7th Cir: Fed importing prostitutes offense isn’t categorically aggravated felony

The U.S. Court of Appeals for the Seventh Circuit recently held that importing a noncitizen for the purpose of prostitution is not categorically an aggravated felony under the prostitution business-related definition. Familia Rosario v. Holder, No. 10-3433, slip op. (7th Cir. Aug. 24, 2011) (Bauer, Flaum, and Williams, J.) Judge Williams wrote the panel’s decision.

This decision involved an LPR who was convicted of “aiding and abetting a conspiracy, the object of which was a violation of 8 U.S.C. § 1328, which prohibits the ‘importation into the United States of any alien for the purpose of prostitution, or for any other immoral purpose.’” Familia Rosario v. Holder, No. 10-3433, slip op. at 1. Though DHS did not claim Familia Rosario’s conviction constituted an aggravated felony for purposes of determining removability, once removal was determined (thanks to his concession) DHS argued that he was precluded from Cancellation of Removal because he had not shown that his conviction was not an aggravated felony. Familia Rosario v. Holder, No. 10-3433, slip op. at 2.

The IJ determined, and the BIA affirmed, that his conviction fell within INA § 101(a)(43)(K)(i), the aggravated felony definition that covers “an offense that relates to the owning, controlling, managing or supervising of a prostitution business….” Familia Rosario v. Holder, No. 10-3433, slip op. at 6.

The Seventh Circuit disagreed with their position because it determined that they misapplied the modified categorical approach of statutory analysis. Importantly, the Seventh Circuit emphasized that the modified categorical approach allows the court to identify the “portion” of a divisible statute at issue: “Under the modified categorical approach, ‘a judge may examine a limited set of additional materials…to determine the portion of the underlying statute to which the defendant pleaded guilty.’” Familia Rosario v. Holder, No. 10-3433, slip op. at 14 (quoting United States v. Taylor, 644 F.3d 573, 576 (7th Cir. 2011)).

Because the modified categorical approach only allows the court to identify the relevant portion of a statute, “[t]he inquiry should have ended when the IJ and BIA learned that ‘prostitution’ was involved, and not some ‘other immoral purpose,” the two types of activities prohibited by 8 U.S.C. § 1328. Because the IJ and BIA used the modified categorical approach to identify the specific facts that led to Familia Rosario’s conviction, the Seventh Circuit concluded that they improperly applied the modified categorical approach. Familia Rosario v. Holder, No. 10-3433, slip op. at 15.

Applying the modified categorical approach in accordance with this interpretation, the Seventh Circuit concluded that Familia Rosario’s conviction under 8 U.S.C. § 1328 for aiding and abetting the “importation into the United States of any alien for the purpose of prostitution” is broader than the INA’s reference to an offense that “relates to” ownership, control, supervision, or management of a prostitution business. Familia Rosario v. Holder, No. 10-3433, slip op. at 19.

According to the court,

“Generally, a conviction under 8 U.S.C. § 1328 would only require proof that (1) the defendant imported a person into the United States; (2) that person was an alien; and (3) the defendant imported the alien for the purpose of having him or her engage in prostitution….Clearly, the statute certainly can cover conduct that includes the ownership and control of a prostitution business, but that possibility (and actual occurrence) is not sufficient for a finding that 8 U.S.C. § 1328 is categorically an offense that relates to the owning, controlling, managing or supervising of a prostitution business.” Familia Rosario v. Holder, No. 10-3433, slip op. at 19-20.

Indeed, the court added, Familia Rosario was convicted of violating § 1328 as a result of distributing condoms to locations that he knew were brothels. Familia Rosario v. Holder, No. 10-3433, slip op. at 22. “[I]t stretches the bounds of logic to suggest that his conduct…was conduct that ‘related to’ the owning, controlling, managing or supervising of a prostitution business.” Familia Rosario v. Holder, No. 10-3433, slip op. at 22.

Consequently, the court held that the importation for purposes of prostitution section of 8 U.S.C. § 1328 is not categorically a prostitution business-related type of aggravated felony. Familia Rosario v. Holder, No. 10-3433, slip op. at 22.