Aggravated Felonies

(A)  In General.  A conviction of a member of the Armed Forces in a court-martial has been held not to trigger deportability, since a court-martial lacks power to make a judicial recommendation against deportation.[200]  The elimination of judicial recommendations against deportation by the Immigration Act of 1990, however, may have undermined the reasoning of these decisions.[201] 

The Foreign Affairs Manual indicates: “A conviction by court-martial has the same force and effect as a conviction by a civil court.  Memorandum of December 7, 1938, to the Department from the Judge Advocate General of the Army).”[202]  It is difficult, however, to see how an Army memorandum could override judicial decisions on the point.

            Counsel defending noncitizens in courts-martial should attempt to avoid convictions that would constitute deportable offenses if the law changes, and courts-martial are held to result in convictions.  Immigration counsel can argue the current law: that courts-martial do not result in convictions for immigration purposes, and that any change in this legal principle must be prospective only, or be held to violate due process notice requirements as to a person who was entitled to rely on existing law until the law was changed.[203]  Counsel can also argue that Congress did not specifically list convictions in courts-martial as falling within the aggravated felony definition, although it did list convictions under Federal and State law, and certain foreign convictions, so we can infer an intention to exclude military convictions.[204]

[200] Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958); Matter of Gian, 11 I. & N. Dec. 242 (BIA 1965) (French court conviction of theft did not result in a deportable conviction, since judicial recommendation against deportation was not available).

[201] Immigration Act of 1990, Pub. L. No. 101-649, § § 505, 602, 104 Stat. 4478, 5050, 5077.  See generally Gordon § 71.05[1][e][ii]; Matter of M, 8 I. & N. Dec. 453 (BIA 1959) (conviction by Italian Military Court (Tribunal of War) in Somalia is a “conviction” within the meaning of the immigration laws); Matter of SB, 4 I. & N. Dec. 682 (BIA 1952) (conviction of desertion from the armed forces of the United States in time of war is not an offense involving moral turpitude, since it involves no element of fraud).  See generally United States v. Berumen, 24 M.J. 737, 741 n.2 (U.S. Army Ct. of Mil. Review, June 12, 1987) (“We agree with counsel for appellant that the decision of the Court of Appeals for the Ninth Circuit in Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958), is dated and no longer of precedential value. Contrary to the holding of Gubbels, we have no doubt that a general court-martial conviction may be the basis for the deportation of an alien under 8 U.S.C. sec. 1251(a)(4) (1982), the governing Federal statute.”).

[202] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N3.4-3.

[203] See Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 707-708 (1951) (due process requires applying void-for-vagueness notice doctrine to grounds of deportation); see INS v. St. Cyr, 533 U.S. 289 (2001).

[204]  See N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 3.34 (2005).