“if a losing party could vault the ‘newness’ hurdle . . . merely by retaining an expert to reappraise the evidence and come up with a conclusion different from that reached by the hearing office, then the criterion would be robbed of all meaning.”
How later courts described this case
- “if a losing party could vault the ‘newness’ hurdle . . . merely by retaining an expert to reappraise the evidence and come up with a conclusion different from that reached by the hearing office, then the criterion would be robbed of all meaning.”
- noting that the standard of review is unsettled and collecting cases
- “Courts are in wide agreement that convictions by general courts-martial receive the weight of equiv- alent convictions in the civilian system.”
- special court-martial conviction as predicate felony for removal proceedings
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 15-2645
GURSON OSWALD GOURZONG,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No.: A038-201-760)
Immigration Judge: Honorable Walter A. Durling
Argued on April 7, 2016
Before: FISHER, RENDELL, and COWEN, Circuit Judges
(Opinion filed: June 14, 2016)
Craig R. Shagin, Esquire (Argued)
The Shagin Law Group
120 South Street
The Inns of St. Jude
Harrisburg, PA 17101
Counsel for Petitioner
Benjamin C. Mizer, Esquire
Anthony C. Payne, Esquire
Jesse M. Bless, Esquire (Argued)
Tiffany L. Walters, Esquire
Jennifer P. Williams, Esquire
United States department of Justice
Office of Immigration Litigation
Room 5049
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsels for Respondent
OPINION
2
RENDELL, Circuit Judge:
Petitioner Gurson Oswald Gourzong, a native of
Jamaica, was found by an immigration judge to be removable
pursuant to Section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii),
because he had been “convicted of an aggravated felony”—
specifically, he had been convicted by a special court-martial
of the United States military of having sexual intercourse with
a person under the age of sixteen. The Board of Immigration
Appeals (“BIA”) affirmed the Immigration Judge’s Order.
Gourzong now seeks review of the BIA’s Order. He contends
that his conviction by a special court-martial does not render
him removable, because convictions by special courts-martial
categorically fall outside the definition of the term
“conviction” found at Section 101(a)(48)(A) of the INA, 8
U.S.C. § 1101(a)(48)(A). That definition provides in pertinent
part that “[t]he term ‘conviction’ means, with respect to an
alien, a formal judgment of guilt of the alien entered by a
court . . . .” Id. Specifically, Gourzong contends that a special
court-martial is not a “court” because there is a possibility
that a special court-martial can convene without a legally
trained judge presiding over it. We agree with the BIA that, as
a general matter, convictions by special courts-martial qualify
as convictions for purposes of the INA. Gourzong is therefore
removable by reason of committing an aggravated felony
within the meaning of the INA, and we thus lack jurisdiction
to review the final Order of Removal. See 8 U.S.C.
§ 1252(a)(2)(C) (“[N]o court shall have jurisdiction to review
any final order of removal against an alien who is removable
by reason of having committed a [covered] criminal offense
. . . .”).
3
I. Background
Gourzong was admitted to the United States as a
lawful permanent resident in 1983. In 1993, after having
joined the United States military, he was convicted by a
special court-martial convened at Camp Pendelton,
California, of having violated Articles 90, 92, and 120 of the
Uniform Code of Military Justice (“UCMJ”), which, at that
time, prohibited, respectively, willfully disobeying a lawful
order, 10 U.S.C. § 890(2), failing to obey a lawful order, id.
§ 892, and, most significantly for present purposes,
“commit[ing] an act of sexual intercourse with a female not
his wife who has not attained the age of sixteen years,” Act of
Jan. 3, 1956, Pub. L. No. 84-460, § 920, 70A Stat. 1, 73
(current version at 10 U.S.C. § 920). The details of
Gourzong’s conviction are sparse. The Administrative Record
reflects that he was represented by counsel in the
proceedings, A.R. 131, and that he pleaded guilty to the
charges, A.R. 128, but reflects nothing specific about the
factual bases for the charges or the composition of the court-
martial. But see infra note 6.
The members of the special court-martial imposed a
sentence of six months confinement, loss of pay, and bad-
conduct discharge. A.R. 129. The convening authority, a
Lieutenant Colonel of the United States Marine Corps,
approved the sentence, but suspended a portion of the
confinement term and withheld executing the bad-conduct
discharge. A.R. 129. The bad-conduct-discharge sentence
was ultimately executed, however, on August 22, 1996, after
the appellate review procedures set forth in Article 71(c) of
the UCMJ, 10 U.S.C. § 871(c), had been satisfied. A.R. 130.
4
The Department of Homeland Security brought
removal proceedings against Gourzong in 2014, alleging that,
because of his conviction by special court-martial, he was
removable for having committed the aggravated felony of
sexual abuse of a minor. A.R. 51. An Immigration Judge
found Gourzong to be removable based both on his
conviction of an aggravated felony and on his conviction of
two or more crimes of moral turpitude—the second
conviction being a 2006 conviction in the Court of Common
Pleas of Delaware County, Pennsylvania, for making
terroristic threats.1 A.R. 51.
Gourzong appealed the Immigration Judge’s Order to
the BIA, arguing that convictions by special courts-martial do
not qualify as “convictions” as defined in § 101(a)(48)(A) the
INA. Cf. 8 U.S.C. § 1101(a)(48)(A) (“The term ‘conviction’
means, with respect to an alien, a formal judgment of guilt of
the alien entered by a court . . . .”). In particular, he focused
his argument on whether a special court-martial is a “court.”
