Matter of Rivera-Valencia
| Decision Date | 02 April 2008 |
| Docket Number | Interim Decision No. 3607.,File A43 643 008. |
| Citation | 24 I&N Dec. 484 |
| Parties | Matter of Juan Carlos RIVERA-VALENCIA, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated September 13, 2007, an Immigration Judge sustained the charges of deportability against the respondent and ordered him removed from the United States. The respondent has appealed from that decision. The Department of Homeland Security opposes the appeal. The appeal will be dismissed.
The respondent is a native and citizen of El Salvador and a lawful permanent resident of the United States. On February 14, 1997, he was convicted by a general court-martial in Fort Bliss, Texas, of "carnal knowledge" in violation of Article 120(b) of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 920(b) (Supp. II 1996).1 In 1996, when the respondent committed his offense, Article 120 of the UCMJ provided as follows, in pertinent part:
Rape and carnal knowledge
. . . .
(b) Any person subject to this chapter who, under circumstances not amounting to rape, commits an act of sexual intercourse with a person—
(1) who is not that person's spouse; and
(2) who has not attained the age of sixteen years;
is guilty of carnal knowledge and shall be punished as a court-martial may direct.
. . . .
(d) (1) In a prosecution under subsection (b), it is an affirmative defense that—
(A) the person with whom the accused committed the act of sexual intercourse had at the time of the alleged offense attained the age of twelve years; and
(B) the accused reasonably believed that that person had at the time of the alleged offense attained the age of sixteen years.
(2) The accused has the burden of proving a defense under paragraph (1) by a preponderance of the evidence.
Removal proceedings ensued, and in September 2007 the Immigration Judge determined that the respondent's conviction by court-martial rendered him deportable from the United States as an alien "convicted" of a crime involving moral turpitude, an aggravated felony, and a crime of child abuse. Sections 237(a)(2)(A)(i), (iii), (E)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(i), (iii), (E)(i) (2000). In particular, the Immigration Judge concluded that the respondent's carnal knowledge offense constituted "sexual abuse of a minor," an aggravated felony under section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2000), that precluded him from qualifying for most forms of relief from removal.
On appeal, the respondent does not challenge the Immigration Judge's denial of his applications for relief. Nor does he dispute that the elements of the offense defined by Article 120(b) of the UCMJ are sufficient to support the charges of deportability. Instead, he asserts that the removal proceedings must be terminated because a judgment of guilt entered by a general court-martial does not qualify as a "conviction" for immigration purposes. In the alternative, the respondent argues that his particular court-martial conviction should not be recognized as a basis for removal because the Armed Forces did not inform him of his right to consular notification under Article 36 of the Vienna Convention on Consular Relations and Optional Protocol on Disputes, opened for signature Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261, available at 1969 WL 97928 ("Vienna Convention").
The principal issue on appeal is whether a judgment of guilt of an alien, entered by a general court-martial of the United States Armed Forces, qualifies as a "conviction" within the meaning of the Immigration and Nationality Act.
As noted previously, the Immigration Judge determined that the respondent is removable under three separate grounds of deportability, each of which required proof by clear and convincing evidence that the respondent had been "convicted" of a crime. The term "conviction" is defined by section 101(a)(48)(A) of the Act, which states as follows:
The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where—
(i) 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
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
Section 101(a)(48)(A) was enacted pursuant to section 322(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 (effective Apr. 1, 1997) ("IIRIRA"), and applies to "convictions . . . entered before, on, or after" IIRIRA's enactment date. IIRIRA § 322(c), 110 Stat. at 3009-629; see also Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004).
Whether a judgment of guilt entered by a general court-martial is encompassed by the language of section 101(a)(48)(A) of the Act is a question of statutory interpretation that we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2007). In conducting such review, the touchstone of our analysis is the plain language of the statute. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). The plain language of section 101(a)(48)(A) defines a "conviction" in part as "a formal judgment of guilt of the alien entered by a court." Furthermore, a court's formal judgment of "guilt" falls within the language of section 101(a)(48)(A) so long as it was entered in a "genuine criminal proceeding," that is, a proceeding that is "criminal in nature under the governing laws of the prosecuting jurisdiction." Matter of Eslamizar, 23 I&N Dec. 684, 688 (BIA 2004).
There is no dispute that a general court-martial is a "criminal" proceeding under the governing laws of the United States Armed Forces, and the respondent's general court-martial unquestionably resulted in the entry of a formal judgment of his "guilt" beyond a reasonable doubt. UCMJ Art. 51(c), 10 U.S.C. § 851(c) (2000); United States v. Verdi, 5 M.J. 330, 335 (C.M.A.1978) (citing In re Winship, 397 U.S. 358 (1970)). Furthermore, because the respondent was a Specialist in the United States Army at the time of his court-martial, he was subject to the constitutional jurisdiction of the military justice system. Solorio v. United States, 483 U.S. 435, 439-40 (1987). As the Supreme Court has recognized, courts-martial are lawful tribunals with authority to finally determine any case over which they have jurisdiction. Grafton v. United States, 206 U.S. 333, 345 (1907) (). Thus, 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 protections afforded civilian defendants, such as the right to a trial by jury. Weiss v. United States, 510 U.S. 163, 176-77 (1994); Whelchel v. McDonald, 340 U.S. 122, 127 (1950) (citing Kahn v. Anderson, 255 U.S. 1, 8 (1921)).2 Because the respondent's crime was adjudicated in a proceeding that was "criminal in nature" under the laws of the prosecuting jurisdiction—i.e., the United States Armed Forces—we are satisfied that his "guilt" was determined in a "genuine criminal proceeding." Matter of Eslamizar, supra. Thus, the only remaining question is whether that adjudication of guilt was entered by a "court."
The Immigration and Nationality Act does not define the term "court." Therefore we give 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." Black's Law Dictionary 378 (8th ed. 2004). A military judge presides over each general court-martial, and an accused may elect to be tried by a military judge alone or by a panel comprised of not less than five members. UCMJ Arts. 16(1), 26(a), 10 U.S.C. §§ 816(1), 826(a) (2000 & Supp. IV 2004).3 Furthermore, the function of a general court-martial is, among other things, "to try persons subject to [the UCMJ] for any offense made punishable [thereunder]" and to "adjudge any punishment not forbidden." UCMJ Art. 18, 10 U.S.C. § 818 (2000). Such a tribunal satisfies the conventional definition of a "court."
We recognize that some differences exist between civilian courts and general courts-martial. General courts-martial are not "Federal courts" in the strict sense; that is, they are not among the "inferior Courts" that Congress "may from time to time ordain and establish" pursuant to Article III, section 1 of the Constitution of the United States. Instead, courts-martial operate on an ad hoc basis and derive their constitutional jurisdiction from Article 1, section 8 of the Constitution, which grants Congress the power "To make Rules for the Government and Regulation of the land and naval Forces." See United States ex rel. Toth v. Quarles, 350 U.S. 11, 14 & n.6 (1955) (...
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