Aguilar–Turcios v. Holder

• Decision Date: 15 August 2012
• Docket Number: No. 06–73451.,06–73451.
• Citation: 2012 Daily Journal D.A.R. 11309,12 Cal. Daily Op. Serv. 9279,691 F.3d 1025
• Parties: Rigoberto AGUILAR–TURCIOS, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

691 F.3d 1025

12 Cal. Daily Op. Serv. 9279

2012 Daily Journal D.A.R. 11,309

Rigoberto AGUILAR–TURCIOS, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 06–73451.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 21, 2012.

Filed Aug. 15, 2012.

David B. Landry, San Diego, CA, for petitioner Rigoberto Aguilar–Turcios.

Steven F. Hubacheck, Federal Defenders of San Diego, Inc., San Diego, California, amicus for petitioner Rigoberto Aguilar–Turcios.

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 Eric H. Holder Jr., Attorney General.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A045–301–132.

Before: WILLIAM A. FLETCHER, RICHARD A. PAEZ, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge PAEZ; Dissent by Judge BYBEE.

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' conviction under Article 92 of the Uniform Code of Military Justice (UCMJ) qualifies as an “aggravated felony” under the modified categorical approach as explained by our recent en banc decision in United States v. Aguila–Montes de Oca, 655 F.3d 915 (9th Cir.2011). For the reasons discussed below, we conclude that Aguilar–Turcios' Article 92 conviction is 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.

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.

Court Martial—2003

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,” see10 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,” see id. § 934.

In particular, 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 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.”

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.

Removal Proceedings—2005

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. In particular, the government alleged that Aguilar–Turcios' 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 involving child pornography, and therefore qualified as aggravated felonies under 8 U.S.C. § 1101(a)(43)(I).³

Agency Decisions—2006

The Immigration Judge (IJ) assigned to Aguilar–Turcios' removal proceeding determined that neither the Article 92 nor the Article 134 violations categorically qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)(I). Turning to the modified categorical approach, the IJ first held that Aguilar–Turcios' Article 134 conviction was not an aggravated felony because Article 134 does not refer to child pornography and he was not persuaded that a charge of specific facts becomes an element of Article 134.⁴ The IJ reached the opposite conclusion for Aguilar–Turcios' 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' Article 92 conviction qualified as an aggravated felony.⁵

Aguilar–Turcios appealed the IJ's Article 92 decision to the BIA. The government did not appeal the Article 134 ruling. The BIA affirmed the IJ's decision in a per curiam order.

Initial Ninth Circuit Decision—2009

Aguilar–Turcios petitioned for review of the BIA's order, and we granted the petition and remanded the case to the BIA.⁶Aguilar–Turcios v. Holder, 582 F.3d 1093, 1094, 1098 (9th Cir.2009), withdrawn by652 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.

We also held that the modified categorical approach did not apply at all to the analysis of whether Aguilar–Turcios' Article 92 conviction was an aggravated felony. We applied the so-called “missing element rule” from Navarro–Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc), which limited the application of the modifiedcategorical 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. Concluding that both Article 92 and DOD Directive 5500.7–R § 2–301(a) were “missing” the element of “a visual depiction of a minor engaging in sexually explicit conduct,” we held that the modified categorical approach did not apply and that Aguilar–Turcios' Article 92 conviction was therefore not an aggravated felony.

Judge Bybee dissented, calling into question the validity and wisdom of the Navarro–Lopez “missing element rule” and concluding that Aguilar–Turcios' 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.”

Following publication of our original opinion in this case, the government filed a petition for rehearing en banc. The petition sought reconsideration of the Navarro–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. We therefore held this case in abeyance pending the en banc opinion in Aguila–Montes.

Aguila–Montes—2011

Aguila–Montes overruled Navarro–Lopez 's “missing element rule.” 655 F.3d at 916–17. As a result of the holding in Aguila–Montes, we withdrew our original opinion in this case and requested supplemental briefing from the parties on the question of what effect, if any, the Aguila–Montes decision had on the outcome of Aguilar–Turcios' case. Aguilar–Turcios, 652 F.3d at 1236. Having considered the supplemental briefing, we revisit the merits of this case.

II.

A.

We review de novo the BIA's determinations 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. Carrillo–Jaime v. Holder, 572 F.3d 747, 750 (9th Cir.2009) (citing Cazarez–Gutierrez v. Ashcroft, 382 F.3d 905, 909 (9th Cir.2004)).

B.

Generally, we have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a)(1). We 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 Luu–Le v. INS, 224 F.3d 911, 914 (9th Cir.2000). Because our resolution of the merits of whether Aguilar–Turcios' 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' 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' removal.

III.

The question before us is whether Aguilar–Turcios' UCMJ Article 92 conviction qualifies as an aggravated felony under the modified categorical approach.⁷ Applying the modified categorical approach as explained in Aguila–Montes, we hold that Aguilar–Turcios' Article 92 conviction is not an aggravated felony because the facts on which his conviction “necessarily rested” do not satisfy the elements of either 18 U.S.C. § 2252(a)(2) or (a)(4).⁸

A. The Modified Categorical Approach

“The categorical and modified categorical frameworks, first outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), establish the rules by which the government may use prior state convictions to enhance certain federal sentences and to remove certain aliens.” ⁹Aguila–Montes, 655 F.3d at 917 (...