(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).

CONVICTION - MILITARY - SUMMARY COURT MARTIAL PROBABLY NOT A CONVICTION
Belliss, Consequences Of A Court-Martial Conviction For United States Service Members Who Are Not United States Citizens, 51 NAVAL L. REV. 53, 57 n.23 (2005) ("Whether the finding of guilty and imposition of punishment by a summary court-martial officer against an accused amounts to a conviction for immigration purposes is likely answered in the negative. See Middendorf v. Henry, 425 U.S. 25, 40-42 (1976). In Middendorf, the Supreme Court held that "a summary court-martial is procedurally quite different from a criminal trial" and thus is not a criminal prosecution within the meaning of the Sixth Amendment. Id. at 40. See 1 FRANCIS A. GILLIGAN & FREDERIC I. LEDERER, COURT-MARTIAL PROCEDURE 8-31.30 (2d ed.). See also United States v. Kelly, 45 M.J. 259 (1996).").

Other

CONVICTION - CRIMINAL OFFENSE -- MILITARY OFFENSE
Congress knows how to refer to military criminal offenses if it wishes to do so. For example, Congress recently provided, with respect to a specific new statute, that "The term `criminal offense' means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense." The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, 111(6) (July 27, 2006).

MILITARY - DUTY TO ADVISE ABOUT IMMIGRATION CONSEQUENCES OF PLEA
United States v. Berumen, __ M.J. __ (C.M.A. June 12, 1987) (military judge did not have duty to advise accused that he could possibly be deported or denied United States citizenship as direct result of his plea of guilty; accused's allegations that defense counsel never advised him of immigration consequences of his guilty pleas and that accused would have insisted upon recommendation by military judge that he not be deported or would have reconsidered his decision to plead guilty, did not satisfy ineffective assistance of counsel test, establishing neither that counsel's representation fell below objective standard of reasonableness nor that prejudice existed).

POST CON - PARDON - SELECTIVE SERVICE PARDON - VIETNAM WAR
The 1977 presidential pardon for violations of the Military Selective Service Act specifically applies to eliminate the commission of such violations as grounds of inadmissibility. Implementation of Presidential Proclamation No. 4483 and Executive Order No. 11967 (both effective Jan. 21, 1977), 42 Fed. Reg. 59562 (Nov. 18, 1977). This pardon was cited in Matter of Rahman, 16 I. & N. Dec. 579 (BIA 1978), regarding President Ford's pardon of Vietnam era draft dodgers, particularly regarding LPRs who returned on or before June 1, 1978.