Criminal Defense of Immigrants


§ 19.82 (D)

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(D)  Involuntary Servitude.  Despite the “relating to” language, Congress was specific in listing certain sections of Chapter 77 or Title 18 (peonage, slavery, and trafficking in persons), but not others.  Arguably, a conviction under one of the unlisted sections of that chapter should therefore not be found “related to” the listed ones.[862]


[862] See, e.g., 18 U.S.C. § 1589, punishing forced labor by force, threat of force, or abuse of law.




Matter of Gertsenshteyn, 24 I. & N. Dec. 111 (BIA 2007) (federal conviction of conspiracy to entice interstate travel to engage in prostitution, in violation of 18 U.S.C. 2422(a), constituted aggravated felony under INA 101(a)(43)(K)(ii), 8 U.S.C. 1101(a)(43)(K)(ii) (2000), where offense was committed for "commercial advantage" since it was evident from the record of proceeding, including the respondents testimony, that he knew that his employment activity was designed to create a profit for the prostitution business for which he worked, based on records outside the record of conviction and even though "commercial advantage" is not an element of the offense and the evidence relating to that issue is not ordinarily likely to be found in the record of conviction).

NOTE: Although the BIA limited its holding to the prostitution aggravated felony category this decision is very dangerous. An "extra element" analysis has been accepted by some circuits to allow the courts, when required, to look at information in the record of conviction beyond that required by the statute to convict, see, e.g., Singh v. Ashcroft, 383 F.3d 144 (3d Cir. Sept. 17, 2004) (sexual abuse of a minor category of aggravated felony does not require "extra element" anlaysis, and therefore, Delaware conviction of unlawful sexual contact in the third degree under Del. C. 767, penalizing "sexual contact with another person [with knowledge]," does not constitute sexual abuse of a minor because the elements of that statute do not require that the offense be committed against a minor.). However, the BIA decision here goes much further to hold that "where Congress has defined an aggravated felony to include a component (e.g., "commercial advantage") that is neither an element of the underlying offense nor a basis for a sentence enhancement, and thus would not normally be alleged in a criminal charging instrument, it would defeat the statute to require the application of the categorical (or modified categorical) approach, in which only the statute itself and the limited materials constituting the record of conviction may be consulted." Matter of Gertsenshteyn, 24 I. & N. Dec. at 114.

Thus, apparently any information may be submitted to the IJ to determine whether the "extra element" has been met, including unincorporated police reports, admissions of the respondent before the IJ, testimony of disgruntled ex-spouses, etc. The BIA equated this record-of-conviction-free analysis to the determination of whether an offense is a "particularly serious crime" for asylum and withholding purposes, and found that, "[a]lthough some burden to the system may result from the inapplicability of the categorical approach in this instance, we believe such burden to be minor." Id. at 116. This case appears to be an attempt to adopt (and expand) the First Circuits decision in Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (defining "modified categorical" analysis to be an examination of the record of conviction beyond the second step of the Taylor/Shepard categorical analysis; rather than being limited to looking to the record of conviction to determine the elements of the crime to which the noncitizen admitted or was found guilty of committing, immigration authorities may look to any facts in the record of conviction to determine nature of the conviction, including those facts to which the noncitizen did not admit or was not found guilty). Compare Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004) (describing "modified categorical" as synonymous with second step of Taylor/Shepard categorical analysis); Larin-Ulloa v. Gonzales, __ F.3d __, 2006 WL 2441387 (5th Cir. Aug. 24, 2006) (same); Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004) (extending beyond Taylor/Shepard statutory elements analysis only when the ground of removal at issues requires "extra element" analysis, but remaining with the confines of the record of conviction).

This decision could have very dangerous implications for other grounds of removal, particularly aggravated felony fraud, sexual abuse of a minor, and the domestic violence ground of removal.

Second Circuit

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).
Prus v. Holder, 660 F.3d 144 (2d Cir. Sept. 28, 2011) (per curiam) (prostitution in INA 101(a)(43)(K)(i) refers to promiscuous sexual intercourse for hire.); deferring to Matter of Gonzales"Zoquiapan, 24 I & N Dec. 549, 553 (BIA 2008) (prostitution in INA 212(a)(2)(D), which relates to the inadmissibility of aliens entering the United States to engage in prostitution, means promiscuous sexual intercourse for hire. 22 C.F.R. 40.24(b).).
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

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).
Rosario v. Holder, ___F.3d ___, 2011 WL 3715279 (7th Cir. Aug. 24, 2011) (The INA requires that the offense relate 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) (emphasis added). Those terms are not defined in the INA, and so we give them their plain, ordinary meaning. Smith v. United States, 508 U.S. 223, 228, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) ( When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning. ) (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)). In ordinary usage, to own something is to have or hold as property or appurtenance. Webster's Third New International Dictionary 1612 (1993). To control a thing is to exercise restraint or direction over; dominate, regulate, or command. Webster's College Dictionary 297 (1991); see also Webster's New Collegiate Dictionary 285 (9th ed.1983) (defining control as the power or authority to guide or manage). To manage is to control and direct, Webster's Third New International Dictionary 1372 (1993), and to supervise is to oversee with the powers of direction and decision, id. at 2296; see also Webster's New World Dictionary, 1430 (2d ed.1974) (supervise [means] to oversee, direct, or manage ...). The inclusion of these terms as plainly understood requires that the underlying offense not simply stand in some relation to or have bearing or concern with prostitution or a prostitution business, but that the actual statute of conviction stand in some relation to or have bearing or concern with some degree of decision-making authority or position of power in a prostitution business.).


Section 101(a)(43)(I) of the Act defines as an aggravated felony an offense described in section 2251, 2251A, or 2252 of title 18, United States Code (relating to child pornography). However, the statute does not expressly list 18 USC 2252A " knowingly possess child pornography. In their current forms, the possession provisions of 2252 and 2252A are almost identical, but 2252A applies to a greater amount of material because the term "child pornography" therein applies to both actual and virtual child pornography. Additionally, section 2252A prohibits "knowingly possess[ing] . . . any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography." On the other hand, the preceding section 2252 prohibits "knowingly possess[ing] ... 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction," the production of which involved "the use of a minor engaging in sexually explicit conduct." Thanks to Raymond Reza Bolourtchi