(B)  Crimes of Moral Turpitude.[268]

 

Prostitution has been held to involve moral turpitude.[269] Offenses involving prostitution have generally been held to be crimes involving moral turpitude.  Pandering has been held to involve moral turpitude.[270]

 

There are relatively few cases ruling directly on the moral turpitude of prostitution for purposes of the statutes under consideration, probably due to the fact that prostitution and related activities are an independent ground for the exclusion or deportation of aliens. 8 U.S.C. § 1182(a)(12) provides for the exclusion of “[a]liens who are prostitutes or who have engaged in prostitution, or aliens coming to the United States solely, principally, or incidentally to engage in prostitution; aliens who directly or indirectly procure or attempt to procure, or who have procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution or for any other immoral purpose; and aliens who are or have been supported by, or receive or have received, in whole or in part, the proceeds of prostitution or aliens coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution”; and 8 U.S.C. § 1251(a)(12) provides for the deportation of any alien who has become a member of any of the above specified classes at any time after entry, as well as any alien who “is or at any time after entry has been the manager, or is or at any time after entry has been connected with the management, of a house of prostitution or any other immoral place.” Since these portions of the immigration statutes appear to be quite definitive on the subject, there would seem to be little need for the courts or the immigration authorities to rule on the moral turpitude of crimes involving prostitution.[271]

 

Engaging in prostitution was formerly an independent ground of deportation under the 1952 Act, but the Immigration Act of 1990 eliminated this ground of deportation.[272]

 

            No published case has yet decided whether solicitation of a prostitute is a crime of moral turpitude for immigration purposes.  There is an argument that even if solicitation is a CMT, the commission of the offense cannot render a noncitizen inadmissible.[273]  An alien is inadmissible if convicted of a crime involving moral turpitude “or an attempt or conspiracy to commit such a crime . . . .”[274]  It could be argued that a solicitation conviction is not a crime of moral turpitude because the statute does not specifically state that solicitation to commit a crime constitutes a crime of moral turpitude.  The plain language of the statute limits inadmissibility to conspiracy and attempt, but not solicitation.

 

Board of Immigration Appeals:

Matter of R, 6 I. & N. Dec 444 (BIA 1954) (violation of the Mann Act was not a crime involving moral turpitude where the conduct giving rise to the noncitizen’s conviction did not involve commercialized sex, but apparently consisted of the mere act of transporting a consenting female across state lines for purposes of indulging in sexual relations with her, which the Board characterized as simple fornication, which has itself been held not to involve moral turpitude).

 

Matter of A, 3 I. & N. Dec 168 (BIA 1948) (conviction held not CMT under Massachusetts nuisance statute imposing criminal liability upon anyone keeping or maintaining a building or part of a building used for prostitution, assignation, or lewdness, since there was no requirement of evil intent or guilty knowledge, the statute was so broadly drawn that the court could not find that a violation in every instance would be accompanied by an evil intent to practice immorality for hire, and the complaint charged the crime only in the words of the statute, and was not “of sufficient detail” to allow a determination that the offense involved moral turpitude).

 

Matter of A, 3 I. & N. Dec. 168 (BIA 1948) (conviction of maintaining a place for purposes of prostitution under Massachusetts General Laws, c. 139, § § 4, 5, held not invariably to require evil intent to practice immorality for hire, and therefore does not invariably involve moral turpitude; record of conviction does not furnish sufficient detail for a determination as to whether this violation is accompanied by such evil intent).

Matter of C, 2 I. & N. Dec. 367 (BIA 1945) (maintaining a disorderly house in violation of the penal ordinance set forth in § 2 of Chapter 9 of the city ordinance of Buffalo, New York, is not a felony or other crime or misdemeanor within the meaning of the Immigration Act).

 

Matter of G, 1 I. & N. Dec. 217 (BIA 1942) (a noncitizen is not deportable as a person who had been found managing a house of prostitution when the only evidence to support the charge was his conviction for keeping a disorderly house under New York Penal Law § 1146).

 

District Courts:

 

Ablett v. Brownell, 240 F.2d 625 (D.C. Cir. 1957) (dictum expressing doubt whether the British offense of “willfully being a party [as a landlord] to the continued use” of leased premises as a brothel was properly to be construed as a crime involving moral turpitude).

           

[268] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.102 (2005).

[269] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(14).

[270] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-3(a)(12).

[271] Annot., What Constitutes “Crime Involving Moral Turpitude” Within Meaning of § § 212(a)(9) and 241(a)(5) of Immigration and Nationality Act (8 U.S.C. § § 1182(a)(9), 1251(a)(4)), and Similar Predecessor Statutes Providing for Exclusion or Deportation of Aliens Convicted of Such Crime, 23 A.L.R. Fed. 480, § 12[g], n.79 (1975).

[272]  See C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 71.07[1] (2004).

[273] See, e.g. Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997); Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999) (en banc) (misprision of felony not listed).

[274] INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I).

