Prus v. Holder, No. 10-599 (2d Cir. 2011)
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Petitioner was convicted in New York for promoting prostitution in the third degree and subsequently sought review of the BIA's order declining to reconsider whether she had been convicted of an aggravated felony and dismissing her appeal from an order of removal. Petitioner argued that her offense did not constitute an aggravated felony because New York law defined "prostitution" more broadly than federal law did for the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43)(K)(i). The court held that because N.Y. Penal Law 230.25(1) punished conduct that did not involve a "prostitution business" as the term prostitution was used in the INA, petitioner's conviction did not constitute an aggravated felony. Thus, the BIA erred in finding petitioner removable. The court also held that because petitioner was not removable, the court need not address her challenge to the agency's denial of her application for asylum, withholding of removal, and CAT relief.
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10-599-ag Prus v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: September 13, 2011 Decided: September 28, 2011) Docket No. 10-599-ag OKSANA NIKOLAYEVNA PRUS, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. Before: CALABRESI, WESLEY, and LYNCH, Circuit Judges. Petition for review of a Board of Immigration Appeals order, which declined to reconsider its previous decision that Petitioner had been convicted of an aggravated felony. The order dismissed Petitioner s appeal from an Immigration Judge s order of removal, which denied Petitioner s application for asylum, withholding of removal, and relief under the Convention Against Torture. We hold that the Petitioner s New York state offense of promoting prostitution in the third degree did not constitute an aggravated felony, and thus, Petitioner is not removable. Petition GRANTED. ANNE E. DOEBLER, Buffalo, NY, for Petitioner. 1 2 3 4 5 6 7 8 9 10 11 12 13 JEFFREY BERNSTEIN, Attorney, U.S. Department of Justice, Civil Division (Tony West, Assistant Attorney General, Civil Division, Richard M. Evans, Assistant Director, Allen W. Hausman, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), for Eric H. Holder, Jr., United States Attorney General, Washington, D.C., for Respondent. PER CURIAM: Petitioner Oksana Nikolayevna Prus was convicted in New 14 York for promoting prostitution in the third degree. The 15 Board of Immigration Appeals ( BIA ) found her removable, 16 concluding that her offense constituted an aggravated felony 17 under the Immigration and Nationality Act ( INA ) 18 § 101(a)(43)(K)(i), 8 U.S.C. § 1101(a)(43)(K)(i). 19 seeks review of the BIA s order declining to reconsider 20 whether she had been convicted of an aggravated felony and 21 dismissing her appeal from an order of removal. 22 that her offense does not constitute an aggravated felony 23 because New York law defines prostitution more broadly 24 than federal law does for the INA. 25 the BIA erred in finding that Prus s offense was an 26 aggravated felony. 27 review. 28 BIA to terminate Prus s removal proceedings. Prus Prus argues We agree and hold that Accordingly, we grant the petition for We vacate the order of removal and remand to the 2 1 2 Background Prus, a native of Ukraine, entered the United States in 3 May 1995 as a derivative refugee. In June 1996, she 4 adjusted her status from refugee to lawful permanent 5 resident. 6 prostitution in the third degree, in violation of New York 7 Penal Law §§ 20.00 and 230.25. 8 served with a Notice to Appear charging her as removable 9 under INA § 237(a)(2)(A)(iii) for having been convicted of In June 2007, she was convicted of promoting In November 2007, Prus was 10 an aggravated felony under INA § 101(a)(43)(K)(i). 11 In her removal proceedings, Prus admitted her 12 conviction but contested removability. 13 New York conviction for promoting prostitution was not an 14 aggravated felony under INA § 101(a)(43)(K)(i). 15 Immigration Judge ( IJ ) agreed. 