                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
               ________________

                     No. 16-1663
                  ________________


          JOSE JUAN CHAVEZ-ALVAREZ,

                                Petitioner

                           v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

                                 Respondent

                 ________________

         On Petition for Review of a Final Order
          of the Board of Immigration Appeals
      Immigration Judge: Honorable Andrew Arthur
                   (No. A092-167-374)
                   ________________

               Argued January 17, 2017

Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges

             (Opinion filed: March 9, 2017)




                           1
Craig R. Shagin, Esquire   (Argued)
The Shagin Law Group
120 South Street
The Inns of St. Jude
Harrisburg, PA 17101

      Counsel for Petitioner

Benjamin C. Mizer
  Principal Deputy Assistant Attorney General
  Civil Division
Anthony P. Nicastro
  Assistant Director, Office of Immigration Litigation
Sabatino F. Leo, Esquire (Argued)
Hillel R. Smith, Esquire
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044

      Counsel for Respondent
                   ________________

               OPINION OF THE COURT
                   ________________

AMBRO, Circuit Judge

       Petitioner Jose Juan Chavez-Alvarez appears before us
again, this time challenging a second decision of the Board of
Immigration Appeals (“BIA”) that he be removed, among
other things, for committing sodomy while serving in the
United States Army. In the simplest of terms, the BIA
reasoned that the President—through his delegated authority




                               2
to define punishments for those who commit military
crimes—essentially could create the definition of those
crimes himself. He cannot, as the latter is a power reserved to
Congress. We therefore grant the petition for review and
reverse the BIA’s decision.

                    I. BACKGROUND

        Chavez-Alvarez is a citizen of Mexico. He entered
the United States without admission or parole but became a
lawful permanent resident in 1989. Following the adjustment
of his status, he served in the United States Army for over
twelve years.

       While deployed to South Korea in August 2000,
Chavez-Alvarez assaulted an intoxicated female platoon
member by penetrating her vagina with his fingers and
performing oral sex on her without consent.             When
questioned about the incident by military officials, Chavez-
Alvarez denied the allegations against him on two separate
occasions. After formal charges were brought before a court-
martial, he entered into a stipulation of fact admitting the
assault. The military judge accordingly convicted him of
violating three sections of the Uniform Code of Military
Justice (the “Code”) as enacted at the time of his conviction:
Article 107 (10 U.S.C. § 907) for making false official
statements when he had earlier denied the allegations against
him (two separate violations, one for each statement); Article
125 (10 U.S.C. § 925) for sodomy; and Article 134 (10
U.S.C. § 934) for adultery and indecent assault. He was
discharged and confined for 18 months.

      Nearly a decade later, Chavez-Alvarez was detained
by the Department of Homeland Security and charged as




                              3
removable because, under § 237, 8 U.S.C. §1227,1 of the
Immigration and Naturalization Act (“INA”), he had been
convicted of an aggravated felony with a term of
imprisonment of at least one year, see 8 U.S.C. §§
1101(a)(43)(F), 1227(a)(2)(A)(iii), and two or more crimes
involving moral turpitude not arising out of a single scheme
of criminal misconduct, see 8 U.S.C. § 1227(a)(2)(A)(ii).
The Immigration Judge (“IJ”) found him removable under
both provisions of § 237 of the INA, determined he was
ineligible for a waiver of inadmissibility under INA § 212(h),
and ordered him removed to Mexico. The BIA affirmed the
IJ’s decision that Chavez-Alvarez was removable under 8
U.S.C. §1227(a)(2)(A)(iii) because he committed the
aggravated felony of forcible sodomy after his admission to
the United States. It held off determining whether he was
also removable under 8 U.S.C. § 1227(a)(2)(A)(ii)
(committing two separate crimes involving moral turpitude).

