Any noncitizen is inadmissible who:

 

1)       Is coming to the United States solely, principally, or incidentally to engage[195] in prostitution;

2)       Is or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status;

3)       Directly or indirectly procures or attempts to procure, or has procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution;

4)       Has directly or indirectly procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution within 10 years of the date of application for a visa, admission, or adjustment of status;

5)       Receives in whole or in part, the proceeds of prostitution;

6)       Has received in whole or in part, the proceeds of prostitution within 10 years of the date of application for a visa, admission, or adjustment of status; or

7)       Is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.[196]

 

This ground applies even if the conduct occurred in a place where prostitution is considered a legal activity.[197] A person engaged in some of the activities described in this ground may also be subject to inadmissibility as one involved in human trafficking.  See § 18.25, infra.  This ground does not apply to prostitution customers.[198]  The other “commercialized vice” ground may include other activities such as gambling.

 

                A waiver may be available to excuse this ground of inadmissibility.  See § 24.29, infra.[199] 

 

                The prostitution conduct covered under this ground of inadmissibility will generally be considered a crime of moral turpitude,[200] an aggravated felony[201]  and trigger other grounds of deportability.[202]

 

Persons coming to the United States in order to practice polygamy are also inadmissible.[203]

[195] To “engage” in prostitution for purposes of this ground involves “regular pattern of behavior or conduct,” not just a single incident.  Matter of T, 6 I. & N. Dec. 474 (BIA 1955); Matter of R, 2 I. & N. Dec. 50 (BIA 1944).

[196] INA § 212(a)(2)(D), 8 U.S.C. § 1182(a)(2)(D).

[197] 22 C.F.R. § 40.24(c).

[198] Matter of R, 6 I. & N. Dec. 444 (BIA 1954); Matter of RM, 7 I. & N. Dec. 392 (BIA 1957).  However, it is still an open question whether hiring a prostitute is considered a crime of moral turpitude.

[199] INA § 212(h), 8 U.S.C. § 1182(h).

[200] Matter of Lambert, 11 I. & N. Dec. 340 (1965) (soliciting for prostitution, and letting rooms for prostitution, involved moral turpitude); Matter of W, 4 I. & N. Dec. 401 (C.O. 1951) (prostitution); Lane v. Tillinghast, 38 F.2d 231 (1st Cir. 1930) (prostitution).

[201] INA § 101(a)(43)(K)(i), 8 U.S.C. § 1101(a)(43)(K)(i) (owning, controlling managing, or supervising a prostitution business); INA § 101(a)(43)(K)(ii), 8 U.S.C. § 1101(a)(43)(K)(ii) (transportation for purposes of prostitution).  See § 19.82, infra.  See also INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A) (sexual abuse of a minor).  See § § 19.87-19.92, infra.

[202] See § 17.22, supra.

[203] INA § 212(a)(10)(A), 8 U.S.C. §   1182(a)(10)(A).  This ground does not apply to a person who already is a polygamist, or advocates polygamy.  See Matter of G, 6 I. & N. Dec. 9 (BIA 1953).

BIA

INADMISSIBILITY " PROSTITUTION " SOLICITING A SINGLE ACT FOR ONESELF
Matter of Gonzalez, 24 I&N Dec. 549 (BIA 2008) (a single act of soliciting an act of prostitution on ones own behalf does not fall within INA 212(a)(2)(D)(ii), 8 U.S.C. 1182(a)(2)(D)(ii), where this case involved a disorderly conduct conviction relating to soliciting an act of prostitution). Note: In California, prostitution is defined as sexual intercourse for a fee, while Penal Code 273(b) covers asking for, offering, or providing lewd conduct for a fee. Lewd conduct is more broadly defined than intercourse, and the statute is not divisible. A conviction under this statute therefore does not trigger the prostitution ground of inadmissibility, under INA 212(a)(2)(D)(ii), 8 U.S.C. 1182(a)(2)(D)(ii), because the minimum conduct sufficient to constitute the offense does not necessarily match the generic definition of this ground of removal. In addition to arguing that the clients conviction was based on one-time conduct which did not amount to engaging in the practice of prostitution, the noncitizen can also argue that a conviction of this offense cannot trigger this ground. See Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006). Where the government has the burden of proof, e.g., re-entry of an LPR accused of making a new admission where he or she is inadmissible for prostitution, the Ninth Circuit held that where a conviction is the only evidence of the "conduct ground" prostitution, then the categorical approach applies: if the offense is not categorically prostitution, the conduct is not proved. Kepilino, supra. If the noncitizen must answer questions concerning what happened (whether he was the customer or the sex worker, whether it was intercourse or mere lewd conduct), this defense may not work. Thanks to Katherine Brady.

