Chavez-Alvarez v. Attorney Gen. U.S.

• Decision Date: 16 April 2015
• Docket Number: No. 14–1630.,14–1630.
• Citation: 783 F.3d 478
• Parties: Jose Juan CHAVEZ–ALVAREZ, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

783 F.3d 478

Jose Juan CHAVEZ–ALVAREZ, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent.

No. 14–1630.

United States Court of Appeals, Third Circuit.

Argued on March 17, 2015.

Filed: April 16, 2015.

Valerie A. Burch, Esq., Craig R. Shagin, Esq. [Argued], The Shagin Law Group, Harrisburg, PA, Counsel for Petitioner.

Jeffrey Bernstein, Esq., Kathryn L. DeAngelis, Esq. [Argued], United States

Department of Justice Office of Immigration Litigation, Washington, DC, Counsel for Respondent.

Before: SMITH, JORDAN, and VAN ANTWERPEN, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Jose Juan Chavez–Alvarez petitions the Court for review of a decision of the Board of Immigration Appeals (BIA), which affirmed the determination of the Immigration Judge (IJ) that Chavez–Alvarez is subject to removal under Sections 237(a)(2)(A)(iii) and 101(a)(43)(F) of the Immigration and Nationality Act (INA), 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. Chavez–Alvarez also petitions for review of the pretermission of his application for a waiver of inadmissibility pursuant to Section 212(h) of the INA, 8 U.S.C. § 1182(h).¹ For the reasons that follow, we will grant Chavez–Alvarez's petition and remand to the BIA.

I.

Chavez–Alvarez is a citizen of Mexico who entered the United States at the age of two without admission or parole. On September 30, 1989, Chavez–Alvarez adjusted his status and became a lawful permanent resident. From June 27, 1991 through January 30, 2004, Chavez–Alvarez served in the United States Army. After his first entry into the United States, Chavez–Alvarez has only departed the United States in his capacity as a member of the Army.

During the night of August 11, 2000 and early the following morning, Chavez–Alvarez had nonconsensual sexual contact with a female platoon member. As provided in the Stipulation of Fact from Chavez–Alvarez's court-martial, Chavez–Alvarez was drinking alcohol with his platoon members at a bar outside of the army base in Tongduchon, Korea. Chavez–Alvarez escorted a visibly intoxicated female platoon member back to the army base; the female platoon member was unable to walk on her own. Chavez–Alvarez assisted the woman back to her bedroom and began helping her change out of her clothing. During this time, the woman vomited between six to eight times and eventually lay unconscious on her bed. Despite being aware that she was unable to give consent due to her incapacitation, Chavez–Alvarez began to touch her genitals, including performing oral sex on her. She began to protest, but Chavez–Alvarez believed her movement indicated consent. He then had sexual intercourse with the woman.

In the early morning of August 12, 2000, Chavez–Alvarez provided a signed statement to the Criminal Investigation Division of the United States Army denying that he had engaged in sexual contact with the female platoon member. In a written statement about one hour later, Chavez–Alvarez again denied such sexual contact. Chavez–Alvarez was aware that both statements were false.

On September 6, 2000, Chavez–Alvarez was charged with violating four articles in the congressionally-enacted Uniform Code of Military Justice (UCMJ): Article 107, 10 U.S.C. § 907, for two specifications² (i.e., counts) of making false official statements; Article 120, 10 U.S.C. § 920, for rape; Article 125, 10 U.S.C. § 925, for sodomy; and, Article 134, 10 U.S.C. § 934, for two specifications of violating the general article.³ On December 12, 2000, Chavez–Alvarez pleaded guilty to violating five of the charged specifications (all of the specifications except for rape). The military judge sentenced Chavez–Alvarez as follows: “To be discharged from the service with a bad-conduct discharge, to be reduced to the grade of E–1, and to be confined for a period of 18 months.” App'x 70. Chavez–Alvarez's sentence did not apportion the 18–month confinement between the five specifications or the three articles to which he pleaded.

