really have transport a motor knowledge dealing with any experience 15-4383 No. judges are legal issues

the sorts of Appeals, United States Court decide, such as evi- regularly expected Fourth Circuit. Likewise, military judge dentiary issues? regular from the part insulated large May Argued: he or she is insofar as command structure judicial duties specifically certified 10, 2016 Decided: June General, is detailed Judge Advocate ulti- military judge, and is assigned Judge Advocate

mately answerable However, and the president

General. members are

other persons duty and enlisted

active officers convening au- chosen

specifically makes this choice based

thority even —who of their authority’s own assessment

on the they Even if at- qualifications.

respective could such impartial, to

tempt remain regular to their return

members —who court-mar- once the

military duties really compared

tial is concluded— judicial independent offi-

professional and

cers?3 petition

Accordingly, grant I would

for review. amalgam- ly appears represent a sort I further note that the other members judge jury foreperson. object presi- a civilian can ation of (who counterparts do not interlocutory questions Like their civilian rulings on dent's deliberations), fact, participate jury president to con- and the is authorized judges do not vote with the court-martial her fellow members before sult with his or consulting prohibited from making members and are a decision on such matters. R.C.M. turn, 801(e)(2)(B), (3)(D). presence except in the president, with the members respective the accused and counsel. 10 U.S.C. with the other court-mar- deliberates Likewise, 826(c). legal their and interlocu- determine the ac- tial members to whether 502(a)(2). subject tory rulings are not to member re- proved guilty. R.C.M. cused is 801(e)(1)(A). president view. R.C.M. Accordingly, a actual- notes did not alyzing general the characteristics acknowledge or refer to Riverar-Valeneia’s procedural protec- and the ordinary meaning as to the view offer, they tions court-mar- “ governmental body word “court” as “a con- ‘genuine proceeding’, tial is a criminal sisting of or more judges one who sit to is, that ‘criminal in proceeding adjudicate disputes jus- and administer governing laws of the nature under ” tice,” 487, urges 24 I. & N. Dec. at jurisdiction.’ 24 I. & N. Dec. prosecuting BIA improperly departed thus Eslamizar, at 486-87 Matter of (BIA 2004)); precedent explanation. from without 23 I. & N. Dec. see Cf. Castillo, Ashcroft, (citing 729 F.3d at 308 Riv- Johnson also 2002) (“Although can approvingly). agency era-Valencia here Cir. military (through 4. As we noted in that each element are characterized statute) proven beyond "punitive” i.e., must be a reasonable doubt is federal criminal— — necessary but not sufficient condition for a (special See 10 U.S.C. courts- offenses. "genuine proceeding qualify to as a try "any noncapi- martial have proceeding.” Id. at 307. A maker decision UCMJ]”); punishable by [the tal offense made inquiiy” "open-ended undertake an must (providing review of cer- proceeding the other characteristics of Ap- tain sentences a "Court of Criminal qualifies “genuine crimi- determine if as a added)); peals” (emphasis Aug. Act of proceeding.” nal Id. 84-391, 1, 64 Pub. L. No. 70A Stat. (codified seq.) (titling at 10 U.S.C 877 et beyond 5. We note that factors those cited

Case Details

Case Name: Gurson Gourzong v. Attorney General United States

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 14, 2016

Citation: 826 F.3d 132

Docket Number: 15-2645

Court Abbreviation: 3rd Cir.