BIA

INADMISSIBILITY - PROSTITUTION GROUND
Matter of Gonzalez-Zoquiapan, 24 I. & N. Dec. 549 (BIA Jun. 25, 2008) (California conviction for violation of California Penal Code 647(b), disorderly conduct involving solicitation of a prostitute does not fall within INA 212(a)(2)(D)(ii) ground of inadmissibility [procuring a prostitute]; that ground only applies to persons who engage in the business of obtaining prostitutes for use by others, not to isolated incidents of people hiring a prostitute; because soliciting a prostitute does not trigger INA 212(a)(2)(D), it does not bar good moral character on that basis).

INADMISSIBILITY - PROSTITUTION GROUND
Matter of Gonzalez-Zoquiapan, 24 I. & N. Dec. 549 (BIA Jun. 25, 2008) (California conviction for violation of California Penal Code 647(b), disorderly conduct, is broader than the prostitution ground of inadmissibility; the phrase "engage in prostitution" for purposes of INA 212(a)(2)(D) means to engage in a pattern or practice of sexual intercourse for financial or other material gain; the phrase does not encompass isolated incidents or sexual contact that falls short of intercourse).

Second Circuit

AGGRAVATED FELONY " PROMOTING PROSTITUTION
Prus v. Holder, 660 F.3d 144 (2d Cir. Sept. 28, 2011) (New York conviction for promoting prostitution in the third degree, under New York Penal Law 20.00 and 230.25, does not constitute an aggravated felony within the meaning of INA 101(a)(43)(K)(i), 8 U.S.C. 1101(a)(43)(K)(i), because New York law defines prostitution more broadly than the generic federal definition of this aggravated felony offense).

AGGRAVATED FELONY - TRAVELLING TO ENGAGE IN PROSTITUTION
Gertsenshteyn v. Mukasey, 544 F.3d 137 (2d Cir. Sept. 25, 2008) (federal conviction of violating and conspiring to violate 18 U.S.C. 2422(a), enticing individuals to travel in interstate or foreign commerce to engage in prostitution, did not constitute an aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) ("an offense that ... is described in section 2421, 2422 or 2423 of Title 18 ... if committed for commercial advantage"), because the government cannot go outside the elements of which the noncitizen was convicted, nor outside the record of conviction; this aggravated felony ground is not a nullity since certain state statutes qualifying under this aggravated felony ground, and, now, one of the federal statutes listed, do have commercial advantage as an element and the record of conviction may contain proof of this element).

Seventh Circuit

AGGRAVATED FELONY " PROSTITUTION BUSINESS " IMPORTING NONCITIZENS FOR PURPOSES OF PROSTITUTION
Rosario v. Holder, 655F.3d 739 (7th Cir. Aug. 24, 2011) (federal conviction for aiding and abetting a conspiracy to import a noncitizen for the purpose of prostitution, in violation of 8 U.S.C. 1328, is not categorically an aggravated felony offense that relates to the owning, controlling, managing or supervising of a prostitution business, INA 101(a)(43)(K)(i), 8 U.S.C. 1101(a)(43)(K)(i), and so does not categorically constitute an aggravated felony under that statute, where a conviction may be had where defendant simply provided condoms to a house of prostitution, or were importation was for personal, rather than business purposes).

Ninth Circuit

SAFE HAVEN - 18 U.S.C. 1589
A conviction of coercing labor, in violation of 18 U.S.C. 1589, does not constitute an aggravated felony under INA 101(a)(43)(K)(iii), 8 U.S.C. 1101(a)(43)(K)(iii), which lists only neighboring provisions. This offense appears to be divisible with respect to whether it constitutes a crime involving moral turpitude. Subsections (1) and (2) appear would be crimes of moral turpitude if committed by means of threats of serious harm to a person, at least if construed as serious bodily harm. If the harm includes non-physical harm, or even physical harm no matter how insignificant, there might be an argument the conviction is not a crime of moral turpitude. See United States v. Belless (9th Cir.); CMT decisions holding simple assault and battery are not CMTs. Physical restraint might not constitute CMT, since the language appears to be restraint no matter how minor, since false imprisonment is not a CMT because of the de minimus possibility. The offense defined under (3), coercing labor by abuse or threatened abuse of law or the legal process, is arguably not a CMT since the determination of abuse of process can be highly technical and seems akin to a regulatory offense: there is nothing wrong about threatening litigation except sometimes it is regulated.
The statute, 18 U.S.C. 1589, is labeled "Forced labor" and provides: Whoever knowingly provides or obtains the labor or services of a person - (1) by threats of serious harm to, or physical restraint against, that person or another person; (2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or (3) by means of the abuse or threatened abuse of law or the legal process, shall be fined under this title or imprisoned not more than 20 years, or both.  If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.

Other

AGGRAVATED FELONY - PROSTITUTION
There could arguably be offenses relating to the "attempted promotion" of prostitution that dont come under 101(a)(43)(K)(i)which deploys 4 verbs:

 "owning, controlling, managing or supervising of a prostitution business." Those are specific verbs, seemingly aimed at the top end of the enterprise. Not everyone who has ever been involved with the prostitution business has "owned, controlled," etc; so there might be a statutory argument that an offense such as employment at a house of prostitution (i.e. as a receptionist) is not an aggravated felony.