Chavez-Alvarez (BIA and 3d Cir): No Presumption of Sentence for Single Count in Military General Sentencing


Introduction: Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014); Chavez-Alvarez v. Attorney General U.S., 783 F.3d 478 (3d Cir. 2015)

On March 14, 2015, the Board of Immigration Appeals (BIA) published a precedent decision in Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014) [PDF version]. The case concerned an alien service member who had been convicted of five provisions of the Uniform Code of Military Justice and sentenced to a term of confinement of 18 months. On the basis of one of these convictions — for sodomy — the Board concluded that he had been convicted of an aggravated felony crime of violence for which the term of imprisonment was one year or more. However, on April 16, 2015, the United States Court of Appeals for the Third Circuit granted the alien's petition for review and remanded the record to the Board in Chavez-Alvarez v. Attorney General U.S., 783 F.3d 478 (3d Cir. 2015) [PDF version], finding that because the sentence did not individually specify the length of incarceration for each of the four counts, including the sodomy count, the alien had not been convicted of a crime of violence for which the term of imprisonment imposed was one year or more.

The Chavez-Alvarez case has an extensive factual and procedural history. In fact, after the 2015 Third Circuit remand, the Board in a 2016 unpublished decision had concluded that Chavez-Alvarez was removable on the basis that his sodomy conviction was a crime involving moral turpitude. The Third Circuit reversed the Board in a second precedent decision dealing with the crime involving moral turpitude question in Chavez-Alvarez v. Attorney General U.S., 850 F.3d 583 (3d Cir. 2017) [PDF version], ultimately resulting in the BIA terminating proceedings against Chavez-Alvarez in another unpublished decision. We discuss the decision involving the moral turpitude issue in a separate article [see article].

In this article, we will discuss the dueling BIA and Third Circuit decisions on whether Chavez-Alvarez had been sentenced to a term of imprisonment of one year or more. Please note that while the initial BIA and Third Circuit decisions do address other issues, we will focus this article on the question of the length of imposed sentence of confinement for the sodomy conviction. Although the Third Circuit remanded Matter of Chavez-Alvarez, the BIA decision in this case remains binding precedent for all immigration judges outside of the jurisdiction of the Third Circuit, and the issue thus remains live in other jurisdictions. To learn more about the issue, please see our opinion blog in support of the Third Circuit's reasoning on the issue [see blog].

Factual and Procedural History

Chavez-Alvarez, a native and citizen of Mexico, initially entered the United States without inspection before adjusting his status to that of an alien lawfully admitted for permanent residence. 26 I&N Dec. at 275. At the time of his convictions, Chavez-Alvarez was a member of the United States Army. Id.

On December 12, 2000, Chavez-Alvarez pled guilty in a General Court-Martial to violation of three articles: 10 U.S.C. 907 (False official statements); 10 U.S.C. 925 (Sodomy); 10 U.S.C. 934 (Assault-indecent); and 10 U.S.C. 934 (Adultery). Id. & 783 F.3d at 483. As a result of his guilty plea, Chavez-Alvarez was sentenced to a aggregate term of confinement of 18 months, and the sentencing board did not state the specific sentence imposed for each count of conviction. 26 I&N Dec. at 275.

However, Chavez-Alvarez's sentence was enhanced due to the sentencing board's finding that he had committed “sodomy by force,” although the statutory provision at the time simply prohibited sodomy regardless of whether it was committed “by force.” 783 F.3d at 482 n.6. We discuss this point further in our companion article on the Third Circuit's 2017 Chavez-Alvarez decision [see article]. However, the Third Circuit did not find it necessary to reach the question in its 2015 decision which we are discussing in this article. Thus, although the Third Circuit would ultimately decide the 2017 case on the basis that Chavez-Alvarez was convicted of sodomy rather than sodomy by force, for purposes of this article we shall refer to his conviction as sodomy by force where the Immigration Judge, the BIA, and the Third Circuit also did.

