RIVERA-VALENCIA, 24 I&N Dec. 484 (BIA 2008)

Cite as 24 I&N Dec. 484 (BIA 2008) Interim Decision #3607
Matter of Juan Carlos RIVERA-VALENCIA, Respondent
File A43 643 008 – Chicago
Decided April 2, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A judgment of guilt that has been entered by a general court-martial of the United States
Armed Forces qualifies as a “conviction” within the meaning of section 101(a)(48)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2000).
FOR RESPONDENT: Christopher A. Clausen, Esquire, Marshalltown, Iowa
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
FILPPU, Board Member:
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
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
1 The respondent was also adjudged guilty of “indecent acts or liberties” with a person under
16, which constitutes a violation of Article 134 of the UCMJ, 10 U.S.C. § 934 (1994).
484Cite as 24 I&N Dec. 484 (BIA 2008) Interim Decision #3607
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”).
485 Cite as 24 I&N Dec. 484 (BIA 2008) Interim Decision #3607
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.
A. Section 101(a)(48)(A) of the 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).
B. Judgment of General Court-Martial as a “Conviction”
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
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“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) (holding that a judgment
of acquittal entered by a general court-martial has preclusive effect in civilian
courts for double jeopardy purposes). 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
2 We emphasize, however, that “the protections in the Bill of Rights, except those which are
expressly or by necessary implication inapplicable, are available to members of our armed
forces.” United States v. Jacoby, 29 C.M.R. 244, 246-47 (C.M.A. 1960). Thus, a person
prosecuted by general court-martial possesses many of the procedural protections afforded
to civilian defendants, such as the privilege against compulsory self-incrimination, UCMJ
Art. 31, 10 U.S.C. § 831 (2000); the right to representation by counsel at public expense,
UCMJ Art. 38(b), 10 U.S.C. § 838(b) (2000); and the right to call witnesses and present
evidence, UCMJ Art. 46, 10 U.S.C. § 846 (2000); see also Weiss v. United States, supra, at
194 (Ginsburg, J., concurring) (stating that “men and women in the Armed Forces do not
leave constitutional safeguards and judicial protection behind when they enter military
487 Cite as 24 I&N Dec. 484 (BIA 2008) Interim Decision #3607
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) (citing Dynes v. Hoover, 61 U.S. 65, 79 (1857) (“Congress
has the power to provide for the trial and punishment of military and naval
offenses . . . and . . . the power to do so is given without any connection
between it and the 3d article of the Constitution defining the judicial power of
the United States . . . .”)). Yet despite these differences between civilian and
military courts, this Board has from its earliest days considered judgments
entered by courts-martial, both domestic and foreign, to be valid “convictions”
for immigration purposes. Matter of V-D-B-, 8 I&N Dec. 608 (BIA1960);
Matter of F-, 8 I&N Dec. 469 (BIA 1959); Matter of F-, 5 I&N Dec. 56 (BIA
1953), rev’d on other grounds, Matter of P-, 6 I&N Dec. 481 (BIA 1954);
Matter of W-, 1 I&N Dec. 485 (BIA 1943). We see nothing in the language
of section 101(a)(48)(A) that would lead us to conclude that Congress intended
to modify this historical understanding by limiting the term “court” to those
organized under Article III of the Constitution or its counterparts under State
As we noted previously, the Supreme Court has long held that the
judgments of courts-martial are to “be accorded the finality and conclusiveness
as to the issues involved which attend the judgments of a civil court in a case
of which it may legally take cognizance.” Grafton v. United States, supra, at
345. Consequently, it has been determined in the Federal sentencing context
that for purposes of computing an individual’s criminal history as a basis for
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. UCMJ Art. 26(b), 10 U.S.C. § 826(b) (2000); see also
Weiss v. United States, supra, at 167-68.