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).

Ninth Circuit

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163(9th Cir. Jul.14, 2011) (where, as here, respondent was charged in a removal hearing with inadmissibility under the reason to believe drug trafficking ground, INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C): the IJ, as a representative of the Attorney General, was free to receive new information at the evidentiary hearing, and to decide its credibility and weight. See Alarcon-Serrano, 220 F.3d at 119-20. It was permissible and appropriate for the IJ and BIA to rely on such information in determining whether there was reason to believe petitioner was knowingly transporting marijuana when he attempted to cross the border into the United States. See id. Accordingly, we conclude that it was proper for the IJ to receive and consider petitioner's testimony, Agent Lehman's opinion, and other information not necessarily known, actually or constructively, to officers at the border on December 13, 2002.).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING "CREDIBILITY DETERMINATION
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul.14, 2011) (Because the IJ did not understand that he could consider credible testimony by petitioner, he evidently did not, even implicitly, make a decision regarding petitioner's credibility. Failure of the IJ and BIA to evaluate the credibility of a petitioner's testimony in a case like this is a fundamental flaw, which deprives a petitioner of his right to have his testimony considered and precludes effective review.); see Lopez"Umanzor, 405 F.3d at 1059; Hartooni v. INS, 21 F.3d 336, 343 (9th Cir.1994) (remanding for a credibility determination where the BIA relied on the IJ's credibility determination when, in fact, the IJ did not make such a credibility finding); see also Kho v. Keisler,505 F.3d 50, 56 (1st Cir.2007) (If, in the absence of a credibility finding by the IJ, a reviewing court determines that such a finding is necessary for effective review of the case, it may remand to the agency for further factfinding.).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING
Gomez-Granillo v. Holder, ___ F.3d ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (information constituting reason to believe that respondent engaged in drug trafficking must be in possession of Attorney General or Secretary of Homeland Security " not only the individual officer admitting respondent " at the time of admission, to constitute ground of inadmissibility under INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C)); citing Matter of Casillas"Topete, 25 I & N Dec. 317, 321 (BIA 2010) (noncitizen is inadmissible under the reason to believe drug trafficking ground of inadmissibility, INA 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C), if sufficient facts are known to the consular officer, Attorney General, or Department of Homeland Security at the time the admission occurred, even if they are not known to the inspecting immigration official who admitted the noncitizen: [I]t is not relevant under the terms of the statute that the inspecting immigration officer does not have access to information regarding the alien's trafficking if that information is known to other immigration officials. . . . Thus, as long as the information was demonstrably known to an appropriate immigration official when the admission occurred, it can be relied on to sustain the charge.).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKER " COURT OF APPEAL STANDARD OF REVIEW OF BIA DECISION
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (The court must determine whether reasonable, substantial, and probative evidence supports the IJ's reason to believe that [petitioner] knew he was participating in illicit drug trafficking.); quoting Lopez-Molina, 368 F.3d at 1211, quoting Alarcon-Serrano, 220 F.3d at 1119.

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKER " WHO MUST HAVE REASON TO BELIEVE
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (The IJ and BIA may, depending on the circumstances, be among the appropriate immigration officials included in the term Attorney General [or Secretary of Homeland Security] in 1182(a)(2)(C). See Lopez"Molina, 368 F.3d at 1211"12; Alarcon"Serrano, 220 F.3d at 1119; Casillas-Topete, 25 I & N Dec. at 321.). NOTE: This situation generally would arise where the respondent was apprehended at the border, charged with inadmissibility, and served with an NTA to allow the IJ to make the inadmissibility determination.

