(CN) - A former Marine who allegedly used a government computer to access child pornography can't be deported based on his conviction by special court-martial of violating military code, the 9th Circuit ruled.
Honduran native Rigoberto Aguilar-Turcios was admitted to the United States as a legal permanent resident in 1996. Four years later, he joined the Marine Corps.
He later pleaded guilty to using a government computer to access pornographic Web sites. He was convicted by special court-martial of violating the Uniform Code of Special Military Justice.
The three-judge panel in Pasadena, Calif., agreed with Aguilar that his conviction was not an aggravated felony, because it missed a serious element of his crime: that he had allegedly used the computer to view "visual depictions of minors engaging in sexually explicit conduct."
"Aguilar is not, therefore, deportable as an alien convicted of an aggravated felony," Judge Thomas G. Nelson wrote.
The ruling overturns a decision by the Board of Immigration Appeals, which upheld the immigration judge's finding that Aguilar was eligible for removal to Honduras.
The 9th Circuit sent the case back to the board, with instructions to order Aguilar's release from U.S. custody.
In a lengthy dissent, Judge Jay S. Bybee argued for a broader reading of the "modified categorical approach" used to decide if a conviction is an aggravated felony.
"Child pornography is a subset of pornography," Bybee wrote. "If the record reveals that the pornographic website (Aguilar) accessed ... contained child pornography, I see no reason why we should not be able to consider that information.
"Put differently, child pornography is to pornography as a gun is to a weapon," he wrote.
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