Justia Military Law Opinion Summaries

Articles Posted in Immigration Law
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Miriyeva, a citizen of Azerbaijan, lawfully entered the U.S. and sought naturalization under 8 U.S.C. 1440. She enlisted in the U.S. Army through the Military Accessions Vital to the National Interest program, under which noncitizens have an expedited path to citizenship by serving honorably in the military without first having lawful permanent residence. In 2018, USCIS approved Miriyeva’s application. Before the agency scheduled Miriyeva’s oath of citizenship ceremony, the Army sent her to basic training. During training, a medical condition ended her service. The Army described Miriyeva’s separation as “uncharacterized” since her service ended while she was still at “entry-level.” After her medical discharge, Miriyeva scheduled her oath ceremony but the agency reversed its approval of her naturalization application because the military did not describe her separation as “honorable.”Miriyeva argued that the military refers to “uncharacterized” as “separated under honorable conditions,” when required to do so and that the Army’s policy of treating an uncharacterized separation as not under honorable conditions violated the Administrative Procedure Act, the Constitution’s Uniform Rule of Naturalization Clause, and the Due Process Clause. The district court dismissed Miriyeva’s declaratory judgment suit for lack of subject matter jurisdiction under 8 U.S.C. 1421(c), which precluded Miriyeva’s Administrative Procedure Act and constitutional claims; her Declaratory Judgment Act claim failed without a different, standalone source of jurisdiction. The D.C. Circuit affirmed. Miriyeva strayed from the statutory path for judicial review of claims intertwined with denied naturalization applications. View "Miriyeva v. United States Citizenship and Immigration Services" on Justia Law

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Petitioner, a legal permanent resident, sought review of an agency order of removal based on a finding that he committed an "aggravated felony" within the meaning of 8 U.S.C. 1101(a)(43)(G). Under section 1101(a)(43)(G), to establish an aggravated felony, the government must show by clear and convincing evidence that a noncitizen committed a "theft offense" that resulted in a term of imprisonment of "at least one year." Petitioner was a member of the U.S. Army when he pleaded guilty to four violations of the Uniform Code of Military Justice (UCMJ), one of which was larceny of military property. Under the military's customary practice of unitary sentencing at the time, the military judge issued a general sentence that imposed a punishment for all four of petitioner's convictions for 30 months' confinement.The Second Circuit held that, under the military's traditional unitary sentencing scheme, a military judgment in which a single sentence of confinement is imposed in connection with multiple counts of conviction may not be presumed to be equivalent to equal, full‐term, concurrent sentences as to each count of conviction. Because the government has not carried its burden, the court granted the petition for review and remanded for further proceedings. View "Persad v. Barr" on Justia Law

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Chavez-Alvarez, a citizen of Mexico, became a lawful permanent resident in 1989, then served in the U.S. Army. In 2000, Chavez-Alvarez penetrated the vagina of an intoxicated platoon member with his fingers and performed oral sex without consent. He initially denied the allegations, but later admitted the assault and was convicted under the Code of Military Justice: 10 U.S.C. 907, 925, and 934 for making false official statements; sodomy; and adultery and indecent assault. He was discharged and confined for 18 months. Chavez-Alvarez was charged as removable under 8 U.S.C. 1227, having been convicted of an aggravated felony with a term of imprisonment of at least one year and of two or more crimes involving moral turpitude not arising out of a single scheme. An IJ determined he was ineligible for a waiver of inadmissibility. Following a remand, the BIA concluded that Chavez-Alvarez was removable under the moral-turpitude provision, rejecting his argument that he was only convicted of sodomy, a constitutionally protected activity under Supreme Court precedent. The BIA disagreed, reasoning that Chavez-Alvarez’s crime was subject to a sentence enhancement, having been committed forcibly, which was the “functional equivalent” of a conviction for forcible sodomy, a crime involving moral turpitude, and that his two false-statements convictions were separate crimes of moral turpitude. The Third Circuit reversed, rejecting the BIA’s reasoning that “for immigration purposes a sentence enhancement can serve as the functional equivalent of an ‘element’ of an offense.” View "Chavez-Alvarez v. Attorney General , United States" on Justia Law

