BIA Holds That The Term “Prostitution” Is Not Limited to Crimes Involving Sexual Intercourse

BIA Holds That The Term “Prostitution” As Used In INA §101(a)(43)(K)(i), Which Provides That An Offense Relating To Owning, Controlling, Managing, or Supervising A Prostitution Business Is An Aggravated Felony, Is Not Limited to Crimes Involving Sexual Intercourse But Is Defined As Engaging In, Or Agreeing Or Offering To Engage In, Sexual Conduct For Anything Of Value. Therefore The Offense Of Keeping A Place Of Prostitution In Violation of §944.34(1) Of The Wisconsin Statutes Is Categorically An Aggravated Felony Per §101(a)(43)(K)(i).

On May 21, 2018, the Board of Immigration Appeals (BIA or Board), in a 2-1 precedent decision, upheld a DHS appeal of an Immigration Judge (IJ) order terminating proceedings and finding respondent not removable as an aggravated felon under INA §101(a)(43)(K)(i). Respondent, a lawful permanent resident, had been convicted of violating Wisconsin Statutes §944.34(1), which provides that one who intentionally keeps a place of prostitution is guilty of a felony. The IJ had relied on prior BIA precedent, Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), which found that for purposes of INA §212(a)(2)(I)(ii), the term “prostitution” means “engaging in promiscuous sexual intercourse for hire,” a definition he found limited the term to acts involving sexual intercourse. Because the Wisconsin law included additional sex acts in its definition of “prostitution,” the IJ concluded it is overbroad relative to §101(a)(43)(K)(i), citing Second Circuit case law.

In its initial analysis, the Board noted that the DHS appeal “pointed out that only a handful of States limited the definition of prostitution to acts involving sexual intercourse” in 1994, when this aggravated felony section was enacted; the majority of States employed a definition including broad terms and/or listed multiple specific sex acts. The decision thus disagreed with the IJ and the case law he relied upon, claiming that the term “prostitution” as used in §101(a)(43)(K)(i) “does not necessarily have the same meaning as it does in the inadmissibility provision” at INA §212(a)(2)(D)(ii). Additionally, noted the BIA, Congress may have intended the term as used in §212(a) to have a “narrower scope” than when used in §101(a)(43)(K)(i), in that the former applies to those potential entrants who engage in prostitution or procure or import prostitutes while the latter applies to those convicted of an offense that relates to the operation of “a prostitution business.”

The Board then held that §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.” The opinion went on to announce that “prostitution” is not generally limited to offenses involving sexual intercourse but is now defined as “engaging in, or agreeing or offering to engage in sexual conduct for anything of value.” As §101(a)(43)(K)(i) does not proscribe merely engaging in prostitution, it necessarily reaches “offenses of a commercial nature” relating to the owning, controlling, managing or supervising of a prostitution business. Therefore, concluded the Board, respondent’s conviction is categorically for an aggravated felony and she is removable. The decision of the IJ was vacated and the record remanded for further proceedings and entry of a new decision.

In a dissenting opinion, Board Member Cole agreed with the IJ that respondent’s conviction is not for an aggravated felony “under the existing Federal definition” of prostitution. She noted that Gonzalez-Zoquiapan limits “prostitution” to acts involving sexual intercourse. Where the majority found that the difference between the inadmissibility and aggravated felony removability grounds supported its conclusion that a different definition of prostitution is unwarranted here, Board Member Cole found this distinction to be insufficient to create a different definition for purposes of §101(a)(43)(K)(i). Moreover, she concluded, the IJ properly applied the canon of statutory interpretation employed in the Seventh Circuit (where this case arose), namely, the presumption that identical words used in different parts of the same statute should carry the same meaning – a rule followed by the Second Circuit as well. The dissent agreed with respondent that Congress should provide any new definition of “prostitution” because “neither the legislative history of the term nor the aggravated felony ground” supports the new definition. Matter of Ding, 27 I&N Dec. 295 (BIA 2018).