2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-16-2015

Jose Chavez-Alvarez v. Attorney General United

States

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"Jose Chavez-Alvarez v. Attorney General United States" (2015). 2015 Decisions. Paper 390.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 14-1630

________________

JOSE JUAN CHAVEZ-ALVAREZ,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

_______________________

On Petition for Review from the 

Board of Immigration Appeals

BIA-1 No. A092-167-374

Immigration Judge: The Honorable Andrew Arthur

_______________________

Argued on

March 17, 2015

Before: SMITH, JORDAN, and VAN ANTWERPEN,

Circuit Judges

(Filed: April 16, 2015)
2

Valerie A. Burch, Esq.

Craig R. Shagin, Esq. [ARGUED]

The Shagin Law Group

120 South Street

The Inns of St. Jude

Harrisburg, PA 17101

Counsel for Petitioner

Jeffrey Bernstein, Esq.

Kathryn L. DeAngelis, Esq. [ARGUED]

United States Department of Justice

Office of Immigration Litigation

Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

________________

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. 
3

§§ 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 

 

1 Chavez-Alvarez also challenges the IJ’s conclusion 

that he is removable based on having been convicted of two 

crimes involving moral turpitude not arising from the same 

scheme of criminal conduct. See 8 U.S.C. 

§ 1227(a)(2)(A)(ii). As the BIA did not address this issue, it 

is not properly raised in this appeal and the BIA should 

consider the issue in the first instance, if necessary. 
4

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, ChavezAlvarez 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, ChavezAlvarez 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, ChavezAlvarez 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 

 

2

“A specification is a plain, concise, and definite 

statement of the essential facts constituting the offense 

charged. A specification is sufficient if it alleges every 

element of the charged offense expressly or by necessary 
5

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 badconduct discharge, to be reduced to the grade of E-1, and to 

be confined for a period of 18 months.” App’x 70. ChavezAlvarez’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 

 

implication. No particular format is required.” Rules for 

Courts-Martial (R.C.M.) 307(c)(3), Manual for CourtsMartial, II-28, 29 (2000 ed.). Each specification “[s]tates 

only one offense” and “[c]harges and specifications alleging 

all known offenses by an accused” may be brought at one 

time. R.C.M 307(c)(4), Manual for Courts-Martial, II-29. 

3 Article 134 (the general article), punishes a person 

subject to the UCMJ for, inter alia, “all disorders and 

neglects to the prejudice of good order and discipline in the 

armed forces, all conduct of a nature to bring discredit upon 

the armed forces.” 10 U.S.C. § 934; see Parker v. Levy, 417 

U.S. 733, 733 (1974).
6

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 ChavezAlvarez 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. ChavezAlvarez timely filed a petition for review. This Court issued 

a stay of removal pending the outcome of these proceedings.

 

4 Chavez-Alvarez separately filed a petition for a writ 

of habeas corpus challenging his detainment. See ChavezAlvarez v. Warden York Cnty. Prisons, No. 14-1402, 2015 

WL 1567019, --- F.3d --- (3d Cir. Apr. 9, 2015).
7

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 ChavezAlvarez’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 PieschaconVillegas 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 
8

has committed an aggravated felony. 8 U.S.C. 

§ 1229a(c)(3)(A); Nijhawan v. Holder, 557 U.S. 29, 42 

(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-martial5conviction for committing sodomy 

in violation of Article 125 of the UCMJ, which, at the time of 

his conviction, provided:

 

5 There are three kinds of courts-martial in the armed 

forces: general courts-martial, special courts-martial, and 

summary courts-martial. 10 U.S.C. § 816. General courtsmartial may consist of either:

(A) a military judge and not less than five 

members or, in a case in which the accused may 

be sentenced to a penalty of death, the number of 

members determined under section 825a of this 

title (article 25a); or

(B) only a military judge, if before the court is 

assembled the accused, knowing the identity of 

the military judge and after consultation with 

defense counsel, requests orally on the record or 

in writing a court composed only of a military 

judge and the military judge approves.

10 U.S.C. § 816(1). Chavez-Alvarez’s general court-martial 

consisted of only a military judge. 
9

(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.

