Aguilar-Turcios v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RIGOBERTO AGUILAR-TURCIOS, No. 06-73451

Petitioner,

Agency No.

v. A045-301-132

ERIC H. HOLDER, JR., Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

March 21, 2012—San Francisco, California

Withdrawn September 10, 2013

Filed January 23, 2014

Before: William A. Fletcher, Richard A. Paez,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Paez

2 AGUILAR-TURCIOS V. HOLDER

SUMMARY*

Immigration

The panel granted Rigoberto Aguilar-Turcios’s petition

for review of the Board of Immigration Appeals’ decision

finding that his conviction for violating Article 92 of the

Uniform Code of Military Justice constituted an aggravated

felony.

The original opinion in this case was withdrawn pending

the en banc opinion in United States v. Aguila-Montes De

Oca, 655 F.3d 915 (9th Cir. 2011), and the second opinion

was withdrawn when the Supreme Court granted certiorari in

Descamps v. United States, 133 S. Ct. 2276 (2013), to

reconsider this court’s decision in Aguila-Montes overruling

the “missing element rule.” The Supreme Court subsequently

abrogated Aguila-Montes and held that sentencing courts may

not apply the modified categorical approach when a

defendant’s statute of conviction contains an indivisible set of

elements.

Applying Descamps, the panel again held that

Aguilar-Turcios’s Article 92 conviction for violating a

Department of Defense Directive providing that official use

of government computers does not include viewing

pornography, does not constitute an aggravated felony. The

panel held that the conviction is not a categorical aggravated

felony because one could violate the Directive without

necessarily being guilty of all the elements of generic federal

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

AGUILAR-TURCIOS V. HOLDER 3

child pornography offenses. The panel further held that the

modified categorical approach had no role to play in this case,

because neither Article 92 nor the Directive includes the

element of a visual depiction of a minor engaging in sexually

explicit conduct.

COUNSEL

David B. Landry (argued), San Diego, California, for

Petitioner.

Steven F. Hubachek, Federal Defenders of San Diego, Inc.,

San Diego, California, for Amici Curiae Federal Public and

Community Defenders.

Andrew C. MacLachlan (argued), Tony West, Assistant

Attorney General, Donald E. Keener, Deputy Director, Robert

N. Markle, Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C., for

Respondent.

OPINION

PAEZ, Circuit Judge:

In this petition for review of a decision by the Board of

Immigration Appeals (“BIA” or “Board”), we address

whether Petitioner Rigoberto Aguilar-Turcios’s conviction

under Article 92 of the Uniform Code of Military Justice

(“UCMJ”) qualifies as an “aggravated felony” as defined in

8 U.S.C. § 1101(a)(43)(I). For the reasons discussed below,

we conclude that Aguilar-Turcios’s Article 92 conviction is

4 AGUILAR-TURCIOS V. HOLDER

not an aggravated felony. We therefore grant the petition and

remand this case to the BIA with instructions to vacate the

removal order against him.

I. BACKGROUND

Aguilar-Turcios is a citizen and native of Honduras who

came to the United States as a legal permanent resident

(“LPR”) in 1996. He married his wife, Vicenta, in June of

2000, shortly before he enlisted in the United States Marine

Corps. They have at least one child together.

While in the Marine Corps, Aguilar-Turcios used a

government computer to access pornographic Internet sites

and to download pornographic images of female minors.

2003 Court Martial

In 2003, Aguilar-Turcios pleaded guilty to and was

convicted by special court-martial of violating UCMJ Article

92, which prohibits “violat[ing] or fail[ing] to obey any

lawful general order or regulation,” 10 U.S.C. § 892(1), and

UCMJ Article 134, which renders punishable, inter alia, “all

conduct of a nature to bring discredit upon the armed forces,”

id. § 934.

Specifically, Aguilar-Turcios pleaded guilty to violating

UCMJ Article 92 as a result of his violation of Department of

Defense (“DOD”) Directive 5500.7-R § 2-301(a), which

provides that government computers “shall be for official use

and authorized purposes only” and that such “authorized

purposes” do not include “uses involving pornography.”

