The BIA held that keeping a place of prostitution is categorically an aggravated felony under INA § 101(a)(43)(K)(i). The BIA created a new definition for the term “prostitution” as it “relates to the owning, controlling, managing, or supervising of a prostitution business.” INA § 101(a)(43)(K)(i); but kept the former definition used to define prostitution under INA § 212(a)(2)(D) (inadmissibility for prostitution). Think about that for a moment, the BIA did not like result under their legal analysis so they changed the definition of the crime! It’s genius! One member of the panel disagreed with this decision and wrote a well-crafted dissent decrying the Board’s actions. No other published cases came down this week from either the Ninth Circuit or the Board of Immigration Appeals.
Board of Immigration Appeals
Keeping a Place of Prostitution is Categorically an Aggravated Felony Under
INA § 101(a)(43)(K)(I)
Ms. Ding is a native and citizen of China. In 2010, she became a lawful permanent resident. In 2017, she was convicted of violating section 944.34(1) of the Wisconsin Statutes. The underlying statute provides that "[w]hoever intentionally…keeps a place of prostitution is guilty of a class D felony." As Mona from The Best Little Whorehouse in Texas said, "Don’t feel sorry for me. I started out poor, and I worked my way up to outcast [and aggravated felon]. (I actually don’t know what Ms. Ding thinks, but I do hope that she is appealing this decision). The Immigration Judge, using the categorical approach, found that the conviction was categorically not an aggravated felony crime of violence because the state offense was an overbroad statute that included elements not found in the federal offense. The Immigration Judge relied on the definition of prostitution that the BIA had previously adopted. DHS appealed the case to the Board of Immigration Appeals. The BIA sustained the appeal and changed the definition of keeping a place of prostitution for immigration purposes to find that it was an aggravated felony. The entire case hinges on the issue of what is the federal definition of prostitution? And, can you have two different definitions of prostitution in the INA? (Spoiler alert, the BIA said yes you can).
It is critical to determine the federal definition of a crime in order to use the categorical approach. Under the categorical approach, the adjudicator must compare the federal definition of a crime with the state definition to see if it is a match. If the state definition includes offenses that are not in the federal definition or does not include offenses that are in the federal definition then the adjudicator must use other tests to determine if the state crime is a match to the federal crime. This approach makes sense, because a conviction for "burglary" or "prostitution" in California requires the government to prove different facts than a conviction for "burglary" or "prostitution" in North Dakota, which is different than a conviction for "burglary" or "prostitution" in South Carolina. In order to make immigration law uniform, all convictions must conform to the federal definition of a crime before someone can be removed from or be inadmissible to the United States.
Needless to say, it is not the first time that the BIA or the federal courts have dealt with this issue of determining what exactly is the federal definition of prostitution. The Ninth Circuit in 2006, addressed this issue to determine if a person was inadmissible under INA § 212(a)(2)(D) (prostitution) and found that the Immigration and Nationality Act did not define the crime of prostitution and that no regulation of the Attorney General defined the crime of prostitution. The Ninth Circuit then found a Department of State Regulation (the Foreign Affairs Manual) that defined prostitution: "The term "prostitution" means engaging in promiscuous sexual intercourse for hire." 22 C.F.R. § 40.24(b). Kepilino v Gonzales, 454 F.3d 1057, 1061 n.2 (9th Cir. 2006), cited with approval, Matter of Gonzalez-Zoquiapan, 24 I.&N. Dec. 549 (BIA 2006). So, using the categorical approach, the adjudicator must consider whether the minimum conduct involved for every violation of the statute, necessarily meet the federal definition of prostitution. Moncrieffe v. Holder, 569 U.S. 184 (2013). However, the Wisconsin statute under which Ms. Ding was convicted has a definition of prostitution that includes conduct beyond sexual intercourse. It would seem that the case would end there – no categorical match.
The BIA agreed that the categorical approach applied, gave lip-service to the categorical approach, and then changed the federal definition of prostitution under INA § 101(a)(43)(K) (running a house of prostitution). In a way, it is quite genius. The BIA cited to a survey of state statutes in effect in 1994 when Section 101(a)(43)(K) was enacted to establish that only a handful of states limited the definition of prostitution to acts involving sexual intercourse. It is almost as if the BIA wanted to use the circumstance-specific approach instead of the categorical approach, and was going to use the survey to justify using a circumstance-specific approach, but then changed the definition of the crime itself.
The BIA created a new definition for violation of INA § 101(a)(43)(K)(i).
For purposes of section 101(a)(43)(K)(i) of the Act, we now hold that the term "prostitution" is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in sexual conduct for anything of value.
Matter of Ding, 27 I.&N. Dec. 295, 299 (BIA 2018).
The BIA differentiated this definition from the definition of prostitution under INA § 212(a)(2)(D)(i) which it adopted in Matter of Gonzalez–Zoquiapan, 24 I. & N. Dec. 549, 553 (BIA 2008). The BIA held that the term "prostitution" used in section 101(a)(43)(K) does not have the same meaning as the inadmissibility provision in INA § 212(a)(2)(D). "More significantly, section 101(a)(43)(K)(i) should not be so narrowly construed as to exclude most States’ statutes proscribing the operation of a prostitution business from serving as predicates for removal." Matter of Ding, 27 I.&N. Dec. at 298. The BIA noted that the categorical approach does not apply to 212(a)(2)(D) because the provision does not require a conviction. Matter of Ding, 27 I.&N. Dec. at 299 n. 9. The BIA also held that this new definition was not impermissibly retroactive because at the time Ms. Ding pleaded to this offense, neither the BIA nor the Seventh Circuit held that running a house of prostitution was not an aggravated felony.
The dissent in this case questions where the BIA came up with its new definition for prostitution in terms of keeping a house of prostitution and sees no basis for having different definitions of prostitution under section 212(a)(2)(D) and section 101(a)(43)(K).
Matter of Ding, 27 I.&N. Dec. 295 (BIA 2018).