(CN) - A former Marine who looked at child pornography online should not be deported to his native Honduras because of it, the 9th Circuit ruled Thursday.
The unanimous decision marks the third time that the 9th Circuit has found that Rigoberto Aguilar-Turciosos' conviction for violating the Uniform Code of Military Justice (UCMJ) Article 92 does not trigger deportation as an aggravated felony.
Aguilar-Turcioso is nonetheless already back in Honduras, a country he left in 1996, as he was "mistakenly removed" while his appeal was pending, the appeals court noted.
"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," the ruling states.
Attorney David Landry told Courthouse News that the mistake came about "two or three years ago" after Aguilar-Turcios' fellow detention inmates found out that he'd been convicted of a charge related to child pornography.
"The inmates found out what his conviction involved, and particularly what the government claimed his conviction involved, and so the inmates were harassing him," Landry said in a phone interview Thursday. "And the guards refused to protect him, because as they put it, he deserves whatever he gets."
After "a number of beatings and attempted rapes," Aguilar-Turcios decided that he would rather be deported than to risk his life further in detention, Landry said.
After talking to his family back in Honduras, however, Aguilar-Turcios changed his mind.
"He decided to tough it out," Landry said.
Landry said that he withdrew the request, but "three weeks later I got a call from my client, and he's in Honduras."
"Clearly the stay was in place when my client was physically removed," he said.
A legal permanent resident of the United States, Aguilar-Turcios pleaded guilty in military court in 2003 to accessing pornographic Internet sites and downloading pornographic images of minors, according to the ruling. The Marines gave him a bad-conduct discharge, and the federal government began a process in 2005 to remove him from the country.
Landry said that Aguilar-Turcios did not search for child pornography but that it popped up on the computer while his client and another Marine were looking at adult pornography.
The government claimed that his convictions under Articles 92 and 134 of the UCMJ qualified as an "aggravated felony" under federal law, making him removable to Honduras.
An immigration judge disagreed as to Article 134, but found that, since the Article 92 charge contained the phrase "minor engaging in sexually explicit conduct," which is the same language used in the federal law, the conviction qualified as an aggravated felony. The Board of Immigration Appeals affirmed, and Aguilar-Turcios took the issue to the 9th Circuit. An initial three-judge panel reversed, but the court later withdrew the opinion after the 2011 en banc ruling in United States v. Aguila-Montes de Oca
, a similar case, and requested supplemental briefing.
The appeals panel ruled
again in 2012 that an Article 92 conviction did not equal and aggravated felony, but it withdrew that opinion as well in 2013 in light of the U.S. Supreme Court's take on Descamps v. United States
, which concerned whether a petitioner's prior burglary felony qualified as a violent felony under California's Armed Career Criminals Act, established that courts cannot apply the so-called "modified categorical approach" to determining whether a state conviction meets the federal standard if the "statute of conviction contains an indivisible set of elements."
After all that, nothing much has changed, except that Aguilar-Turcios was indeed deported, however, mistakenly.
In its third ruling in the case published Thursday, the three-judge appeals panel once again found that "Aguilar-Turcios's UCMJ Article 92 conviction does not qualify as an aggravated felony."
The panel granted his petition for review and vacated the removal order.
The Marines convicted Aguilar-Turcios of violating Article 92 by violating or failing to obey a "lawful general order," Judge Richard A. Paez explained in the ruling.
The parent of the Article 92 conviction is Section 2-301(a) of Department of Defense Directive 5500.7-R.8 Section 2- 301(a), which "prohibits the use of government computers except for 'official use and authorized purposes,'" and Section 2- 301(a)(2)(d), which "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.)." (Parenthesis in ruling.)
Since the DOD Directive "sweeps more broadly" than a similar federal law, it stands to reason that an offender could violate the military statute without also being guilty of all of the elements of the federal law, Paez said.
"Therefore, Aguilar-Turcios's Article 92 conviction, predicated on a violation of section 2-301(a), is not categorically an aggravated felony," the opinion states.
The panel also found that, under the U.S. Supreme Court's new interpretation, the modified categorical approach, with which courts, after finding no federal match, may "consider whether certain documents in the record or judicially noticeable facts show that the conviction qualifies as an aggravated felony," is not relevant to the present case.
"Here, section 2-301(a) prohibits using government computers for a variety of purposes, including to view 'pornography,'" Paez wrote. "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. 'The modified approach thus has no role to play in this case.'"
As for if and when Aguilar-Turcioso will return to the United States, Landry said that it is still up in the air.
"I have not been contacted by the government yet," he said. "They still have the ability to file for en banc review, so I don't know what they are going to do."