16 conviction did not constitute an aggravated felony because 17 New York s definition of prostitution is broader than the 18 the INA s applicable definition, which includes only sexual 19 intercourse for hire. 20 removal proceedings. 21 22 She argued that the The The IJ held that Prus s The IJ, therefore, terminated Prus s The government appealed, and in a June 23, 2009 order, the BIA vacated the IJ s decision. 3 In re Oksana Nikolayevna 1 Prus, No. A071 310 449 (B.I.A. June 23, 2009), vacating No. 2 A071 310 449 (Immig. Ct. Buffalo, NY Jan. 3, 2008). 3 found that Prus s conviction constituted an aggravated 4 felony. 5 definition of prostitution encompassed acts that would not 6 constitute prostitution under the federal law, Prus s 7 offense relat[ed] to the owning, controlling, managing or 8 supervising of a prostitution business as described in the 9 [INA]. 10 Id. The BIA The BIA noted that even though New York s Id. On remand, Prus filed an application for asylum, 11 withholding of removal, and relief under the Convention 12 Against Torture ( CAT ). 13 for relief and ordered her removed to Ukraine. 14 that Prus was ineligible for asylum because she had been 15 convicted of an aggravated felony and that she did not meet 16 her burden of proof to establish eligibility for withholding 17 of removal or CAT relief. The IJ denied Prus s application The IJ found 18 On January 22, 2010, the BIA dismissed Prus s appeal, 19 declining to reconsider its previous holding that Prus had 20 been convicted of an aggravated felony. 21 Nikolayevna Prus, No. A071 310 449 (B.I.A. Jan. 22, 2010), 22 aff g No. A071 310 449 (Immig. Ct. Buffalo, NY Sept. 28, 4 In re Oksana 1 2009). The BIA also agreed with the IJ that Prus was 2 ineligible for asylum and that she did not establish her 3 eligibility for withholding of removal or relief under the 4 CAT. 5 decision. Id. Prus now petitions this Court to review the BIA s 6 Discussion 7 Prus challenges the BIA s finding that her New York 8 conviction for promoting prostitution in the third degree 9 constitutes an aggravated felony under INA 10 § 101(a)(43)(K)(i).1 11 consider a petition for review filed by an alien who is 12 removable due to commission of an aggravated felony, but we 13 retain jurisdiction to review whether an alien has, as a 14 matter of law, committed such an aggravated felony. 15 Kamagate v. Ashcroft, 385 F.3d 144, 149 (2d Cir. 2004). 16 We review the BIA s determination that a state Federal courts lack jurisdiction to 17 conviction constitutes an aggravated felony de novo, 18 Richards v. Ashcroft, 400 F.3d 125, 127 (2d Cir. 2005), and 19 employ the categorical approach to determine whether the 20 crime for which Prus was convicted constitutes an aggravated 1 INA § 101(a)(43)(K)(i) provides that an aggravated felony includes an offense that relates to the owning, controlling, managing or supervising of a prostitution business. 5 1 felony.2 2 of an individual petitioner s crimes should not be 3 considered, and only the minimum criminal conduct necessary 4 to sustain a conviction under a given statute is relevant. 5 Blake v. Gonzales, 481 F.3d 152, 156 (2d Cir. 2007) 6 (internal quotation marks and alteration omitted). 7 criminal statute punishes conduct that falls outside the 8 INA s definition, then the crime does not constitute an 9 aggravated felony. Under this approach, the singular circumstances If the Richards, 400 F.3d at 128. 10 Congress did not define prostitution in the INA. 11 Attorney General, however, has for a different provision of 12 the INA defined the term as engaging in promiscuous sexual 13 intercourse for hire. 14 Gonzales-Zoquiapan, 24 I&N Dec. 549, 553 (BIA 2008), the BIA 15 employed that definition to interpret INA § 212(a)(2)(D), 16 which relates to the inadmissibility of aliens entering the 17 United States to engage in prostitution. 22 C.F.R. § 40.24(b). 2 The In Matter of Because the term We reserve opinion on whether the state statute under which Prus was convicted New York Penal Law § 230.25(1) is a divisible or non-divisible statute, and, in turn, whether it requires analysis under the categorical or modified categorical approach. See Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 88 89 (2d Cir. 2009) (per curiam). Because Prus s record of conviction contains no facts beyond recitations of § 230.25(1) in full, the outcome of our analysis would be the same whichever of the two approaches we applied. 