He relied upon language in the BIA’s opinion in Matter of
Rivera-Valencia, 24 I. & N. Dec. 484 (BIA 2008), in which
the BIA, finding that convictions by general courts-martial do
qualify as convictions under the INA, had stated that the term
“court” means “a governmental body consisting of one or
more judges who sit to adjudicate disputes and administer
justice.” See id. at 487 (quoting Black’s Law Dictionary 378
(8th ed. 2004)). Gourzong argued that, because a special
court-martial can, under certain conditions, proceed without a
1
The Immigration Judge’s determination that
Gourzong was convicted of two or more crimes of moral
turpitude is not before us.
5
legally trained judge, a special court-martial is not a “court”
under the INA.
A one-member panel of the BIA, in a non-precedential
opinion, disagreed, finding that the differences between
general and special courts-martial were not significant enough
to warrant a different result from that in Rivera-Valencia. See
A.R. 4-5. The BIA rejected Gourzong’s argument that the
possibility of a lack of a legally trained judge placed
convictions by special courts-martial outside the definition of
“conviction” under the INA. The BIA instead concluded that
special courts-martial were “genuine criminal proceeding[s]”
given the procedural protections afforded to the accused and
the role of special courts-martial in adjudging criminal
penalties under the jurisdiction of the military. A.R. 5
(“Consequently, we fail to find the possibility that a military
judge may not be appointed by the convening authority to a
special court-martial serves to diminish the effect and
undermine the validity of the actions taken by the members of
that adjudicative body, i.e., findings of a formal judgment of
guilt entered in a genuine criminal proceeding pursuant to the
governing laws of the United States Armed Forces, so as to
qualify as a conviction for immigration purposes.”).
Moreover, the BIA found the possibility that a special court-
martial could convene without a military judge to be
mitigated by its rarity, and by the requirements in the Manual
for Courts-Martial that (a) court-martial members be chosen
on the basis of “age, education, training, experience, length of
service, and judicial temperament,” and (b) “unless otherwise
specified, the president of a special court-martial without a
military judge has the same authority and responsibility as a
military judge.” A.R. 5 (quoting Rules for Courts-Martial
6
(“RCM”) § 502(a)(1), 801(a)). Gourzong now seeks review
of the BIA’s Order.
II. Jurisdiction and Standard of Review
The Immigration Judge had jurisdiction over
Gourzong’s removal proceedings under 8 U.S.C. § 1229a.
The BIA had jurisdiction to review the Immigration Judge’s
Order of Removal under 8 C.F.R. §§ 1003.1(b)(3) and
1240.15.
We generally have jurisdiction to review final orders
of removal under 8 U.S.C. § 1252(a)(1), but that jurisdiction
does not extend to review of “any final order of removal
against an alien who is removable by reason of having
committed [an aggravated felony],” id. § 1252(a)(2)(C). We
have jurisdiction to determine whether this “necessary
jurisdiction-stripping fact[]” is present here—that is, we have
jurisdiction to determine whether Gourzong was convicted of
committing an aggravated felony within the meaning of the
INA insofar as it allows us to determine whether we have
jurisdiction over his petition for review. See Borrome v.
Attorney Gen. of U.S., 687 F.3d 150, 154 (3d Cir. 2012).
Because we ultimately conclude that Gourzong was convicted
of committing an aggravated felony within the meaning of the
INA, we lack jurisdiction over his petition for review.
Because the BIA’s written decision in this case was an
unpublished, non-precedential decision issued by a single
BIA member, to the extent it was interpreting statutes, we
will not afford it Chevron deference. Mahn v. Attorney Gen.
of U.S., 767 F.3d 170, 173 (3d Cir. 2014). Instead, those
issues of statutory interpretation, along with other questions
7
of law, will be reviewed de novo. Id. To the extent the single-
member panel was interpreting BIA precedent, the standard
of review is unsettled.2 However, because even under a de
novo standard of review we agree with the single-member
panel’s interpretations, we need not resolve this issue.
III. Analysis
2
We have not decided the extent of deference we
owe—if any—to a single-member panel’s interpretations of
prior BIA precedents (such as the opinion from Rivera-
Valencia). Other courts have adopted varying deferential
standards. Compare Mansour v. Holder, 739 F.3d 412, 414
(8th Cir. 2014) (finding that Auer deference is owed to single-
member BIA panel interpretations of BIA regulations);
Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008)
(“An agency’s interpretation of its own precedents receives
considerable deference—a form of deference that applies in
equal measure to the BIA’s interpretation of its precedents.”
(citations omitted) (citing Auer v. Robbins, 519 U.S. 452, 461
(1997))); Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 131
(2d Cir. 2005) (“The BIA’s determination that [a prior BIA
precedent] does not apply . . . is a reasonable interpretation
that merits deference.” (citing Bowles v. Seminole Rock &
Sand Co., 325 U.S. 410, 414 (1945))), with Lezama-Garcia v.
Holder, 666 F.3d 518, 532 (9th Cir. 2011) (affording a single-
member BIA panel no deference for its interpretations of BIA
regulations).
8
We have never addressed the specific issue of whether
convictions by special courts-martial can qualify as
convictions that can render an alien removable under
§ 237(a)(2)(A)(iii) of the INA. Our resolution of this issue
initially requires consideration of the different types of
courts-martial in the military justice system.
a. Classifications of Courts-Martial
Special courts-martial are one of three classifications
of courts-martial that can try persons subject to the military’s
jurisdiction: summary, special, and general. 10 U.S.C. § 816.