INADMISSIBILITY " REASON TO BELIEVE " TIMING
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (The appropriate immigration officials may make a finding of reason to believe based only on information available when the admission occurred. See Casillas"Topete, 25 I & N Dec. at 321. Therefore, the appropriate immigration officials must collectively know the information before the alien makes lawful entry into the United States after inspection and authorization by an immigration officer. See 8 U.S.C. 1101(a)(13)(A); Hing Sum, 602 F.3d at 1096 (defining admission); Matter of Rosas"Ramirez, 22 I & N Dec. at 618"20 (same).).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING " ADMISSIONS BEFORE IMMIGRATION COURT
Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (Accordingly, where the alien is apprehended at the border and, rather than being admitted, is charged with being inadmissible, information learned by the IJ during the subsequent proceedings to determine inadmissibility may be considered in deciding whether there is reason to believe the alien is involved in drug trafficking. See Alarcon"Serrano, 220 F.3d at 1119"20. [Footnote omitted.] However, if the alien is admitted, information not known to an appropriate immigration official when the admission occurred may not later be relied upon to sustain a charge that the alien was inadmissible at the time of admission. [Footnote omitted.] See Casillas"Topete, 25 I & N Dec. at 321.).

INADMISSIBILITY " REASON TO BELIEVE " ADMISSIONS BEFORE IMMIGRATION COURT
Gomez-Granillo v. Holder, ___ F.3d ___, ___, n.7, 2011 WL 2714163 (9th Cir. Jul. 14, 2011) (Because petitioner was charged with being inadmissible at the time of his hearing, we need not, and do not, decide whether the IJ may consider an alien's post-admission testimony in evaluating the evidence known at the time of admission.).

INADMISSIBILITY " REASON TO BELIEVE DRUG TRAFFICKING " NINTH CIRCUIT RULES FOR CONSIDERING REASON TO BELIEVE QUESTION IN REMOVAL PROCEEDINGS
In Gomez-Granillo, the Ninth Circuit synthesized the rules for conducting a removal hearing on a question whether there was reason to believe respondent was a drug trafficker at the time of admission: 1. The IJ and BIA may, depending on the circumstances, be among the appropriate immigration officials included in the term Attorney General [or Secretary of Homeland Security] in 1182(a)(2)(C). See Lopez"Molina, 368 F.3d at 1211"12; Alarcon"Serrano, 220 F.3d at 1119; Casillas"Topete, 25 I & N Dec. at 321. 2. The appropriate immigration officials may make a finding of reason to believe based only on information available when the admission occurred. See Casillas"Topete, 25 I & N Dec. at 321. Therefore, the appropriate immigration officials must collectively know the information before the alien makes lawful entry into the United States after inspection and authorization by an immigration officer. See 8 U.S.C. 1101(a)(13)(A); Hing Sum, 602 F.3d at 1096 (defining admission); Matter of Rosas"Ramirez, 22 I & N Dec. at 618"20 (same). 3. Accordingly, where the alien is apprehended at the border and, rather than being admitted, is charged with being inadmissible, information learned by the IJ during the subsequent proceedings to determine inadmissibility may be considered in deciding whether there is reason to believe the alien is involved in drug trafficking. See Alarcon"Serrano, 220 F.3d at 1119"20. However, if the alien is admitted, information not known to an appropriate immigration official when the admission occurred may not later be relied upon to sustain a charge that the alien was inadmissible at the time of admission. See Casillas"Topete, 25 I & N Dec. at 321. (Gomez-Granillo v. Holder, ___ F.3d ___, ___, 2011 WL 2714163 (9th Cir. Jul.14, 2011) (footnotes omitted).) The court stated it was an open question whether the IJ may consider an alien's post-admission testimony in evaluating the evidence known at the time of admission. (Id. at n.7.)