       On appeal, we reversed the BIA because it incorrectly
determined that Chavez-Alvarez’s sodomy conviction
resulted in a term of imprisonment of one year or more.
Chavez-Alvarez v. Att’y Gen. U.S., 783 F.3d 478 (3d Cir.
2015). Because there was no specific proof in the record
“regarding the way in which the sentence was rendered as to
each charge” by the military judge, it was impossible to
determine whether the apportionment of the sentence as to his
aggravated felony conviction was at least one year. Id. at
483-84. Accordingly, we remanded to the BIA.

      With the case back, it concluded that Chavez-Alvarez
was nonetheless removable under the crimes-involving-
moral-turpitude provision of the INA. He argued that he was

      1
         We refer interchangeably to the INA section and that
in the U.S. Code.




                              4
only convicted of sodomy, a constitutionally protected
activity under Lawrence v. Texas, 539 U.S. 558 (2003). The
BIA disagreed, determining that because Chavez-Alvarez’s
particular crime was subject to a sentence enhancement
because it was committed forcibly, and because the
application of the enhancement in his case was the
“functional equivalent” of a conviction for the enhanced
offense, he was convicted of forcible sodomy. Finding that
this was a crime involving moral turpitude, the BIA also
determined that his two false-statements convictions were
separate crimes of moral turpitude that were not within the
same criminal scheme as that of his forcible sodomy
conviction. Hence the BIA found him removable, and he
petitions us for review.

  II. JURISDICTION AND STANDARD OF REVIEW

        We have jurisdiction to review the BIA’s final removal
order under INA § 242(a), 8 U.S.C. § 1252(a). Our
jurisdiction here is limited to review whether there is a
colorable constitutional claim or question of law. Id. We
review legal questions de novo. Valansi v. Ashcroft, 278 F.3d
203, 207 (3d Cir. 2002). “When the 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. of
U.S., 763 F.3d 348, 352 (3d Cir. 2014) (quotations omitted).

                       III. ANALYSIS

       On appeal, Chavez-Alvarez contends that his
convictions arose from a “single scheme” of criminal
misconduct and thus he is not subject to removal. He also
asserts that he was convicted of sodomy—not forcible
sodomy—and the former is not a crime involving moral
turpitude. We address each issue in turn.




                               5
      A.      The BIA’s Interpretation of a “Single
              Scheme” Is Reasonable

        Per 8 U.S.C. § 1227(a)(2)(A)(ii), the Government may
remove an alien who is convicted of “two or more crimes
involving moral turpitude, not arising out of a single scheme
of criminal misconduct,” after his admission to the United
States. Chavez-Alvarez claims that his two convictions of
alleged crimes involving moral turpitude—his sodomy
offense and making false statements—stem from the same
scheme of criminal misconduct. The rationale is that because
only seven hours elapsed between the commissions of the two
crimes and there is no evidence that he was not intoxicated
throughout that time, Chavez-Alvarez had not yet dissociated
himself from his single criminal enterprise when he made
false statements following the assault.

        The BIA deems a single scheme to exist “where one
crime constituted a lesser offense of another, or where the two
crimes flow from and are the natural consequence of a single
act of criminal misconduct.” Matter of Adetiba, 20 I. & N.
Dec. 506, 509 (BIA 1992). No single scheme exists simply
because the acts may be the same, be similar in character, or
even because one may closely follow the other. Id. At least
five other Courts have affirmed this interpretation as
reasonable and within the latitude the BIA possesses in
interpreting the INA under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., et al., 467 U.S. 837 (1984).
See, e.g., Balogun v. INS, 31 F.3d 8 (1st Cir. 1994);
Akindemowo v. INS, 61 F.3d 282 (4th Cir. 1995); Iredia v.
INS, 981 F.2d 847 (5th Cir. 1993); Abdelqadar v. Gonzales,
413 F.3d 668 (7th Cir. 2005); Thanh Huu Nguyen v. INS, 991
F.2d 621 (10th Cir. 1993); see also Michel v. INS, 206 F.3d
253 (2d Cir. 2000) (Cabranes, J., concurring); Hyacinthe v.
U.S. Att’y Gen., 215 F. App’x 856 (11th Cir. 2007). All agree
there is no clear definition of “single scheme” within the INA.




