Military Sentence Can’t Trigger Deportation

     (CN) – A Mexican citizen who enlisted in the U.S. Army and was later court-martialed for having nonconsensual sex with a female platoon member cannot be deported for his crime, the 3rd Circuit ruled.
     Jose Chavez-Alvarez entered the U.S. at age two. He later became a permanent resident and served in the U.S. Army for over a decade.
     In 2000, Chavez-Alvarez was court-martialed for having nonconsensual sexual contact with a female platoon member.
     According to the opinion written by U.S. Circuit Judge D. Brooks Smith, Chavez-Alvarez escorted his platoon member back to the army base in Tongduchon, Korea after a night of drinking. She was unable to walk on her own, and vomited six to eight times when she got home.
     Despite being aware that the woman was unable to consent to sexual relations, Chavez-Alvarez had sex with her while she was incapacitated. The morning after, he lied to the Army in a written statement denying that he had sex with the woman, Smith said.
     Chavez-Alvarez was charged with rape, sodomy, making false official statements, and engaging in conduct that brings discredit to the armed forces.
     He pleaded guilty to all the charges except rape, and a military judge sentenced him to a dishonorable discharge and an 18-month confinement. Critically, the sentence did not apportion the 18-month sentence between the three charges to which Chavez-Alvarez pleaded guilty.
     Ten years later, the U.S. Department of Homeland Security arrested Chavez-Alvarez and sought to remove him as an alien who has been convicted of an aggravated felony, which is defined as a crime of violence for which the term of imprisonment is at least one year.
     The Board of Immigration Appeals found that Chavez-Alvarez’s court-martial conviction for committing sodomy makes him deportable.
     But the 3rd Circuit reversed Thursday, because the military judge only issued a general sentence, making it unclear whether any one of the charges accounted for 12 months of the 18-month sentence.
     “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,” Judge Smith wrote on behalf of the three-judge panel.
     Indeed, military courts traditionally issue just a single sentence covering all the convictions on all the charges, the court said.
     “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 19-page opinion states.
     Therefore, it is merely “rank speculation” to attribute at least one year of Chavez-Alvarez’s sentence to the forcible sodomy charge, Smith wrote.
     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,” the judge continued.
     While the court-martial procedures make it more difficult to deport an alien service member, it is for Congress to resolve this dilemma, not the courts, the panel ruled.
     Chavez-Alvarez’s attorney, Valerie Burch, of the Shagin Law Group in Harrisburg, Pa., told Courthouse News she was both pleased by the outcome of the case and disturbed that it took three years of litigation to have the case resolved.
     “The 3rd Circuit clearly acknowledged that the govenrment’s main argument for deportation was absurd, and I can’t believe that in the past three years none of the highly skilled attorneys on the other side failed to see how invalid their position was,” Burch said.
     “Mr. Chavez-Alvarez served in the U.S. Army for nine years. He did good work for our country. And to my mind, that makes the government’s position all the worse,” she continued. “We as lawyers have an obligation to only litigate issues that have merit. Unfortunately, no one pulled the plug on the case.”
     Burch said her client literally went broke fighting to stay in the United States.
     “All we ever wanted was to resolve this case; they refused to do so. If there’s a lesson in this, and I hope there is, it’s that government lawyers need to do a better job next time,” she said.
     Attorneys for the goverment did not respond to a request for comment.

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