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OPINION
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
Gourzongs 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 courtmartial. But see infra note 6.
The members of the special court-martial imposed a
sentence of six months confinement, loss of pay, and badconduct 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.
of law, will be reviewed de novo. Id. To the extent the singlemember 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
panels interpretations, we need not resolve this issue.
III. Analysis
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IV. Conclusion
Because we agree with the BIA that convictions by
special courts-martial are, as a general matter, convictions for
purposes of 101(a)(48)(A) of the INA, we conclude that we
lack jurisdiction over Gourzongs petition for review. 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.). We will therefore dismiss his petition for
review.8
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In Castillo, we omitted from our discussion of RiveraValencia the BIAs own interpretation of the term court. See
Castillo, 729 F.3d at 308.
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I further note that the other members of the special courtmartial can object to the presidents rulings on interlocutory
questions of fact, and the president is authorized to consult with his
or her fellow members before making a decision on such matters.
R.C.M. 801(e)(2)(B), (3)(D). The president, in turn, deliberates
with the other special court-martial members to determine whether
the accused is proved guilty. R.C.M. 502(a)(2). Accordingly, a
court-martial president actually appears to represent a sort of
amalgamation of a civilian judge and jury foreperson. Like their
civilian counterparts (who do not participate in jury deliberations),
military judges do not vote with the court-martial members and are
prohibited from consulting with the members except in the
presence of the accused and respective counsel. 10 U.S.C.
826(c). Likewise, their legal and interlocutory rulings are not
subject to member review. R.C.M. 801(e)(1)(A).
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