Jose Chavez-Alvarez v. Attorney General United State
850 F.3d 583
3rd Cir.2017Background
- Chavez-Alvarez, a Mexican national and lawful permanent resident, served 12+ years in the U.S. Army and was convicted at court-martial (2000) of sodomy (10 U.S.C. §925), two counts of making false official statements (Article 107), and Article 134 offenses; sentenced to confinement and discharge.
- DHS later charged him as removable under INA § 237(a)(2)(A)(iii) (aggravated felony) and § 237(a)(2)(A)(ii) (two or more crimes involving moral turpitude).
- This Court previously remanded because the record did not show whether at least one year of the sentence was attributable to the sodomy count. Chavez-Alvarez v. Att’y Gen., 783 F.3d 478 (3d Cir. 2015).
- On remand the BIA found he was removable under the moral-turpitude provision, reasoning the conviction was for forcible sodomy (a divisible, aggravated offense) because the Manual for Courts-Martial authorized a sentence enhancement for use of force.
- Chavez-Alvarez argued Lawrence v. Texas made consensual sodomy noncriminal and that the Code’s sodomy statute (as written in 2000) did not distinguish forcible sodomy; the Court considered whether the Manual’s sentencing factors could be treated as elements for immigration purposes.
Issues
| Issue | Plaintiff's Argument (Chavez-Alvarez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether crimes arose from a “single scheme” such that convictions are not separate for INA §1227(a)(2)(A)(ii) | The sodomy and false-statement convictions flowed from a single episode and were part of one continuous criminal scheme | The offenses were distinct in nature and separated by time; false statements were not a natural consequence of the sodomy | BIA’s definition of “single scheme” is reasonable; convictions are separate (BIA affirmed on this point) |
| Whether Chavez-Alvarez was convicted of forcible sodomy (divisible offense) or sodomy (nondivisible) | He was convicted under the Code of sodomy, which did not differentiate forcible vs. consensual; sentencing enhancements in the Manual cannot create elements | Charging, stipulation, and sentencing enhancement show forcible sodomy proved beyond a reasonable doubt, so modified categorical approach applies | The Court held the Code did not create a divisible forcible sodomy offense; sentencing factors in the Manual cannot become elements; conviction is for sodomy, not forcible sodomy |
| Whether sentencing-enhancement factors in the Manual may be treated as elements for categorical analysis | Manual’s enhancement cannot add statutory elements; only Congress defines crimes | Manual plus Code together create separate offenses permitting inquiry into facts | The Executive (Manual/BIA) cannot redefine crimes; treating sentencing factors as elements violates separation of powers; modified categorical approach not permitted here |
| Whether sodomy (as statutorily defined in 2000) is a crime involving moral turpitude post-Lawrence | The statute criminalized sodomy (including private consensual conduct) and Lawrence renders such a statute constitutionally infirm as to consensual conduct | Government argued forcible conduct could be treated as forcible sodomy (moral turpitude) | Because the Code, as written then, did not distinguish forcible acts, the statute (as applied) cannot serve as a predicate crime involving moral turpitude under the INA; removal reversed |
Key Cases Cited
- Chavez-Alvarez v. Attorney General of U.S., 783 F.3d 478 (3d Cir. 2015) (prior remand for sentencing apportionment)
- Lawrence v. Texas, 539 U.S. 558 (2003) (constitutional protection for private consensual sexual conduct)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing divisible statutes and use of the modified categorical approach)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (agency deference for reasonable statutory interpretation)
- Dixon v. United States, 548 U.S. 1 (2006) (legislature defines criminal elements)
- Loving v. United States, 517 U.S. 748 (1996) (President may be delegated authority to define penalties but not to redefine elements of offenses)