AGUILAR-TURCIOS V. HOLDER 5

Aguilar-Turcios also pleaded guilty to and was convicted

of bringing discredit upon the armed forces under UCMJ

Article 134, by “wrongfully and knowingly possess[ing]

visual depictions of minors engaging in sexually explicit

conduct, which conduct was prejudicial to good order and

discipline of the armed forces.” Id. § 2-301(d).

The Military Judge (“MJ”) sentenced Aguilar-Turcios to

ten months of confinement, a pay-grade reduction, and a bad-

conduct discharge from the Marine Corps.

2005 Removal Proceedings

In 2005, the federal government initiated removal

proceedings against Aguilar-Turcios, charging him as

removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having

been convicted of an aggravated felony. The government

alleged that Aguilar-Turcios’s convictions under UCMJ

Articles 92 and 134 amounted to violations of 18 U.S.C.

§§ 2252(a)(2)1 and (a)(4),2 both of which address conduct

1

Section 2252(a)(2) makes it a felony to “knowingly receive[], or

distribute[], any visual depiction . . . or knowingly reproduce[] any visual

depiction for distribution . . . if—(A) the producing of such visual

depiction involves the use of a minor engaging in sexually explicit

conduct; and (B) such visual depiction is of such conduct.”

2

The version of 18 U.S.C. § 2252(a)(4)(A) that was in effect until 2008

made it a felony to “knowingly possess[] . . . 1 or more books, magazines,

periodicals, films, video tapes, or other matter which contain any visual

depiction . . . if—(i) the producing of such visual depiction involves the

use of a minor engaging in sexually explicit conduct; and (ii) such visual

depiction is of such conduct.”

6 AGUILAR-TURCIOS V. HOLDER

involving child pornography, and therefore qualify as

aggravated felonies under 8 U.S.C. § 1101(a)(43)(I).3

2006 Agency Decisions

The Immigration Judge (“IJ”) assigned to Aguilar-

Turcios’s removal proceeding determined that neither the

Article 92 nor the Article 134 violations qualified

categorically as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(I). Turning to the modified categorical

analysis, the IJ first held that Aguilar-Turcios’s Article 134

conviction was not an aggravated felony because Article 134

does not refer to child pornography. The IJ was not

persuaded that the specific facts with which Aguilar-Turcios

was charged became an element of the Article 134 conviction

for purposes of the categorical rule.4 The IJ reached the

opposite conclusion for Aguilar-Turcios’s Article 92

conviction, concluding that because “child pornography is a

subset of pornography” and Aguilar-Turcios pleaded guilty

to a charge containing the phrase “minor engaging in sexually

explicit conduct”—the same language that appears in

§§ 2252(a)(2) and (a)(4)—Aguilar-Turcios’s Article 92

conviction qualified as an aggravated felony.5

3

Section 1101(a)(43)(I) defines “aggravated felony” as “an offense

described in section 2251, 2251A, or 2252 of Title 18 (relating to child

pornography).”

4

The IJ also commented that “clearly, he was convicted of conduct

which is punishable under 18 U.S.C. [§] 2252.” (emphasis added).

5

The IJ’s oral decision does not address the fact that the phrase “minor

engaging in sexually explicit conduct” from §§ 2252(a)(2) and (a)(4) only

appears in the Article 134 charge, not the Article 92 charge.

AGUILAR-TURCIOS V. HOLDER 7

Aguilar-Turcios appealed the IJ’s decision regarding his

Article 92 conviction to the BIA. The government did not

appeal the IJ’s decision regarding the Article 134 conviction.

The BIA affirmed the IJ’s decision in a per curiam order.

2009 and 2012 Ninth Circuit Decisions

Aguilar-Turcios petitioned for review of the BIA’s order,

and we granted the petition and remanded the case to the

BIA.6 Aguilar-Turcios v. Holder (Aguilar-Turcios I),

582 F.3d 1093 (9th Cir. 2009), withdrawn by 652 F.3d 1236

(9th Cir. 2011).