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sentence enhancement, “[s]entences resulting from military offenses are
counted if imposed by a general or special court martial.” U.S. Sentencing
Guidelines Manual § 4A1.2(g) (2000), reprinted in USSG, § 4A1.2(g),
18 U.S.C.A. (2007). Similarly, in cases arising under 18 U.S.C. § 922(g)(1)
(2000), which makes it a crime for a person “who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding one year”
to ship, transport, possess or receive a firearm in interstate commerce, the
Federal courts—including the United States Court of Appeals for the Seventh
Circuit, in whose jurisdiction this proceeding arises—have concluded that the
term “any court” encompasses a general court-martial. United States
v. Martinez, 122 F.3d 421, 424 (7th Cir. 1997); United States v. MacDonald,
992 F.2d 967, 970 (9th Cir. 1993); see also United States v. Lee, 428 F.2d 917,
918 n.1, 920 (6th Cir. 1970) (arising under former 15 U.S.C. § 902(e),
repealed by Pub. L. No. 90-351, tit. IV, § 906, 82 Stat. 234 (1968));
United States v. Noble, 613 F. Supp. 1224, 1225-26 (D. Mont. 1985) (arising
under former 18 U.S.C. app. § 1202, repealed by Firearms Owners’ Protection
Act, Pub. L. No. 99-308, § 104(b), 100 Stat. 449, 459 (1986)). These
authorities lend further support to our determination that the statutory term
“court” includes a general court-martial.
C. Effect of Ninth Circuit Precedent in Gubbels v. Hoy
In his appellate brief, the respondent relies heavily on a 1958 decision of the
Ninth Circuit holding that a judgment of guilt entered by a general
court-martial was not a “conviction” for immigration purposes, primarily
because the “ad hoc” nature of such tribunals raised serious doubts as to
whether it would be practicable for the alien to request or receive a judicial
recommendation against deportation (“JRAD”),4
which the court deemed an
“important right or privilege” of the alien under the law as it then existed.
4 Before 1990, former section 241(b)(2) of the Act, 8 U.S.C. § 1251(b)(2) (1988), provided
as follows, in pertinent part:
The provisions of subsection (a)(4) respecting the deportation of an alien convicted
of a crime or crimes shall not apply . . . (2) if the court sentencing such alien for such
crime shall make, at the time of first imposing judgment or passing sentence, or within
thirty days thereafter, a recommendation to the Attorney General that such alien not
be deported, due notice having been given prior to making such recommendation to
representatives of the interested State, the Service, and prosecution authorities, who
shall be granted an opportunity to make representations in the matter. The provisions
of this subsection shall not apply in the case of any alien who is charged with being
deportable from the United States under subsection (a)(11) of this section.
489 Cite as 24 I&N Dec. 484 (BIA 2008) Interim Decision #3607
Gubbels v. Hoy, 261 F.2d 952, 954 (9th Cir. 1958); cf. also Matter of Gian,
11 I&N Dec. 242 (BIA 1965) (holding that alien’s conviction by a French
criminal court while serving overseas as a member of the United States Army
could not serve as a basis for his deportation because the French court lacked
authority to make a binding JRAD). But see Matter of W-, supra, at 486
(rejecting an opinion of the Solicitor of Labor, which had cited the
unavailability of JRADs as a justification for refusing to treat courts-martial
as “convictions” for immigration purposes). Because the present case arises
within the jurisdiction of the Seventh Circuit, the Ninth Circuit’s decision in
Gubbels v. Hoy, supra, lacks controlling precedential force. Nevertheless, we
deem it appropriate to explain why we consider the rationale of that case to be
inapposite here.
First, any present determination as to whether the respondent’s adjudication
of guilt by a general court-martial constitutes a “conviction” must be
determined by reference to section 101(a)(48)(A) of the Act, a provision of law
not yet in existence when Gubbels v. Hoy, supra, was decided. And as we
have explained, a judgment of guilt entered by a general court-martial is
encompassed by the language of section 101(a)(48)(A). Second, assuming that
Gubbels v. Hoy accurately characterized the capacity of an alien to receive a
JRAD from a court-martial,5
the decision lacks modern relevance because
Congress abolished the JRAD pursuant to section 505 of the Immigration Act
of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5050 (“IMMACT”).6 Indeed,
as early as 1959 we had explained the limited scope of Gubbels v. Hoy,
concluding that it precluded the judgment of a court-martial from qualifying
as a “conviction” only if the judgment was charged as a basis for deportability
under former section 241(b)(4) of the Act, the only ground of deportability for
5 In 1987 the Army Court of Military Review determined that Gubbels v. Hoy, supra, was
“dated and no longer of precedential value” because it did not accurately reflect the ability
of an alien serviceman to receive a JRAD from a military judge. United States v. Berumen,
24 M.J. 737, 741 n.2 (A.C.M.R. 1987) (indicating that JRADs or their functional equivalents
were available in courts-martial), petition denied, 26 M.J. 67 (C.M.A. 1988).