Summary courts-martial have limited jurisdiction and are, as
the name suggests, summary in nature. A summary court-
martial consists of a single commissioned officer, who
presides over the proceedings, represents both the
government and the accused, and makes the ultimate finding
as to the accused’s guilt. See id. § 816; Middendorf v. Henry,
425 U.S. 25, 41 (1976); RCM § 1301(b). A summary court-
martial has jurisdiction only if the accused does not object to
trial by summary court-martial and, regardless, lacks
jurisdiction to try “officers, cadets, aviation cadets, and
midshipmen.” 10 U.S.C. § 820. Although summary courts-
martial may try persons for any noncapital offenses under the
UCMJ, they may not impose “death, dismissal, dishonorable
or bad-conduct discharge, confinement for more than one
month, hard-labor without confinement for more than 45
days, restriction to specified limits for more than two months,
or forfeiture of more than two-thirds of one month’s pay.” Id.
Given their limited jurisdiction and summary nature,
convictions by summary courts-martial are not necessarily
given weight outside the military justice system. For example,
convictions by summary courts-martial are not counted when
9
determining a defendant’s criminal history under the U.S.
Sentencing Guidelines. U.S.S.G. § 4A1.2(g). Furthermore,
the Supreme Court has determined that summary courts-
martial are not “criminal prosecution[s]” for purposes of the
Sixth Amendment’s right to counsel. See Middendorf, 425
U.S. at 42.
General courts-martial are the classification of courts-
martial with the authority to impose the most severe
punishments. General courts-martial consist of either “a
military judge and not less than five members” or, if the
accused so requests, “only a military judge,” 10 U.S.C.
§ 816(1), and “have jurisdiction to try persons . . . for any
offense made punishable [under the UCMJ] and may, under
such limitations as the President may prescribe, adjudge any
punishment not forbidden by this chapter, including the
penalty of death . . . .” Id. § 818(a). Courts are in wide
agreement that convictions by general courts-martial receive
the weight of equivalent convictions in the civilian system.
See, e.g., United States v. Shaffer, 807 F.3d 943, 948 (8th Cir.
2015) (“[W]e hold that Shaffer’s conviction by general court-
martial is a conviction in ‘a court of the United States’ within
18 U.S.C. § 3559(c).”); United States v. Grant, 753 F.3d 480,
484-85 (4th Cir. 2014) (holding that a conviction by a general
court-martial can qualify as the predicate offense under the
Armed Career Criminal Act); United States v. Martinez, 122
F.3d 421, 424 (7th Cir. 1997) (holding that convictions by
general courts-martial can serve as the predicate felonies for
the felon-in-possession firearm prohibition at 18 U.S.C.
§ 922(g)(1)); United States v. MacDonald, 992 F.2d 967, 970
(9th Cir. 1993) (“We hold that a general court-martial is a
‘court’ within the meaning of 18 U.S.C. § 922(g)(1) and a
conviction, such as MacDonald’s, for which an individual is
10
punishable for a term exceeding one year, amounts to a
‘crime’ for purposes of § 922(g)(1).”); Rivera-Valencia, 24 I.
& N. Dec. at 486-89 (holding that convictions by general
courts-martial qualify as convictions under § 237 of the INA);
see also U.S.S.G. § 4A1.2(g) (“Sentences resulting from
military offenses are counted if imposed by a general or
special court-martial.”). Relatedly, the Double Jeopardy
Clause bars federal prosecution for an offense previously
tried before a general court-martial. See Shaffer, 807 F.3d at
946-47 (“[C]ourt-martial conviction is a bar to successive
federal prosecution.”); United States v. Stoltz, 720 F.3d 1127,
1129 (9th Cir. 2013) (“If a servicemember is tried by general
or special courtmartial, the Double Jeopardy Clause of the
Fifth Amendment bars a subsequent civilian prosecution for
the same offense.”).
Special courts-martial, which are at issue here, are
similar to general courts-martial in their general jurisdiction,
but they differ with respect to the penalties that can be
imposed and with respect to their composition. They have
“jurisdiction to try persons . . . for any noncapital offense
made punishable by [the UCMJ] and, under such regulations
as the President may prescribe, for capital offenses.” 10
U.S.C. § 819. However, they may not impose the penalties of
“death, dishonorable discharge, dismissal, confinement for
more than one year, hard labor without confinement for more
than three months, forfeiture of pay exceeding two-thirds pay
per month, or forfeiture of pay for more than one year.” Id.3
3
Although not material to our analysis, this current
version of 10 U.S.C. § 819 differs slightly from the version in
effect on the date of Gourzong’s conviction. At the time of
his conviction, a special court-martial could not impose
11
Special courts-martial consist of either (a) “not less than three
members”; (b) “a military judge and not less than three
members;” or (c) only a military judge if the accused so
requests. 10 U.S.C. § 816(2). Moreover:
A bad-conduct discharge, confinement for more
than six months, or forfeiture of pay for more
than six months may not be adjudged unless a
complete record of the proceedings and
testimony has been made, counsel . . . was
detailed to represent the accused, and a military
judge was detailed to the trial, except in any
case in which a military judge could not be
detailed to the trial because of physical
conditions or military exigencies. In any such
case in which a military judge was not detailed
to the trial, the convening authority shall make a
detailed written statement, to be appended to the
record, stating the reason or reasons a military
judge could not be detailed.
Id. § 819. Notably, convictions by special courts-martial, like
convictions by general courts-martial, are counted when
determining a defendant’s criminal history under the U.S.