On November 1, 2012, the Immigration Judge found that the respondent's offense of sodomy by force was a crime of violence under both 18 U.S.C. 16(a) and (b). 27 I&N Dec. at 275. Under section 101(a)(43)(F) of the Immigration and Nationality Act (INA), a conviction for a crime of violence as described in 18 U.S.C. 16 for which the term of imprisonment is one year or more is an aggravated felony. Because Chavez-Alvarez was sentenced to an aggregate term of confinement of 18 months for his convictions, the Immigration Judge concluded that he had been convicted of an aggravated felony crime of violence. Id. The Immigration Judge also concluded that Chavez-Alvarez's convictions for sodomy by force and making false statements were crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Id. The Immigration Judge found that Chavez-Alvarez was removable for both the crime of violence and the two convictions for crimes involving moral turpitude, and ordered him removed after denying his request for relief under section 212(h) of the INA. Id.

The respondent appealed from the Immigration Judge's decision to the BIA. He ventured several arguments on appeal. First, he argued that he had never been “admitted” to the United States because he had entered without inspection and then adjusted status. Id. Second, he argued that sodomy by force was neither a crime of violence nor a crime involving moral turpitude. Id. Third, he argued that his convictions for sodomy by force and making false statements arose from a single scheme of criminal misconduct, thus falling under an exception in section 237(a)(2)(A)(ii) of the INA. Id. Finally, he argued that he was eligible for a standalone section 212(h) waiver. Id.

In the following sections, we will focus primarily on the analysis of the Board and the Third Circuit with regard to whether the Chavez-Alvarez's sentence on the sodomy count was for one year or more for purposes of section 101(a)(43)(F) of the INA.

We will reserve or omit discussion of all other issues. First, we will reserve discussion of two points for our companion article. We will omit the Board's extensive discussion of whether the respondent's conviction was for a crime of violence, regardless of the length of the sentence, and we will reserve discussion of the points involving crimes involving moral turpitude for our companion article on the 2017 Third Circuit decision [see article]. These points involve related issues dealing with whether to take the Manual for Courts-Martial into account in determining what Chavez-Alvarez was convicted of. Second, we will reserve discussion of the Board's analysis of whether Chavez-Alvarez had been “admitted” for purpose of section 237(a)(2)(A)(iii) for a later article (it concluded that he had been), but you may read the Board's analysis and conclusions at Id. 275-78. We will also not address points involving the 212(h) waiver in these articles, but you may find the Board's analysis at Id. at 282-83.

BIA Concludes that Sodomy Conviction was Crime of Violence for Which Term of Imprisonment Was One Year or More

The respondent had three total convictions from his General Court Martial. He challenged the Immigration Judge's conclusion that his aggregate sentence of 18 months of confinement applied to each conviction, meaning that the sodomy conviction alone would be deemed to have resulted in a term of imprisonment of one year or more. Id. at 282.

The BIA rejected Chavez-Alvarez's arguments while addling little analysis of its own. The Board noted that the Immigration Judge relied heavily on the BIA precedent decision in Matter of S-, 3 I&N Dec. 460 (BIA 1948) [PDF version] [see article]. Id. The Board stated that it agreed that Matter of S- supported the Immigration Judge's conclusion that the Chavez-Alvarez's aggregate sentence applied to his conviction for sodomy by force. Id. The Board also found that the decision of the United States Court of Appeals for the Ninth Circuit in Martinez v. Nagle, 53 F.2d 195 (9th Cir. 1931) [PDF version] supported this conclusion.

Third Circuit Concludes that Chavez-Alvarez Was Not Sentenced to Term of Imprisonment of At Least One Year for Sodomy Article

After the affirmance of his removal order by the BIA, Chavez-Alvarez appealed to the Third Circuit. Although the Board only spared a single 100-word paragraph of its nearly 4,200 word decision to analyzing whether Chavez-Alvarez was sentenced to a term of imprisonment of at least one year for the sodomy article, the Third Circuit ultimately dedicated most of its decision to this point and ordered remand on this ground.

