Rigoberto AGUILAR-TURCIOS, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent, 582 F.3d 1093

THOMAS G. NELSON, Circuit Judge: Rigoberto Aguilar-Turcios (“Aguilar”), a native and citizen of Honduras and a lawful permanent resident alien of the United States, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an Immigration Judge’s (“IJ”) order finding him removable as an alien convicted of an aggravated felony. We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether Aguilar has been convicted of an aggravated felony within the meaning of federal law. See Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.2005).

We hold that Aguilar was not convicted of an aggravated felony and accordingly grant the petition for review. I. Aguilar was admitted to the United States as a lawful permanent resident in 1996. In June 2000, Aguilar joined the United States Marine Corps. While in the Marine Corps, he used a government computer to access pornographic internet sites. In 2003, he pled guilty to and was convicted by special court-martial of violating

Article 92 of the Uniform Code of Military Justice (“U.C.M.J.”).

Article 92 requires that an individual subject to the U.C.M.J. comply with any “lawful general order.” See U.C.M.J., Art. 92, found at 10 U.S.C. § 892. The “lawful general order” Aguilar violated in connection with his

Article 92 conviction provides that government computers “shall be for official use and authorized purposes only” and that such “authorized purposes” may not include “uses involving pornography.” See Department of Defense Directive 5500.7-R,

Section 2-301(a). In September 2005, the government initiated removal proceedings against Aguilar, charging him with being a non-citizen subject to removal because he had been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(I). After holding a hearing on the charges of removability, the IJ held that Aguilar’s conviction under

Article 92 was an aggravated felony as described in 18 U.S.C. § 2252(a)(2) and (a)(4). The IJ therefore ordered Aguilar removed from the United States to Honduras as a non-citizen convicted of an aggravated felony. Aguilar appealed to the BIA. The BIA applied the modified categorical approach and held that Aguilar’s conviction under

Article 92 was an aggravated felony: Under the modified categorical approach, the respondent’s

Article 92 conviction is an aggravated felony. The government computer identified as having been used by the respondent on specific dates to obtain access to pornographic Internet sites was identified as the same computer employed by him to wrongfully and knowingly possess, on the same dates, visual depictions of minors engaging in sexually explicit conduct. Therefore, we conclude that the DHS has proven by clear and convincing evidence that the respondent is removable as an alien convicted of an aggravated felony. The BIA therefore affirmed the IJ’s decision and dismissed Aguilar’s appeal.

Aguilar is before this court on a petition for review of the BIA’s decision. II. A. The Categorical Approach To determine whether Aguilar’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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Parrilla, 414 at 1042. This approach requires us to make a categorical comparison of the elements of the statute of conviction and the generic definition of the aggravated felony, “and decide whether the conduct proscribed by [the statute of conviction] is broader than, and so does not categorically fall within, this generic definition.” Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067-68 (9th Cir.2007) (en banc) (quotations omitted).

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. Id. at 1070. We must look only to the elements of the statute of conviction. See id. A conviction is a “categorical” aggravated felony if a violation of the statute of conviction would necessarily also be a violation of the generic aggravated felony statute. See id. at 1072.

If, on the other hand, a violation of the statute of conviction would not necessarily be a violation of the generic aggravated felony statute, the conviction is not a categorical aggravated felony. See id. at 1072-73. Here, the generic aggravated felonies with which we compare Aguilar’s conviction are found at subsections (a)(2) and (a)(4) of 18 U.S.C. § 2252. A violation of either of these subsections requires conduct involving a visual depiction of a minor engaging in sexually explicit conduct.

See 18 U.S.C. § 2252(a)(2) (making it unlawful to knowingly receive, distribute, or reproduce for distribution any visual depiction 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”); 18 U.S.C. § 2252(a)(4) (making it unlawful to knowingly possess “matter which contain[s] 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”). Aguilar’s

Article 92 conviction is thus a categorical aggravated felony only if a conviction for violating

Article 92 necessarily involves a depiction of a minor engaging in sexually explicit conduct. See Navarro-Lopez, 503 F.3d at 1072-73. To be convicted of violating

Article 92, an individual 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 forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties---- U.C.M.J., Art. 92, found at 10 U.S.C. § 892. It is undisputed that a conviction for violating

Article 92 does not necessarily involve a depiction of a minor engaging in sexually explicit conduct. See id. Aguilar was convicted of violating

Article 92 by violating or failing to obey a “lawful general order.” The “lawful general order” that Aguilar violated in connection with his

Article 92 conviction is found at

section 2-301(

a) of Department of Defense Directive 5500.7-R.

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).” Department of Defense Directive 5500.7-R,

Section 2-301(a)(2)(d). Although a violation of

section 2-301(

a) may involve “pornography,” a violation does not necessarily involve pornography, nor does it necessarily involve a depiction of a minor engaging in sexually explicit conduct. Because a violation of

Article 92 through violating

section 2-301(

a) does not necessarily involve a visual depiction of a minor engaging in sexually explicit conduct, Aguilar’s

Article 92 conviction is not a categorical aggravated felony. See Navarro-Lopez, 503 F.3d at 1072-73. B. The Modified Categorical Approach In the absence of a categorical match, we typically would next apply the “modified categorical approach” under which we would consider whether certain documents in the record or judicially noticeable facts show that Aguilar’s conviction under

Article 92 constituted an aggravated felony. See United States v. Aguila-Montes De Oca, 553 F.3d 1229, 1233 (9th Cir.2009); 18 U.S.C. § 2252(a)(2), (4). The modified categorical approach may only be applied, however, if the elements of the crime of conviction are broader than the generic crime. Navarro-Lopez, 503 F.3d at 1073. To put it another way, the modified categorical approach applies only if the statute of conviction is divisible into several crimes, some of which involve an aggravated felony and some of which do not. Id.