Sentencing Guidelines. U.S.S.G. § 4A1.2(g) (“Sentences
resulting from military offenses are counted if imposed by a
confinement of more than six months or forfeiture of pay for
more than six months. See National Defense Authorization
Act for Fiscal Year 2000, Pub. L. No. 106-65, § 577, 113
Stat. 512, 625 (1999). Under the amended statute, the
penalties of confinement and forfeiture of pay can extend up
to one year. Id.
12
general or special court-martial.”). Moreover, as the Ninth
Circuit Court of Appeals has noted, “[i]t is also well settled
that a general or special court-martial precludes a subsequent
civilian criminal prosecution for the same offense.” Stoltz,
720 F.3d at 1128.
b. Section 101(a)(48)(A) of the INA
Since we must determine whether Gourzong was
convicted of an aggravated felony, we consider the issue of
first impression: whether judgments of guilt by special courts-
martial are “convictions” under § 237(a)(2)(A)(iii) of the
INA. We have previously addressed what “factors may be
relevant in deciding whether a finding of guilt constitutes a
conviction” under § 101(a)(48)(A) of the INA. See Castillo v.
Attorney Gen. U.S., 729 F.3d 296, 305 (3d Cir. 2013). In
Castillo, the petitioner had been charged with removability
under § 237(a)(2)(A)(ii) of the INA, which, like
§ 237(a)(2)(A)(iii), requires a showing that an alien has been
“convicted” of a crime. Castillo, 729 F.3d at 298. The
petitioner contended that his conviction for shoplifting by a
municipal court was not a conviction purposes of the INA
because he had been convicted only of a “disorderly persons
offense” under New Jersey law—that is, a petty offense for
which he had no right to trial by jury or indictment by a grand
jury. Id. at 299. Setting aside whether the disorderly persons
offense constituted a “crime” under the pertinent part of the
INA, we examined what characteristics of a proceeding bring
its convictions under the definition of “conviction” in
§ 101(a)(48)(A) of the INA. See Castillo, 729 F.3d at 302 n.1
(leaving open the question “conviction of what[?]” for
remand). In so doing, we rejected a narrow approach that
looked only to a single factor—namely, whether the
13
conviction required proof of each element beyond a
reasonable doubt4—and, instead, adopted an “open-ended
inquiry” as to whether the judgment of guilt was “entered in a
. . . genuine criminal proceeding.” See id. at 307. We pointed
to several relevant factors, “including how the prosecuting
jurisdiction characterized the offense at issue, the
consequences of a finding of guilt, and the rights available to
the accused as well as any other characteristics of the
proceeding itself.” Id.
The single-member panel of the BIA in this case
applied this open-ended approach in determining whether a
conviction by special court-martial can be a “conviction”
under § 101(a)(48)(a). In so doing, the BIA relied heavily
upon the BIA’s precedential opinion in Matter of Rivera-
Valencia. In Rivera-Valencia, the BIA found, after analyzing
the characteristics of general courts-martial and the
procedural protections they offer, that a general court-martial
is a “‘genuine criminal proceeding’, that is, a proceeding that
is ‘criminal in nature under the governing laws of the
prosecuting jurisdiction.’” 24 I. & N. Dec. at 486-87 (quoting
Matter of Eslamizar, 23 I. & N. Dec. 684, 688 (BIA 2004));
see also Castillo, 729 F.3d at 308 (citing Rivera-Valencia
approvingly). The BIA here found that “the differences
between a general court-martial[] and a special court-martial
4
As we noted in Castillo, that each element must be
proven beyond a reasonable doubt is a necessary but not
sufficient condition for a proceeding to qualify as a “genuine
criminal proceeding.” Id. at 307. A decision maker must
undertake an “open-ended inquiry” of the other characteristics
of the proceeding to determine if it qualifies as a “genuine
criminal proceeding.” Id.
14
are not so significant so as to warrant a different result” from
that in Rivera-Valencia. See A.R. 4-5. The BIA here noted
that a judgment of guilt under a special court-martial, as
under a general court-martial, must be found beyond a
reasonable doubt, and that accused persons before a special
court-martial have the right against compulsory self-
incrimination, the right to representation by counsel at public
expense, and the right to call witnesses and present evidence.
See id. We agree with the BIA’s conclusion that convictions
by special courts-martial are, as a general matter, convictions
within the meaning of § 101(a)(48)(A).5
5
We note that factors beyond those cited by the BIA
below buttress the conclusion that special courts-martial are,
as a general matter, “genuine criminal proceeding[s].” See
Castillo, 729 F.3d at 307; see also Middendorf, 425 U.S. at 31
(“General and special courts-martial resemble judicial
proceedings . . . .”). The offenses triable by special court-
martial include every noncapital offense triable by general
court-martial, and are characterized by the military (through
federal statute) as “punitive”—i.e., criminal—offenses. See
10 U.S.C. § 819 (special courts-martial have jurisdiction to
try “any noncapital offense made punishable by [the
UCMJ]”); 10 U.S.C. § 866 (providing for review of certain
sentences by a “Court of Criminal Appeals” (emphasis
added)); Act of Aug. 10, 1956, Pub. L. No. 84-391, 70A Stat.
1, 64 (codified at 10 U.S.C § 877 et seq.) (titling the
subchapter “Punitive Articles”). Also, even though the
consequences of a finding of guilt by a special court-martial
differ in degree from those that can be imposed by a general
court-martial, they can include (at the time of Gourzong’s
conviction) up to six months’ confinement and severe
15
Gourzong notes that the BIA did not acknowledge or
refer to Rivera-Valencia’s view as to the ordinary meaning of
the word “court” as “a governmental body consisting of one
or more judges who sit to adjudicate disputes and administer
justice,” 24 I. & N. Dec. at 487, and urges that the BIA thus
improperly departed from precedent without explanation. Cf.
Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002)
(“Although an agency can change or adapt its policies, it acts
arbitrarily if it departs from its established precedents without
announcing a principled reason for the departure.” (internal
quotation marks omitted)). He urges, further, that Rivera-
Valencia’s view as to the meaning of “court” controls here
and that, because of the possibility that a special court-martial
can convene without a legally trained judge, we must
therefore grant his petition for review.
We disagree. First, Rivera-Valencia was not so
limited. The BIA in Rivera-Valencia offered its view as to
what constitutes a “court” in the context of rejecting an
argument, similar to the one made here, that sought to cut
through the open-ended inquiry and focus instead on a limited
understanding of the word “court.” It is not clear that this
discussion was necessary to the BIA’s conclusion that
convictions by general courts-martial meet the definition in
§ 101(a)(48)(A). See Rivera-Valencia, 24 I. & N. Dec. at 488
(“[T]his Board has from its earliest days considered
judgments entered by courts-martial, both domestic and
foreign, to be valid ‘convictions’ for immigration purposes.
We see nothing in the language of section 101(a)(48)(A) that
would lead us to conclude that Congress intended to modify
financial penalties—penalties prototypical of those imposed
by criminal courts. See 10 U.S.C. § 819.
16
this historical understanding by limiting the term ‘court’ to
those organized under Article III of the Constitution or its
counterparts under State law.” (citations omitted)). More
fundamentally, though, the BIA’s view in Rivera-Valencia
that a court is “a governmental body consisting of one or
more judges who sit to adjudicate disputes and administer
justice,” id. at 487 (alterations omitted), does not resolve the
question here of whether special courts-martial are, as a
general matter, courts—after all, a typical special court-
martial is presided over by a military judge, and all special
courts-martial “sit to adjudicate disputes and administer
justice.” 6 Even in the instances when special courts-martial
6
A study of the record and the UCMJ reveals that
Gourzong’s court-martial more than likely was presided over
by a military judge given that he was adjudged a bad conduct
discharge that was approved and eventually executed. See 10
U.S.C. § 819 (“A bad-conduct discharge . . . may not be
adjudged unless . . . a military judge was detailed to the trial,
except in any case in which a military judge could not be
detailed to the trial because of physical conditions or military
exigencies.”). It is unlikely that “physical conditions or
military exigencies” prevented the detailing of a military
judge to Camp Pendelton, California, see A.R. 128, and,
besides, there is no “detailed written statement . . . appended
to the record, stating the reason or reasons a military judge
could not be detailed,” 10 U.S.C. § 819.
Notably, the bad conduct discharge was not executed
immediately by the convening authority because it first had to
meet the requirements of Article 71(c) of the UCMJ, see A.R.
130, which provides that the bad conduct discharge cannot
“be executed until there is a final judgment as to the legality
of the proceedings . . . .” 10 U.S.C. § 871(c)(1). “A judgment
17
lack a military judge, they have a president with, in general,
“the same authority and responsibility as a military judge,” as
the single-member panel of the BIA noted below. See A.R. 5
(quoting RCM 801(a)).
More importantly, however, the BIA correctly
identified several characteristics of special courts-martial that
compel finding that they, like general courts-martial, are
typically “genuine criminal proceedings.” See A.R. 4-5
(finding that “the differences between a general court-
martial[] and a special court-martial are not so significant so
as to warrant a different result” from that in Rivera-Valencia).
Gourzong’s argument fails because its focus on a single factor
contravenes the open-ended approach we adopted in Castillo
and that was actually applied by the BIA in Rivera-Valencia.
In Castillo, we were examining how to determine if the
definition of “conviction” found at § 101(a)(48)(A) of the
INA has been met—that is, how to determine whether “a
formal judgment of guilt [was] entered by a court.” We
determined that the correct analysis for determining whether
there was a “formal judgment of guilt . . . entered by a court”
is to conduct an open-ended inquiry into whether the finding
of guilt came in a “genuine criminal proceeding.” Castillo,
729 F.3d at 306-07. Thus, we are satisfied that special courts-
martial are, as a general matter, courts, given the
characteristics of their proceedings as examined under our
as to legality of the proceedings is final in such cases when
review is completed by a Court of Criminal Appeals,” unless
appellate review was waived or the appeal withdrawn. Id.
This procedural protection via appellate review reaffirms our
confidence that Gourzong’s conviction by special court-
martial qualifies as a conviction under § 101(a)(48)(A).
18
open inquiry: the manner in which the military (as authorized
by Congress) characterizes them, the consequences of a
finding of guilt, the rights available to the accused, and the
other characteristics of the proceedings. These are the same
factors that the BIA looked to in Rivera-Valencia, and the
same ones applied by the BIA below. See Rivera-Valencia, 24
I. & N. Dec. at 487-89 (finding that proceedings before
general courts-martial are “genuine criminal proceeding[s]”
because, among other factors, convictions by general courts-
martial are characterized as “criminal” by the laws of the
United States military, because general courts-martial have
the authority to “finally determine any case over which they
have jurisdiction,” and because general courts-martial offer
significant procedural protections offered to the accused). We
therefore find that the single-member panel of the BIA
correctly concluded that Gourzong was convicted of an
aggravated felony within the meaning of the definition of
“conviction” in § 101(a)(48)(A) of the INA.7
7
We do not foreclose the possibility that an alien
could demonstrate that his or her particular special court-
martial lacked many of the characteristics of a “genuine
criminal proceeding” under the open-ended inquiry such that
his or her specific judgment of guilt by a special court martial
should not be considered to be a “conviction” under
§ 101(a)(48)(A) of the INA. Gourzong, however, has made
no showing that his special court-martial lacked any of the
factors that we have deemed relevant under the open-ended
inquiry, such as “how the prosecuting jurisdiction
characterized the offense at issue, the consequences of a
finding of guilt, and the rights available to the accused as well
as any other characteristics of the proceeding itself.” Cf.