The Third Circuit listed the potential maximum sentences for each of the four specifications to which Chavez-Alvarez pled guilty, as detailed in the 2000 edition of the Manual for CourtsMartial:

(Note: Citation for Article 134 is Manual for Courts-Martial, IV-96-97.) 783 F.3d at 482-83.

The Third Circuit did not reach a conclusion on whether a conviction in violation of 10 U.S.C. 925 — for sodomy — contained all the elements of a “crime of violence.” 783 F.3d at 483. The Third Circuit found that reaching this question was unnecessary “because regardless of whether Chavez-Alvarez's conviction is a crime of violence, he did not receive a sentence 'for which the term of imprisonment [was] at least one year.'” Id.

The Third Circuit found it significant “that the sentencing procedure used by the military judge provided no specific proof regarding the way in which the sentence was rendered on each charge.” Id. In fact, in Jackson v. Taylor, 234 F.2d 611, 613 (3d Cir. 1956) [PDF version], the Third Circuit noted, quoting from Winthrop, Military Law, 2d ed. sec. 215, that “[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…” Id. at 483-84.

In addition to reiterating that “[t]he record [in the instant case] is devoid of any indication as to how or if the military judge apportioned the general sentence among Chavez-Alvarez's various convictions,” the Court added that there was no such guidance for apportioning a sentence among various convictions in the Manual for Courts-Martial. Id. at 484.

Regarding the decision of the Immigration Judge and the BIA, the Third Circuit held that their “assumptions made about Chavez-Alvarez's general sentence are fundamentally incompatible with the Government's burden of proof.” Id. The Third Circuit added that if there was any proof of how Chavez-Alvarez's sentence was apportioned, “it has apparently been lost to time.” Id. It noted that in Nijhawan v. Holder, 557 U.S. 29, 42 (2009) [PDF version] [see article], the Supreme Court held that “uncertainties caused by the passage of time are likely to count in the alien's favor.”

The Third Circuit then reviewed the justifications provided by the Immigration Judge and the BIA in favor of their position that Chavez-Alvarez had been sentenced to at least one year of imprisonment for his sodomy conviction, both of which the Third Circuit found to be unavailing.

First, the Third Circuit addressed Matter of S-, which we discuss in detail in a separate article [see article]. The Court explained that “[i]n Matter of S-, 3 I&N Dec. at 461, the BIA examined whether the relevant record established that an alien who had pleaded guilty in federal court to three copunts 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.” 26 I&N Dec. at 484. In the Matter of S-, the Board had relied heavily on the Ninth Circuit decision in Martinez v. Nagle, to which the Board cited in the instant case as well. In Matter of S-, 3 I&N Dec. at 462, the Board had quoted the following passage from Martinez in reaching its decision: “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.” (Internal citation omitted). 26 I&N Dec. at 484. In short, the Matter of S- Board applied what the Third Circuit described as a “presumption of judicial regularity” in holding that a sentence on multiple counts which does not specifically apportion time to each count is presented to apply in full to each count. Id.

However, the Third Circuit concluded that neither Matter of S- nor Martinez spoke to the issue in the Chavez-Alvarez matter. Specifically, the Third Circuit noted that Martinez was concerned with statutorily authorized concurrent sentencing in federal court, not the general sentencing practice of the military courts. Id. at 485. Furthermore, the Third Circuit noted that Martinez was most recently cited in 1982, prior to the enactment of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984). Id. In that decision, United States v. Rodriguez, 682 F.2d 827, 829 (9th Cir. 1982) [PDF version], the Ninth Circuit had described Rodriguez as recognizing “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.” 783 F.3d at 485. The Third Circuit noted, again, that “[y]et, Martinez says nothing about general sentences in the military or how such sentences should be interpreted for removal purposes under the INA.” Id.