On the other hand, if “the crime of conviction is missing an element of the generic crime altogether, we can never find that ‘a jury was actually required to find all the elements of the generic crime,” and the modified categorical approach does not apply. Id. (citation omitted). In other words, if the crime of conviction lacks an element of the generic crime, the “crime of conviction can never be narrowed to conform to the generic crime because the jury is not required — as Taylor mandates — to find all the elements of the generic crime.” Id.

This is true even if a petitioner has admitted to the missing elements because such admissions cannot “be used to modify the crime because they were not necessary for a conviction.” Id. Here,

section 2-301(

a) prohibits uses involving “pornography.” See Department of Defense Directive 5500.7-R,

Section 2-301(a). 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.

Article 92 and

section 2-301(

a) are thus “missing an element of the generic crime altogether” — a visual depiction of a minor engaging in sexually explicit conduct. The modified categorical approach does not, therefore, apply and cannot be used in an attempt to “conform” Aguilar’s conviction to match the generic crimes. See Navarro-Lopez, 503 F.3d at 1073. This is true even if Aguilar had admitted that the pornography he accessed in relation to his

Article 92 and

section 2 — 301(

a) conviction involved a visual depiction of a minor engaging in sexually explicit conduct. See id. III. We hold that Aguilar’s conviction for violating

Article 92 of the U.C.M.J. is not an aggravated felony. Aguilar is not, therefore, deportable as an alien convicted of an aggravated felony. Accordingly, we grant the petition for review and remand to the BIA with instructions to terminate the proceedings and order the government to release Aguilar. PETITION FOR REVIEW GRANTED; REMANDED. . Aguilar also pled guilty to and was convicted by special court-martial of violating

Article 134 of the U.C.M.J. by using two different computer hard drives, including the hard drive of the computer used in connection with his

Article 92 conviction, to wrongfully and knowingly possess visual depictions of minors engaging in sexually explicit conduct. Because the IJ held that Aguilar’s conviction under

Article 134 was not an aggravated felony, and the government did not appeal that determination, we address only whether the

Article 92 conviction constitutes an aggravated felony. . Because it does not change the outcome in this case, we assume, without deciding, that the elements of this lawful general order can be considered in determining whether Aguilar's

Article 92 conviction is a categorical aggravated felony. . The U.S. Supreme Court's recent decision in Nijhawan v. Holder, — U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009), does not affect our resolution of this case because it is clear from the statutory language that the requirement at issue here — a visual depiction of a minor engaging in sexually explicit conduct, see 18 U.S.C. § 2252(a)(2), (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, 129 S.Ct. at 2303. .

The dissent argues that the crime of conviction is not "missing'’ the element of child pornography but instead is simply "broader” than the generic crimes because "child pornography” is simply a subset of "pornography.” The dissent further argues that “there is no logical distinction between 'broader' and ‘missing’ elements — they are two sides of the same coin.” In making this argument, the dissent misconstrues the meaning of "broader.” A statute of conviction is "broader” than the generic crime if the statute of conviction is divisible into several crimes, some of which would qualify as a generic crime, some of which would not.

Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1159-60 (9th Cir.2008). If a statute of conviction is "broader” than the generic crime, the court may proceed to the modified categorical approach to determine which of the divisible crimes the defendant was convicted and whether that specific crime qualifies as an aggravated felony. See id. In contrast, a statute of conviction — even one that is divisible into several crimes — is "missing" an element of a generic crime if a jury could convict a defendant of each of the divisible crimes without actually being required to find all the elements of the generic crime.

See id. at 1160. If a statute of conviction, including all the divisible crimes it encompasses, is "missing” altogether an element of the generic crime, “the modified categorical approach cannot be used to conform [the defendant's] conviction to the generic definition of [the aggravated felony].” Id. Here, Aguilar was convicted of violating

Article 92 by violating

section 2-301(a).

Section 2-3 01 (

a) is a divisible regulation that includes, as one of its divisible crimes, a prohibition on uses involving "pornography.” See Department of Defense Directive 5500.7-R,

Section 2-301(a).

Section 2-301(

a) is not merely "broader” than the generic crimes at issue here because the fact finder could convict Aguilar of the divisible crime of a use involving "pornography" without actually being required to find that Aguilar’s use involved a visual depiction of a minor engaging in sexually explicit conduct, i.e., "child pornography.” See Estrada-Espinoza, 546 F.3d at 1160. Rather,

section 2-301(

a) is “missing” altogether an element of the generic crimes because the fact finder could convict Aguilar of each of the divisible crimes under

section 2-301(a) — including the crime of a use involving "pornography”— without actually finding that his use involved "child pornography.” The modified categorical approach cannot, therefore, be used to “conform” Aguilar’s conviction to the generic crimes. See id. . While this appeal was pending and this court’s order staying removal was in place, the government mistakenly removed Aguilar to Honduras. To date, efforts by the government and Aguilar’s counsel to locate and return Aguilar to the United States have been unsuccessful.