This decision interprets and applies the Ninth Circuit's 2011 decision in Aguila Montes de Oca to the following question: In determining the facts "necessarily found" by the trier of fact for a particular criminal conviction, may an immigration judge import facts from the factual basis for a separate conviction in the same criminal proceeding? The court said no over Judge Bybee's vigorous dissent.
The permanent resident in this case was serving in the U.S. Marines when he used a government computer to access pornography, at least some of which involved minors. He was court martialed and pled guilty to two counts. The first, under the Uniform Code of Military Justice (UCMJ) Article 92, was for “violat[ing] or fail[ing] to obey any lawful general order or regulation.” The specific order or regulation at issue was Department of Defense (DOD) Directive 5500.7-R, which provides for use of a government computer for authorized purposes only, which does not include accessing pornography (of any type). The second offense Aguilar-Turcios pled guilty to was bringing discredit upon the armed forces in violation of 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.” In other words, the Article 92 charge referenced only accessing pornographic websites, while the Article 134 charge specified accessing child pornography. When the judge took Aguilar-Turcios' guilty pleas for the two offenses, the judge questioned him about the factual basis for the pleas. Regarding the Article 92 offense, the judge asked Aguilar-Turcios only to confirm visiting pornographic websites, while the judge asked about pornography involving minors for the Article 134 plea.
Aguilar-Turcios was put in removal proceedings after completion of his sentence and bad-conduct discharge from the Marines. DHS alleged that both of the convictions amounted to aggravated felonies under Immigration and Nationality Act (INA) section 101(a)(43)(I) as convictions for “an offense described in section 2251, 2251A, or 2252 of Title 18 (relating to child pornography).” Applying the Ninth Circuit's then-valid missing element rule, the immigration judge found the Article 92 conviction was an aggravated felony and the Article 134 conviction was not and ordered removal. The permanent resident appealed the finding that the Article 92 conviction was an aggravated felony, but DHS unwisely chose not to appeal the finding that the Article 134 conviction was not. While the case was before the Ninth Circuit, the court overruled its missing element rule and issued en banc decision in Aguila Montes de Oca.
Aguila expanded what may be considered as part of the "conviction" when determining whether a particular conviction matches the generic definition of a deportable offense in the INA, i.e., conducting the modified categorical analysis. Previously, the court had held that if a person has been convicted of an offense that is missing an element of the generic definition under the INA, then there never could be a match between the two that would establish deportability. For example, a person convicted of assault could not be deportable for a firearms offense if the assault statute did not include a firearm as at least one means of committing the assault--even if a person in fact did use a firearm to commit the assault. Aguila overruled that precedent and held that a court may consider more than the elements of the statute to determine whether a match exists. It held that a court could also consider any facts necessarily found by the trier of fact in support of the conviction. “If the defendant could not have been convicted of the offense of conviction unless the trier of fact found the facts that satisfy the elements of the generic crime, then the factfinder necessarily found the elements of the generic crime."
In Aguila-Turcios then, the government (and Judge Bybee in dissent) argued that facts found for the Article 134 conviction could be considered in determining whether the Article 92 conviction amounted to an aggravated felony (because DHS waived its opportunity to argue that the Article 134 conviction also was an aggravated felony). This would have been a significant enlargement of Aguila, since Aguila specifies that the facts must have been necessary to support the conviction. How could the alleged fact of depiction of minors be necessary to the Article 92 charge when the government did not include it in the allegations and Aguila-Turcios did not admit it? He only needed to admit accessing pornography in general, and that is all he did admit for that offense.
Fortunately, the majority of the panel did not agree with the government and did not use the unsympathetic facts of this case to create bad law. The court held that for a conviction to be an aggravated felony under the INA, the factual basis for that particular conviction must satisfy the aggravated felony definition. Borrowing from another conviction doesn't cut it.