Argued and Submitted March 21, 2012.
Withdrawn Sept. 10, 2013.
[Copyrighted Material Omitted]
David B. Landry (argued), San Diego, CA, for Petitioner.
Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, CA, for Amici Curiae Federal Public and Community Defenders.
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.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A045-301-132.
Before: WILLIAM A. FLETCHER, RICHARD A. PAEZ, and JAY S. BYBEE, Circuit Judges.
PAEZ, Circuit Judge:
In this petition for review of a decision by the Board of Immigration Appeals (" BIA" or " Board" ), we address whether Petitioner Rigoberto Aguilar-Turcios's conviction under Article 92 of the Uniform Code of Military Justice (" UCMJ" ) qualifies as an " aggravated felony" as defined in 8 U.S.C. § 1101(a)(43)(I). For the reasons discussed below, we conclude that Aguilar-Turcios's 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.
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, Aguilar-Turcios used a government computer to access pornographic Internet sites and to download ...