Castillo, 729 F.3d at 307.
19
IV. Conclusion
Because we agree with the BIA that convictions by
special courts-martial are, as a general matter, convictions for
purposes of § 101(a)(48)(A) of the INA, we conclude that we
lack jurisdiction over Gourzong’s petition for review. See 8
U.S.C. § 1252(a)(2)(C) (“[N]o court shall have jurisdiction to
review any final order of removal against an alien who is
removable by reason of having committed a [covered]
criminal offense.”). We will therefore dismiss his petition for
review.8
8
The panel wishes to express its thanks to the
Shagin Law Group and Craig R. Shagin, Esquire, for
agreeing to serve as pro bono counsel and for their
excellent advocacy on behalf of Mr. Gourzong.
20
Gourzong v. Attorney General of the United States, No.
15-2645, dissenting.
COWEN, Circuit Judge.
Gourzong was not “convicted of an aggravated felony
within the meaning of the definition of ‘conviction’ in §
101(a)(48)(A) of the INA.” (Maj. Op. at 19.) This statutory
definition incorporates two basic requirements: (1) “a formal
judgment of guilt” of the alien—(2) entered by a “court.”
Regardless of whether or not Gourzong’s special court-
martial satisfied the first requirement (a question I need not—
and do not—decide), it clearly did not meet the second
requirement under the BIA’s own precedential interpretation
of the term “court.” Simply put, a special court-martial does
not constitute “a governmental body consisting of one or
more judges who sit to adjudicate disputes and administer
justice” where—in place of a legally trained and certified
military judge detailed by an assigned military judge and
ultimately answerable to the Judge Advocate General—an
active duty member of the United States Armed Forces, who
is chosen by the convening authority, returns to his or her
regular military duties once the proceeding is concluded, and
need not (and most likely would not) possess any legal or
judicial training or experience, presides over the special
court-martial. Accordingly, I must respectfully dissent.
The majority does not mention the government’s
history of changing its positions throughout the course of this
immigration proceeding—or its failure to brief the merits of
Gourzong’s petition for review when it should have. After
Gourzong appealed to the BIA, the government requested
summary affirmance, asserting that the issues on appeal were
squarely controlled by existing precedent, did not involve the
application of precedent to novel facts, and were not so
substantial as to warrant a written opinion. It asked in the
alternative for affirmance in a brief one-member decision, and
the BIA actually dismissed the administrative appeal in such a
non-precedential fashion. Nevertheless, the government, in
lieu of filing a brief on the merits, then asked this Court to
remand for the BIA “to further consider its finding that a
special court-martial, with or without a military judge present,
satisfies the conventional definition of a ‘court’ such that a
conviction by special court-martial, regardless of whether a
military judge is present, qualifies as a conviction under the
[INA]” and to determine whether there was any evidence in
the record indicating that a military judge was not present
(Respondent’s Motion to Remand at 1). See, e.g., Borrome v.
Attorney General, 687 F.3d 150, 156 n.4 (3d Cir. 2012)
(“Now the Government is singing a different tune. . . . The
BIA had the opportunity to consider the issues and, at the
Government’s insistence, chose not to do so.”). The Court
ordered the government to brief the merits, but the
government’s cursory brief merely reiterates the same
arguments for remand it had set forth in the motion.
Threatened with sanctions (and represented by new counsel),
the government finally submitted a real merits brief. In this
second brief, the government drastically changes its whole
approach by withdrawing the remand requests and by
indicating that the Court need not even consider Chevron
deference principles, even though the government had
emphasized this doctrine in its earlier submissions. While I
appreciate the apologies offered by the Department of
2
Justice’s attorney, I remain troubled by the government’s
conduct in this case.
This matter, in turn, should be decided based on the
administrative record now before the Court, i.e., on the basis
of a special court-martial conducted without a military judge.
The majority may well be correct that a military judge is
typically detailed to preside over a special court-martial.
Nevertheless, we should still focus on what the government
has shown actually happened in Gourzong’s own special
court-martial—and not what usually happens in such
proceedings either now or when his court-martial convened in
November of 1993 and January of 1994. Simply put, I do not
believe that the government has established that any military
judge was detailed to preside over a special court-martial that
occurred more than twenty years ago. The rather meager
record contained no clear references to a military judge. In
fact, the IJ relied on his own personal experience as a former
special court-martial judge to opine on the record that a
military judge was detailed here. As Gourzong’s able pro
bono counsel explains, “[t]he IJ, far from requiring DHS to
prove by clear, convincing and unambiguous evidence each
and every element necessary to support an order of
deportation, Woodby v. INS, 385 U.S. 276, 286 (1966),
merely assumed evidence not in the record and for which
petitioner had no means to rebut.” (Petitioner’s Brief at 5.)
As the government likewise notes, “the Board held that a
conviction by special court-martial, with or without a military
judge present, qualifies as a conviction by a ‘court’ under the
INA.” (Respondent’s First Brief at 8 (emphasis added)
(citing AR4-AR5).)
