The Board of Immigration Appeals did a lot in a short ten-page decision: held that adjustment of status constitutes an admission when determining removal, providing some clarity on when a sentencing enhancement constitutes an “offense,” and ultimately held that the military’s version of sodomy by force is a crime of violence type of aggravated felony. Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014) (Pauley, Guendelsberger, and Malphrus, Board members). Board member Pauley wrote the panel’s decision.
This case involved a member of the U.S. Army convicted of sodomy by force in violation the Uniform Code of Military Justice (UCMJ) provision codified at 10 U.S.C. § 925. Previously the soldier had entered without inspection and adjusted his status to that of a lawful permanent resident. Matter of Chavez-Alvarez, 26 I&N Dec. at 275. He argued that his adjustment did not constitute an “admission” for purposes of removal and, alternatively, that sodomy by force is not an aggravated felony. The Board disagreed with both positions.
First, the Board explained that it has previously “considered adjustment of status as a form of ‘admission’” for removal and relief. Id. at 275. Though “this position has not generally been well received by the courts of appeals,” it distinguished those decisions by noting that they arise from the relief context. Id. at 277. This case, in contrast, concerns removal. As the Board explained, “we are aware of no court decision disagreeing with our view that it would be absurd to find that an alien who adjusted status within the United States and was thereafter convicted of an aggravated felony was not removable because his adjustment was not an ‘admission’ under the literal definition of that term in section 101(a)(13)(A) of the Act.” Id. at 278. Accordingly, the Board held that Chavez-Alvarez could be deemed removable if his offense falls into a category of removable crime, the topic to which it turned.
To determine whether forcible sodomy is a crime of violence, the BIA had to first identify the elements of the offense. Though this is normally rather straightforward, here it was complicated by the fact that the UCMJ includes a sentencing enhancement that must be proven beyond a reasonable doubt—specifically, a requirement that the conduct be performed “by force and without the consent” of the victim. Id. This standard differentiates this sentencing enhancement from others that require a lower burden. More importantly, this puts the sentencing enhancement in the realm of an element of the offense. As the BIA explained, “for immigration purposes a sentence enhancement can serve as the functional equivalent of an ‘element’ of an offense where, under the law of the convicting jurisdiction, a sentencing factor had to be proved to a jury beyond a reasonable doubt if it was not admitted by the defendant.” Id. at 280.
That’s excactly what happened in Chavez-Alvarez’s case so the BIA conclude that the “by force and without the consent” of the victim enhancement was the equivalent of an offense. Accordingly, the BIA concluded that his forcible sodomy conviction constitutes a crime of violence because a) it has as an element the use, attempted use, or threatened use of physical force against another person, and b) “there is a substantial risk that, to achieve nonconsensual penetration, the offender will intentionally use force to overcome the victim’s natural resistance against participating in unwanted intercourse. Id. at 281.
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