(b) 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 

 

6 All references to Article 125, 10 U.S.C. § 925, in this 

opinion are to the 1956 version of the statute that was in 

effect at the time Chavez-Alvarez committed the offense. 

Article 125 has since been amended, and effective December 

26, 2013, the statute now only prohibits sodomy committed 

by force or without consent of the other person:

(a) Forcible sodomy.—Any person subject to 

this chapter who engages in unnatural carnal 

copulation with another person of the same or 

opposite sex by force or without the consent of 

the other person is guilty of forcible sodomy and 

shall be punished as a court-martial may direct. 

10 U.S.C. § 925 (2013). 
10

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 

 

7 All citations to the Manual for Courts-Martial are to 

the 2000 edition, the edition in effect at the time of ChavezAlvarez’s general court-martial. 
11

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, 133 

 

8

In addition, we need not reach Chavez-Alvarez’s 

argument regarding the availability of a Section 212(h) 

waiver for an alien subject to removal. 8 U.S.C. § 1182(h). 

On remand, the BIA may conclude that Chavez-Alvarez is no 

longer subject to removal, at which point this issue would be 

moot. And even if Chavez-Alvarez is 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, the legal basis for any relief 

from removal that Chavez-Alvarez may seek would be based 

on arguments not presently before us. Thus, despite the fact 

that several of our sister courts of appeals have found that 

Section 212(h) waivers are available to an alien seeking a 

waiver from inside our borders only if an alien files an 

application for adjustment of status concurrently with a 

waiver request, see Rivas v. Att’y Gen., 765 F.3d 1324, 1329–

30 (11th Cir. 2014), Cabral v. Holder, 632 F.3d 886, 891–94 

(5th Cir. 2011), Klementanovsky v. Gonzales, 501 F.3d 788, 
12

S. Ct. 1678, 1684 (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 imprisonment [was] at least one year.” See 8 

U.S.C. § 1101(a)(43)(F).

It is patent that the sentencing procedure used by the 

military judge provided no specific proof regarding the way 

in which the sentence was rendered as to each charge. 

Indeed, 

[I]t is the normal, traditional and well understood 

practice in the administration of military justice 

that ‘there shall be but a single sentence covering 

all the convictions on all the charges and 

specifications upon which the accused is found 

guilty, however separate and distinct may be the 

different offenses found, and however different 

may be the punishments called for by the 

offenses.’ 

Jackson v. Taylor, 234 F.2d 611, 613 (3d Cir. 1956) (quoting 

1 Winthrop, Military Law, 2d ed. § 615) (challenging the 

validity of a modified sentence and addressing the intricacies 

 

791–94 (7th Cir. 2007), we decline to address this question in 

a precedential opinion at this time. 
13

of the military’s “gross sentence practice”), aff’d, 353 U.S. 

569 (1957). When a general sentence is issued by a military 

tribunal, it is typically “conjectural what sentence the courtmartial would have imposed” for one charge in the absence of 

another. Id. at 614. 

So too here. The record is devoid of any indication as 

to how or if the military judge apportioned the general 

sentence among Chavez-Alvarez’s various convictions. Nor 

does the Manual for Courts-Martial contain any suggestion 

that a military judge should do so. The assumptions made 

about Chavez-Alvarez’s general sentence are fundamentally 

incompatible with the Government’s burden of proof. To the 

extent that any proof of Chavez-Alvarez’s sentence ever 

existed, it has apparently been lost to time. In reinforcing that 

the burden of proof on the DHS to establish deportation is by 

“clear and convincing” evidence, the Supreme Court has 

noted that “uncertainties caused by the passage of time are 

likely to count in the alien’s favor.” Nijhawan, 557 U.S. 

at 42. The record here establishes only uncertainty—a factor 

that must redound to Chavez-Alvarez’s benefit. 

The BIA and the Government provide independent 

justifications for finding Chavez-Alvarez removable, both of 

which fail.

Relying on a 60-plus-year-old BIA decision, the IJ 

reasoned that “[g]eneral sentences for multiple convictions 

have been interpreted by the BIA to apply to each conviction, 

to run concurrently.” App’x 36 (citing Matter of S-, 3 I. & N.

