Introduction: Matter of W-, 4 I&N Dec. 401 (C.O. 1951)

On June 1, 1951, the former Immigration and Naturalization Service (INS) Central Office (C.O.) published a precedent decision in the Matter of W-, 4 I&N Dec. 401 (C.O. 1951) [PDF version]. The Board held that violation of a city ordinance relating to prostitution was a crime involving moral turpitude. The decision was the first to recognize that engaging in prostitution is categorically a crime involving moral turpitude. Despite the age of the decision, it has been recognized by both the Board and several Federal circuit courts as remaining good law in recent decisions. In this article, we will examine Matter of W- itself and its citation history in more recent decisions.

Factual and Procedural History: 4 I&N Dec. 401, 401-02

The appellant, a native and citizen of Canada, was admitted to the United States for lawful permanent residence on December 14, 1948. On September 23, 1949, the appellant pled guilty to violating a Seattle city ordinance prohibiting practicing prostitution. The ordinance provided that: “It shall be unlawful to commit or offer or agree to commit any act of prostitution, assignation, or any other lewd or indecent act.” Violation of the ordinance was punishment by a term of imprisonment not in excess of 90 days, by a fine not in excess of $300, or both. The appellant was sentence to pay a fine of $100.

On September 29, 1949, the INS instituted deportation proceedings against the respondent on the basis that she had been found practicing prostitution after her entry. The respondent was granted voluntary departure, and she left the United States in compliance with her grant of voluntary departure on October 4, 1949. The respondent subsequently applied for admission into the United States as a lawful permanent resident. She was held for examination before what was then known as a board of special inquiry. On June 27, 1950, the board of special inquiry found the respondent inadmissible on the basis that her conviction for violating the Seattle city ordinance against prostitution was a crime involving moral turpitude.

The respondent appealed from the board of special inquiry decision to the Central Office.

Central Office Concludes That Practicing Prostitution Is a Crime Involving Moral Turpitude: 4 I&N Dec, 401, 402

The Central Office stated that “[i]t is well established that the crime of practicing prostitution involves moral turpitude.” It noted that the Board of Immigration Appeals (BIA) had held that the crime of keeping a house of ill-fame for prostitution purposes was a crime involving moral turpitude. Matter of P-, 3 I&N Dec. 20 (BIA 1947) [PDF version]. Matter of W- stands as the first precedent where the conviction at issue expressly involved practicing prostitution, and the Central Office had no difficulty finding that it involved moral turpitude.

Separate Issue — Central Office Concludes That Conviction Was For a Crime or Misdemeanor: 4 I&N Dec. 401, 402-04

The statute at issue in Matter of P- was not the Washington state penal code, which also covered practicing prostitution , but rather a Seattle city ordinance. Accordingly, “[t]he question therefore presented in this case is whether the offense committed by appellant for which she was convicted is a felony or other crime or misdemeanor in contemplation of the Immigration Act of February 5, 1917.” (The pertinent provision at issue in the case derived from the Immigration Act of February 5, 1917, the Immigration and Nationality Act (INA) would not take effect until 1952).

The Central Office discussed prior precedents in which it had found ordinances that did and did not constitute crimes (see the decision PDF). In the instant case, the Central Office found no evidence that courts had ever held that a violation of an ordinance of Seattle was not a crime. Furthermore, Seattle had the power under the applicable law “to provide for the arrest, trial, and punishment of all persons charged with violating any of the ordinances of [the] city…” The Central Office also found no conflict in the fact that prostitution was also criminalized under Washington State law. Distinguishing it from cases where it had been held in precedent that violation of an ordinance was not a crime or misdemeanor, the Central Office held that “[s]ince the city ordinance was a valid exercise of the police power of the city of Seattle and the act committed by the appellant was forbidden by law and punishable upon conviction by imprisonment, fine, or both, it must be concluded that the violation of the city ordinance involved is a felony or other crime or misdemeanor within the contemplation of the Immigration Act of February 5, 1917.

Subsequent Citations on Prostitution Being a Crime Involving Moral Turpitude

In 2018, the BIA cited to Matter of W- for the proposition that “[p]rostitution is unquestionably a crime involving moral turpitude under the immigration laws.” Matter of Ortega-Lopez, 27 I&N Dec. 382, 390-91 (BIA 2018) [PDF version] [see article]. Before citing to Matter of W-, the Board made clear that its position on the issue has not changed: “[C]onduct such as prostitution … is so contrary to the standards of a civilized society as to be morally reprehensible. … The minimum conduct covered by such crimes generally relates to sexual acts committed by consenting adults. We recognize these crimes as morally reprehensible, not on account of the presence of harm or the need to protect a vulnerable segment of society, but because of the socially degrading nature of commercialized sexual services and incestuous sexual relations.”

In 2012, the United States Court of Appeals for the Ninth Circuit held that the Board’s conclusion in Matter of W- that a single act of prostitution constitutes a crime involving moral turpitude was entitled to administrative deference. Rohit v. Holder, 670 F.3d 1085, 1090 (9th Cir. 2012) [PDF version]. After deferring to the precedent in Matter of W-, the Ninth Circuit agreed with the Government that this principle naturally extended to solicitation of prostitution as also constituting a crime involving moral turpitude. Id. at 1090.

In 2016, the United States Court of Appeals for the Sixth Circuit held that Matter of W- was entitled to administrative deference to the extent that it held that the act of prostitution itself is a crime involving moral turpitude. Reyes v. Lynch, 835 F.3d 556, 560 (6th Cir. 2016) [PDF version]. The Sixth Circuit came to this conclusion despite the fact that Matter of W- was “several decades old” and “that there is now increased attention to the question of whether and to what extent prostitution should be criminalized.” Id. at 561.

In an unpublished decision, the United States Court of Appeals for the Tenth Circuit recognized Matter of W- among a list of precedent decisions recognizing that “prostitution-related crimes are morally turpitudinous.” Florentino-Francisco v. Lynch, 611 Fed.Appx. 936, 938 (10th Cir. 2015) [PDF version].

Conclusion

Prostitution is now explicitly addressed in several provisions of the INA. For example, section 212(a)(2)(D) renders aliens inadmissible for certain prostitution related offenses, including engaging in prostitution. Certain offenses relating to overseeing prostitution businesses and transportation for purpose of prostitution are deemed aggravated felonies under section 101(a)(43)(K). Engaging in acts of prostitution may also trigger a conditional bar to good moral character under section 101(f)(3) of the INA.

Notwithstanding changes to the INA, however, the Board continues to view engaging in prostitution, as well as other prostitution-related offenses, as crimes involving moral turpitude. As we have seen, the Ninth and Tenth Circuits have, in precedential decisions, deferred to Matter of W- and extended its logic to solicitation of prostitution. In general, it is worth noting that willful involvement in prostitution — as opposed to being a victim of trafficking or coercion — may carry significant immigration ramifications.