Deportation based on special court-martial conviction

Thanks to this report from the Courthouse News Service, we have news of Gourzong v. Attorney General, an interesting 2-1 June 14, 2016 decision of the U.S. Court of Appeals for the Third Circuit. In what it described as a case of first impression, the court held that a special court-martial conviction is a conviction under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act, and that it therefore lacked appellate jurisdiction. In a footnote, the court left open 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 so as not to be considered a "conviction." These factors might include "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."

The heart of the case, according to Senior Judge Robert E. Cowen, dissenting, was the possibility that the petitioner's 1993-94 special court-martial at Camp Pendleton was not presided over by a military judge. It is baffling that this was not pinned down in the course of the agency proceedings, but it seems not to have been. Judge Cowen would hold that such a court is not a court for INA purposes. The majority is content to rely (as the immigration judge did based on his own active duty experience as a military judge) that the court-martial at issue was "more than likely" in fact presided over by a military judge.

Judge Cowen's dissent concludes:

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 ([Gurson Oswald] 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 compared to professional and independent judicial officers? [Footnote omitted.]