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Withdrawn September 10, 2013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The original opinion in this case was withdrawn pending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was withdrawn when the Supreme Court granted certiorari in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”))).