6 1 prostitution is undefined in the INA, the BIA s reasonable 2 view of the definition of the term in Matter of Gonzales- 3 Zoquiapan is entitled to Chevron deference. 4 Huang v. Holder, 591 F.3d 124, 129 (2d Cir. 2010). 5 because it is the normal rule of statutory construction 6 that identical words used in different parts of the same act 7 are intended to have the same meaning, the same definition 8 of prostitution should be used to interpret INA 9 § 101(a)(43)(K)(i). See Xia Fan And Theodoropoulos v. INS, 358 F.3d 162, 10 171 (2d Cir. 2004) (quoting Gustafson v. Alloyd Co., 513 11 U.S. 561, 570 (1995)). 12 in INA § 101(a)(43)(K)(i) refers to promiscuous sexual 13 intercourse for hire. 14 Thus we conclude that prostitution Under New York law, a person is guilty of promoting 15 prostitution in the third degree when she knowingly 16 [a]dvances or profits from prostitution by managing, 17 supervising, controlling or owning, either alone or in 18 association with others, a house of prostitution or a 19 prostitution business or enterprise involving prostitution 20 activity by two or more prostitutes. 21 § 230.25(1). 22 prostitution when such person engages or agrees or offers to N.Y. Penal Law In New York, [a] person is guilty of 7 1 engage in sexual conduct with another person in return for a 2 fee. 3 Id. § 230.00. Although sexual conduct is not defined in Article 4 230, the plain language of the statute makes clear that 5 prostitution in New York encompasses accepting payment for 6 sexual acts beyond the sexual intercourse that is the 7 exclusive subject of the immigration-law definition. 8 Conduct is an extremely broad term, defined as the way a 9 person acts, The American Heritage College Dictionary 290 10 (3d ed. 2000); a legislature could not plausibly be 11 understood to have used such a broad term if it meant to 12 refer only to the specific act of sexual intercourse. 13 The New York courts have indeed so interpreted the 14 statute. While New York courts have differed in how they 15 have defined the term, and in where they have looked for aid 16 in interpreting it, they have consistently held, over a 17 nearly 40-year period, that the term encompasses acts other 18 than intercourse. 19 N.Y.S.2d 153, 156-58 (Cnty. Ct. 1972), the court looked to 20 the definitions of sexual conduct in New York Penal Law 21 Articles 235 and 245 (respectively defining the crimes of 22 obscenity and public lewdness) and held that sexual For example, in People v. Block, 337 8 1 conduct for purposes of the definition of prostitution 2 included physical conduct with a person s clothed or 3 unclothed genitals or pubic area. 3 4 court s reliance on definitions from other articles of the 5 criminal code, the court in People v. Costello, 395 N.Y.S.2d 6 139, 141 (Sup. Ct. 1977), reasoned that Article 230 7 prohibit[ed] the commercial exploitation of sexual 8 gratification, and relied on a common understanding of the 9 term prostitution to include sexual intercourse, deviate Rejecting the Block 10 sexual intercourse, and masturbation within the 11 definition.4 12 encompass acts such as lap dancing in which the dancer's 13 naked body is touched. 14 440, 442 (Crim. Ct. 1998). 15 consensus of these cases that in using the term sexual 16 conduct, the legislature opted for an elastic concept 17 which encompassed traditional forms of prostitution but More recently, the term has been held to People v. Hinzmann, 677 N.Y.S.2d Yet another court expressed the 3 In addition to these definitions, a slightly different, but also expansive, definition of sexual conduct appears in New York Penal Law Article 130, which defines the term for purposes of the crimes of sexual assault and abuse. 4 See also People v. Tribble, N.Y.L.J., Sept. 29, 1992, at 22, col. 3 (Crim. Ct.); People v. Fink, N.Y.L.J., May 22, 1992, at 23, col. 4 (Crim. Ct.); People v. Kovner, 409 N.Y.S.2d 349, 416 n.* (Sup. Ct. 1978). 9 1 could also adapt to new methods of selling the arousal of 2 sexual desire. 3 (Crim. Ct. 1999). 