3
The majority places particular emphasis on this
Court’s ruling in Castillo v. Attorney General, 729 F.3d 296
(3d Cir. 2013), and the open-ended notion of a “genuine
criminal proceeding.” However, § 101(a)(48)(A) actually
defines “a conviction” as, inter alia, “a formal judgment of
guilt of the alien entered by a court” (or, if adjudication has
been withheld, where (1) “a judge” or jury has found the alien
guilty or the alien has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to warrant a
finding of guilt, and (2) “the judge” has ordered some form of
punishment, penalty, or restraint). The “genuine criminal
proceeding” approach represents an interpretation of the
“formal judgment of guilt” requirement—not the “court”
requirement. The BIA specifically explained that “‘a far
more sensible reading of the statute exists: namely, that by
“judgment of guilt” Congress most likely intended to refer to
a judgment in a criminal proceeding.’” Id. at 304 (quoting In
re Eslamizar, 23 I. & N. Dec. 684, 687 (BIA 2004) (en
banc)). Our ruling in Castillo likewise did not specifically
address this “court” language. On the contrary, we assumed
that the New Jersey Municipal Court constituted a “court”
under the terms of the immigration statute. In fact, we
repeatedly referred to a “court” throughout our discussion of
BIA case law and the “genuine criminal proceeding”
approach. See, e.g., id. at 307 (“However, this does not mean
that a judgment was entered in a true or genuine criminal
proceeding—and therefore constituted a conviction pursuant
to § 1101(a)(48)(A)—merely because a court entered a
formal judgment of guilt under the requisite ‘reasonable
doubt’ standard of proof and imposed a form of punishment.”
(emphasis added)). In its precedential decision in In re
4
Rivera-Valencia, 24 I. & N. Dec. 484 (BIA 2008), the BIA
expressly distinguished the “genuine criminal proceeding”
inquiry from the question of “whether that adjudication of
guilt was entered by a ‘court,’” id. at 487.1 As the IJ
recognized in the current proceeding, “[t]he Board broke its
analysis down into the two requirements under 101(a)(48)(A):
(1) a formal judgment of guilt of the alien; (2) entered by a
court.” (AR52 (citing Rivera-Valencia, 24 I. & N. Dec. at
486-88).)
Given the statutory language as well as the existing
case law, the BIA’s ruling in this case should not be upheld
merely because we may agree that, like general courts-
martial, special courts-martial “are typically ‘genuine
criminal proceedings.’” (Maj. Op. at 18 (citing AR4-AR5).)
In other words, it is not enough to point out that the
prosecution must establish guilt beyond a reasonable doubt or
highlight the various rights possessed by the accused in a
special court-martial proceeding. In fact, such an approach
would render superfluous the statutory “court” language.
See, e.g., United States v. Cooper, 396 F.3d 308, 312 (3d Cir.
2005) (“It is a well known canon of statutory construction
that courts should construe statutory language to avoid
interpretations that would render any phrase superfluous.”
(citing TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001))).
Just as it purported to define “a formal judgment of
1
In Castillo, we omitted from our discussion of Rivera-
Valencia the BIA’s own interpretation of the term “court.” See
Castillo, 729 F.3d at 308.
5
guilt” as a judgment entered in a genuine criminal
proceeding, see, e.g. Castillo, 729 F.3d at 302-311 (reviewing
BIA case law beginning with Eslamizar), the agency adopted
its own definition of a “court” in Rivera-Valencia.
Recognizing that the INA “does not define the term ‘court,’”
the BIA gave “the word its ordinary, contemporary, and
common meaning: ‘[a] governmental body consisting of one
or more judges who sit to adjudicate disputes and administer
justice.’” Rivera-Valencia, 24 I. & N. Dec. at 487 (quoting
Black’s Law Dictionary 378 (8th ed. 2004)).). Determining
that a general court-martial satisfied this conventional
definition, the BIA observed, inter alia, that a military judge
presides over each general court-martial. Id. It specifically
noted that “[a] military judge must be a member of a Federal
or State bar whose qualifications for judicial duty have been
certified by the Judge Advocate General for his or her
particular branch of the service.” Id. at 488 n.3 (citing 10
U.S.C. § 826(b)). In its non-precedential disposition
dismissing Gourzong’s administrative appeal, the BIA did not
even mention this definition—which, in contrast, was set
forth in a precedential agency decision. An administrative
agency acts arbitrarily if it departs from an established
precedent without providing a principled reason for its
departure. See, e.g., Johnson v. Ashcroft, 286 F.3d 696, 700
(3d Cir. 2002). The majority attempts to minimize this
definition by indicating that it may have been dicta offered in
the context of rejecting an argument “that sought to cut
through the open-ended inquiry and focus instead on a limited
understanding of the word ‘court.’” (Maj. Op. at 16.)
However, I have already explained why I believe this “open-
ended inquiry” really implicates the “formal judgment of
6
guilt” requirement. Exercising its expertise in matters of
immigration law, the BIA clearly—and appropriately—noted
that the INA does not define the meaning of the term “court,”
adopted the “ordinary, contemporary, common meaning” of
this term, and then applied this general definition in the
context of a general court-martial (which, according to the
BIA as well as the majority, shares several similarities with a
special court-martial). See, e.g., Castillo, 729 F.3d at 302
(“‘On the other hand, “if the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.”’” (quoting Acosta v. Ashcroft,
341 F.3d 218, 222 (3d Cir. 2003))). I fail to see why the
agency (or this Court) should not apply the same definition
here.2
A special court-martial clearly does not constitute “a
governmental body consisting of one or more judges who sit
to adjudicate disputes and administer justice” where a special
court-martial member presides in place of a military judge.
