Criminal Defense of Immigrants


§ 7.26 (D)

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(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).




Matter of Cuellar-Gomez, 25 I&N Dec. 850, 855 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for immigration proceedings because the Wichita proceedings required proof beyond a reasonable doubt, even though there was no right to counsel or jury trial), distinguishing Matter of Eslamizar, 23 I. & N. Dec. 684 (BIA Oct. 19, 2004).
Matter of Cuellar-Gomez, 25 I&N Dec. 850, 858-859 (BIA Jul. 18, 2012) (Kansas conviction of possession of marijuana, in violation of a Wichita municipal ordinance, constituted a conviction for a violation of a law or regulation of a State as required to trigger the controlled substances conviction ground of deportation, under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i); Congress meant to include them within the meaning of laws or regulation of a State because all municipalities derive their legal authority from the state in which they are located so it meant to encompass the laws of any political subdivision of a State, despite Congress failure explicitly to include municipal or local in this definition as it did in other parts of the statute).

Ninth Circuit

United States v. Reveles, 660 F.3d 1138, No. 10-30313 (9th Cir. Oct. 24, 2011) (the non-judicial punishment (NJP) administered by the Navy for drunk driving was not criminal in nature and therefore the Government did not violate the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution by prosecuting and convicting the defendant for the crime a second time"this time in the U.S. district court"after he had received NJP for the same offense.) NOTE: Applying this to the immigration context, the argument would be that, if even an offense that carries 30 days in custody is not considered to be criminal, offenses that may not meet each of the Matter of Eslamizar requirements might nevertheless fail to constitute a conviction of a crime for immigration purposes as well, as long as it appears they also do not follow a criminal procedure. See Matter of Eslamizar, 23 I. & N. Dec. 684, 687 (BIA 2004) (finding that an Oregon violation was not a conviction, because it carried: (1) no possible jail sentence; (2) no right to appointed counsel; (3) no right to jury trial; and (4) and no right to proof beyond a reasonable doubt).


There is a decent argument that because some deportability and inadmissibility grounds specify jurisdictions, e.g., "state and federal and foreign" (controlled substance and aggravated felony grounds) or "state, federal, local and Indian" (domestic violence ground), that since "local" is included in at least one ground and not included in others, local ordinances would only give rise to deportability if the ground specifically says "local." See N. Tooby & J. Rollin, Criminal Defense of Immigrants 7.26 (2012). There is a good Ninth Circuit case (involving environmental rules, not immigration (Longview Fibre Co. v. Rasmussen, 980 F.2d 1307 (9th Cir. 1992)) that states that by listing things that are within the purview of the statute in one place, and other things within a separate statute, but not the first, Congress meant to exclude them in the former and include them in the latter. That Congress included state, federal, foreign, local and Indian convictions in the domestic violence ground, but only state, federal and foreign convictions in the controlled substance and aggravated felony grounds, means that Congress intended to exclude laws of local and Indian jurisdictions from the controlled substances and aggravated felony grounds of deportability. The BIA has rejected this argument in the controlled substances and aggravated felony contexts. See Matter of Cuellar, 25 I. & N. Dec. 850 (BIA 2012). The Ninth Circuit, however, may disagree. Immigration counsel wishing to raise the issue in a petition for review should preserve it by raising it before the Immigration Judge. The respondent, however, would face mandatory detention until the Ninth Circuit agreed with this argument. Thanks to Dan Kesselbrenner