Gourzong v. Attorney Gen. U.S.

• Decision Date: 14 June 2016
• Docket Number: No. 15-2645,15-2645
• Citation: 826 F.3d 132
• Parties: Gurson Oswald Gourzong, Petitioner v. Attorney General United States of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

826 F.3d 132

Gurson Oswald Gourzong, Petitioner

v.Attorney General United States of America, Respondent

No. 15-2645

United States Court of Appeals, Third Circuit.

Argued on April 7, 2016

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

Before: FISHER, RENDELL, and COWEN, Circuit Judges

OPINION

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 ....”).

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.

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 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 (“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 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

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...