4 limits the meaning of prostitution under New York law to 5 the selling of sexual intercourse, as it is defined for 6 purposes of federal immigration law. 7 People v. Medina, 685 N.Y.S.2d 599, 601 We have identified no New York case that In sum, whatever uncertainty may exist about the 8 precise contours of the New York definition of 9 prostitution, it is evident that the law encompasses a 10 broader range of sexual activity than the sexual 11 intercourse that is the sole subject of the definition 12 applicable in the immigration context. 13 evident that the BIA acknowledged that the Immigration 14 Judge was correct in noting that the term prostitution 15 under New York law encompassed acts that fall outside the 16 federal definition of that term. 17 Prus, No. A071 310 449 (B.I.A. June 23, 2009) (emphasis 18 added). 19 Indeed, it is so In re Oksana Nikolayevna Nevertheless, the BIA found that Prus s conviction 20 constituted an aggravated felony under INA 21 § 101(a)(43)(K)(i) because the state statute includes 22 conduct that relates to the owning, controlling, managing 10 1 or supervising of a prostitution business. 2 INA § 101(a)(43)(K)(i)). 3 the similarity of the language of the state and federal 4 statutes, finding that the New York statute similarly 5 requires that the perpetrator of the crime be managing, 6 supervising, controlling, or owning the house of 7 prostitution. 8 9 Id. Id. (quoting The BIA premised its decision on This was error. The plain language of INA § 101(a)(43)(K)(i) limits the statute s reach to crimes associated with prostitution, not 10 crimes associated with other proscribed conduct. See 11 Mizrahi v. Gonzales, 492 F.3d 156, 158 59 (2d Cir. 2007). 12 Thus, while the term relates to indicates that a broad 13 array of crimes are encompassed in § 101(a)(43)(K)(i) s 14 ambit, the provision only encompasses crimes involving 15 conduct meeting the relevant definition of prostitution not 16 something merely like prostitution. 17 explained that the phrase relating to is deemed 18 synonymous to in connection with, associated with, with 19 respect to, and with reference to. 20 at 154. 21 forged instrument with the intent to deceive, defraud, or 22 injure was a crime relating to counterfeiting because the We have previously Kamagate, 385 F.3d In Kamagate, we concluded that possession of a 11 1 criminalization of possession discouraged the underlying 2 crime of counterfeiting. 3 interpretation, the term relates to in § 101(a)(43)(K)(i) 4 does not bring within the provision s sweep the management 5 of conduct that is like, but is not, prostitution. 6 phrase relates to modifies owning, controlling, managing 7 or supervising ; it does not modify the definition of the 8 underlying crime.5 9 Id. at 155. Contrary to the BIA s The Accordingly, because N.Y. Penal Law § 230.25(1) 10 punishes conduct that does not involve a prostitution 11 business as the term prostitution is used in the INA, 12 Prus s conviction does not constitute an aggravated felony. 13 See Richards, 400 F.3d at 128. 14 finding Prus removable. 15 need not address her challenge to the agency s denial of her 16 application for asylum, withholding of removal, and CAT 17 relief. Thus, the BIA erred in Because Prus is not removable, we 5 While this is a case of first impression in this Circuit, the Ninth Circuit addressed the exact issue here in Depasquale v. Gonzales, 196 F. App x 580 (9th Cir. 2006). The Ninth Circuit held that a conviction under a Hawaii statute for promoting prostitution in the second degree did not constitute an aggravated felony under INA § 101(a)(43)(K) because, notwithstanding the relates to language in that provision, the definition of prostitution in Hawaii s statutes encompasses conduct broader than any federal definition of prostitution. Depasquale, 196 F. App x at 581 82. 12 1 2 Conclusion For the foregoing reasons, the petition for review is 3 GRANTED. The order of removal is VACATED, and the case is 4 REMANDED to the BIA with directions to terminate 5 Petitioner s removal proceedings. 6 stay of removal in this petition is DISMISSED as moot. 13 The pending motion for a
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