                              6
Thus there is a presumption that we defer to the agency’s
interpretation of that phrase so long as it is reasonable. See
Chevron, 467 U.S. at 844-45. Indeed, that interpretation need
not be the most reasonable. Iredia, 981 F.2d at 849. Finding
no issue with the BIA’s construction of a “single scheme,” we
join our fellow Courts in concluding that the BIA’s
interpretation is reasonable.


       Here the BIA ruled that, although the two crimes were
committed hours apart, there was a substantial interruption of
time between them.          It determined that making false
statements with the intent to deceive was of such a different
nature than sodomy that the former did not flow from nor was
the natural consequence of the latter. The BIA further noted
that neither is a lesser crime of the other. Given the lapse in
time, Chavez-Alvarez had the opportunity to reflect on what
he had done but chose—on two separate occasions—to make
false statements denying his actions. Thus the BIA was
correct to affirm the IJ’s finding that Chavez-Alvarez’s
alleged commission of two crimes involving moral turpitude
was not from a single scheme of criminal misconduct.

      B. Chavez-Alvarez’s Sodomy Conviction

       At the heart of this appeal is whether the BIA correctly
determined that Chavez-Alvarez’s sodomy conviction was
one of moral turpitude, thereby making him removable under
INA § 237(a)(2)(A)(ii). The BIA concluded that the
conviction was for forcible sodomy, which is akin to rape and
therefore a crime involving moral turpitude. Chavez-Alvarez
challenges that ruling, insisting that he only was convicted of
“sodomy” under the Code, as “forcible sodomy” appears
nowhere in the statute that he violated. (As will be discussed
later, this distinction is important to Chavez-Alvarez’s




                              7
removability if “sodomy” is not a crime involving moral
turpitude.)

       The Government contends that, because the charging
document accused Chavez-Alvarez of forcible sodomy
(which was proven beyond a reasonable doubt by his
stipulation of fact), this was the offense he committed. And,
the contention continues, when the crime of sodomy is
committed forcibly, Article 125 of the Manual for Courts-
Martial (the “Manual”) allows the military judge to enhance
the punishment imposed. From this the Government asserts
that the Manual (which lists various sentence enhancements
based on the specific circumstances of sodomy convictions),
when read as a complement to the Code, creates divisible
crimes—here, consensual sodomy and forcible sodomy. If
so, we may look to Chavez-Alvarez’s specific conduct to
determine which of these divisible crimes he committed, and
thus bypass the controlling categorical approach that we
would normally use in reviewing his claim. See Partyka v.
Att’y Gen. of U.S., 417 F.3d 408, 411 (3d. Cir. 2005). We
disagree.2

       When determining whether a conviction becomes one
of moral turpitude for the purposes of removal under the INA,
we apply the categorical approach: we “look to the elements
of the statutory . . . offense, not to the specific facts
[underlying the particular offense], reading the applicable

      2
        The Government requests that we remand this case to
the BIA to determine if the Code and the Manual collectively
create separate sodomy offenses, and thus whether the
modified categorical approach should apply in light of Mathis
v. United States, 136 S. Ct. 2243 (2016). Because that is a
legal question that we resolve, remand is unnecessary, and we
deny the Government’s motion to remand.




                             8
statute to ascertain the least culpable conduct necessary to
sustain conviction under the statute.” Jean-Louis v. Att’y
Gen. of U.S., 582 F.3d 462, 465-66 (3d Cir. 2009) (en banc)
(quotations omitted); see also Denis v. Att’y Gen. of U.S., 633
F.3d 201, 206 (3d Cir. 2011) (we are prohibited from
“consideration of evidence other than the statutory definition
of the offense, thus precluding review of the particular facts
underlying a conviction.” (quotations omitted)).

