Chavez Alvarez v. Attorney General ___F.3d___(2017 WL 929166)(CHavez Alvarez II
Mar 09, 2017OUTCOME: Petition for Review Granted; Deportation case terminated
Board of Immigration Appeals (BIA) improperly determined that the Manual for Courts-Martial, which allows a military judge to enhance a punishment, created divisible crimes of consensual sodomy and for ... cible sodomy, and therefore BIA erred in determining that alien's sodomy conviction was a conviction for forcible sodomy and thus one of moral turpitude, rendering him removable; the use of force in the commission of sodomy was not an element of that crime as defined in the Uniform Code of Military Justice (UCMJ), and sentencing considerations listed in the Manual could not establish use of force as an element of the offense. Immigration and Nationality Act § 237, 8 U.S.C.A. § 1227(a)(2)(A)(ii). The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute; in a criminal case, the law must be written by Congress. Congress has created and the Supreme Court has long recognized two systems of justice, to some extent parallel, one for civilians and one for military personnel, such that military personnel are subject to a separate justice system with separate statutory rights and crimes, but the Constitution is clear that Congress alone has power to create that separate statutory regime. Alien's conviction, in a military court martial, of the crime of sodomy, was not a crime involving moral turpitude and thus did not make him removable. Immigration and Nationality Act § 237, 8 U.S.C.A. § 1227(a)(2)(A)(ii).