Like the IJ, we concluded that an Article 92 conviction

for violating DOD Directive 5500.7-R § 2-301(a) is not

categorically an aggravated felony. Id. at 1096–97. We also

held that the modified categorical approach did not apply to

the question of whether Aguilar-Turcios’s Article 92

conviction was an aggravated felony. Id. at 1097–98. We

applied the so-called “missing element rule” from Navarro-

Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007) (en

banc), which limited the application of the modified

categorical approach to statutes of conviction that are

divisible into several crimes and barred application of the rule

where a statute of conviction was “missing” an element of the

generic crime. Aguilar-Turcios I, 582 F.3d at 1097–98.

Concluding that both Article 92 and DOD Directive 5500.7-R

§ 2-301(a) were “missing” the element of “a visual depiction

6

While Aguilar-Turcios’s appeal was pending before this court, and an

order was in place staying his removal, the government mistakenly

removed Aguilar-Turcios to Honduras. Although his whereabouts were

unknown as of the date of publication of our initial opinion in this case,

his counsel has since been in contact with him via e-mail.

8 AGUILAR-TURCIOS V. HOLDER

of a minor engaging in sexually explicit conduct,” we held

that the modified categorical approach did not apply and that

Aguilar-Turcios’s Article 92 conviction did not meet the

generic definition of “aggravated felony.” Id.

Judge Bybee dissented, calling into question the validity

and wisdom of the Navarro-Lopez “missing element rule”

and concluding that Aguilar-Turcios’s Article 92 conviction

“necessarily shows that he committed the aggravated felony

of knowing possession of child pornography” because “[t]he

only pornography that Aguilar-Turcios admitted to accessing

on his government computer during the plea colloquy were

the six images of child pornography.” Id. at 1098–99, 1113

(Bybee, J., dissenting).

Following publication of our original opinion in this case,

the government filed a petition for rehearing en banc. The

petition sought reconsideration of the Nazarro-Lopez rule.

Before we could rule on the government’s petition, a majority

of the court’s active judges granted rehearing in another case,

United States v. Aguila-Montes de Oca (“Aguila-Montes”), to

consider the same question. 594 F.3d 1080 (9th Cir. 2010).

We therefore held this case in abeyance pending the en banc

opinion in Aguila-Montes.

Aguila-Montes overruled Navarro-Lopez’s “missing

element rule.” 655 F.3d 915, 916–17 (9th Cir. 2011) (en

banc). As a result of the holding in Aguila-Montes, we

withdrew our original opinion in this case and requested

supplemental briefing from the parties as to what effect, if

any, Aguila-Montes had on the outcome of Aguilar-Turcios’s

case. Aguilar-Turcios v. Holder, 652 F.3d 1236 (9th Cir.

2011). In a new opinion, we applied Aguila-Montes and

concluded that the facts “necessary” to support Aguilar-

AGUILAR-TURCIOS V. HOLDER 9

Turcios’s Article 92 conviction did not satisfy the elements

of 18 U.S.C. § 2252(a)(2) or (a)(4). Aguilar-Turcios v.

Holder (Aguilar-Turcios II), 691 F.3d 1025, 1034 (9th Cir.

2012), withdrawn by 729 F.3d 1294 (9th Cir. 2013).

Therefore, we once again held that Aguilar-Turcios’s Article

92 conviction does not qualify as an aggravated felony. Id.

at 1041–42. Judge Bybee again dissented.

But this turned out not to be the end of Aguilar-Turcios’s

case. The Supreme Court granted certiorari in another case,

Descamps v. United States, to reconsider the rule we

established in Aguila-Montes. 133 S. Ct. 90 (2012). The

Supreme Court subsequently abrogated Aguila-Montes and

held that sentencing courts may not apply the modified

categorical approach when a defendant’s statute of conviction

contains an indivisible set of elements. Descamps v. United

States, 133 S. Ct. 2276, 2282–93 (2013). In light of

Descamps, we withdrew our second opinion in this case.