       However, when a statute “list[s] elements in the
alternative, and thereby define[s] multiple crimes . . . [, a]
sentencing court . . . requires a way of figuring out which of
the alternative elements listed . . . was integral to the
defendant’s conviction.” Mathis, 136 S. Ct. at 2249. It may
in that case “look[] to a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy) to determine what crime, with what elements, a
defendant was convicted . . . .” Id. A statute merely sets
alternative means of satisfying a necessary element of the
crime when it lists “illustrative examples” of that element; on
the other hand, a statute creates separate (that is, divisible)
crimes when it includes disjunctive elements (for example, a
law that criminalizes both lawful and unlawful entry into
another’s house with intent to steal, and the latter constitutes a
more serious crime). Id. When a statute lists disjunctive
elements, a court may conduct a limited review of the record
to determine what conduct formed the basis of the conviction
and therefore the crime committed.

      Chavez-Alvarez pled guilty to violating the following
Code provision as it existed in 20003:


       3
         The Code was later amended to criminalize only
forcible sodomy. 10 U.S.C § 925(a).




                                9
      (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 be
      punished as a court-martial may direct.

10 U.S.C § 925 (2000). It did not distinguish between
forcible or consensual sodomy. What did distinguish types of
sodomy was the Manual—guidelines promulgated by the
President to courts-martial on how to impose punishments for
various military crimes, including sentence enhancements
based on how the crime was committed. It provided that
when “the act was done by force and without the consent of
the other person,” the punishment may include a greater
sentence of “[d]ishonorable discharge, forfeiture of all pay
and allowances, and confinement for life.” Manual (2000
ed.), part IV, ¶ 51(b)(3) & (e)(1)). The Manual thus
authorizes a military judge to consider the facts underlying a
crime to decide whether to enhance the sentence.

       The Government insists that the Manual in conjunction
with the Code creates separate sodomy offenses. But can a
sentencing consideration under the Manual become an
element of the offense under the Code? We think not, for we
cannot consider “sentencing factors . . . in lieu of the
unambiguous statutory language which speaks only in terms
of the conviction.” Roussos v. Menifee, 122 F.3d 159, 162
(3d Cir. 1997) (citing Downey v. Crabtree, 100 F.3d 662, 668
(9th Cir. 1997)). The reason is obvious: sentence-enhancing
factors do not define the crime; they affect the punishment of
it. Even the United States Army Court of Criminal Appeals
interprets its own authorization to impose sentence




                             10
enhancements under the Manual in this way. See United
States v. Thomas, 45 M.J. 661, 664 n.4 (A. Ct. Crim. App.
1997) (regarding the Manual’s sodomy sentence
enhancements, “these are sentence-increasing circumstances,
and not statutory elements . . . ”). Thus, under the clear and
unambiguous language of the sodomy statute contained in the
Code as defined by Congress, Chavez-Alvarez was convicted
of sodomy, not forcible sodomy. The BIA’s conclusion to the
contrary is incorrect.4

       Here, however, the BIA determined that “for
immigration purposes a sentence enhancement can serve as
the functional equivalent of an ‘element’ of an offense” so
long as it (the sentencing factor) is proven beyond a
reasonable doubt. J.A. at 6. It bases that authority from its
own precedent. See id. (citing Matter of Martinez-Zapata, 24
I. & N. Dec. 424 (BIA 2007)). That reasoning (and line of
precedent) cannot stand, as it violates our constitutional
doctrine of separation of powers between branches of the

      4
         Moreover, Mathis directs us to use the categorical
approach not only because the underlying statute of
conviction does not contain various elements that create
separate crimes, but also because the INA makes removable
an alien who “is convicted of two or more crimes” involving
moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(ii) (emphasis
added). We have explained that in Mathis the Supreme Court
instructed that the “use of the phrase ‘conviction’ indicates
Congress’s intent to apply the categorical approach.” United
States v. Dahl, 833 F.3d 345, 350 (3d Cir. 2016) (citing
Mathis, 136 S. Ct. at 2252). Thus we will not consider the
facts underlying Chavez-Alvarez’s conviction (that it was
committed forcibly) in deciding whether he committed a
crime involving moral turpitude.