On June 5, 2012, approximately ten years after Chavez–Alvarez completed his confinement, U.S. Department of Homeland Security (DHS) agents arrested Chavez–Alvarez at his home in New Freedom, Pennsylvania. DHS charged Chavez–Alvarez with being removable pursuant to Sections 237(a)(2)(A)(iii) and 101(a)(43)(F) of the INA as having been convicted of an aggravated felony for committing a “crime of violence.” 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii) (citing 18 U.S.C. § 16 ). On June 29, 2012, DHS also charged Chavez–Alvarez with being removable based on Section 237(a)(2)(A)(ii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(ii), as having been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. DHS has detained Chavez–Alvarez pursuant to 8 U.S.C. § 1226(c) without a bond hearing since June 5, 2012.⁴

On November 1, 2012, the IJ concluded that Chavez–Alvarez was removable on both grounds. On March 5, 2013, the IJ also concluded that Chavez–Alvarez was not eligible to apply for a waiver under Section 212(h) of the INA and entered an order of removal. Chavez–Alvarez timely appealed to the BIA, which issued a precedential opinion on March 14, 2014 affirming the order of removal based on Chavez–Alvarez having an aggravated felony conviction and not being eligible for a Section 212(h) waiver. Chavez–Alvarez timely filed a petition for review. This Court issued a stay of removal pending the outcome of these proceedings.

II.

The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the basis for removal is Chavez–Alvarez's conviction for an aggravated felony, we review the BIA's ruling under Section 242(a)(2)(C)-(D) of the INA, 8 U.S.C. § 1252(a)(2)(C)-(D), for “constitutional claims and questions of law.” Guzman v. Att'y Gen., 770 F.3d 1077, 1082 (3d Cir.2014). Whether an alien's offense constitutes an aggravated felony is “a purely legal question.” Restrepo v. Att'y Gen., 617 F.3d 787, 790 (3d Cir.2010). We review legal challenges de novo. Id. “When the BIA issues its own decision on the merits, rather than a summary affirmance, we review its decision, not that of the IJ.” Syblis v. Att'y Gen., 763 F.3d 348, 352 (3d Cir.2014) (quoting Pieschacon–Villegas v. Att'y Gen., 671 F.3d 303, 310 (3d Cir.2011) (internal quotation marks omitted)). We may consider the opinion of the IJ “only insofar as the BIA deferred to it.” Roye v. Att'y Gen., 693 F.3d 333, 339 (3d Cir.2012).

III.

“Any alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony is defined as, inter alia, “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). The government bears “the burden of establishing by clear and convincing evidence” that an alien has committed an aggravated felony. 8 U.S.C. § 1229a(c)(3)(A) ; Nijhawan v. Holder, 557 U.S. 29, 42, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). Chavez–Alvarez argues that he was not convicted of an aggravated felony because he was neither convicted of a crime of violence nor received a sentence for which the term of imprisonment was at least one year.

The BIA found Chavez–Alvarez removable based on his general court-martial⁵ conviction for committing sodomy in violation of Article 125 of the UCMJ, which, at the time of his conviction, provided:

(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.

Any person found guilty of sodomy shall by punished as a court-martial may direct.

10 U.S.C. § 925 (1956).⁶

After the military judge accepted Chavez–Alvarez's guilty plea as to violating the five specifications, which included the sodomy charge, the military judge issued a general (or gross) sentence requiring Chavez–Alvarez “to be confined for a period of 18 months.” Thus, the sentence issued by the military judge in Chavez–Alvarez's general court-martial was not apportioned between the five offenses for which Chavez–Alvarez was convicted.

The maximum punishments for these articles of the UCMJ, as prescribed by the Manual for Courts–Martial,⁷ are as follows:

Article 107 (False official statements): “dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.” Art. 107, Manual for Courts–Martial, IV–46–47.

Article 125 (Sodomy): “(1) By force and without consent. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for life.” Art. 125, Manual for Courts–Martial, IV–79.

Article 134 (Assault—indecent): “Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.” Art. 134, Manual for Courts–Martial, IV–97.

Article 134 (Adultery): “Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.” Art. 134, Manual for Courts–Martial, IV–96–97.

Chavez–Alvarez's 18–month sentence, therefore, was below the maximum punishment for all but one of his convictions (the general article adultery conviction).

In this case, whether the statute of conviction, 10 U.S.C. § 925 (Article 125 of the UCMJ ), contains all the elements of a “crime of violence” under 18 U.S.C. § 16 is a question we need not reach.⁸ See Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (outlining the categorical approach); Evanson v. Att'y Gen., 550 F.3d 284, 291 (3d Cir.2008) (discussing the “ ‘formal categorical approach’ [used] in evaluating whether predicate convictions fall within the definition of ‘aggravated felony’ ”). This is because regardless of whether Chavez–Alvarez's sodomy conviction is a crime of violence, he did not receive a sentence “for which the term of...