Aguilar-Turcios v. Holder, 729 F.3d 1294 (9th Cir. 2012).

We once again consider the merits of this case, applying the

principles outlined in Descamps.

II. JURISDICTION

Generally, we have jurisdiction to review final orders of

removal under 8 U.S.C. § 1252(a)(1).7 See also Galindo-

Romero v. Holder, 640 F.3d 873, 877 (9th Cir. 2010). We

7

We review de novo the BIA’s determination of questions of law and

legal conclusions. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir.

2010). “[W]hether an offense constitutes an aggravated felony for which

an alien is removable” is a question of law reviewed de novo. Carillo-

Jaime v. Holder, 572 F.3d 747, 750 (9th Cir. 2009) (citing Cazarez-

Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir. 2004)).

10 AGUILAR-TURCIOS V. HOLDER

lack jurisdiction, however, to review final orders of removal

against aliens who have committed certain criminal offenses,

including aliens convicted of aggravated felonies. See id.

§ 1252(a)(2)(C). Of course, we have jurisdiction to

determine our own jurisdiction. See Daas v. Holder,

620 F.3d 1050, 1053 (9th Cir. 2010); Luu-Le v. INS, 224 F.3d

911, 914 (9th Cir. 2000). Because our resolution of the

merits of whether Aguilar-Turcios’s Article 92 conviction

qualifies as an aggravated felony under federal law

determines whether we have jurisdiction over his final order

of removal, “the jurisdictional question and the merits

collapse into one.” Id. (quoting Ye v. INS, 214 F.3d 1128,

1131 (9th Cir. 2000) (internal quotation marks omitted)). If

we determine that Aguilar-Turcios’s Article 92 conviction is

not an aggravated felony, then we have jurisdiction over the

final order of removal and must grant his petition; if we

determine, however, that it is an aggravated felony, we lose

our jurisdiction and the agency has the final word on Aguilar-

Turcios’s removal. See Martinez-Perez v. Gonzales, 417 F.3d

1022, 1024 (9th Cir. 2004).

III. ANALYSIS

A. The Categorical Approach

To determine whether Aguilar-Turcios’s conviction under

Article 92 is an aggravated felony, we apply the analytical

approach outlined in Taylor v. United States, 495 U.S. 575,

600–02 (1990). This approach requires us to make a

categorical comparison of the elements of the statute of

conviction and the generic definition of an aggravated felony,

as found in 8 U.S.C. § 1101(a)(43). “The prior conviction

qualifies as an [aggravated felony] only if the statute [of

conviction’s] elements are the same as, or narrower than,

AGUILAR-TURCIOS V. HOLDER 11

those of the generic [offense].” Descamps, 133 S. Ct. at

2281. In making this categorical comparison, we may not

consider the specific conduct that resulted in the conviction

or the circumstances under which the crime was committed.

Taylor, 495 U.S. at 600. We must look only to the elements

of the statute of conviction. Id.

Here, the generic crimes, included within the definition of

an aggravated felony contained in 8 U.S.C. § 1101(a)(43)(I),

with which we compare Aguilar-Turcios’s Article 92

conviction are defined in subsections (a)(2) and (a)(4) of

18 U.S.C. § 2252. Each of these subsections contains an

element that requires the defendant’s conduct to involve a

visual depiction of a minor engaging in sexually explicit

conduct. See supra notes 1 & 2. A conviction for violating

Article 92 is thus categorically an aggravated felony only if

Article 92 contains this same element or a narrower element.

To be convicted of violating Article 92, a person must

have engaged in conduct that:

(1) violates or fails to obey any lawful general

order or regulation;

(2) having knowledge of any other lawful

order issued by a member of the armed force,

which it is his duty to obey, fails to obey the

order; or

(3) is derelict in the performance of his duties

....

