Aguilar-Turcios

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RIGOBERTO AGUILAR-TURCIOS, 

Petitioner, No. 06-73451 v.  Agency No.

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

Filed August 15, 2012

Before: William A. Fletcher, Richard A. Paez, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Paez; Dissent by Judge Bybee

9219 9222 AGUILAR-TURCIOS v. HOLDER

COUNSEL

David B. Landry, San Diego, California, for petitioner Rigo- berto Aguilar-Turcios.

Steven F. Hubacheck, Federal Defenders of San Diego, Inc., San Diego, California, amicus for petitioner Rigoberto Aguilar-Turcios. AGUILAR-TURCIOS v. HOLDER 9223 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.

OPINION

PAEZ, Circuit Judge:

In this…

dissenting:

Judge Frankel once wrote that “[a]s people, we know or powerfully suspect a good deal more than we are prepared as lawyers to admit.” Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L.Rev. 1031, 1039 (1975). This case demonstrates the principle perfectly. Everyone knows what Lance Corporal Aguilar-Turcios was looking at on his computer, but the lawyers — at least the majority — cannot bring themselves to admit it. Even when it is plain on the record before us.

The majority concludes that we cannot tell whether Aguilar-Turcios knowingly received or possessed visual depictions of a minor engaging in sexually explicit conduct, Maj. Op. at 1040, because:

This is fatuous. The idea that viewing pornography and ■ downloading pornographic images does not involve possessing or receiving a visual depiction, that a pornographic website does not contain visual depictions, that Aguilar-Turcios was not viewing child pornography, or that any sexually explicit conduct Aguilar-Turcios was viewing might just have involved minors kissing is contrary to all that we know.

We know — or, in Frankel’s words at least “powerfully suspect” — that the Marine Corps does…

Opinion by Judge PAEZ; Dissent by Judge BYBEE.

OPINION

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, AguilarTurcios used a government computer to access pornographic Internet sites and to download pornographic images of female minors.

Court Martial — 2003

In 2003,…