                             11
federal government.         It is black-letter law that “[t]he
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.” Dixon v. United States,
548 U.S. 1, 7 (2006) (quoting Liparota v. United States, 471
U.S. 419, 424 (1985)). This means that “in a criminal case . .
. the law must be written by Congress.” United States v.
Santos, 553 U.S. 507, 523 (2008) (citing United States v.
Hudson, 11 U.S. 32 (1812)); see also United States v.
Christie, 717 F.3d 1156, 1170 (10th Cir. 2013) (“[T]he
Constitution generally assigns the job of specifying federal
crimes . . . to the Legislative Branch.”).

        The takeaway is that the Executive Branch, whether
through the President or one of its agencies, cannot create
criminal statutes; only Congress can do so. The Manual,
created by the President, is used by those in the Executive
Branch to sentence military crimes. The BIA, as an
Executive Branch arm, determined that it can supplement—in
reality, supplant—the Code to create separate, divisible
crimes. Not so. The President certainly may define the terms
of a punishment for one convicted of a military crime.
Loving v. United States, 517 U.S. 748, 768 (1996) (“Congress
[may] delegate authority to the President to define the
aggravating factors that permit imposition of a statutory
penalty . . . .”). Yet his authority to do so is cabined by
Congress’s definition of the relevant “criminal offense . . .
within the field covered by the statute.” Id. (quotation
omitted).

       The Government persists that the military justice
system is unique and separate from our criminal justice
system in federal court, and thus the same rules do not apply.
No doubt “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.”




                              12
Chappell v. Wallace, 462 U.S. 296, 303-04 (1983) (citation
omitted). But though military personnel are subject to a
separate justice system with separate statutory rights and
crimes, the Constitution is clear that Congress alone has the
power to create that separate statutory regime. See Weiss v.
United States, 510 U.S. 163, 177 (1994) (“[T]he Constitution
contemplates that Congress has plenary control over rights,
duties, and responsibilities in the framework of the Military
Establishment . . . .” (quotation omitted)); Schweiker v.
Chilicky, 487 U.S. 412, 422-23, 436 (1988) (“Congress, in the
exercise of its plenary constitutional authority over the
military, has enacted statutes regulating military life . . . .”
(quotation omitted)); Chappell, 462 U.S. at 304 (Congress is
“the constitutionally authorized source of authority over the
military system of justice”). It does so through enactment of
the Code. The Manual is not a creature of Congress and thus
cannot be used to displace the military justice system that
Congress envisioned.
       Accordingly, under Mathis it is impermissible to use a
modified categorical approach to examine the facts
warranting the application of a particular sentence-
enhancement factor when that factor was not an element of
the statute of conviction. Here the use of force in the
commission of sodomy was not an element that Congress
sought separately to criminalize at the time of Chavez-
Alvarez’s conviction.        Chavez-Alvarez therefore was
convicted of sodomy, not forcible sodomy.

       C.     The Code Definition of Sodomy Is Not a
              Crime Involving Moral Turpitude

       We now turn to the crime of which Chavez-Alvarez
actually was convicted under the Code—sodomy—and
whether it is a crime involving moral turpitude. The Supreme
Court requires us not to look behind the elements of a crime
set out in a nondivisible statute, and here the applicable




                              13
version of the Code in 2000 did not distinguish between
consensual and forcible sodomy (only the Manual did so and,
as noted, that sentencing tool cannot add elements to the
legislative definition of a crime). Per Lawrence v. Texas, the
“crime” in the Code affecting Chavez-Alvarez does not
withstand constitutional scrutiny (hence the change to the
Code provision long after the charge here). He was convicted
of sodomy, not forcible sodomy, and this cannot serve as a
separate crime involving moral turpitude that makes him
removable under the INA.

                     *   *    *   *    *

       In this context, the statute as written at the time of
Chavez-Alvarez’s conviction cannot survive as a predicate
“crime” that triggers the pertinent removability provision of
the INA. Thus we grant the petition for review and reverse
the BIA’s holding that Chavez-Alvarez is removable under
8 U.S.C. § 1227(a)(2)(A)(ii).




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