Criminal Defense of Immigrants

(D)  Military Convictions.  Congress did not specify convictions of military courts as the basis for any ground of removal.  See § 7.26(B), supra.  “A finding of guilt in a court-martial proceeding is not a conviction for purposes of former 8 U.S.C.A. § 1251(a)(2).”[144]  In Gubbels v. Hoy,[145] the Ninth Circuit based its holding on a statutory interpretation concerning the ineligibility of persons sentenced in court-martial proceedings for pardons and judicial recommendations against deportation. 

                Congress does know, however, how to refer to military convictions 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.”[146]

                This argument is particularly strong in the case of minor military offenses that are the subject of summary procedures, such as non-judicial punishment or captain’s mast, in which case immigration counsel can argue that the disposition was not the result of a criminal procedure.  See § 7.24, supra.  A noncitizen convicted of a crime of moral turpitude under a foreign court-martial, however, may be excludable.[147]

[144] D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes § 2.16 (2007), citing Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958); see Costello v. INS, 376 U.S. 120 (1964); Matter of Gian, 11 I. & N. Dec. 242 (BIA 1965) (BIA extended the rationale of Gubbels v. Hoy to noncitizens serving overseas in the armed forces who are convicted of crimes of moral turpitude by a foreign court, holding a foreign military conviction does not trigger deportation under former 8 U.S.C. § 1251(a)(4), because the ameliorative provisions of former INA § 1251(b) were unavailable to the noncitizen).

[145] Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958).

[146] The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111(6) (July 27, 2006) (emphasis supplied).

[147]  INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A).