January 17, 2017
Petition for Review of a Final Order of the Board of
Immigration Appeals Immigration Judge: Honorable Andrew
Arthur (No. A092-167-374)
R. Shagin, Esquire, The Shagin Law Group, Counsel for
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
Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges.
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
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.
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.
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,  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).
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.
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.
JURISDICTION AND ...