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Gourzong, a native of Jamaica, was admitted to the U.S. as a lawful permanent resident in 1983. In 1993, having joined the U.S. military, he was convicted by a special court-martial at Camp Pendelton of willfully disobeying a lawful order, 10 U.S.C. 890(2), and “commit[ing] an act of sexual intercourse with a female not his wife who has not attained the age of sixteen years,” 10 U.S.C. 920. Gourzong was represented by counsel and pleaded guilty. He received a sentence of six months confinement, loss of pay, and bad-conduct discharge. The convening authority suspended part of the confinement and withheld executing the bad-conduct discharge until after appellate review procedures, 10 U.S.C. 871(c). An IJ found Gourzong removable, 8 U.S.C. 1227(a)(2)(A)(iii), having been convicted of an aggravated felony. The BIA affirmed, rejecting his argument that convictions by special courts-martial categorically fall outside the definition in 8 U.S.C. 1101(a)(48)(A): “‘conviction’ means, with respect to an alien, a formal judgment of guilt of the alien entered by a court.” Although it is possible that a special court-martial can convene without a legally trained judge presiding, their convictions generally qualify as convictions under the Act. The Third Circuit agreed and, therefore, concluded that it lacked jurisdiction to consider Gourzong’s appeal. View "Gourzong v. Att'y Gen. of the United States" on Justia Law

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Alvarez, a two-year-old citizen of Mexico, entered the U.S. without admission or parole. In 1989 he became a lawful permanent resident. Alvarez served in the U.S. Army, 1991-2004. Alvarez has only departed the United States as a member of the Army. In 2000 Alvarez had sexual contact with a female platoon member who was so intoxicated that she was unable to consent. He provided a signed denial to the Army Criminal Investigation Division. He eventually pleaded guilty to violations of the Uniform Code of Military Justice: 10 U.S.C. 907, for making false official statements; 10 U.S.C. 925, sodomy; and, 10 U.S.C. 934, for two specifications of violating the general article. The judge sentenced Alvarez to a bad conduct discharge, to be reduced to the grade of E-1, and to be confined for 18 months. The sentence did not allocate the confinement to the convictions. In 2012, DHS agents arrested Alvarez. An IJ found him removable under 8 U.S.C. 1227(a)(2)(A)(iii) and 1101(a)(43)(F), as an alien who has been convicted of an aggravated felony. The BIA affirmed. The Third Circuit remanded. The BIA committed legal error in concluding that Alvarez’s sodomy conviction was a crime “for which the term of imprisonment [was] at least one year,” 8 U.S.C. 1101(a)(43)(F). View "Chavez-Alvarez v. Att'y Gen., United States" on Justia Law

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The FBI investigated Alwan, an Iraqi living in Bowling Green, after his fingerprints appeared on an improvised explosive device in Iraq, and introduced Alwan to a confidential source (CHS), who recorded their conversations. CHS convinced Alwan that he was part of a group supporting Jihad. Alwan assisted in sending what he believed to be money and weapons to the Mujahidin several times and eventually asked to lead the fictional terrorist cell. CHS instructed Alwan to recruit others. Hammadi agreed to join, stating that he had participated in IED attacks on American troops and had been arrested, but bribed his way free and fled to Syria. In Syria, he applied for refugee status to immigrate to the U.S. and answered “no” when asked if he had engaged in terrorist activity. Hammadi had moved to Bowling Green on the recommendation of Alwan, whose family he knew from Iraq and whom he had met in Syria. The two transported $100,000 from CHS to a truck, believing that it would find its way to Iraq, in violation of 18 U.S.C. 2339A. They hid rocket-propelled grenade launchers, machine guns, plastic explosives, and sniper rifles in another truck, for transport to terrorists, in violation of 18 U.S.C. 2339A and 2339B. They loaded Stinger missiles into another truck and plotted to murder a U.S. Army Captain. Hammadi pleaded guilty to 10 terrorism and two immigration offenses. Rejecting claims of entrapment and sentencing manipulation, the district court imposed a life sentence. The Sixth Circuit affirmed, noting that Hammadi would not qualify for a departure under either theory.View "United States v. Hammadi" on Justia Law

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Petitioner, a native and citizen of Honduras and a lawful permanent resident alien of the United States, petitioned for review of the Board of Immigration Appeals' (BIA) order dismissing his appeal from an immigration judge's order finding him removable as an alien convicted of an aggravated felony. At issue before the Ninth Circuit Court of Appeals was whether Petitioner's conviction under Article 92 of the Uniform Code of Military Justice qualified as an "aggravated felony" under the modified categorical approach as explained in the Court's recent en banc decision in United Sates v. Aguila-Montes de Oca. The Court granted the petition, concluding that Petitioner's Article 92 conviction was not an aggravated felony and Petitioner was therefore not removable. Remanded with instructions to vacate the removal order against Petitioner. View "Aguilar-Turcios v. Holder" on Justia Law