The majority asserts that, “[e]ven in the instances when
special courts-martial lack a military judge, they have a
president with, in general, ‘the same authority and
responsibility as a military judge,’ as the single-member panel
of the BIA noted below.” (Maj. Op. at 17-18 (quoting AR5).)
2
The majority observes that we have yet to decide whether
Auer deference should be accorded to a single-member’s
interpretation of prior BIA precedent. I note that the government
does not invoke this specific doctrine (and, on the contrary,
indicates in its second brief that we need not even consider the
Chevron doctrine).
7
However, as Gourzong explains in some detail, the president
of a special court-martial is no real substitute for a military
judge.
On the one hand, military judges (as the BIA
specifically noted in Rivera-Valencia) are licensed attorneys
certified for judicial duty by the respective Judge Advocate
General. Rivera-Valencia, 24 I. & N. Dec. at 488 n.3. “The
military judge of a general court-martial shall be designated
by the Judge Advocate General, or his designee, of the armed
force of which the military judge is a member for detail in
accordance with regulations.” 10 U.S.C. § 826(c). Pursuant
to the Manual for Courts-Martial, a military judge is detailed
“by a person assigned as a military judge and directly
responsible to the Judge Advocate General or the Judge
Advocate General’s designee.” R.C.M. § 503(b)(1). A
commissioned officer certified as qualified for duty as a
military judge of a general court-martial “may perform such
duties only when he is assigned and directly responsible to
the Judge Advocate General, or his designee” and may
perform other duties as assigned by or with the approval of
the Judge Advocate General (or designee). 10 U.S.C. §
826(c). The military judge may be changed by an authority
competent to detail the military judge without cause before
the court-martial is assembled or, after assembly, on account
of disqualification or for good cause shown. R.C.M. §
505(e). “The convening authority may not prepare or review
any report concerning the effectiveness, fitness, or efficiency
of a military judge detailed to a special court-martial which
relates to the performance of duty as a military judge.”
R.C.M. § 104(b)(2)(B); see also id. (stating that when military
8
judge is normally rated or the military judge’s report is
reviewed by convening authority, manner in which such
military judge will be rated or evaluated upon performance of
duty as military judge may be prescribed in regulations which
shall ensure absence of command influence); 10 U.S.C. §
826(c) (stating that, unless court-martial was convened by
President or respective Secretary, convening authority is
prohibited from preparing or reviewing any report on
effectiveness, fitness, or efficiency of detailed military judge
relating to performance as military judge). In the end, the
respective Judge Advocate General has responsibility for the
professional supervision of military judges. See, e.g., R.C.M.
§ 109(a).
On the other hand, the court-martial members are
either active duty commissioned officers, warrant officers, or
enlisted persons. R.C.M. § 502(a)(1). They are detailed by
“the convening authority” as, “in his opinion are best
qualified for the duty by reason of age, education, training,
experience, length of service, and judicial temperament.” 10
U.S.C. § 825(d)(2). While the convening authority is
prohibited from considering or evaluating the members’
performance of duty as a court-martial member in the
preparation of an effectiveness, fitness, or efficiency report or
any other document used to determine advancements,
transfer, or retention, R.C.M. § 104(b)(1), the convening
authority may, before the court-martial is assembled, change
the members without showing cause (and delegate to the staff
judge advocate, legal officer, or other principal assistant to
the convening authority the power to excuse a certain number
of members without cause), R.C.M. § 505(c)(1)(A), (B).
9
After assembly, the convening authority may excuse
members for good cause shown on the record. R.C.M. §
505(c)(2)(A)(i). In turn, the highest-ranking member of the
special court-martial serves as its president. R.C.M. §
502(b)(1).
Without impugning his or her intelligence, experience,
or impartiality, it is clear that the president of a special court-
martial would typically lack the legal (and judicial) training
and experience possessed by a military judge. After all,
would a logistics officer (Gourzong was assigned to a motor
transport battalion) really have any experience or knowledge
dealing with the sorts of legal issues that judges are regularly
expected to decide, such as evidentiary issues? Likewise, a
military judge is in large part insulated from the regular
command structure insofar as he or she is specifically
certified for judicial duties by the Judge Advocate General, is
detailed by an assigned military judge, and is ultimately
answerable to the Judge Advocate General. However, the
president and the other special court-martial members are
active duty officers and enlisted persons specifically chosen
by the convening authority—who even makes this choice
based on the authority’s own assessment of their respective
qualifications. Even if they attempt to remain impartial,
could such members—who return to their regular military
duties once the special court-martial is concluded—really be
10
compared to professional and independent judicial officers?3
Accordingly, I would grant the petition for review.
3
I further note that the other members of the special court-
martial can object to the president’s rulings on interlocutory
questions of fact, and the president is authorized to consult with his
or her fellow members before making a decision on such matters.
R.C.M. § 801(e)(2)(B), (3)(D). The president, in turn, deliberates
with the other special court-martial members to determine whether
the accused is proved guilty. R.C.M. § 502(a)(2). Accordingly, a
court-martial president actually appears to represent a sort of
amalgamation of a civilian judge and jury foreperson. Like their
civilian counterparts (who do not participate in jury deliberations),
military judges do not vote with the court-martial members and are
prohibited from consulting with the members except in the
presence of the accused and respective counsel. 10 U.S.C. §
826(c). Likewise, their legal and interlocutory rulings are not
subject to member review. R.C.M. § 801(e)(1)(A).
11