The Government conceded that Matter of S- had only limited applicability in the instant case on appeal before the Third Circuit. Id. In the alternative, the Government made two different arguments in support of the Board's decision.

The Government's first argument appealed to the practical ramifications of agreeing with the position of Chavez-Alvarez on appeal. It stated that if the Third Circuit adopted his arguments, “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.” (Quoting Government brief; Internal citations omitted.) Id. However, the Third Circuit held that this argument was incorrect. The Court provided the following 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.” Id. However, the Third Circuit held that even if it concluded that the Government's argument was correct, the Government was “essentially ask[ing] [the] 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.” Id. at 486. The Third Circuit noted that any solutions to the problems suggested by the Government lay not in the hands of the judiciary, but rather with the President and the Congress. Id. The Court quoted from the Supreme Court decision in Lockhart v. United States, 546 U.S. 142 (2005) [PDF version] (Internal citations omitted), wherein the Supreme Court wrote that the fact that “Congress may not have foreseen all the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning.” (Internal citations omitted.) 783 F.3d at 486.

The Third Circuit quoted from the Government's brief to describe its second argument: “[G]iven Alvarez's 18-month sentence, the nature of the crimes committed, and the maximum allowable sentence of each offense, it cannot be seriously disputed that at least one year of the sentence is attributable to the forcible sodomy offense.” (Internal citations omitted.) Id. To demonstrate, the Government assumed that a possible life sentence for sodomy, which could have been imposed, would be the equivalent of 75 years on average, and then weighed the potential maximum sentences for the other counts to come up with an estimate for the proportion of Chavez-Alvarez's 18-month sentence that could be attributed to the sodomy conviction. Id. You may see the Government's estimations below:


Suffice it to say, the Third Circuit was not persuaded by the argument, which it described as “requir[ing] mathematic gymnastics and rank speculation.” Id. The Court further wrote disparagingly: “This argument and post-hoc rationalization of Chavez-Alvarez's sentence is so far removed from the relevant proof that we may consider …, and the clear and convincing evidence the government must provide by statute …, that it scarcely passes the laugh test.” Id.

For the foregoing reasons, the Third Circuit concluded that the BIA committed legal error by determining that Chavez-Alvarez was sentenced to at least one year of imprisonment for his sodomy conviction. Accordingly, the Third Circuit held that Chavez-Alvarez had not been convicted of an aggravated felony crime of violence under section 101(a)(43)(F). For this reason, the Court remanded the case to the BIA for further proceedings.


The Third Circuit definitively rejected the Board's position in Matter of Chavez-Alvarez that where an individual is given a general sentence in military proceedings for multiple counts, and the question is whether one of the counts specifically is responsible for a certain amount of the sentence, that adjudicators may presume that the sentence is attributable to the count in question.

However, the Board has not yet revisited its holding on this point from Matter of Chavez-Alvarez. This means that immigration judges outside the jurisdiction of the Third Circuit remain bound to follow the decision, whereas immigration judges in the Third Circuit are bound to follow the Third Circuit. The issue continues to be litigated, and we will update the website with new developments as they occur.

If an alien service member or former service member is charged as removable, he or she should consult with an experienced immigration attorney immediately. While each case is unique, the Chavez-Alvarez case shows the importance of having skilled legal counsel. In this case, the alien was convicted of very serious offenses in military proceedings. Yet, because cogent legal arguments were made on his behalf, he was able to prevail not once, but twice, before the Third Circuit on appeal.

Please see the relevant sections on our website to learn more about criminal aliens [see category] and removal and deportation defense [see category]. To learn more about the main issue discussed in this article, please see our opinion blog on the subject [see blog]. Finally, please see our companion article on the Chavez-Alvarez series of cases to learn why the Third Circuit ultimately rejected the Government's arguments that Chavez-Alvarez's sodomy conviction was a crime involving moral turpitude [see article].