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)
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.

                            2
§§ 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.
                               3
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, Chavez-
Alvarez 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, Chavez-
Alvarez 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, Chavez-
Alvarez 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
                            4
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 bad-
conduct discharge, to be reduced to the grade of E-1, and to
be confined for a period of 18 months.” App’x 70. Chavez-
Alvarez’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 Courts-
Martial, 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, 

, 733 (1974).
                             5
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 Chavez-
Alvarez 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. Chavez-
Alvarez 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 Chavez-
Alvarez v. Warden York Cnty. Prisons, No. 14-1402, 

, --- F.3d --- (3d Cir. Apr. 9, 2015).
                              6
                              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 Chavez-
Alvarez’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., 

,
1082 (3d Cir. 2014). Whether an alien’s offense constitutes
an aggravated felony is “a purely legal question.” Restrepo v.
Att’y Gen., 

, 790 (3d Cir. 2010). We review
legal challenges de novo. 

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.,

, 352 (3d Cir. 2014) (quoting Pieschacon-
Villegas v. Att’y Gen., 

, 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., 

, 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

                              7
has committed an aggravated felony.               8 U.S.C.
§ 1229a(c)(3)(A); Nijhawan v. Holder, 

, 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-martial5 conviction 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 courts-
martial 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.
                              8
       (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).
                               9
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 Chavez-
Alvarez’s general court-martial.
                             10
      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., 

, 1329–
30 (11th Cir. 2014), Cabral v. Holder, 

, 891–94
(5th Cir. 2011), Klementanovsky v. Gonzales, 

,
                              

, 1684 (2013) (outlining the categorical approach);
Evanson v. Att’y Gen., 

, 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, 

, 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.
                             12
of the military’s “gross sentence practice”), aff’d, 

(1957). When a general sentence is issued by a military
tribunal, it is typically “conjectural what sentence the court-
martial would have imposed” for one charge in the absence of
another. 

       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.” 

. 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-

                               13
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-. 

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,

(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, 

(9th Cir. 1931). 

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.” 

(quoting

).

      The Ninth Circuit’s 1931 decision in Martinez says
nothing about general sentencing in the military and is based

                              14
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.’” 

(quoting Puccinelli v. United States, 

, 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, 

, 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 S-
has 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

                             15
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.” 

military judge
determines that the offenses are not separate, “the maximum
                              16
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,

, 146 (2005) (quoting Union Bank v. Wolas, 

, 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.” 

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.
                              17
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 Chavez-
Alvarez 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. 

& 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           Proportional
                          sentence            Share of
                                              Sentence

       Art[] 107 false      5 years            1 month
           official
         statement



                              18
         Art 125       Life (75 years)    15 months, 3
         forcible                            weeks
         sodomy

         Art 134           1 year            6 days
         adultery

         Art 134          5 years           1 month
       indecent act

This argument and post-hoc rationalization of
Chavez-Alvarez’s sentence is so far removed from the
relevant proof we may consider, 

–
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.




                            19