CA2 on UCMJ: Persad v. Barr

Persad v. Barr

"Dasrath D. Persad (“Persad”), a legal permanent resident, petitions for review of an agency order requiring his removal to Trinidad and Tobago. The agency’s decision rested on its determination that Persad’s 1992 military conviction for larceny constituted an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43)(G). To establish an aggravated felony under that statutory provision, 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.” 8 U.S.C. § 1101(a)(43)(G). In his 1992 court‐martial, Persad pleaded guilty to four violations of the Uniform Code of Military Justice. See 10 U.S.C. §§ 801‐946. One of the violations was larceny of military property (a theft offense). See 10 U.S.C. § 921. Consistent with the military’s then‐ traditional practice of unitary sentencing (i.e., imposing a single sentence for all charges and specifications of which an accused is convicted), the military judge issued a general sentence that imposed as punishment for all four of Persad’s convictions a term of 30 months’ confinement, undifferentiated among the four violations to which he pleaded. The Immigration Judge and the Board of Immigration Appeals (“BIA”) determined that this sentence satisfied Section 1101(a)(43)(G). On petition for review, Persad argues that the unitary sentencing scheme employed by the military tribunal precludes the government from showing by clear and convincing evidence that the theft count, alone, resulted in a sentence of 12 or more months’ confinement. Resolving this question of first impression in our Circuit, we agree with Persad. We therefore GRANT Persad’s petition and REMAND the cause to the BIA for further proceedings consistent herewith."

[Hats off to Alexander J. Segal!]