Dec. 460 (BIA 1948)). Despite acknowledging Chavez-
14

Alvarez’s argument that the Government’s interpretation was 

contrary to law and statute, the IJ reasoned that he was bound 

by Matter of S-. Id. The BIA similarly concluded that Matter 

of S- “support[ed] [the IJ’s] conclusion that the respondent’s 

general sentence applies to his conviction for sodomy by 

force.” App’x 11 (citing as further support Martinez v. Nagle, 

53 F.2d 195 (9th Cir. 1931)).

In Matter of S-, the BIA addressed whether the 

relevant record established that an alien who had pleaded 

guilty in federal court to three counts of an indictment and 

received “a general sentence of 15 months imprisonment and 

a fine of $1 as to all the offenses” could be found to have 

“been sentenced to a term of imprisonment for 1 year or 

more” for violation of the specific federal statute that would 

subject the alien to deportation. 3 I. & N. Dec. at 461 

(deportation under the Narcotic Drugs Import and Export Act 

of 1909). The BIA relied on an earlier Ninth Circuit decision 

that, according to the BIA, was “on all fours with the instant 

case”: Martinez v. Nagel, 53 F.2d 195 (9th Cir. 1931). Id. In 

doing so, the BIA applied the Ninth Circuit’s presumption of 

judicial regularity, specifically that: “The court might have 

sentenced the defendant on each count or it might impose one 

sentence upon both counts either upon a plea or verdict of 

guilty, and unless it specifically appears that the sentence was 

imposed upon one count only, the presumption obtains that it 

was a sentence upon both counts.” Id. at 462 (quoting 

Martinez, 53 F.2d at 197).

The Ninth Circuit’s 1931 decision in Martinez says 

nothing about general sentencing in the military and is based 
15

on concurrent sentencing in federal court. For example, in 

addressing general sentences, the Ninth Circuit reasoned,

“‘each sentence begins to run at once and all run 

concurrently, in the absence of some definite, specific 

provision that the sentences shall run consecutively, 

specifying the order of sequence.’” Martinez, 53 F.2d at 197 

(quoting Puccinelli v. United States, 5 F.2d 6, 9 (9th Cir. 

1925)). The rule from Martinez was most recently cited in 

1982 (and before the enactment of the Sentencing Reform Act 

of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984)) as “a 

long-standing presumption, when the record is silent, in favor 

of concurrent sentences when the defendant has been found 

guilty on two counts and has been sentenced to imprisonment 

on one count and probation on the other.” United States v. 

Rodriguez, 682 F.2d 827, 829 (9th Cir. 1982). Yet Martinez 

says nothing about general sentences in the military or how 

such sentences should be interpreted for removal purposes 

under the INA. The Ninth Circuit’s presumption is simply 

inapplicable to the sentencing scheme at issue in this case.

On appeal, the Government concedes that Matter of Shas limited applicability. Instead, the Government provides 

two separate arguments in support of the BIA’s decision, 

neither of which is persuasive. 

First, the Government contends that if we agree with 

Chavez-Alvarez, “because the military employs general 

sentencing, no criminal alien service member who has been 

charged with more than [one] offense, at least one of which is 

an aggravated felony, can ever be ordered removed from the 

United States based on his commission of that crime.” Att’y 
16

Gen. Br. 27. As a starting point, the Government is wrong 

that alien service members could never be removable if they 

receive a general sentence after being convicted of multiple

offenses if one or more of the offenses are an aggravated 

felony. We posit an example. An alien service member is

convicted of two offenses each of which has a maximum 

sentence of five years. The military judge finds that each 

offense is subject to an independent sentence, and the service 

member receives a general sentence of 10 years. One could

conclude, barring some nuance not anticipated in this 

hypothetical, that the alien service member received a 

sentence of five years as to each offense.9 Such apportioning 

 

