Aguilar-Turcios v. Holder

A conviction under Article 92 of the Uniform Code of Military Justice is “not an aggravated felony under the modified categorical approach” for purposes of determining whether a legal permanent resident is removable.

Aguilar-Turcios is a legal permanent resident of the United States and served in the U.S. Marine Corps (“USMC”). During his time with the USMC, Aguilar-Turcios used government computers to visit pornographic websites and to download pornographic images of minors. Aguilar-Turcios was court martialed, and pleaded guilty to violating Articles 92 (violation of general regulation) and 142 (prohibition of possessing images of underage individuals engaging in sexually explicit content) of the Uniform Code of Military Justice (“UCMJ”). He was sentenced to ten months of confinement, pay reduction, and a bad conduct discharge from the USMC. Lower court proceedings with the Board of Immigration, the USMC Court Martial, and the federal government found that Aguilar-Turcios’s conviction under UCMJ Articles 92 and 142 amounted to an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(I). However, when the Ninth Circuit heard this case in 2006, it held that the Article 92 conviction was not a categorical aggravated felony. At issue on this appeal was whether Aguilar-Turcios’s crime amounted to an aggravated felony. Under 8 U.S.C. § 1227(a)(2)(A)(iii), an immigrant is removable for conviction of an aggravated felony. The Court held that Aguilar-Turcios’s conviction was not an aggravated felony, because the facts do not satisfy the necessary elements of 18 U.S.C. § 2252(a)(2) and (a)(4) under the modified categorical approach. The Court reasoned that “accessing, visiting, or going to an Internet site” is not the same as “possessing or receiving a visual depiction.” The Court concluded that pornographic Internet sites do not contain visual depictions, but rather writings and pictures. GRANTED and REMANDED.