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Chavez-Alvarez v. Attorney General United States of America

United States Court of Appeals, Third Circuit

March 9, 2017


          Argued January 17, 2017

         On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: Honorable Andrew Arthur (No. A092-167-374)

          Craig R. Shagin, Esquire, The Shagin Law Group, Counsel for Petitioner.

          Benjamin C. Mizer Principal Deputy Assistant Attorney General Civil Division Anthony P. Nicastro Assistant Director, Office of Immigration Litigation Sabatino F. Leo, Esquire, Hillel R. Smith, Esquire U.S. Department of Justice, Counsel for Respondent.

          Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges.


          AMBRO, Circuit Judge.

         Petitioner Jose Juan Chavez-Alvarez appears before us again, this time challenging a second decision of the Board of Immigration Appeals ("BIA") that he be removed, among other things, for committing sodomy while serving in the United States Army. In the simplest of terms, the BIA reasoned that the President-through his delegated authority to define punishments for those who commit military crimes-essentially could create the definition of those crimes himself. He cannot, as the latter is a power reserved to Congress. We therefore grant the petition for review and reverse the BIA's decision.

         I. BACKGROUND

         Chavez-Alvarez is a citizen of Mexico. He entered the United States without admission or parole but became a lawful permanent resident in 1989. Following the adjustment of his status, he served in the United States Army for over twelve years.

         While deployed to South Korea in August 2000, Chavez-Alvarez assaulted an intoxicated female platoon member by penetrating her vagina with his fingers and performing oral sex on her without consent. When questioned about the incident by military officials, Chavez-Alvarez denied the allegations against him on two separate occasions. After formal charges were brought before a court-martial, he entered into a stipulation of fact admitting the assault. The military judge accordingly convicted him of violating three sections of the Uniform Code of Military Justice (the "Code") as enacted at the time of his conviction: Article 107 (10 U.S.C. § 907) for making false official statements when he had earlier denied the allegations against him (two separate violations, one for each statement); Article 125 (10 U.S.C. § 925) for sodomy; and Article 134 (10 U.S.C. § 934) for adultery and indecent assault. He was discharged and confined for 18 months.

         Nearly a decade later, Chavez-Alvarez was detained by the Department of Homeland Security and charged as removable because, under § 237, 8 U.S.C. §1227, [1] of the Immigration and Naturalization Act ("INA"), he had been convicted of an aggravated felony with a term of imprisonment of at least one year, see 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii), and two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, see 8 U.S.C. § 1227(a)(2)(A)(ii). The Immigration Judge ("IJ") found him removable under both provisions of § 237 of the INA, determined he was ineligible for a waiver of inadmissibility under INA § 212(h), and ordered him removed to Mexico. The BIA affirmed the IJ's decision that Chavez-Alvarez was removable under 8 U.S.C. §1227(a)(2)(A)(iii) because he committed the aggravated felony of forcible sodomy after his admission to the United States. It held off determining whether he was also removable under 8 U.S.C. § 1227(a)(2)(A)(ii) (committing two separate crimes involving moral turpitude).

         On appeal, we reversed the BIA because it incorrectly determined that Chavez-Alvarez's sodomy conviction resulted in a term of imprisonment of one year or more. Chavez-Alvarez v. Att'y Gen. U.S., 783 F.3d 478 (3d Cir. 2015). Because there was no specific proof in the record "regarding the way in which the sentence was rendered as to each charge" by the military judge, it was impossible to determine whether the apportionment of the sentence as to his aggravated felony conviction was at least one year. Id. at 483-84. Accordingly, we remanded to the BIA.

         With the case back, it concluded that Chavez-Alvarez was nonetheless removable under the crimes-involving-moral-turpitude provision of the INA. He argued that he was only convicted of sodomy, a constitutionally protected activity under Lawrence v. Texas, 539 U.S. 558 (2003). The BIA disagreed, determining that because Chavez-Alvarez's particular crime was subject to a sentence enhancement because it was committed forcibly, and because the application of the enhancement in his case was the "functional equivalent" of a conviction for the enhanced offense, he was convicted of forcible sodomy. Finding that this was a crime involving moral turpitude, the BIA also determined that his two false-statements convictions were separate crimes of moral turpitude that were not within the same criminal scheme as that of his forcible sodomy conviction. Hence the BIA found him removable, and he petitions us for review.


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