Jose Chavez-Alvarez v. Attorney General United States, 783 F.3d 478

Chavez-Alvarez, a Mexican national, entered the U.S. as a child, became an LPR in 1989, and served in the U.S. Army (1991–2004).
In 2000 he pled guilty at a general court-martial to multiple specifications including sodomy (Article 125), false official statements, and other Article 134 offenses; the military judge imposed a single (general) sentence of 18 months’ confinement and a bad-conduct discharge without apportioning the term among offenses.
DHS initiated removal proceedings in 2012, charging aggravated-felony removability under 8 U.S.C. § 1101(a)(43)(F) (a “crime of violence” with at least a one-year term) and also charging removable offenses involving moral turpitude.
The IJ and the BIA concluded Chavez-Alvarez was removable as to an aggravated felony (sodomy) and denied a Section 212(h) waiver; the BIA relied in part on Matter of S- and on assumptions about how a general military sentence should be treated.
The Third Circuit reviewed legal issues de novo and held the government failed to meet its clear-and-convincing burden to show Chavez-Alvarez was sentenced to at least one year for the sodomy conviction because the record contains only an unapportioned 18-month general sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Chavez-Alvarez was convicted of an aggravated felony because his sodomy conviction carried a term of imprisonment of at least one year	Chavez-Alvarez: the military judge’s unapportioned general 18‑month sentence does not prove that any single conviction carried a one‑year term; uncertainty favors the alien under the government’s clear-and-convincing burden	Government: a general sentence applies to each conviction (relying on Matter of S- and presumptions of concurrence/proportional attribution), and given the 18 months at least one year must be attributable to forcible sodomy	Held: Reversed — government failed to prove by clear and convincing evidence that the sodomy conviction carried a one‑year term; remanded to the BIA.
Whether the BIA properly denied consideration of a Section 212(h) waiver	Chavez-Alvarez: waiver issue may be moot or requires BIA consideration only after removal basis is resolved	Government: BIA decision on aggravated felony makes waiver inapplicable	Held: Court did not decide waiver availability; remanded so BIA can address waiver and other issues in the first instance if necessary.

Nijhawan v. Holder, 557 U.S. 29 (clear-and-convincing burden and uncertainties favor alien)
Moncrieffe v. Holder, 569 U.S. 184 (categorical approach to immigration predicates)
Restrepo v. Att’y Gen., 617 F.3d 787 (aggravated-felony determinations are legal questions)
Jackson v. Taylor, 234 F.2d 611 (discussion of "general" or "gross" military sentencing practice)
Martinez v. Nagel, 53 F.2d 195 (Ninth Circuit presumption about concurrent sentences in federal court relied on by Matter of S-)
Lockhart v. United States, 546 U.S. 142 (courts must give effect to statutory text despite unforeseen consequences)