6 In a 1998 Legal Opinion, the General Counsel of the former Immigration and
Naturalization Service expressed the view that Congress’s elimination of the JRAD had
“almost certainly deprived Gubbels of precedential value.” INS Legal Opinion No. 98-16,
Bo Cooper for Paul W. Virtue, General Counsel, to Eloise Rosas, District Counsel,
Washington, D.C. (Nov. 24, 1998), available at 1998 WL 1806687. In the wake of
IMMACT, numerous legal commentators expressed much the same view. See Gregory
E. Fehlings, Deportation as a Consequence of a Court-Martial Conviction, 7 Geo. Immigr.
L.J. 295, 298-99 & n.27, 311-13 (June 1993); Samuel Bettwy, Assisting Soldiers in
Immigration Matters, 1992-APR Army Law. 3, 13 (Apr. 1992); Ira L. Frank, Deportation
of Alien Military Service Personnel, 13 U. Haw. L. Rev. 111, 122, 135 (Summer 1991).
490Cite as 24 I&N Dec. 484 (BIA 2008) Interim Decision #3607
which Congress had made JRADs available. Matter of F-, supra, at 471-72
(distinguishing Gubbels and holding that the respondent’s conviction for a
crime involving moral turpitude by a foreign court-martial supported a charge
of deportability under former section 241(a)(1) of the Act because no JRAD
was available with respect to such a charge). Because Congress has now
abolished the JRAD and enacted a statutory definition of a “conviction” that
encompasses judgments of guilt entered by general courts-martial, we
conclude that the rationale underlying Gubbels v. Hoy has been superseded by
statute. Accordingly, we now hold that the judgments of general
courts-martial retain their historical status as “convictions” for immigration
D. Vienna Convention
The respondent’s final argument is that his conviction by general
court-martial should not be treated as a “conviction” for immigration purposes
because neither the military court nor his criminal defense attorney made him
aware of his right to consular notification under Article 36 of the Vienna
The argument lacks merit. Section 101(a)(48)(A) of the Act
provides that a “conviction” exists for immigration purposes upon proof that
a “court” has entered a formal judgment of the alien’s “guilt” in a genuine
criminal proceeding. Whether an alien’s procedural right to consular
notification under the Vienna Convention was violated prior to the entry of
such a judgment simply has no bearing on the statutory analysis. Furthermore,
once the statutory elements of a valid “conviction” are proven, immigration
adjudicators are bound to give effect to the judgment in removal proceedings
and cannot entertain collateral challenges to it, absent an affirmative showing
that the judgment is void on its face. Doe v. Gonzales, 484 F.3d 445, 451 (7th
Cir. 2007) (citing Mansoori v. INS, 32 F.3d 1020, 1023-24 (7th Cir. 1994));
Matter of Madrigal, 21 I&N Dec. 323, 327 (BIA 1996); Matter of Fortis,
14 I&N Dec. 576, 577 (BIA 1974).
The Seventh Circuit has determined that Article 36 of the Vienna
Convention gives foreign nationals an individually enforceable private right
to consular notification. Jogi v. Voges, 480 F.3d 822, 835 (7th Cir. 2007).
Even assuming that the respondent’s 1997 court-martial was conducted in
derogation of that right, however, it is evident that such a violation would not
invalidate or otherwise vitiate his conviction for criminal law purposes, much
7 Article 36, Paragraph 1(b) of the Vienna Convention requires that the authorities of any
signatory State must, upon arresting or detaining a foreign national, inform the foreign
national that he has a right to communicate with and have access to his country’s consular
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less render it void on its face. On the contrary, the Federal courts of
appeals, including the Seventh Circuit, have held that neither the
suppression of evidence nor the dismissal of an indictment is a proper
remedy for violation of the right to consular notification. See, e.g.,
United States v. De La Pava, 268 F.3d 157, 165 (2d Cir. 2001); United States
v. Jimenez-Nava, 243 F.3d 192, 197-98 (5th Cir. 2001);
United States v. Chaparro-Alcantara, 226 F.3d 616, 621-22 (7th Cir.
2000);United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir.
2000) (en banc). Instead, where such a right exists, it must be vindicated by
means of civil litigation. See Jogi v. Voges, supra, at 835-36. Because
violation of the right to consular notification has no effect on the validity of a
conviction for criminal law purposes, it also has no effect for immigration
In conclusion, we agree with the Immigration Judge’s determination that the
respondent’s adjudication of guilt by a general court-martial qualified as a
“conviction” under section 101(a)(48)(A) of the Act. We therefore find no
reversible error in his decision sustaining the charges of deportability.
Because the respondent raises no other issues on appeal, his appeal will be
ORDER: The appeal is dismissed.