9 Sentencing procedures in courts-martial are governed 

by the Rules for Courts-Martial. Rule 1002 provides that 

“[s]ubject to limitations in this Manual, the sentence to be 

adjudged is a matter within the discretion of the court-martial; 

except when a mandatory minimum sentence is prescribed by 

the code, a court-martial may adjudge any punishment 

authorized in this Manual, including the maximum 

punishment or any lesser punishment, or may adjudge a 

sentence of no punishment.” R.C.M. 1002, Manual for 

Courts-Martial, II-125. In terms of the available punishment, 

when “the accused is found guilty of two or more offenses, 

the maximum authorized punishment may be imposed for 

each separate offense.” R.C.M. 1003(c)(1)(C), Manual for 

Courts-Martial, II-128. Unless otherwise provided in 

paragraph 5 of Part IV of the Manual, “offenses are not 

separate if each does not require proof of an element not 

required to prove the other.” Id. If the military judge 

determines that the offenses are not separate, “the maximum 
17

would not require the kind of guesswork done by the 

Government in this case.

Even assuming we were sympathetic with the 

Government’s position on this policy issue, the Government 

essentially asks this Court to legislate a presumption in favor 

of removing alien military service members that is strikingly 

absent from the INA or relevant Supreme Court precedent. 

There are solutions to this potential dilemma, but they do not 

lie with the judiciary. For example, the President can 

prescribe (through the Manual for Courts-Martial) that 

multiple sentences, as opposed to general sentences, be issued 

by a court-martial. In addition, Congress has the authority to 

require multiple sentences more generally in the military or to 

amend the INA to add a special exception for evaluating the 

convictions of service members. Such solutions are not for 

this Court to devise, however. As such, the mere fact that 

“‘Congress may not have foreseen all of the consequences of 

a statutory enactment is not a sufficient reason for refusing to 

give effect to its plain meaning.’” Lockhart v. United States, 

546 U.S. 142, 146 (2005) (quoting Union Bank v. Wolas, 502 

U.S. 151, 158 (1991)). The definition of an aggravated 

 

punishment for those offenses shall be the maximum 

authorized punishment for the offense carrying the greatest 

maximum punishment.” Id. In a court-martial composed of a 

military judge alone, after all applicable and appropriate 

sentencing procedures, see R.C.M. 1001-1006, Manual for 

Courts-Martial, II-125–35, the sentence is announced by the 

military judge in the presence of all the parties. R.C.M. 

1007(a), Manual for Courts-Martial, II-135.
18

felony, 8 U.S.C. § 1101(a)(43)(F), requires a conviction with 

a term of imprisonment of at least one year, and here we 

simply have insufficient evidence of such a conviction.

The Government’s second argument requires

mathematic gymnastics and rank speculation. Specifically, 

the Government argues that “given Alvarez’s 18-month 

sentence, the nature of the crimes committed, and the 

maximum allowable sentence for each offense, it cannot be 

seriously disputed that at least one year of the sentence is 

attributable to the forcible sodomy offense.” Att’y Gen. Br. 

27. As support, the Government postulated that ChavezAlvarez would receive a maximum sentence for each 

conviction and that he would live to 75 years of age, resulting 

in a “proportional breakdown” set out in a table. Id. at 27–28 

& n.10. The table provided:

(1.5 year actual sentence * maximum sentence 

for charge A) / 86 year aggregate maximum 

sentence for all charges = proportional sentence 

for charge A.

Conviction Maximum 

sentence

Proportional 

Share of 

Sentence

Art[] 107 false 

official 

statement

5 years 1 month
19

Art 125 

forcible 

sodomy

Life (75 years) 15 months, 3 

weeks

Art 134 

adultery

1 year 6 days

Art 134 

indecent act

5 years 1 month

Id. at n.10. This argument and post-hoc rationalization of 

Chavez-Alvarez’s sentence is so far removed from the 

relevant proof we may consider, Nijhawan, 557 U.S. at 35–

36, and the clear and convincing evidence the Government 

must provide by statute, 8 U.S.C. § 1229a(c)(3)(A), that it 

scarcely passes the laugh test.

In sum, the BIA committed legal error in concluding 

that Chavez-Alvarez’s sodomy conviction was a crime “for 

which the term of imprisonment [was] at least one year.” 8 

U.S.C. § 1101(a)(43)(F).

IV.

We will grant Chavez-Alvarez’s petition and remand 

the case to the BIA for further proceedings.