Aguilar-Turcios v. Holder
740 F.3d 1294
9th Cir.2014Background
- Rigoberto Aguilar-Turcios, a Honduran national and lawful permanent resident, served in the U.S. Marine Corps and used a government computer to access and download pornographic images, including images of minors.
- In 2003 he pled guilty at a special court-martial to UCMJ Article 92 (violating a lawful general order) based on violating DOD Directive 5500.7‑R § 2‑301(a) (prohibiting unauthorized uses of government computers, including pornography) and to Article 134 for possessing visual depictions of minors in sexually explicit conduct. He received confinement, reduction in pay grade, and a bad‑conduct discharge.
- In 2005 immigration proceedings charged him as removable for an aggravated felony, arguing his UCMJ convictions amounted to violations of 18 U.S.C. § 2252 (child pornography provisions) and thus fit 8 U.S.C. § 1101(a)(43)(I).
- The IJ held Article 92 was an aggravated felony under the modified categorical approach but not Article 134; the BIA affirmed. The Ninth Circuit initially reversed, then multiple panel and en banc developments (Navarro‑Lopez, Aguila‑Montes, Descamps) led to vacatur and rehearings.
- Applying the Supreme Court’s Descamps framework, the Ninth Circuit concluded Article 92 (as applied to DOD Directive § 2‑301(a)) does not contain the element requiring a visual depiction of a minor engaging in sexually explicit conduct and thus is not categorically an aggravated felony; the modified categorical approach cannot be used because the element is missing. The court granted the petition and remanded with instructions to vacate removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a UCMJ Article 92 conviction (for violating DOD Directive 5500.7‑R § 2‑301(a)) is an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(I) (i.e., corresponds to 18 U.S.C. § 2252 offenses). | Aguilar‑Turcios: Article 92 does not contain the child‑pornography element; not an aggravated felony. | Government: Article 92 (as applied) necessarily encompassed child pornography and thus matches § 2252, so removal is proper. | The court held Article 92 (as applied to § 2‑301(a)) does not include the element of a visual depiction of a minor engaging in sexually explicit conduct and therefore is not categorically an aggravated felony. |
| Whether the modified categorical approach may be used to treat the Article 92 conviction as an aggravated felony by consulting plea colloquy/record. | Aguilar‑Turcios: The element is missing from the statute/directive, so the modified categorical approach is unavailable. | Government: The record (plea colloquy) shows child‑pornography conduct—apply the modified categorical approach to find an aggravated felony. | The court held Descamps forbids using the modified categorical approach where the statute/directive is indivisible or missing the relevant element; thus the plea record cannot convert the Article 92 conviction into a § 2252 aggravated felony. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishes the categorical approach comparing statutory elements to generic offense)
- Descamps v. United States, 133 S. Ct. 2276 (limits the modified categorical approach to divisible statutes and bars its use where an element is missing)
- Navarro‑Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (originally articulated a “missing element” rule later reconsidered)
- United States v. Aguila‑Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) (overruled Navarro‑Lopez; addressed use of modified categorical approach)
- Nijhawan v. Holder, 557 U.S. 29 (explains limits of categorical analysis when statute refers to specific circumstances rather than generic crimes)
- Denedo v. United States, 556 U.S. 904 (noting UCMJ convictions can have collateral consequences in civilian contexts)