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 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Brendan Curran, Assistant Chief 

Counsel 

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

dismissed. 

I. FACTUAL AND PROCEDURAL HISTORY 

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). 

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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”). 

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II. ISSUE 

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. 

III. ANALYSIS 

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 

service”). 

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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

law. 

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. 

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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). 

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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 

purposes. 

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

Convention.7

 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 

officers. 

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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 

purposes. 

IV. CONCLUSION 

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

dismissed. 

ORDER: The appeal is dismissed. 

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