12 AGUILAR-TURCIOS V. HOLDER

Art. 92, UCMJ, 10 U.S.C. § 892. It is undisputed that Article

92 does not contain the element of conduct involving a

depiction of a minor engaging in sexually explicit conduct.

As discussed above, Aguilar-Turcios was convicted of

violating Article 92 by violating or failing to obey a “lawful

general order.” The “lawful general order” that Aguilar-

Turcios violated in connection with his Article 92 conviction

is section 2-301(a) of DOD Directive 5500.7-R.8 Section 2-

301(a) prohibits the use of government computers except for

“official use and authorized purposes,” and section 2-

301(a)(2)(d) provides that military agencies may not

authorize uses of government computers “that would reflect

adversely on DoD or the DoD Component (such as uses

involving pornography; chain letters; unofficial advertising,

soliciting or selling except on authorized bulletin boards

established for such use; violations of statute or regulation;

inappropriately handled classified information; and other uses

that are incompatible with public service.).”

Thus, although a violation of section 2-301(a) may

involve “pornography,” the Directive clearly sweeps more

broadly than §§ 2252 (a)(2) and (a)(4) because one could

8

We have found no other case from our circuit or our sister circuits

discussing the application of the categorical and modified categorical

approaches to convictions under the UCMJ, although clearly the federal

government does rely on UCMJ convictions to remove noncitizens. See

United States v. Denedo, 556 U.S. 904, 907–08 (2009). In light of our

disposition of this case, we assume without deciding that a conviction

under the UCMJ may provide a proper basis for the government to initiate

removal proceedings against a lawful permanent resident alien, and that

we may look not only to the UCMJ but to the elements of a lawful general

order like that at issue in this case when applying the categorical or

modified categorical approach.

AGUILAR-TURCIOS V. HOLDER 13

violate section 2-301(a) without “necessarily [being] guilty of

all the . . . elements” of §§ 2252(a)(2) or (a)(4). Descamps,

133 S. Ct. at 2283 (quoting Taylor, 495 U.S. at 599).

Therefore, Aguilar-Turcios’s Article 92 conviction,

predicated on a violation of section 2-301(a), is not

categorically an aggravated felony.9

B. The Modified Categorical Approach

In the absence of a categorical match, we may, in some

circumstances, apply the “modified categorical approach,”

under which we consider whether certain documents in the

record or judicially noticeable facts show that the conviction

qualifies as an aggravated felony. Descamps, 133 S. Ct. at

2281. The Court in Descamps recently clarified the limited

circumstances under which we apply this approach. In

abrogating Aguila-Montes, the Court explained that the

modified categorical approach should only be applied to

“determine which alternative element in a divisible statute

formed the basis of the defendant’s conviction.” Id. at 2293.

The modified categorical approach “serves a limited function:

It helps effectuate the categorical analysis when a divisible

statute, listing potential offense elements in the alternative,

9

The Supreme Court’s decision in Nijhawan does not affect our

resolution of this case because it is clear from the text of the relevant

statutes that the element at issue here—a visual depiction of a minor

engaging in sexually explicit conduct, see 18 U.S.C. §§ 2252(a)(2) and

(a)(4)—is an element of the generic crimes and not simply a description

of the specific circumstances under which the crimes were committed.

See Nijhawan v. Holder, 557 U.S. 29, 37, 40 (2009) (rejecting the

categorical approach where the statutory definition of the aggravated

felony at issue “does not refer to generic crimes but refers to specific

circumstances.”)

14 AGUILAR-TURCIOS V. HOLDER

renders opaque which element played a part in the

defendant’s conviction.” Id. at 2283.

