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.