(A)  Court-Martial.[98]  The BIA recently held that a general court-martial for “carnal knowledge,”[99] was a “conviction” under INA § 101(a)(48).[100]  The Foreign Affairs Manual likewise indicates: “A conviction by court-martial has the same force and effect as a conviction by a civil court (Memorandum of Dec. 7, 1938, to the Department from the Judge Advocate General of the Army).”[4]  The BIA found older Ninth Circuit law to the contrary[101] to be inapposite, since that case was decided before Congress chose to define “conviction” for immigration purposes.[102]  The BIA also rejected prior case law[103] that was decided in part upon the lack of the availability of Judicial Recommendations Against Deportation (JRAD)[104] in military proceedings, on the basis that JRADs are no longer available in criminal courts.

 

            The Board also found that “a trial by court-martial does not infringe on the constitutional rights of an accused who is properly subject to military jurisdiction, despite the absence of some of the protections afforded civilian defendants, such as the right to a trial by jury.”[105]  Arguably, this may not be true 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 § 2.4, supra.  

 

            While not applying any legal analysis to the issue of whether a court-martial may be considered an aggravated felony,[106] the court stated, “we see nothing in the language of [that section] that would lead us to conclude that Congress intended modify this historical understanding by limiting the term “court” to those organized under Article II of the Constitution or its counterparts under State law.”[107]  The BIA defined “court” (for purposes of INA § 101(a)(48)) to mean “[a] governmental body consisting of one or more judges who sit to adjudicate disputes and administer judgment.”[108]  The Board would doubtless apply this reasoning to crimes of moral turpitude.

 

            This appears to be an end-run around the argument that Congress does know 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.”[109] 

Counsel defending noncitizens in courts-martial should attempt to avoid convictions that would constitute CMTs.  Immigration counsel can argue that this recent decision by the BIA is incorrect, or 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 it has been changed.[110] 

 

A noncitizen convicted by a court-martial or a military court for a CMT offense may be inadmissible.[111]  Such inadmissibility may engender deportability for entry in violation of law.[112] 

[113] See also 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).").

[98] 10 U.S.C. § 920(b)

[99] Matter of Rivera-Valencia, 24 I. & N. Dec. 484 (BIA 2008).

[100] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N3.4-3.

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

[102] INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).

[103] See, e.g., Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958); Matter of Gian, 11 I. & N. Dec. 242 (BIA 1965).

[104] See § § 10.12-10.20, infra.

[105] Matter of Rivera-Valencia, 24 I. & N. Dec. at 487.

[106] INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (the term “aggravated felony” applies “to an offense . . . whether in violation of Federal or State law”).

[107] Id. at 488.

[108] Id. at 487, quoting Black’s Law Dictionary 378 (8th ed. 2004).

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

[110] See Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 707-708, 95 L. Ed.. 886 (1951) (due process requires applying void-for-vagueness notice doctrine to grounds of deportation); INS v. St. Cyr, 533 U.S. 289 (2001).

[111] Matter of G, 4 I. & N. Dec. 17 (BIA 1950) (U.S. military court in occupied territory); Matter of W, 1 I. & N. Dec. 485 (BIA 1943) (court martial in Canada).

[112] Matter of F, 8 I. & N. Dec. 469 (BIA 1959) (conviction of crime involving moral turpitude by foreign court martial is competent to sustain deportability under section 241(a)(1) of 1952 Act based upon inadmissibility at the time of entry).

BIA

CONVICTION " MUNICIPAL ORDINANCE
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).

CONTROLLED SUBSTANCES " MUNICIPAL ORDINANCE VIOLATIONS SUFFICIENT
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).

Other

PRACTICE ADVISORY " CONVICTION " JURISDICTION " UNLISTED JURISDICTION
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