Aguilar-Turcios v. Holder
691 F.3d 1025
9th Cir.2012Background
- Rigoberto Aguilar-Turcios, a Honduran native and LPR since 1996, married with at least one child and served in the U.S. Marine Corps.
- While in the Marine Corps, he used a government computer to access pornographic internet sites and to download pornographic images of minors.
- In 2003 he pled guilty to and was convicted by special court-martial of UCMJ Article 92 (failure to obey a lawful general order) and Article 134 (conduct prejudicial to good order) for related conduct connected to DoD Directive 5500.7-R § 2-301(a).
- The MJ sentenced him to ten months’ confinement, pay-grade reduction, and a bad-conduct discharge.
- In 2005 the federal government initiated removal proceedings charging him as removable for an aggravated felony based on the Article 92 and 134 convictions and alleged violations of 18 U.S.C. § 2252(a)(2) and (a)(4).
- The initial IJ and the BIA held that the Article 92 conviction was not categorically an aggravated felony, but the case was held in abeyance pending the en banc Aguila-Montes de Oca decision, which overruled Navarro-Lopez’s missing-element rule and refined the modified categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Aguilar-Turcios’ Article 92 conviction qualify as an aggravated felony under the modified categorical approach? | Article 92 necessarily rested on facts that satisfy § 2252(a)(2)/(a)(4). | The facts do not satisfy the elements of § 2252(a)(2) or (a)(4). | Not an aggravated felony; petition granted and case remanded for removal order vacatur. |
| Did Navarro-Lopez’s missing-element rule survive Aguila-Montes or govern this case? | Navarro-Lopez should be overruled; modified categorical approach may apply. | Navarro-Lopez remains binding for determining which facts are 'necessary'. | Navarro-Lopez overruled by Aguila-Montes; retroactive application affirmed. |
| Is Aguila-Montes applied retroactively to cases pending on appeal? | Aguila-Montes applies retroactively to pending cases. | Applies prospectively only. | Aguila-Montes applies retroactively to all pending cases, including this one. |
Key Cases Cited
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (overruled Navarro-Lopez missing-element rule; refined modified categorical approach)
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (established categorical vs. modified categorical frameworks)
- Shepard v. United States, 544 U.S. 13 (U.S. 2005) (limits to judicially noticeable documents in modified categorical analysis)
- Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (U.S. 2010) (focus on actual conviction and the generic offense elements)
- Nijhawan v. Holder, 557 U.S. 29 (U.S. 2009) (narrow circumstance-specific language in aggravated felony definitions)
- Kawashima v. Holder, 132 S. Ct. 1166 (U.S. 2012) (clarifies application of categorical approach in immigration cases)
- Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (retroactivity of Aguila-Montes in pending cases)
- Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (retroactivity of Aguila-Montes when final conviction predates Navarro-Lopez)