Aguilar-Turcios v. Holder

A conviction under the Uniform Code of Military Justice Article 92 for violating a Department of Defense Directive by using an official government computer to view pornography does not constitute an aggravated felony.

Aguilar-Turcios is a Honduran native and former United States Marine who became a legal permanent citizen of the United States in 1996. While serving in the Marine Corps, Aguilar-Turcios used an official government computer to access and download pornographic images of female minors. A special court-martial convicted him in 2003 for violating UCMJ Article 92, which prohibits violations of general orders and regulations. Specifically, he was convicted of violating Department of Defense Directive 5500.7-R § 2-301(a) (the "Directive"), which prohibits unauthorized use of official government computers, including accessing pornographic material. In 2005, the federal government initiated removal proceedings against Aguilar-Turcios, alleging he was removable because the Article 92 conviction qualified as an aggravated felony under 18 U.S.C. §§ 2252(a)(2)1 and (a)(4), which include child pornography. The Immigration Judge found that the Article 92 conviction qualified as an aggravated felony and the Board of Immigration Appeals affirmed the IJ decision. The Ninth Circuit found that the violation was not categorically an aggravated felony because one could violate the Directive without necessarily being guilty of each element of the federal child pornography law. Citing the recent Supreme Court decision in Descamps, the panel also held that the modified categorical approach did not apply in this case because neither Article 92 nor the Directive include an element regarding the visual depiction of a minor engaging in sexual conduct. GRANTED AND REMANDED.