Rohit v. Holder, 670 F.3d 1085 (9th Cir. Feb. 29, 2012) (California misdemeanor conviction of disorderly conduct [soliciting an act of prostitution], in violation of Penal Code 647(b), categorically constitutes a crime involving moral turpitude, whether or not the defendant is the prostitute or the customer: We hold that soliciting an act of prostitution is not significantly less base, vile, and depraved than engaging in an act of prostitution.).

In Rohit v. Holder, 670 F.3d 1085 (9th Cir. Feb. 29, 2012), the court held that a California misdemeanor conviction of disorderly conduct"soliciting an act of prostitution, in violation of Penal Code 647(b), categorically constitutes a crime involving moral turpitude, whether or not the defendant is the prostitute or the customer. It stated: We hold that soliciting an act of prostitution is not significantly less base, vile, and depraved than engaging in an act of prostitution. (Id. at 1089.)

The court reasoned that a crime that does not involve moral turpitude does not become a crime involving moral turpitude through repetition. (Id. at 1090; see Matter of Short, 20 I. & N. Dec. 136, 139 (BIA 1989) (Moral turpitude cannot be viewed to arise from some undefined synergism by which two offenses are combined to create a crime involving moral turpitude, where each crime individually does not involve moral turpitude.).)

The court rejected an argument that solicitation of prostitution is not analogous to prostitution because prostitution often involves repeated acts. The court felt it owed Chevron deference to the Board's decision in Matter of W, where the BIA held that an ordinance that criminalized a single act of prostitution dealt with a crime involving moral turpitude. 4 I. & N. Dec. at 401-02, 404. Rohit offers no authority for the proposition that acts of prostitution are only morally turpitudinous if repeated. If a single act of prostitution involves moral turpitude, there is no reason why a single act of solicitation of prostitution does not. Id. at 1090.

Unfortunately, this decision implies that customers, as well as prostitutes, commit a crime of moral turpitude by soliciting an act of prostitution under this statute. The California courts stated: Thus, the ordinary meaning of the statute [Penal Code 647(b)] is that all persons, customers as well as prostitutes, who solicit an act of prostitution are guilty of disorderly conduct. (Leffel v. Municipal Court 54 Cal.App.3d 569, 575, 126 Cal.Rptr. 773, 777 (1976.)

A better analysis would be by analogy to controlled substances: using and selling are both illegal but being a consumer is not a CIMT while being in the business of selling is. Counsel could have argued that this case should not apply to a customer, depending on the facts which are not made clear by the decision. The Board cases cited by the court do not say that merely being a customer one-on-one is a CIMT. Matter of Lambert is basically about renting out rooms for prostitution"i.e. running & profiting from a whorehouse, not merely being a john. Just because prostitution is assumed to be wrong doesnt make being in the business of prostitution and patronizing a prostitute the same. Under the Courts logic, since drug trafficking is immoral, a person who buys a controlled substance is participating in an act of trafficking, since the base act is the result of the base request or offer. Rohit slip op at 2265. Thanks to Jonathan Moore.

Appellate counsel may not have argued either the difference between prostitutes and customers, or addressed the congressional intent/statutory interpretation issue, or overbreadth.

Congress has specifically chosen to treat prostitution, and the procurement of prostitutes, separately from crimes involving moral turpitude. Compare INA 212(a)(2)(A), with INA 212(a)(2)(D). Commission of a single crime involving moral turpitude renders a noncitizen permanently inadmissible, and in order to qualify for a waiver of inadmissibility the noncitizen must establish extreme hardship to a spouse, parent, or child. INA 212(a)(2)(A)(i)(I), 212(h)(1)(B). However, a person who has committed prostitution, or procurement of prostitutes, is only inadmissible for a period of ten years. INA 212(a)(2)(D). Additionally, such a person is eligible to seek a waiver, under INA 212(h)(1)(A), and need only show rehabilitation. If prostitution, or procuring a prostitute were crimes involving moral turpitude, the ten-year statute of limitations in INA 212(a)(2)(D) would be meaningless. The provisions allowing persons inadmissible under INA 212(a)(2)(D) to obtain a waiver under INA 212(h) without showing hardship would likewise be meaningless. The rules of statutory construction demand, however, that meaning be given to every portion of a statute. Flores-Figueroa v. United States, 129 S.Ct. 1886 (May 4, 2009) ("We should not interpret a statute in a manner that makes some of its language superfluous."). Therefore, the only way to read the statute is to treat prostitution, and the procurement of prostitutes, as acts separate from crimes involving moral turpitude. There is no justifiable basis in the law for treating a person who procures a prostitute less harshly than a person who merely solicits.

Additionally, even if soliciting a prostitute, as traditionally understood, constitutes a crime involving moral turpitude, a first conviction does not meet that definition. California Penal Code 647(b) is a divisible statute that reaches both the prostitutes themselves as well as persons seeking to hire a prostitute. It may not be clear from the record of conviction which of the two offenses the defendant was found guilty of. The records from the California case show only that the defendant was charged under the statutory language of Penal Code 647(b), and entered a plea of no contest to that same statute.

California Penal Code 647(b) also punishes conduct that is not considered prostitution. While the INA does not specifically define prostitution, the Ninth Circuit has observed that the Department of State has defined the term for immigration purposes as engaging in promiscuous sexual intercourse for hire. 22 C.F.R. 40.24(b). The court found this regulation to be a reasonable interpretation of the statute. Kepilino v. Gonzales, 454 F.3d 1057, 1061 n.2 (9th Cir. 2006). California Penal Code 674(b), however, includes engaging in any lewd act, whether it be sexual intercourse or any other contact that might include a lap-dance or massage. Wooten v. Superior Court, 93 Cal.App.4th 422, 427 (2001). If the record of conviction does not show intercourse, the minimum conduct necessary to violate California Penal Code 647(b) appears to include offering to pay another person for an erotic massage, so the conviction cannot be considered a crime involving moral turpitude. See Hamdan v. INS, 98 F.3d 183, 187 (5th Cir. 1996) (if a statute encompasses both acts that do and do not involve moral turpitude, the BIA cannot sustain a deportability finding on that statute). Thanks to Joseph Justin Rollin.