Here, section 2-301(a) prohibits using government

computers for a variety of purposes, including to view

“pornography.” See DOD Directive 5500.7-R, § 2-301(a). In

that sense, we may consider the Directive as listing

alternative elements that would support a violation. Neither

Article 92 nor section 2-301(a), however, requires that the

“pornography” involve a visual depiction of a minor engaging

in sexually explicit conduct. Moreover, neither Article 92 nor

section 2-301(a) include anywhere the element of a visual

depiction of a minor engaging in sexually explicit conduct,

even as an alternative element. Instead, they are missing this

element altogether.10 “The modified approach thus has no

role to play in this case.” Descamps, 133 S. Ct. at 2285 (“All

the modified approach adds is a mechanism for making [the

10

It makes no difference whether these provisions are characterized as

“missing” this element or containing a “broader” version of this element.

The Court in Descamps used precisely the scenario presented here to

explain why this characterization does not matter:

A statute of conviction punishes possession of

pornography, but a federal law carries a sentence

enhancement for possession of child pornography. Is

the statute of conviction overbroad because it includes

both adult and child pornography; or is that law instead

missing the element of involvement of minors? . . .

[W]e see no reason why [this] distinction should matter.

Whether the statute of conviction has an overbroad or

missing element, the problem is the same: Because of

the mismatch in elements, a person convicted under that

statue is never convicted of the generic crime.

Descamps, 133 S. Ct. at 2292.

AGUILAR-TURCIOS V. HOLDER 15

categorical] comparison when a statute lists multiple,

alternative elements, and so effectively creates ‘several

different . . . crimes.’ If at least one, but not all of those

crimes matches the generic version, a court needs a way to

find out which the defendant was convicted of.” (quoting

Nijhawan, 557 U.S. at 41)). Whether Aguilar-Turcios

actually did possess images of minors engaging in sexually

explicit conduct “makes no difference.” Id. at 2286. “And

likewise, whether he ever admitted to [possessing images of

minors engaging in sexually explicit conduct] is irrelevant.”

Id. We therefore hold that Aguilar-Turcios’s Article 92

conviction does not qualify as an aggravated felony under

8 U.S.C. § 1101(a)(43)(I).11

11

There is no need for us to address whether Aguilar-Turcios’s Article

134 conviction qualifies as an aggravated felony because the government

did not appeal the IJ’s ruling that Article 134 could not serve as a basis for

removal. The government must accept the consequences of its litigation

strategies, as must any defendant. See, e.g., Lezama-Garcia v. Holder,

666 F.3d 518, 535 (9th Cir. 2011) (“The government contends that the IJ

did not decide whether an unintentional departure actually took place. . . .

It is well established that if a party fails to raise an objection to an issue

before judgment, he or she waives the right to challenge the issue on

appeal. Because [ICE] failed to challenge the factual circumstances of

Lezama’s departure, remand is not warranted.” (quoting Slaven v. Am.

Trading Transp. Co., 146 F.3d 1066, 1069 (9th Cir. 1998))); Bravo-

Pedroza v. Gonzales, 475 F.3d 1358, 1360 (9th Cir. 2007) (“The

government . . . could have appealed the IJ’s 1990 decision . . . It could

have moved to reopen after our decision of June 2002. Having done

neither, the Secretary cannot avoid the application of the general principle

of res judicata.”).

Moreover, not only did ICE not appeal this issue to the Board, but the

government never argued to this court that we should consider the Article

134 conviction or remand to the Board for it to consider the issue until its

second petition for rehearing. By failing to raise this argument in any of

its several briefing opportunities before this court, the government waived

16 AGUILAR-TURCIOS V. HOLDER

IV.

We conclude that Aguilar-Turcios’s UCMJ Article 92

conviction does not qualify as an aggravated felony.

Therefore, we have jurisdiction over this case, and we grant

the petition for review and remand to the BIA with

instructions for the agency to vacate the removal order

against the petitioner.

GRANTED and REMANDED.

its argument that we should remand to the Board for it to determine

whether Aguilar-Turcios’s Article 134 conviction qualifies as an

aggravated felony. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir.

2009) (holding that an argument not addressed in an answering brief is

waived (citing United States v. Gamboa-Cardenas, 508 F.3d 491, 502 (9th

Cir. 2007) (where appellees fail to raise an argument in their answering

brief, “they have waived it”))).